Segregation of Roma Children in Education : Addressing Structural Discrimination Trough the Framework Convention for the Protection of National Minorities and the Racial Equality Directive 2000/43/EC [1 ed.] 9789004354210, 9789004354197

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Segregation of Roma Children in Education

Segregation of Roma Children in Education Addressing Structural Discrimination through the Framework Convention for the Protection of National Minorities and the Racial Equality Directive 2000/43/EC

By

Sina Van den Bogaert

leiden | boston

Library of Congress Cataloging-in-Publication Data Names: Van den Bogaert, Sina, author. Title: Segregation of Roma children in education : addressing structural discrimination through the Framework Convention for the Protection of National Minorities and the Racial Equality Directive 2000/43/ec / by Sina van den Bogaert. Description: Leiden ; Boston : Brill Nijhoff, 2019. | Based on author's thesis (doctoral - Johann Wolfgang Goethe-University, 2017). | Includes bibliographical references. Identifiers: LCCN 2018043309 | ISBN 9789004354197 (hardback : alk. paper) Subjects: LCSH: Romanies--Education--Law and legislation--Europe. | Discrimination in education--Law and legislation--Europe. | Right to education--Europe. | Framework Convention for the Protection of National Minorities (1995 February 1) | Council of the European Union. Council directive 2000/43/EC. Classification: LCC KJC5210 .V36 2019 | DDC 344.24/0798--dc23 LC record available at https://lccn.loc.gov/2018043309

Typeface for the Latin, Greek, and Cyrillic scripts: “Brill”. See and download: brill.com/brill-typeface. ISBN 978-90-04-35419-7 (hardback) ISBN 978-90-04-35421-0 (e-book) Copyright 2019 by Koninklijke Brill NV, Leiden, The Netherlands. Koninklijke Brill NV incorporates the imprints Brill, Brill Hes & De Graaf, Brill Nijhoff, Brill Rodopi, Brill Sense, Hotei Publishing, mentis Verlag, Verlag Ferdinand Schöningh and Wilhelm Fink Verlag. All rights reserved. No part of this publication may be reproduced, translated, stored in a retrieval system, or transmitted in any form or by any means, electronic, mechanical, photocopying, recording or otherwise, without prior written permission from the publisher. Authorization to photocopy items for internal or personal use is granted by Koninklijke Brill NV provided that the appropriate fees are paid directly to The Copyright Clearance Center, 222 Rosewood Drive, Suite 910, Danvers, MA 01923, USA. Fees are subject to change. This book is printed on acid-free paper and produced in a sustainable manner.

The test of a civilization is in the way that it cares for its helpless members. Pearl S. Buck , My Several Worlds, 1954

∵

Contents Acknowledgments  xiii Abbreviations  xiv Table of Cases  xvi Introduction  1 1

The Roma  7 1 Introduction  7 2 Who Are the Roma? Homeland, Migration, Nomadism and Self-Designation  7 3 The Roma – A Minority with its Own Specific Features  19 4 Conclusions under Chapter 1  29

2

Education as a Key to Inclusion and as an Indispensable Means of Realizing other Human Rights  30 1 Introduction  30 2 Problems Faced by Roma Children in Education  31 3 The Importance of Education: Education as a Means of Integration and Effective Participation in Society  48 4 Challenging the ‘Separate but Equal’ Doctrine by Challenging Segregation in Education: Education as a Backbone for Integration in the United States  57 5 International and Regional Standards of International Law Applicable in Cases of Segregation in Education  63 6 Synergies between the Human Rights and Economic Efficiency Agendas  77 7 Conclusions under Chapter 2  82

3

A Critical Stance towards the Human Rights and Minority Rights Approach in the Case of the Roma  84 1 Introduction  84 2 Human Rights, Minority Rights and Non-Discrimination Rights  86 3 Excursus: Disparities in the Attitude towards the Roma in Eastern and Western Europe  91 4 Different Conceptions of Romani Identity: A Sceptical Appraisal of the Minority Rights Discourse from a Sociological Perspective  95

viii

Contents

5 6 7

The Minority Rights Discourse and the Paradox of Identity Politics  102 Strategies for Making the Minority Rights Discourse Work  105 Conclusions under Chapter 3  113

4

An Introduction to the Framework Convention for the Protection of National Minorities and to the Racial Equality Directive — The Place and Role of the FCNM and the Racial Equality Directive in the Labyrinth of International Standards  115 1 Introduction  115 2 An Introduction to the Framework Convention for the Protection of National Minorities  116 3 The FCNM as an Integral Part of International Human Rights Instruments  126 4 Evaluating ‘Added Value’ as a Criterion for Success  129 5 An Introduction to the Racial Equality Directive  131 6 The Racial Equality Directive in the Light of International Non-Discrimination Standards  144 7 Conclusions under Chapter 4  145

5

The Roma as a National Minority in the Light of the Framework Convention for the Protection of National Minorities  146 1 Introduction  146 2 Do the Roma Fall into the Personal Scope of Application of the FCNM?  146 3 Declarations are Objectable  191 4 Recent Developments regarding Albania  192 5 Conclusions under Chapter 5  193

6

The Roma as a Dual Racial and Ethnic Minority in the Light of the Racial Equality Directive  195 1 Introduction  195 2 Do the Roma Fall within the Personal Scope of Application of the Racial Equality Directive?  196 3 Conclusions under Chapter 6  206

7

The Right to Education under the Framework Convention for the Protection of National Minorities: Theoretical Framework  208 1 Introduction  208 2 A Wide Understanding of the Notion of Education under the FCNM  208

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Contents

3 4 5

An Analysis of the Relevant Provisions of the FCNM  210 Thematic Commentary on Education  241 Conclusions under Chapter 7  245

8

The Material Scope of the Racial Equality Directive in the Field of Education and the Concept of Discrimination under the Racial Equality Directive  247 1 Introduction  247 2 The Material Scope of the Racial Equality Directive: The Forms of Education Covered by the Racial Equality Directive  247 3 The Meaning of Discrimination under the Racial Equality Directive  249 4 Conclusions under Chapter 8  261

9

The Framework Convention for the Protection of National Minorities and the Racial Equality Directive as a Point of Reference for the ECtHR: the Cases d.h. and Others v. Czech Republic, Sampanis and Others v. Greece, Oršuš and Others v. Croatia, Horvath and Kiss v. Hungary and Lavida and Others v. Greece  263 1 Introduction  263 2 On the Relation between the FCNM and the ECHR  264 3 On the Relation between the Racial Equality Directive and ECtHR Jurisprudence  268 4 An Analysis of the ECtHR Jurisprudence on the Segregation of Roma Children in Education: the Ostrava case, the Sampanis case, the Oršuš case, the Horvath and Kiss case, and the Lavida case  271 5 Differences in the CJEU Case Law Compared to the ECtHR Jurisprudence related to Objective Justification in Discrimination Cases  325 6 The Potential of Both the ECtHR and the CJEU Jurisprudence in the Fight against Structural Discrimination of the Roma in Education  329 7 Conclusions under Chapter 9  331

10

Case Study  333 1 Introduction  333 2 Case Study on the Czech Republic and Germany: Justification for the Choice of States  333 3 Case Study on the Czech Republic  336 4 Case Study on Germany  353

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Contents

5 6

Situation in other EU Member States  363 Conclusions under Chapter 10  365

11

Recent Roma Policy Initiatives at the Council of Europe and at the European Union  367 1 Introduction  367 2 Recent Policy Initiatives at the EU Level: the Platform on Roma Inclusion, the Platform against Poverty and Social Exclusion, and the EU Framework for National Roma Integration Strategies up to 2020  370 3 Recent Policy Initiatives at the Council of Europe since the Strasbourg Declaration  396 4 Cooperation Initiatives between the EU and the Council of Europe in the Field of Roma Rights Protection  407 5 Conclusions under Chapter 11  410

12

The Added Value of the fcnm in the Field of Roma Education  412 1 Introduction  412 2 More than a Fig-Leave Exercise: the FCNM as an All-encompassing Legally Binding Tool in Protecting Roma Educational Rights  412 3 Reach and Scope  427 4 The Added Value of the FCNM versus the Racial Equality Directive  430 5 Conclusions under Chapter 12  434

13

The Added Value of the Racial Equality Directive in the Field of Roma Education  435 1 Introduction  435 2 The Lack of Ethnically Disaggregated Data and Statistics  437 3 Added Value Compared to Other Existing International Human Rights Instruments Due to its Concrete Enforcement Provisions  439 4 The Contribution of the Racial Equality Directive and the EU as a Whole to the Implementation of the FCNM  441 5 Cross-references and Synergies between the FCNM Monitoring System and the Monitoring of the Implementation of the Racial Equality Directive  447 6 Areas Where the Racial Equality Directive Falls Short of Providing Full Protection  452

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Contents

7 8 9

The Need for a Specific Roma Integration Directive?  457 The Racial Equality Directive in the Context of the EU Framework for National Roma Integration Strategies up to 2020  463 Conclusions under Chapter 13  465

14 The FCNM and the Racial Equality Directive as Complementary Instruments: Suggestions for a More Effective Monitoring and Implementation of the FCNM and the Racial Equality Directive in the Field of Roma Education  467 1 Introduction  467 2 FCNM: Suggestions for Improvement  467 3 Racial Equality Directive: Suggestions for Improvement  490 4 An Enhanced Cooperation between the EU and the Council of Europe in the Field of Roma Rights Protection  502 5 Conclusions under Chapter 14  504

Conclusions  507

Bibliography  519 Index  556

Acknowledgments This book is the result of doctoral research conducted at the Catholic University of Leuven from October 2003 until September 2006, and at the Max Planck Institute for Comparative Public Law and International Law in Heidelberg from October 2006 until July 2012.1 The doctoral research was funded by a Deutsche Forschungsgemeinschaft (DFG) scholarship within the framework of the Europäisches Graduiertenkolleg Systemtransformation und Rechtsangleichung im zusammenwachsenden Europa from October 2003 until March 2006. The thesis was completed in July 2012 and defended at the Goethe University, Frankfurt in January 2017. It was updated for publication in January 2018. The author would like to express her profound gratitude to Professor Dr. Dr. Rainer Hofmann, who supervised the doctoral research, for his kind and cordial support, his valuable expertise and input, and his endless patience. I also owe a very special debt to Professor Dr. Dr.h.c. mult Jochen Abraham Frowein, who provided me with valuable insights on the topic of my research during numerous discussions. My sincere thanks go also to Antti Korkeakivi, who headed the Secretariat of the Framework Convention for the Protection of National Minorities in early 2005 when I did my internship there. It was essential to have had the opportunity to learn how the ACFC ‘machinery’ works from the inside and it was great to be a member of such a wonderful team. I am also indebted to Professor Athanasia Spiliopoulou Ǻkermark and Professor Gabriel Toggenburg for many inspiring conversations in Strasbourg and Brussels/Vienna respectively, and to Professor Stefan Kadelbach for his important comments in his Zweitgtuachten on doctoral procedure. I thank all my former colleagues at the Max Planck Institute for stimulating discussions and words of encouragement, with special thanks to my friend Katrin Tiroch for her endless support. Finally, this book would not exist without the continuous support of my husband Piotr, for which I am very grateful. I dedicate it to our children Alina, Emilia and Gabriel, in the hope that they may grow up in a society where diversity is perceived as an asset rather than a threat. 1 Disclaimer: In August 2012 the author joined the European Commission as an official. The views expressed in this book are solely those of the author and do not necessarily reflect the views of the European Commission, nor bind the Commission. The analysis and conclusions presented are the sole responsibility of the author. The author is affiliated to the Catholic University of Leuven as a voluntary Research Fellow (vrijwillig wetenschappelijk medewerker) at the Leuven Centre for Global Governance Studies of which Professor Jan Wouters is the Director.

Abbreviations ACFC CAHMIN CAHROM CDCC CDDH CDL CDPK CERD CJEU COE ECHR ECOSOC ECRI EHRR ESC EU EuGRZ EurCommHR ECHR ECtHR FCNM FRA HRLJ HRC IACHR ICCPR ICESCR ICJ ILO IWGIA NGO NRIS OSCE ROMED SRSG

Advisory Committee to the Framework Convention for the Protection of National Minorities Ad Hoc Committee for the Protection of National Minorities Ad Hoc Committee of Experts on Roma Issues Council for Cultural Co-operation Steering Committee for Human Rights European Commission for Democracy through Law (Venice Commission) Chroniques de droit public Committee on the Elimination of Racial Discrimination Court of Justice of the European Union Council of Europe European Convention on Human Rights and Freedoms UN Economic and Social Council European Commission against Racism and Intolerance European human rights report European Social Charter European Union Europäische Grundrechte Zeitschrift European Commission of Human Rights European Convention of Human Rights European Court of Human Rights Framework Convention for the Protection of National Minorities Fundamental Rights Agency Human Rights Law Journal Human Rights Committee Inter-American Commission on Human Rights International Covenant on Civil and Political Rights International Covenant on Economic, Social and Cultural Rights International Court of Justice International Labor Organization International Working Group for Indigenous Affairs Non-Governmental Organization National Roma Integration Strategies Organization for Security and Co-operation in Europe European Roma Mediators Training Programme Special Representative to the Secretary General on Roma Issues

Abbreviations TEU TFEU UDHR UN UNESCO UNGA ZaöRV

xv Treaty on the European Union Treaty on the Functioning of the European Union Universal Declaration on Human Rights United Nations United Nations Educational, Scientific and Cultural Organization United Nations General Assembly Zeitschrift für ausländisches öffentliches Recht und Völkerrecht

Table of Cases

Court of Justice of the European Union

Case 26/62, NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, 1963, ECR 1. Case C-106/89, Marleasing SA v La Comercial International de Alimentacion SA, 1990, ECR I-4135. Case C-476/99, Lommers v Ministerie van Landbouw, Natuurbeheer en Visserij, 2002, ECR I-2891. Case C-117/01, K.B. v. National Health Service Pensions Agency, Secretary of State for Health, 2004, ECR I-541. Case C-328/04 Vajnai, ECLI:EU:C:2005:596. Case C-424/04, Sarah Margaret Richards v Secretary of State for Work and Pensions, 2006, ECR I-3585. Case C-54/07, Centrum voor gelijkheid van kansen en voor racismebestrijding v. Firma Feryn NV, 2008, ECR I-5187. Case C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others, 2011, ECR I-3787. Case C-415/10 Galina Meister v Speech Design Carrier Systems GmbH, ECLI:EU: C:2012:217. Case C-571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della provincial autonoma di Bolzano (IPES) et al., ECLI:EU:C:2012:233. Case C-394/11, Valeri Hariev Belov v CHEZ Elektro Balgaria AD and others, 2013, ECR I-0000. Case C-201/13, Johan Deckmyn, Vrijheidsfonds VZW v Helena Vandersteen, Christiane Vandersteen, Liliana Vandersteen, Isabelle Vandersteen, Rita Dupont, Amoras II CVOH, WPG Uitgevers België, ECLI:EU:C:2014:2132. Case C-83/14, CHEZ Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, 2015, ECLI:EU:C:2015:480. Case C-668/15, Jyske Finans AS v Ligebehandlingsnaevnet, acting on behalf of Ismar Huskic, ECLI:EU:C:2017:278.

European Court of Human Rights Abdulaziz, Cabales and Balkandali v. United Kingdom, App. Nos. 9214/80, 9473/81 and 9474/81, Judgment 28.05.1985.

Table of Cases

xvii

Angelova and Iliev v. Bulgaria, App. No. 55523/00, Judgment 26.07.2007. Bekos and Koutropoulos v. Greece, App. No. 15250/02, Judgment 13.12.2005. Belilos v. Switzerland, App. No 10328/83, Judgment 29.04.1988. Buckley v. United Kingdom, App. No. 20348/92, Judgment 25.09.1996. Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), App. Nos. 1474/62, 1677/62, 1691/62, 1769/63, 1994/63 and 2126/64, Judgment 23.07.1968. Chapman v. United Kingdom, App. No. 27238/95, Judgment 18.01.2001, Grand Chamber. Chassagnou and Others v. France, App. Nos 25088/94, 28331/95 and 28443/95, Judgment 29.04.1999, Grand Chamber. Cobzaru v. Romania, App. No. 48254/99, Judgment 26.07.2007. Connors v. the United Kingdom, Application No. 66746/01, Judgment 27.05.2004. D.H. and Others v. Czech Republic, App. No. 57325/00, Judgment 7.02.2006. D.H. and Others v. Czech Republic, App. No. 57325/00, Judgment 13.11.2007, Grand Chamber. Hermi v. Italy, App. No.18114/02, Judgment 18.10.2006, Grand Chamber. Hoogendijk v. the Netherlands, App. No. 58461/00, Decision 06.01.2005. Horvath and Kiss v. Hungary, App. No 11146/11, Judgment 29.01.2013. Hugh Jordan v. the United Kingdom, App. No. 24746/94, Judgment 04.05.2001. Kósa v. Hungary, App. No. 53461/15, Decision 21.11.2017. Larkos v. Cyprus, App. No 29515/95, Judgment 18.02.1988, Grand Chamber. Lavida and Others v. Greece, App. No 7973/10, Judgment 30.05.2013. Munoz Diaz v. Spain, App No 49151/07, Judgment 08.12.2009. Nachova and Others v. Bulgaria, App. Nos 43577/98 and 43579/98, Judgment 06.07.2005, Grand Chamber. Okpisz v. Germany, App. No 59140/00, Judgment 25.10.2005. Oršuš and Others v. Croatia, App. No 15766/03, Judgment 17.07.2008. Oršuš and Others v. Croatia, App. No 15766/03 Judgment 16.03.2010, Grand Chamber. Petropoulou-Tsakiris v. Greece, App. No. 44803/04, Judgment 06.12.2007. Plattform ‘Ärtze für das Leben’ v. Austria, App. No. 10126/82, Judgment 21.06.1988. Sampanis v. Greece, App. No. 32526/05, Judgment 05.06.2008. Sampani v. Greece, App. No. 59608/09, Judgment 11.12.2012. Secic v. Croatia, App. No. 40116/02, Judgment 31.05.2007. Stec and Others v. the United Kingdom, App. No 65731/01, Judgment 12.04.2006, Grand Chamber. Stoica v. Romania, App. No. 42722/02, Judgment 04.03.2008. Timishev v. Russia, App. Nos 55762/00 and 55974/00, Judgment 13.12.2005. Willis v. the United Kingdom, App. No 36042/97, Judgment 11.06.2002. Zarb Adami v. Malta, App No. 17209/02, Judgment 20.06.2006.

xviii

Table of Cases

Permanent Court of International Justice/ International Court of Justice PCIJ, Minority Schools in Albania (Advisory Opinion), PCIJ A/B No 64.

US Supreme Court Adarand Constructors, Inc. v. Peña, 515 U.S. 200, 115 S. Ct. 2097, 132 L. Ed. 2d 158 (1995). Brown et al. v Board of Education of Topeka et al., 347 US 483 (1954).

Introduction The Roma, with an estimated population of between 10 and 12 million spread across the whole continent, are one of Europe’s largest and most vulnerable minorities. Throughout Europe, the Roma remain excluded from many aspects of society. The available data suggest that many Roma live in overwhelmingly poor conditions on the margins of society, and face extreme levels of social exclusion. Surveys conducted by the EU Fundamental Rights Agency undertaken in 2008, 2011 and 2016 also found that prejudice, intolerance and discrimination affect a large proportion of the Roma living within EU member States. What distinguishes the Roma from other minority groups is the economic hardship they suffer, as well as the high proportion of the group living in extreme poverty. The Roma encounter difficulties in different areas of life, such as housing, education, employment and health. This book focuses on the problems encountered by Roma children in equal access to quality education. These problems have been in existence over recent decades and are manifold in school absenteeism, high dropout rates, and segregation. This segregation takes many different forms. It can take the form of intra-school segregation, with the organization of Roma-only classes within the same school, or the fact that Roma children are not allowed to use the school canteen. It can also take the form of intra-class segregation, with different levels of curricular standards for Roma and non-Roma in the same class. Or it can take the form of inter-school segregation, where the Roma are sent to separate schools, often remedial schools for the mentally disabled, as a consequence of culturally biased placement tests. The infrastructure of these schools for the mentally disabled is often of lesser quality than that of the non-Roma schools, and the curricular standards are very low. Consequently, the diploma obtained there does not allow Roma children to continue with higher education, which leaves them with the only option of pursuing a vocational education. Apart from culturally biased psychological testing, other causes for segregation of the Roma into (substandard) education are regional or housing segregation, entrance exams or tuition fees, or so-called ‘white flight,’ which is the refusal of non-Roma parents to enrol their children in schools with high Roma concentrations. The fact that Roma children are deprived of equal access to quality education compared to non-Roma children locks them in a vicious circle of poverty and deprivation. As few Roma children make it to secondary or tertiary education, they do not have the necessary educational background to be able to improve their living conditions and to have good prospects on

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2

Introduction

the employment m ­ arket. Moreover, uneducated parents are not able to assist their children on their educational path. At a European level, there are two important actors active in the field of Roma inclusion, these being the Council of Europe and the European Union (‘EU’). The most important legally binding instrument at Council of Europe level in the field of minority protection is the Framework Convention for the Protection of National Minorities (‘fcnm’). At EU level, the impact of legally binding EU legislation on minority protection is the most evident in the area of anti-discrimination legislation, with the adoption of the Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (‘the Racial Equality Directive’) in 2000. The Framework Convention of 1995, which entered into force in 1998, contains some key provisions on the right to education, which are the Articles 12, 13 and 14. Article 12 fcnm addresses questions of cultural knowledge in the area of minority rights, the ‘human capital’ necessary to deliver this curriculum, and the right of equal access to education at all levels. In addition, Article 13 fcnm addresses the specific issue and implications of the right of minorities to establish their own educational and training establishments, and Article 14 fcnm partially deals with the issue of minority languages in education. These provisions have to be read in the light of Articles 4, 5 and 6 fcnm, defining the core obligations of States. The articles contain respectively the right to equality before the law, the right of minorities to maintain and develop their culture and to preserve the essential elements of their identity, and the obligation for States to encourage a spirit of tolerance and intercultural dialogue. The ratification of the Framework Convention was one of the pre-­conditions for EU membership of the 10 candidate countries which joined the EU in 2004. The fact that the new EU member States, in order to comply with the Copenhagen criteria, had to ratify the Framework Convention, was a factor which contributed to its success. At EU level, the Racial Equality Directive of 2000, which was to be implemented by July 2003, prohibits direct and indirect discrimination on the ground of racial or ethnic origin in the areas of employment, training, social protection, education, and access to public goods and services. The directive also provides for the reversal of the burden of proof on the alleged perpetrator, and for the mandatory establishment of bodies for the promotion of equal treatment. Despite the existence of the Framework Convention for the Protection of National Minorities, the Racial Equality Directive, and a whole spectrum of national and international policy measures to further Roma integration into mainstream education, very little progress has been made in this field so far.

Introduction

3

Both the Framework Convention and the Racial Equality Directive have not yielded the desired effects in the field of the integration of Roma children in education. The main questions tackled in this book are whether these two ­legally binding instruments present an added value compared to the already existing instruments, and if so, what this added value would consist in. The following methodology was used to examine these questions. When writing about the Roma, first of all, one has to define what the term ‘Roma’ covers. Who are ‘the Roma’? Who decides who can be called Roma? Are the Roma a national minority, or an ethnic or racial minority? What differentiates them from other minorities? And does the factual recognition of their extreme vulnerability also justify a legal differentiation? These are questions examined in the first chapter. The second chapter paints a picture of the problems faced by Roma children in education. It explains why the focus of this book is on education and highlights the importance of education as a means of integration and effective participation in society. It also examines how education has worked as a backbone for integration in the United States and gives an overview of the already existing international and regional standards of international law relevant for the subject matter of the book. The legal nature of the two instruments which are at the heart of this book differs significantly. Whereas the Framework Convention conveys rights upon the Roma as members of a national minority, the Racial Equality Directive is a piece of equality legislation. The difference between human rights in general, minority rights in particular, and non-discrimination rights is examined in the third chapter. It also looks into the different aims of minority rights and equality law, and goes even further by questioning the appropriateness of the minority rights discourse. It examines the possible perverse effects of the minority rights discourse and of identity politics in the case of the Roma. It also examines what strategies can make the minority rights discourse work for the Roma. The fourth chapter introduces the reader to the Framework Convention for the Protection of National Minorities and to the Racial Equality Directive. The place and the role of both instruments in the existing labyrinth of international standards are examined. In order to be able to assess the added value of both instruments for the Roma, it is necessary to examine as a first step whether the Roma fall into the personal scope of application of the Framework Convention on the one hand (Chapter 5) and of the Racial Equality Directive on the other hand (Chapter 6). Once the field of application ratione personae is clear, a logical second step is an examination of the field of application ratione materiae of both instruments. Chapter 7 examines how the notion of education under the Framework

4

Introduction

Convention needs to be understood, whereas chapter 8 does the same for the Racial Equality Directive. The latter also looks into the meaning of discrimination under the Racial Equality Directive. The European Court of Human Rights (‘ECtHR’) in Strasbourg has developed significant case-law on the issue of the segregation of Roma children in education. Chapter 9 elaborates on the relation between the Framework Convention and the European Convention for the Protection of Human Rights (‘echr’). It also examines whether and how the Racial Equality Directive has influenced the said case-law of the European Court of Human Rights and analyses this case-law in detail. It points at some differences in the case-law of the Court of Justice of the European Union (‘cjeu’) compared to the case-law of the European Court of Human Rights when it comes to the objective justification in discrimination cases. Finally, the relevance and the potential of the case-law of both courts for the fight against structural discrimination of the Roma in education are highlighted. Chapter 10 contains a case study of the situation of Roma children in education in the Czech Republic and in Germany. It justifies the choice of these states and looks into the reporting mechanism under the Framework Convention and also into the country reports drafted by the European Network of ­Legal Experts in the non-discrimination field on the implementation of the Racial Equality Directive for both states, with a focus on the issue of segregation of Roma children in education. It verifies whether ngo research corroborates the findings in these reports and briefly points at the situation of Roma children in education in the other 26 EU Member States. Apart from the Framework Convention and the Racial Equality Directive as legally binding instruments, there are also a number of important policy initiatives adopted at Council of Europe level and at EU level to promote Roma inclusion in education. Chapter 11 gives a complete overview of the most recent policy initiatives. The core chapters of the book are Chapters 12, 13, and 14. Chapter 12 examines whether and how the Framework Convention ‘added’ anything to the already existing human rights instruments described in Chapter 2 when it comes to ensuring equal access to quality education for Roma children. It does so by examining the legal nature of the instrument, the nature of the monitoring procedure, and the contribution of the Framework Convention to the development of the case-law of the European Court of Human Rights. It also assesses the added value of the Framework Convention when it comes to its reach and scope, and finally highlights the advantages of the Framework Convention compared to the Racial Equality Directive.

Introduction

5

Due to a lack of disaggregated data collection on discrimination against the Roma on the basis of race or ethnic origin it is difficult to assess whether the situation of the Roma in education throughout the EU has improved ­after the transposition of the Racial Equality Directive. The case studies presented in Chapter 10 will indicate that the situation of Roma children in education throughout Europe has not significantly improved. However, even if the concrete added value of the Racial Equality Directive for the improvement of Roma educational rights in the EU cannot be established, it is assessed in Chapter 13 whether the Directive presents an overall added value compared to other existing international human rights instruments, as was the case for the Framework Convention. Furthermore, the contribution of the Racial Equality Directive in particular and of the EU as a whole in general to the implementation of the Framework Convention is examined. Interesting to examine in this context is whether there are cross-references and synergies between the monitoring system of the Framework Convention and the monitoring of the implementation of the Racial Equality Directive. The chapter also points at areas where the Racial Equality Directive falls short of providing full protection, which brings up the question of the need for the adoption of a specific Roma integration directive. Finally, the added value of the Racial Equality Directive for the EU Framework of National Roma Integration Strategies up to 2020, one of the policy measures analysed under Chapter 11, is discussed. The final Chapter 14 formulates suggestions for a more effective monitoring and implementation of the Framework Convention and of the Racial Equality Directive in the field of Roma education. Since Romania and Bulgaria joined the European Union in 2007, an increased migration of Roma from these two member states has resulted in governmental reactions that are controversial and highly politicized. Directive 2004/38/EC on the right of citizens of the Union and their family members to move and reside freely within the territory of the member States (‘the Free Movement Directive’) stipulates that Union citizens can reside up to 3 months on the territory of another member state. Workers, the self-employed, those with sufficient resources and students with comprehensive sickness insurance coverage can reside for more than 3 months in the host member State. Several member states systematically expel Roma migrants from their territory after this 3 month period has lapsed. Those Roma migrants exercising their right of free movement are to be distinguished from the Roma who are mostly nationals of their state of origin, where they are resident over a longer period. This book does not elaborate on the question of migration of the Roma from Central-Eastern Europe to Western Europe, or on the problems related to the

6

Introduction

education of the children of these migrants, which the lack of any coordinated policy towards these migrants brings. Following the practice of the monitoring mechanism of the Framework Convention, only those Roma who are members of the minority groups falling into the personal scope of the application of the Framework Convention, as reflected in the State’s declarations upon ratification of the Framework Convention, are the subject of this book. Regarding Roma migrants from Romania and Bulgaria, the approach adopted is that the member states from where these Roma originate have to take up their responsibility for the inclusion of the minority into mainstream society (see, for instance, the agreement signed between the Office français de l’Immigration et de l’Intégration (ofii) and the Romanian authorities on 12 September 2012 regarding the reintegration in Romania of 80 Roma families who had migrated to France). The suggestions formulated in the last chapter of this book will hopefully contribute to a more effective monitoring and implementation of the Framework Convention and of the Racial Equality Directive in the field of Roma education. It is the author’s hope that this book will also contribute to a better awareness among policy makers of the need to urgently improve the situation of Roma children in education, so that we can see those children growing up to realize their greatest potential in order to participate equally in this European society of ours.

Chapter 1

The Roma 1 Introduction The current situation of the Roma in Europe within the field of education cannot be fully understood without an understanding of the history of the Roma’s treatment in Europe. Therefore, the first part of this chapter will elucidate who the Roma are, where they come from, how they perceive themselves and how they were and are perceived by the majority population. It will also tackle some misconceptions about nomadism and homogeneity. Finally, the terminology used for the designation of the Roma by others and for self-designation is analysed. The second part of this chapter is dedicated to the question as to whether the Roma are considered to be a minority under public international law and what differentiates them from other minorities. 2

Who are the Roma? Homeland, Migration, Nomadism and Self-Designation

2.1 The Origins of the Roma – A Brief History Recent Council of Europe estimates1 place the Roma population of Europe at around 11 million, although some observers put the figures even higher at 12 million.2 Precise demographic data is not available due in large part to the stigma associated with the Romani identity and the reluctance of many Roma

1 Council of Europe, ‘Estimates on Roma Population in European Countries,’ available at (accessed on 1 September 2015). 2 European Commission, DG Employment and Social Affairs, The situation of Roma in an enlarged EU, Luxembourg: Office for Official Publications of the European Communities, 2004, p. 9 at para. 12. This study was funded through the Community Action Programme to combat discrimination and social exclusion. It was carried out over a period of 10 months, beginning in November 2003, and was based on extensive research in eleven European countries. The main focus of the report is to identify and highlight the implications of enlargement for the EU’s policies on anti-discrimination and social inclusion in relation to the Roma.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004354210_003

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to identify themselves as such for official purposes,3 and the refusal of many governments to include Roma as a legitimate category for census purposes.4 The Roma are considered to be one of the oldest surviving minorities in Europe. They are most likely descendants of people who left the Indian subcontinent at the end of the first millennium.5 Linguists have demonstrated that the Roma descended from North Indian castes that left to migrate across 3 Reasons for the reluctance of the Roma to register their ethnic origin with the state are fear and experiences of discrimination, and for some, the memory of the Second World War. However, a recent grassroots campaign supported by Open Society Foundations aiming at increasing the number of Roma registering their ethnic identity in the Serbian census shows that this kind of awareness raising among the Roma can contribute to a significant increase in the number of Roma officially registered. The Serbian Statistical Office reported a 10 percent increase in the official number of Roma as a result of the 2011 census, compared to the last census held in 2002. As of December 2012, 147,604 Roma were officially registered in Serbia, which makes them the second largest minority in the country, after the Hungarians. This increase is not related to an increase in numbers or an influx of Roma, but rather demonstrates that there are more Roma in Serbia who are willing to declare and officially register their ethnical identity. The grassroots campaign of Open Society Foundations focused on self-organizing and was carried out by young Roma. The Open Society Roma Initiatives Office in Serbia built a network of 1,200 young Roma volunteers who visited 33,000 households. They stressed the importance of declaring one’s ethnicity in the census: an increase in the number of Roma officially registered is expected to affect Serbian public policies concerning the Roma. Census data is directly translated into assigned quota in employment for public administration and police. A comparable campaign was launched in Montenegro in 2011, which also resulted in an increase in the number of Roma registered: in April 2011 6,251 Roma registered in the Montenegrin census, whilst only 2,501 Roma had registered in the previous census. See Z. Jovanovic and M. Haliti, ‘Roma Feel Less Fear and More Hope After Census,’ Open Society Foundations, 12 December 2012, available at (accessed on 1 September 2015). 4 European Commission, DG Employment and Social Affairs, The situation of Roma in an enlarged EU, Luxembourg: Office for Official Publications of the European Communities, 2004, p. 9 at para. 12. 5 Scholars have argued for centuries over the origin of the Roma. It was not until the late 18th century that linguistic science discovered their language to be an Indian one, very probably from the north-west of the subcontinent and derived from widely spoken dialects close to Sanskrit. On the strength of this linguistic evidence, it is generally accepted that India was the starting point for the Roma migrations. For a discussion see D. Kenrick, Gypsies: From India to the Mediterranean, Herfordshire: University of Herfordshire Press, 1998 and D. Kenrick, Gypsies: From the Ganges to the Thames, Herfordshire: University of Herfordshire Press, 2004. Kenrick’s study is divided into three parts. Part One traces the Roma migration over many centuries from India to Persia, their life under Arab rule in the Middle East and their arrival in Constantinople. Part Two follows them on their travels across Europe as far as ­Britain, while Part Three contains an account of related peoples in India, Pakistan, central Asia and the Middle East and the Roma rediscovery of their links with modern India. See also J.-P. ­Liégeois, Roma in Europe, Strasbourg: Council of Europe Publishing, 2007, p. 18.

The Roma

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Europe6 between 500 and 1000 ad.7 The long journey of the Roma led them through parts of Persia, Armenia and Byzantium. Romani groups were noted in the European part of the Byzantine Empire by the 11th century and probably entered Spain from North Africa at around the same time.8 They then moved north from the southern Balkans to present-day Bulgaria, Romania and formerYugoslavia, some settling along the way, others migrating further to Central ­Europe and beyond. Scattered Romani groups arrived in contemporary EastCentral Europe from the mid-to-late 14th century (Transylvania and Hungary), and throughout the 15th century (Slovakia and the Czech Lands), and they reached Poland in the early 16th century. Their movements continued in response to political and economic circumstances. The Polish Roma, for instance, arrived in Poland during the second half of the 16th century to escape persecution in Germany. The first record of the arrival of Roma in England is dated 1514, with further movements into Scandinavia in the 16th century.9 Scandinavian countries have a relatively large Traveller community.10 There are doubts as to the origins of this Traveller community. According to certain sources the Travellers originate from the first Roma migration to Sweden in the 16th century. Others think that they originate from German and French soldiers from the wars of the 17th century which the King brought with him to Sweden.11 Following a period of relative tolerance in the late middle Ages, the Roma were subjected to the first of a series of episodes of persecution in Europe.12 Under Ottoman rule,13 the Roma would seem to have fared worst in areas of 6 7 8 9 10

11 12 13

A. Fraser, The Gypsies, Oxford: Blackwell, 1992. According to research conducted by Jean-Pierre Liégeois, the Roma migrated later, between the 9th and the 14th centuries. See J.-P. Liégeois, Roma in Europe, Strasbourg: Council of Europe Publishing, 2007, p. 18. European Commission, DG Employment and Social Affairs, The situation of Roma in an enlarged EU, Luxembourg: Office for Official Publications of the European Communities, 2004, p. 7 at para. 1. J.-P. Liégeois and N. Gheorghe, Roma/Gypsies: a European Minority, London: Minority Rights Group, 1995, p. 7. For instance, there are an estimated 25,000 Travellers in Sweden. Regeringskansliet, ‘The Delegation for Roma Issues,’ Stockholm: Regeringskansliet, 2006, available at (accessed on 1September 2015). Ibid., p. 7. European Commission, DG Employment and Social Affairs, The situation of Roma in an enlarged EU, Luxembourg: Office for Official Publications of the European Communities, 2004, p. 7 at para. 2. On the Roma in the Ottoman Empire, see E. Marushiakova and V. Popov, The Gypsies in the Ottoman Empire, Hatfield: University of Hertfordshire Press, 2001.

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the Empire considered relative backwaters, such as in areas today located in Romania, where local landowners and the clergy enslaved the Roma.14 During the Enlightment, in the mid-18th century, the first in a series of efforts was undertaken attempting to compel the Roma to conform to the norms of the majority society.15 The development of modern police practices brought along the development of the idea of ‘Gypsy crime,’ and with it, comprehensive ­police registers of the Roma.16 After the unsuccessful Hungarian War of Independence (1848–1849) a large group of Hungarian Roma in fearing increased suppression made their way toward Western Europe. Fear of persecution and the opening of economic ­opportunities have continued to spur substantial Romani migration.17 During the Nazi period, the Roma were specifically targeted and systematically persecuted resulting in mass extermination in concentration camps.18 After World War ii, socialist governments in Central and Eastern Europe engaged in a concerted and culturally repressive effort to assimilate and settle the Roma populations. Although socialist policies improved conditions by increasing access to education and employment, they failed to provide equality of opportunity, providing jobs that were mostly unskilled, low-paid and physically demanding, and providing education in most cases in low quality segregated schools or classes. The process of transition from communism further doomed the Roma to a second-class status by marginalizing them in the labour market, further weakening their access to decent housing, health and education and subjecting them to open racism and discrimination.19 14

European Commission, DG Employment and Social Affairs, The situation of Roma in an enlarged EU, Luxembourg: Office for Official Publications of the European Communities, 2004, p. 7 at paras 3–4. 15 Ibid. 16 See for example L. Lucassen, Zigeuner: Die Geschichte eines polizeilichen Ordungsbegriffes in Deutschland 1700–1945, Köln: Böhlau Verlag, 1996. 17 Z. Barany, The East European Gypsies: regime change, marginality and ethnopolitics, Cambridge: Cambridge University Press, 2002, pp. 9–10. 18 During the Nazi holocaust or porajmos, also porrajmos or pharrajimos (literally, devouring or destruction in some dialects of the Romani language), between 200,000 and 500,000 Roma were executed. See M. Brearley, ‘The Roma/Gypsies of Europe: A persecuted people,’ Jewish Policy Research Paper, 1996, no. 3, p. 21. For a more detailed account see I. Hancock, ‘Gypsy history in Germany and neighboring lands: A chronological leading to the Holocaust and beyond’ in D. Crowe and J. Kolsti (eds.), The Gypsies of Eastern Europe, Armonk: E.C. Sharpe, 1989, pp. 11–30; D. Kenrick and G. Puxon, The Destiny of Europe’s Gypsies, New York: Basic Books, 1972; S. Milton, ‘The context of the Holocaust,’ German Studies Review, 1990, vol. 13, pp. 269–284. 19 European Monitoring Centre on Racism and Xenophobia, Roma and Travellers in Public Education: An overview of the situation in EU Member states, Vienna: eumc, May 2006,

The Roma

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In more recent years the Roma have continued to experience serious abuses. The arrival of Romani migrants and asylum seekers from the former Yugoslavia, along with the arrival of Roma from Central and Eastern Europe was often met with a hostile response from the press, the public and politicians. In the 1990s age-old ‘anti-Gypsyism’ sentiments surfaced in several states in Western Europe, that were facing the prospect of increased numbers of Roma asylum seekers. At the same time, Central and Eastern European countries failed to tackle the reasons behind a large number of Roma seeking to leave. The collapse of Communism, and consequent economic instability, appeared to awaken fears amongst the people of Central and Eastern Europe. The level of violence towards ‘foreigners,’ especially the Roma, increased dramatically with widespread group attacks,20 which were often tolerated by the police and local communities.21 Their long history of discriminatory treatment, at the hands of

20

21

p. 19, available at (accessed on 1 September 2015). For more detailed examples of Roma murdered in racially motivated attacks among others in the Giurgiu District, Romania (1991), in Czechoslovakia (1992), in Burgenland, Austria (1995), in Bacu Romania (1995) and in Fechenheim, Germany (1998) see H. O’Nions, Minority Rights Protection in International Law: The Roma of Europe, Ashgate: Hampshire, 2007, pp. 10–11. For more information on violent attacks on Roma in the 1990s see also: unhcr, Background paper on Romania refugees and asylum seekers, Geneva: unhcr, November 1994; H. Cartner, Romania: Lynch Law: Violence Against Roma in Romania, Helsinki: Human Rights Watch, 1994; J.-P.Liégeois and N. Gheorghe, Roma/Gypsies: a European Minority, London: Minority Rights Group, 1995, p. 14; errc, Divide and Deport: Roma and Sinti in Austria, Budapest: errc, September 1996. H. O’Nions, Minority Rights Protection in International Law: The Roma of Europe, Ashgate: Hampshire, 2007, p. 10. Several cases on racially biased police investigations and on police ill-treatment of Roma have been brought to the European Court of Human Rights in the past. See, among others, the cases of Nachova and Others v Bulgaria, App. Nos. 43577/98 and 43579/98, Judgment 06.07.2005, Report of Judgments and Decisions 2005-vii; Bekos and Koutropoulos v Greece, App. No. 15250/02, Judgment 13.12.2005; Secic v Croatia, App. No. 40116/02, Judgment 31.05.2007; Cobzaru v Romania, App. No. 48254/99, Judgment 26.07.2007; Angelova and Iliev v Bulgaria, App. No. 55523/00, Judgment 26.07.2007; Petropoulou-Tsakiris v Greece, App. No. 44803/04, Judgment 06.12.2007; Stoica v Romania, App. No. 42722/02, Judgment 04.03.2008. In September 2011, the errc submitted another two cases concerning incidents of police abuse and violence against Roma to the European Court of Human Rights in Strasbourg. The first case, in Russia, involved two young Romani men, who were arrested and subsequently convicted of robbery, then suffered mistreatment while in police detention. Later on, during the judicial consideration of the case, they endured violations of basic guarantees of fair trial. Appeals to national law-enforcement authorities to remedy violations and provide justice did not yield a positive result and the case was brought to the European Court of Human Rights. On behalf of its clients, the errc alleged that the ill-treatment at the hands of police and the failure to investigate it constitute violations

12

Chapter 1

the state and civil society, has placed the Roma in the unenviable position of being among the most marginalized and discriminated minorities in Europe.22 2.2 Misconceptions about the Roma: Nomadism and Homogeneity 2.2.1 Nomadism One of the most encountered misconceptions about the Roma is that they are an intrinsically nomadic people. The historical record indicates, however, that they did not always adopt the nomadic way of life by choice. By all accounts, the Roma left India only because of war and economic hardship.23 From the 16th century on, forced settlement was the main state policy towards the Roma. This strategy succeeded to a large extent. The majority of East European Roma—especially in Hungary, Romania, Slovakia and the former Yugoslavia— has been sedentary for centuries.24 Scholars, such as the French sociologist and founder of the ‘Centre de recherches tsiganes’ Jean-Pierre Liégeois, underscore that it is extremely difficult to ascertain the proportion of nomads to sedentary Roma. The terms used are vague, and the realities they describe differ from one country to another. British ‘Travellers,’ like German ‘Landfahrer,’ French ‘Gens du Voyage,’ Dutch ‘Woonwagenbewoners’ and the Danish ‘Rejsende,’ despite their ­collective names, all

22

23 24

of the European Convention on Human Rights. In another case, in Hungary, submitted by the errc in cooperation with the Hungarian Civil Liberties Union (hclu), a Romani woman, having allegedly caused noise while hosting guests in her house, was ill-treated by police officers, who came to intervene. As in the Russian case, investigation into the actions of police officers proved to be inefficient and not capable of redressing the violations suffered by the Romani woman. As with the Russian case, the errc, on behalf of its clients, alleged a violation of Article 3 of the European Convention: proscription of inhumane treatment. In both cases, the errc urged the European Court of Human Rights to take general measures and instruct the Governments of the Russian Federation and Hungary to bring domestic legislation in full compliance with the requirements of European Convention and create effective mechanisms that would adequately address similar kinds of violations in the future. For more recent examples of hostility by police towards Roma see the website of errc under the tag ‘police abuse,’ available at (accessed on 1 September 2015). European Monitoring Centre on Racism and Xenophobia, Roma and Travellers in Public Education: An overview of the situation in EU Member states, Vienna: eumc, May 2006, p. 19, available at (accessed on 1 September 2015). See, for instance, D. Kenrick and G. Puxon, The Destiny of Europe’s Gypsies, New York: Basic Books, 1972, p. 14 and S. S. Shashi, Roma: The Gypsy World, Delhi: Sundeep Prakashan, 1990. Z. Barany, The East European Gypsies: regime change, marginality and ethnopolitics, Cambridge: Cambridge University Press, 2002, pp. 10–11.

The Roma

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include sedentary individuals.25 Taking Europe as a whole, the proportion of Roma and Travellers living full-time in mobile accommodation and regularly on the move is, according to Liégeois, no higher than 20 percent at most. Semi-nomads, either living full-time in mobile accommodation but travelling only part of the year, or living part of the year in fixed accommodation and travelling the other part, come to another 20 percent, and sedentary individuals who never travel, despite the fact that many of them live in (semi)-mobile accommodation or in very precarious conditions, make up the remaining 60 percent.26 According to Andrzej Mirga, Nicolae Gheorge and Thomas Acton,27 a nomadic lifestyle is a common characteristic of contemporary Roma communities especially in Western European countries such as the U.K., Ireland, France and the Netherlands. These scholars claim on the one hand that the development of capitalism in Western Europe helped to some extent to develop modern Romani nomadism in the form of ‘service nomadism.’ On the other hand, they also point out substantial differences in social organization between Western-European commercial-nomadic groups and Central and Eastern European sedentary groups, painting the ideal-type Western nomadic groups as anarchic societies and the Eastern, primarily sedentary groups as possessing an embryonic state in the form of Kris tribunals28 which account for the fact that these groups have their own legal system. In order to avoid incorrect generalizations, it is important to keep in mind that there are sedentarised Roma in the West as well as nomadic Roma in Eastern Europe.29 2.2.2 Homogeneity Another common misunderstanding about the Roma is that they are a homogeneous people. To the contrary, they are an extremely diverse ethnic group and they can be differentiated according to lifestyle (peripatetic or sedentary), 25

J.-P. Liégeois, Roma, Gypsies, Travellers, Strasbourg: Council of Europe Publishing and Documentation Service, 1994, p. 35. 26 Ibid. 27 N. Gheorghe and T. Acton, ‘Dealing with Multiculturality: Minority, Ethnic, National and Human Rights,’ osce odihr Bulletin, 1994/1995, vol. 3, no. 2, pp. 29–40; A. Mirga and N. Gheorghe, The Roma in the Twenty-First Century: A Policy Paper, Princeton New Jersey: Project on Ethnic Relations Publications, 1997. 28 The Kris tribunal is a Roma tribunal regulating justice, including disputes over arranged marriages. See N. Gheorghe and T. Acton, ‘Dealing with Multiculturality: Minority, Ethnic, National and Human Rights,’ osce odihr Bulletin, 1994/1995, vol. 3, no. 2, p. 32. 29 P. Gynther, From Utopia to Quintessence: Education Law from the Viewpoint of Roma and Skills Deficiency, Vaajakoski: Gummerus Printing, 2006, p. 29.

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tribal affection, occupation, language, religion and country of residence.30 In the former Yugoslavia alone, there are some twenty principal Romani tribes, many of which can be further subdivided.31 While a detailed discussion of the various facets of Romani diversity is beyond the scope of this book, the following general points can illustrate the fact that the Roma are not a homogeneous ethnic group. In several Eastern European states, such as Bulgaria and Romania, tribal identity—primarily rooted in the traditional economic activity of a group— remains a significant bond. The Roma in Romania, for instance, were originally members of the Rudari, a large tribe of wood carvers and gold-washers.32 In Hungary and Slovakia, countries that were the destination of several different waves of Romani migration, the approximate time of arrival and the region of origin are more important distinguishing characteristics than in the Balkans for instance. The Olah (or Vlach) Roma made their way from Romania to Hungary in the late 19th century, and many still speak related dialects of Vlach Romani. The Beash have been in Hungary for over 200 years and generally speak an archaic form of Romanian in addition to Hungarian. The vast majority of the Roma population in Hungary, however, belongs to the long-sedentary and only Hungarian-speaking Romungro (Hungarian Roma) group. Similarly, over 90 percent of the Roma in Slovakia are Hungarian or Slovak Roma who settled there in the 16th to 18th centuries. The rest of the Roma population (Vlach Roma) reached Slovakia in the second half of the 19th century and are assumed to be the descendants of liberated slaves in the Romanian principalities of Moldavia and Wallachia. All of these distinctive populations may be subdivided into numerous groups based on their ancestral occupation.33 Because of the diversity of these numerous groups, it is unclear what the Romani identity is, especially since many Roma do not consider themselves to be members of a cohesive ethnic group, but instead identify with the subgroup or tribe to which they belong.34 Fundamentally, however, all European Roma share to some extent the same origins, culture and historical 30

31 32 33 34

Z. Barany, The East European Gypsies: regime change, marginality and ethnopolitics, Cambridge: Cambridge University Press, 2002, p. 12. See also A. Fraser, The Gypsies, Oxford: Blackwell, 1992 and I. Pogany, ‘Minority Rights and the Roma of Central and Eastern ­Europe,’ Human Rights Law Review, 2006, vol. 6, no. 1, p. 1 and pp. 17–18. A. Fraser, The Gypsies, Oxford: Blackwell, 1992, p. 293. D. Abraham, I. Badescu and S. Chelcea, Interethnic Relations in Romania: sociological diagnosis and evaluation of tendencies, Cluj-Napoca: Editura Carpatica, 1995, pp. 417–34. Z. Barany, The East European Gypsies: regime change, marginality and ethnopolitics, ­Cambridge: Cambridge University Press, 2002, pp. 12–13. Ibid., p. 15.

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experiences.35 The Roma cultural and linguistic differences do not preclude a common identity, because the purpose of this identity is not to develop uniformity.36 Although the specific history of the various Roma and Traveller groups differs, marginalization, discrimination and persecution have always been defining characteristics. 2.3 Remarks on Terminology and Self-Identification 2.3.1 Roma – Gypsy – Travellers 2.3.1.1 Roma The word ‘Roma’ (plural) is based on the meaning of the word in the Romani language for ‘man’ or ‘husband’ (‘Rom’).37 The word ‘Roma’ is a noun and ‘Romani’ is an adjective. Although there is some disagreement as to whether this is linguistically correct (some authors prefer the term ‘Roms’ or ‘Rroma’) it corresponds to the current standard usage in international literature.38 2.3.1.2 Gypsy The term ‘Gypsy’ is derived from the term ‘Egyptian.’39 When the Roma began to arrive in Europe from Egypt, they were identified as different by the colour of their skin and dress, and these particularities were attributed to their presumed Egyptian origins.40 Within Romani communities, one often hears both ‘Roma’ and ‘Gypsies’ used as self-designations. It seems these names are often treated as synonyms. There is, however, some anecdotal evidence to support the assertion that the word ‘Gypsy’ is frequently used to refer to someone who maintains a condemnable lifestyle.41 In Slovak, Czech and Hungarian one will often hear or read the words cigan, cikan and cigany, which means ‘Gypsy,’ to refer to the same population.

35

On this issue, see K. J. Huber, ‘The Roma: Group Identity, Political Activism and Policy Response in Post-1989 Europe,’ Helsinki Monitor: Quarterly on Security and Cooperation in Europe, 1993, vol. 4, no. 3, p. 45. 36 C. Feys, ‘Towards a New Paradigm of the Nation: The Case of the Roma,’ Journal of Public and International Affairs, 1997, vol. 8, pp. 1–19. 37 P. Vermeersch, The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe, New York and Oxford: Berghahn Books, 2006, p. 10. 38 Ibid. 39 A. Fraser, The Gypsies, Oxford: Blackwell, 1992, pp. 46–48. 40 H. O’Nions, Minority Rights Protection in International Law: The Roma of Europe, Ashgate: Hampshire, 2007, pp. 3–4. 41 P. Vermeersch, The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe, New York and Oxford: Berghahn Books, 2006, p. 159.

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The  authoritative Czech language dictionary published in 1952 defined the word cikan as ‘a member of a nomadic nation, symbol for mendacity, thievery, vagabondage.’42 This no doubt reflects the popular usage of the word as an insult, as is the case in Slovak. In the dex dictionary, the nation’s leading dictionary in Romania, the word tsigan meaning ‘Gypsy’ is defined as ‘a person with bad habits.’ Romanians use the term ‘Gypsy’ to describe someone who is uncouth and dishonest. In July 2011 Romania’s Gypsies started lobbying to have the remark ‘pejorative’ added to the definition of the word ‘Gypsy’ in the dex dictionary. Roma rights groups in Romania have also pressured the editors of the dex dictionary to change the definition and had been lobbying earlier to be called ‘Roma’ so as to avoid the negative connotations connected to the word ‘Gypsy.’43 In September 2011 the Romanian Academy of Sciences announced that it would be changing the definition of the term tsigan. The Academy, which supervises conventional usage in the Romanian language, communicated that it “does not recommend using” the term tsigan, and that “the analysis will be rewritten so there is no room for a discriminatory interpretation.”44 Roma rights activists have welcomed the Academy’s decision to correct the dictionary, but expressed their concern that merely removing the term will not be enough to get rid of the stigma which members of the Roma minority suffer.45 2.3.1.3 Travellers The term ‘Travellers’ is used to designate predominantly ‘indigenous’ groups, not generally considered to be of Indian origin. Since the term is not part of the terminology commonly employed by surrounding society, it is not loaded with misleading connotations.46 Jean-Pierre Liégeois notes that the line between ‘Gypsies’ and ‘Travellers’ is not always a clear one, and asking which category a given group belongs in is an irrelevant and indeed unanswerable question in some contexts, as ­intermediary groups have been in existence for a very long time and new ones 42 43

Ibid., p. 10. Washington Post, ‘Romanian Gypsies push for dictionary definition to reflect discrimination,’ 20 July 2011, available at (accessed on 20 July 2011). 44 Romea, ‘Romania to remove defamatory definitions for Jews and Roma from new dictionary,’ 26 September 2011, available at (accessed on 6 October 2011). 45 Ibid. 46 J.-P. Liégeois, Roma, Gypsies, Travellers, Strasbourg: Council of Europe Publishing and Documentation Service, 1994, p. 37.

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are still forming.47 Liégeois suggests that instead of thinking in terms of either/ or exclusivity and break off points, one should rather look at these concepts in terms of complementarity and continuity.48 2.3.2

Terminology Used by the Council of Europe and the European Union 2.3.2.1 Terminology Used by the Council of Europe The terminology used by the Council of Europe (‘coe’) has varied considerably since the early 1970s, from ‘Gypsies and other Travellers,’49 ‘nomads,’50 ‘populations of nomadic origin,’51 ‘Gypsies’52 over ‘Rroma (Gypsies),’53 ‘Roma,’54 ‘Roma/Gypsies,’55 ‘Roma/Gypsies and Travellers’56 to ‘Roma and Travellers.’57 The binomial ‘Roma/Gypsies’ was used for many years at the Council of ­Europe. Nowadays, reference is made to ‘Roma and Travellers.’ The term ‘Gypsy’ 47 Ibid. 48 Ibid. 49 Recommendation 563 (1969) of the Consultative Assembly on the situation of Gypsies and other Travellers in Europe. 50 Resolution 13 (1975) of the Committee of Ministers on the social situation of nomads in Europe and Recommendation 1 (1983) of the Committee of Ministers on stateless nomads and nomads of undetermined nationality. 51 Resolution 125 (1981) of the clrae on the role and responsibility of local and regional authorities in regard to the cultural and social problems of populations of nomadic origin. 52 Resolution 249 (1993) of the clrae on Gypsies in Europe: the role and responsibility of local and regional authorities and Recommendation 1203 (1993) of the Parliamentary Assembly on Gypsies in Europe. 53 Resolutions 11 and 16 (1995) of the clrae ‘Towards a Tolerant Europe: the contribution of the Rroma (Gypsies)’. The term Rroma with double ‘r’ was used to avoid confusion with Romanians (nationals of Romania) spelt with a single ‘r.’ 54 Resolution 44 (1997) of the clrae ‘Towards a Tolerant Europe: the contribution of Roma’ and Recommendation 1557 (2002) of the Parliamentary Assembly on the legal situation of Roma in Europe. 55 Recommendation (2000)4 of the Committee of Ministers on the education of Roma/Gypsy children in Europe; ecri, ‘ecri General Policy Recommendation no.3 on combating racism and intolerance against Roma/Gypsies,’ cri(98)29 rev., adopted on 6 March 1998. See also the name of the Council of Europe Coordinator for Roma/Gypsies and Group of Specialists on Roma/Gypsies (1995). 56 Recommendation (2001)17 of the Committee of Ministers on improving the economic and employment situation of Roma/Gypsies and Travellers. See also the name of the Group of Specialists on Roma, Gypsies and Travellers (2002). 57 Recommendation (2004)14 of the Committee of Ministers on the movement and encampment of Travellers in Europe; Recommendation (2005)4 of the Committee of Ministers on improving the housing conditions of Roma and Travellers in Europe; Recommendation (2006)10 of the Committee of Ministers on better access to health care for Roma and Travellers in Europe. See also the names of the European Roma and Travellers Forum (2004); the Coordinator of activities concerning Roma and Travellers (2004); and the Committee of Experts on Roma and Travellers – MG-S-ROM (2006).

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is not used any more, since it is generally accepted that it has a pejorative ring for many Roma in Central and Eastern Europe, who reject it as an alien term, linked with the negative paternalistic stereotypes which still pursue them in Europe. At its 9th meeting in May 2015 in Strasbourg, the Ad Hoc Committee of Experts on Roma Issues (cahrom), proposed changing the terminology used by the Council of Europe with regard to the Roma. Having in mind that in the field of Roma inclusion the Council of Europe consistently addresses both the situation of sedentary and (semi-) nomadic populations, cahrom requested the Committee of Ministers, when adopting the terms of reference for the years 2016–2017, to change the name of the Committee into the “Ad hoc Committee of Experts on Roma and Traveller Issues (cahrom).” With this amendment the Council of Europe would return to the practice before the adoption of the “Strasbourg Declaration,” and respond favourably to a number of requests from Traveller organisations.58 In addition, cahrom requested that the explanatory footnote customarily used to accompany the term “Roma” in Council of Europe documents be ­modified and enlarged to reflect the proposed change and to avoid the misunderstanding that the footnote contains a definition of “Roma” or “Roma and Travellers;” it rather describes the scope of communities covered by the work of the Council of Europe. The English version of the new footnote should then read: The terms “Roma and Travellers” are being used at the Council of Europe to encompass the wide diversity of the groups covered by the work of the Council of Europe in this field: on the one hand a) Roma, Sinti/ Manush, Calé, Kaale, Romanichals, Boyash/Rudari; b) Balkan Egyptians (Egyptians and Ashkali); c) Eastern groups (Dom, Lom and Abdal); and, on the other hand, groups such as Travellers, Yenish, and the populations designated under the administrative term “Gens du voyage,” as well as persons who identify themselves as Gypsies. With this revision, the Council of Europe seems to be re-confirming its commitment to support population groups who refer to themselves as “Travellers,” but who are not Roma and have no historical connections with the Roma. 2.3.2.2 Terminology Used by the European Union The question of the Roma was put on the European Union (‘EU’) agenda with the creation of anti-discrimination legislation and with the enlargement of the EU towards Central and Eastern Europe. The available legislation, policy 58

cahrom(2015)16, Final Abriged Report of the 9th cahrom Meeting, Strasbourg, 27–29 May 2015, para. 18–19.

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19

d­ ocuments, fact sheets, speeches, evaluations, reports and studies related to the question of the Roma all have a recent character—dating from between 2000 and today—and do not date back to the early 1970s as is the case at the Council of Europe. This explains the fact that, contrary to the Council of ­Europe, the EU documents related to the Roma are uniform when it comes to the terminology used. All EU key documents and publications refer to the term ‘Roma’ as an all-encompassing term covering Roma, Gypsies, Sinti and Travellers and all existing subgroups.59 2.3.3 Terminology Used in this Book Throughout this study, the term ‘Roma’ will be used, whereas the term ‘Gypsy’ is avoided due to the negative connotation of the latter. The term ‘Roma’ will be used as an all-encompassing term for the existing subgroups, covering Travellers, Sinti and all other existing subgroups. When referring to the language used by the Roma, the term ‘Romani’ is used. 3

The Roma – A Minority with its Own Specific Features

The last part of this chapter is dedicated to the question as to whether the Roma, diverse as the different sub-groups making up the ‘European Roma’ are, can be considered as a minority in the light of public international law. It also examines what distinguishes the Roma from other minorities. Are the Roma to be considered a Minority in the Light of International Law? 3.1.1 The Absence of a Minority Definition in International Law It is not the intention of this chapter to consider in depth the difficult matter of defining minorities in general or in particular cases.60 However, in order to 3.1

59

60

For instance, in the recent EU Framework for National Roma Integration Strategies up to 2020, in the first footnote, it is stated that ‘the term “Roma” is used – similarly to other political documents of the European Parliament and the European Council – as an umbrella [term] which includes groups of people who have more or less similar cultural characteristics, such as the Sinti, Travellers, Kalé, Gens du voyage, etc. whether sedentary or not.’ Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Brussels, com(2011)173/4, 5 April 2011. For an in depth analysis of the definition of ‘minority’ see: J. Packer, ‘On the Definition of Minorities’ in J. Packer and K. Myntti (eds.), The Protection of Ethnic and Linguistic Minorities in Europe, Ǻbo: Ǻbo Akademi University, 1993, pp. 23–65; J. Packer, ‘Problems in defining minorities’ in D. Fottrell and B. Bowring (eds.), Minority and group rights in the

20

Chapter 1

be able to assess whether the Roma fall under the category of a ‘minority’—be it national, religious, linguistic, ethnic or racial—it is necessary to point at the difficulties encountered in trying to find a generally accepted definition of ‘minority’ in international law. The numerous initiatives which have been taken over the years at different international fora in order to clarify the (essence of the) concept of minority have confirmed the legal significance of the matter. In the absence of some kind of definition, it would become practically difficult to attain foreseeability in law since prospective claimants—like the Roma—would be unable to rely on the standards as applicable (or not) to them.61 The question how to define ‘minority’ was on the agenda of the United Nations Sub-Commission on Prevention of Discrimination and Protection of Minorities, established in 1947, from the very first day of its existence. In January 1950, the UN Sub-Commission recommended the adoption of the following definition62: a) The term minority includes not only those non-dominant groups in a population which possess and wish to preserve stable ethnic, religious or linguistic traditions or characteristics markedly different from those of the rest of the population; b) Such minorities should properly include a number of persons sufficient by themselves to develop such characteristics; and c) The members of such minorities must be loyal to the state of which they are nationals. One of the most complete and often cited, though legally non-binding, definitions is the definition developed by Francesco Capotorti, Special Rapporteur to the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities. In 1977 in his study on the rights of persons belonging to ethnic, religious and linguistic minorities, Capotorti gave the following definition:63

61 62 63

new millennium, The Hague: Nijhoff, 1999, pp. 223–74; G. Pentassuglia, Defining “minority” in international law: a critical appraisal, Rovaniemi: Lapland’s University Press, 2000; G. Pentassuglia, Minorities in international law. An Introductory Study, Strasbourg: Council of Europe Publishing, 2002, Chapter iii, pp. 55–74; M.N. Shaw, ‘The Definition of Minorities in International Law’ in Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights, Dordrecht: Martinus Nijhoff, 1992, pp. 1–32. J. Packer, ‘On the Content of Minority Rights’ in J. Räikkä (ed.), Do we need Minority Rights? Conceptual Issues, The Hague, Nijhoff, 1996, p. 123. UN Doc. E/CN.4/385. F. Capotorti, Study on the Rights of Persons Belonging to Ethnic, Religious and Linguistic Minorities, UN Doc. E/CN.4/Sub.2/384/Rev.1, 1979, p. 96.

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A group numerically inferior to the rest of the population of a state, in a non-dominant position whose members—being nationals of the state— possess ethnic, religious or linguistic characteristics differing from those of the rest of the population and show, if only implicitly, a sense of solidarity, directed towards preserving their culture, tradition, religion or language. The Capotorti definition reflects the prevailing general understanding of minority in international law, and consequently mandates minority status for the groups fulfilling the respective criteria without any unreasonable distinctions.64 3.1.2 The Notion of ‘National Minority’ as a Term of Primary EU Law Even though the EU holds no overall legislative competence to rule on the protection of minorities, the notion of ‘national minority’ has become a term of EU primary law through Article 21 of the Charter of Fundamental Rights,65 which became legally binding with the entering into force of the Treaty of Lisbon66 on 1 December 2009.67 Article 21 of the Charter stipulates that “[a]ny discrimination based on any ground such as … membership of a national minority … shall be prohibited.” A reference to persons belonging to minorities also figures in Article 2 teu, which stipulates that “the Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for ­human rights, including the rights of persons belonging to minorities.” However, the notions ‘national minority’ or ‘persons belonging to minorities’ are not defined.

64

65 66 67

G. Pentassuglia, Minorities in international law. An Introductory Study, Strasbourg: Council of Europe Publishing, 2002, p. 72. For complications arising from the definition proposed by Capotorti, see J. Rehman, ‘Minority rights in international law: raising the conceptual issues,’ The Australian Law Journal, 1998, vol. 72, no. 8, pp. 620–22. Charter of Fundamental Rights of the European Union, done 7 December 2000, entered into force 1 December 2009, 40 ilm, 2001, p. 266. Treaty of Lisbon amending the Treaty on European Union and the Treaty establishing the European Community, signed 13 December 2007, entered into force 1 December 2009, [2007] OJ C306. G. N. Toggenburg, ‘The New Treaty of Lisbon and the Protection of Minorities – Some Introductory Remarks,’ in P. Karpf (ed.), Sind wir alle Europäer oder ist noch Platz für Volksgruppen?, Klafenfurt am Wörthersee: Kärnten Dokumentation, 2010, p. 135.

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Chapter 1

3.1.3 The Roma – A Wide Array of Domestic Legal Definitions In any event, as there is no legally binding definition at the international level, it is up to the different state parties of international conventions and up to the different member states of the EU to define the notion of ‘minority’ or ‘national minority’ in their national legislation, if they wish to do so. Applying the Capotorti definition to the case of the Roma, one could easily argue that the Roma fulfil all the above mentioned conditions and thus qualify to be called a ‘minority.’ In the states where Roma minorities occur, the Roma are numerically inferior to the rest of the population of the state they live in. The Roma are clearly in a non-dominant position and possess ethnic, religious or linguistic characteristics differing from those of the rest of the population. They show a sense of solidarity, directed towards preserving their culture, tradition, religion or language. Yet, there is no international consensus to recognize the Roma as a minority. Even though international organizations such as the Council of Europe, the EU and the Organisation for the Security and Cooperation in Europe (‘osce’) promote the recognition of the Roma as a minority, it still remains up to the different member states of these organizations to categorize the Roma in accordance with their national legislation.68 When adopting a general human rights approach, the definition of Capotorti is useful in so far as it makes no explicit distinctions between traditional Roma groups versus Roma immigrants, or ‘old’ versus ‘new’ arrivals. Yet, the expression ‘nationals of the state’ is dubious as this definition would include only Roma who have the status of nationals, and excludes those Roma who are resident in a given country and who are not fulfilling the nationality criterion.69 Further divisions have appeared between Roma who are citizens of an EU member state and those who are not, such as Roma asylum seekers and migrants from outside the EU. Those born in a certain member state may now move freely to other member states and reside there for up to three months. This in turn has highlighted both the uniqueness and complexity of the status of the Roma. A large part of the Roma are mobile and they are more likely to 68

69

It is obvious that this categorization by the state cannot be done in an arbitrary way but should be established by objective criteria. In Chapter 5 on the personal scope of application of the Framework Convention for the Protection of National Minorities (‘fcnm’), the different reservations to the fcnm are analysed, as well as the validity of these reservations, related to the personal scope of application of the fcnm, and an overview of the status of the Roma for each State Party to the fcnm is given. See 2.4 Declarations by State Parties to the fcnm Concerning the Definition of ‘National Minority’ and the Roma. P. Gynther, From Utopia to Quintessence: Education Law from the Viewpoint of Roma and Skills Deficiency, Vaajakoski: Gummerus Printing, 2006, p. 21.

The Roma

23

move between states than other minorities, requiring accommodation in the education system, further complicating this intricate web of statuses. This is clearly problematic in countries such as France, where the Roma are not recognised as a minority. Instead, administrative categories, such as gens du voyage are created, which may ultimately fail to adequately address the social attributes of the Roma—travelling and sedentary alike. Indeed, by elevating a nomadic lifestyle as the main social attribute, domestic legislation may fail to adequately cater for sedentary Roma or worse, may treat them as if still travelling and unable to adapt to a sedentary lifestyle.70 Similarly, the Greek and Cypriot legal construction of Roma as a member of the Muslim (religious) community may deny equal treatment to Christian and non-Turkish speaking Roma.71 In Slovenia, Roma as a non-autochthonous community are not accorded the same rights as the so-called ‘autochthonous’ minorities such as the Italian and Hungarian minorities. Thus while the 2004 ‘Strategy Plan for the Education of Roma’72 in Slovenia envisages facilitative minority language classes for 70

71

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Because most social rights are managed on the basis of one’s link to a place of residence, all citizens who have a travelling way of life (including the Roma and non-Roma) have a specific administrative status. Sedentary Roma are melted in the general travelling population, even though they constitute not less than 80 percent of this population. See L. Farkas, Segregation of Roma Children in Education: Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG Employment, Social Affairs and Equal Opportunities, July 2007, p. 17 available at (accessed on 1 September 2015). See also the follow-up report of 2014: L. Farkas, Report on Discrimination of Roma Children in Education, Brussels: European Commission, DG  Justice, April 2014, available at (accessed on 1 September 2015). In Limassol, Cyprus, Roma children speak Turkish—the language of instruction in their school—but they also speak Kurbetch, a Romani dialect. The Constitution does not recognize ‘minorities,’ only ‘religious groups,’ thus Roma necessarily belong to one of the two ‘communities:’ Greek or Muslim. See L. Farkas, Segregation of Roma Children in Education: Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 17. On the 2004 Strategy Plan for the Education of Roma, see also: UN Committee on the Elimination of Racial Discrimination, ‘Concluding Observations on Slovenia,’ adopted on 24 August 2010, CERD/C/SVN/CO/6–7 at para. 5 (d); United Nations Office of the High Commissioner for Human Rights (ohchr), Protection Against Racial Discrimination in the EU: the Work of the UN Committee on the Elimination of Racial Discrimination, Brussels: ohchr Regional Office for Europe Publications, 2010, p. 35 available at (accessed on 1 September 2015).

24

Chapter 1

Roma, the Italian and Hungarian minorities have the constitutional right to an education in the minority language and the right to adopt and promote education, both under the Slovenian Constitution and the Act on Special Rights for Members of the Italian and Hungarian National Minorities in the Field of Education.73 Indeed, there clearly is a need for an internationally recognized definition taking into account all aspects of Roma identity. Unfortunately a political consensus on this issue does not seem to be expected in the near future. 3.2 The Roma, a Unique Minority Group – Why? 3.2.1 Three Factors Distinguishing the Roma from Other Minorities There are several characteristics that make the Roma unique as a minority group and complicate the status of the Roma people. Most importantly, the Roma are a people without a motherland, a unified nation state, a unified national language or religion. Furthermore, some Roma are non-sedentary. This ‘nationhood’ deficit can lead to an unequal status of the Roma as compared to other minorities. Whereas other national minorities can count on a kin-state, with which they have strong historical, ethnic or national ties, to protect and promote their linguistic, religious as well as cultural traditions, the Roma do not have such a kin-state promoting their minority rights.74 Another important feature which distinguishes the Roma from other minorities is the far-going marginalization as well as the economic and social segregation the Roma have to cope with. Recommendation 1557, adopted by the Parliamentary Assembly of the Council of Europe (‘pace’) on 25 April 2002 emphasizes that [t]oday Roma are still subjected to discrimination, marginalisation and segregation. Discrimination is widespread in every field of public and personal life, including access to public places, education, employment, health services and housing, as well as crossing borders and access to asylum procedures. Marginalisation and the economic and social segregation of the Roma are turning into ethnic discrimination, which usually affects the weakest social groups.75 73

L. Farkas, Segregation of Roma Children in Education: Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 17 74 Ibid. 75 Recommendation 1557 (2002) of the Parliamentary Assembly on the legal situation of Roma in Europe, para. 3.

The Roma

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In Europe the image of the Roma is inseparably connected to that of poverty.76 Scholars such as Morag Goodwin77 have stressed the existence of a strong link between race and poverty and have described how these two factors mutually reinforce one another. The role socio-economic differences play in underpinning and perpetuating racial segregation cannot be overemphasized. A third relevant factor distinguishing the Roma from other minorities, which is intertwined with the problem of marginalization and economic and social segregation, is the existence of widespread prejudice and negative stereotyping. Istvan Pogany78 even talks about ‘pervasive antipathy’ towards the Roma at the level of civil society. The Roma have always been and still are the subject of widespread stereotyping and vilification in popular public discourse throughout Europe.79 By many governments in Europe, the Roma are ‘securitized;’ they are presented as an ethnic group which threatens national security. This ‘securitization’ of the Roma in public political discourse is a basis for repressive measures against the entire group.80 76 77 78 79 80

L. Farkas, Segregation of Roma Children in Education: Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 19. M. Goodwin, ‘Multidimensional exclusion: viewing Romani marginalization through the nexus of race and poverty’ in D. Schiek and V. Chege (eds.), European Union non-discrimination law, London: Routledge-Cavendish, 2008, pp. 145–47. I. Pogany, ‘Refashioning Rights in Central and Eastern Europe: Some Implications for the Region’s Roma,’ European Public Law, 2004, vol. 10, no. 1, p. 93. O. Parker, ‘Roma and the Politics of EU Citizenship in France: Everyday Security and Resistance,’ jcms, vol. 50, no. 3, p. 475–91. Two examples of the securitization of the Roma in public political discourse are Italy and France. In Italy since April 2008, expressions of racism and xenophobia against the Roma have reached new and astounding proportions, and can also be seen to extend to other vulnerable groups, particularly foreign immigrants. Of particular concern is the very central role played in this by mainstream politicians in Italy, as part of both election campaign rhetoric and official acts of local and central government. As a result of specific statements from high ranking Italian politicians fuelling anti-Romani sentiment in Italy and raising concerns about security, instances of physical and verbal abuse of Roma have increased disproportionately in terms of frequency and seriousness since approximately April 2008 when the new government was elected. Violence and racist attacks against Roma are no longer isolated in nature, but have rather become a structural component of the Italian reality. The Italian authorities have failed to condemn acts of violent aggression against Roma and not one person has yet to be held legally accountable for at least 8 incidents of anti-Romani pogroms leading to the razing of Romani camps with Molotov cocktails in Italy. See errc, Security a la Italiana: Fingerprinting, Extreme Violence and Harassment of Roma in Italy, Budapest: errc, 2008, available at (accessed on 1 September 2015).

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Chapter 1

The fact that the Roma minority has been historically marginalized and that it has been prevented from developing in certain key areas is recognized by the European Parliament in its Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe of 25 Mai 200681 at para. 38, where it considers that: [the Roma] community needs special protection since, with the enlargement of the Union, it is one of the largest minorities in the EU and, as a community, it has been historically marginalised and prevented from developing in certain key areas and notes that Roma culture, history and languages are often neglected or denigrated. These three factors—the lack of kin-state support, the problematic socioeconomic situation of the Roma and their historical marginalization with nowadays even their ‘securitization’—make that the situation of the Roma in Europe is even more complex than the situation of other minority groups in Europe. Whilst the claims of those minority groups, who are well integrated into the majority society and have no lesser socio-economic status compared to the status of the majority, are mainly focused on the preservation of their own identity, that is language, culture and traditions, the main concern of the Roma is to exit the negative spiral of marginalization, discrimination and segregation they have landed in. Therefore primary concerns of the Roma are rather of a socio-economical nature than of a cultural nature, even though the latter concerns should not be ignored.82

81 82

As a consequence of the ‘securitization’ of the Roma in Italy, a reported 68 per cent of the population stated in 2008 that they would like to see the entire Roma population expelled from Italy. (O. Parker, ‘Roma and the Politics of EU Citizenship in France: Everyday Security and Resistance,’ jcms, 2012, vol. 50, no. 3, p. 475). In France, the French government securitized the Roma, casting them as a collective threat to security in order to justify their deportation in the summer of 2012. For more on the Roma expulsions from France, see S. Van den Bogaert, ‘Over de rechtmatigheid van de Franse verwijderingsmaatregelen tegen Roemeense en Bulgaarse Roma,’ Chroniques de Droit Public – Publiekrechtelijke Kronieken, 2011, vol. 1, pp. 132–51. European Parliament, Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe, OJ 2006 C 124E, 25 Mai 2006, p. 405, in particular para. 49. On the importance of advancing not only socio-economic empowerment but also cultural empowerment of the Roma, see below Chapter 3: A Critical Stance towards the Human Rights and Minority Rights Approach in the Case of the Roma.

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3.2.2

Does the Factual Recognition of Extreme Vulnerability Justify a Legal Differentiation? The European Parliament Resolution of 31 January 2008 on a European Strategy on the Roma mentions in its Recital B that “the situation of the European Roma [...] is distinct from that of the European national minorities, justifying specific measures at European level.” 83 Whereas the factual recognition of the Roma as an extreme vulnerable minority has prompted international organizations to adopt special policies for the Roma, the question arises whether this factual recognition of vulnerability has also led to a legal differentiation of the Roma versus other minorities and whether the categorization of a minority as ‘extremely vulnerable’ entails any legal consequences. Scholars such as Edouard Dubout84 note that the factual recognition of vulnerability justifies a legal differentiation in the case of the Roma.85 Dubout adds however that the factual recognition of vulnerability is a rather political appreciation which cannot be systematized and that it is very difficult to define at what point the situation of a person or group is sufficiently different in order to entail a legal obligation to treat that person or group differently. For Dubout, it is clear that a phenomenon of long-lasting social exclusion, as is the case with the Roma, automatically triggers the obligation to be treated differently.86 However, sociologists and political scientists point at the disadvantages of the framing of the Roma as a group in need of special attention. Even though the calls for the categorization of the Roma as a specific vulnerable group may persuade member states to adopt new policies that will benefit the Roma,

83 84

85 86

European Parliament, Resolution on a European Strategy on the Roma, OJ 2009 C 68E, 31 January 2008, p. 32, Recital B. “C’est sur le fondement de cette reconnaissance factuelle de vulnérabilité que se justifie la différenciation juridique,” E. Dubout, ‘L’interdiction des discriminations indirectes par la Cour européenne des droits de l’homme : rénovation ou révolution?,’ Revue Trimestrielle des droits de l’Homme, 2008, vol. 75, p. 844. See also F. Fiechter-Boulvard, ‘La notion de vulnérabilité et sa consécration par le droit’ in F. Cohet-Cordey (ed.), Vulnérabilité et droit, Grenoble: pug, 2000, p. 13. “[...] à partir de quand une situation doit-elle être considérée comme suffisamment différente pour entrainer une obligation de traitement différente? Il semble que ce soit la récurrence d’une phénomène d’exclusion sociale relativement long qui mène a ce constat en l’espèce.” E. Dubout, ‘L’interdiction des discriminations indirectes par la Cour européenne des droits de l’homme: rénovation ou révolution?,’ Revue Trimestrielle des droits de l’Homme, 2008, vol. 75, p. 844.

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Chapter 1

paradoxically these calls also provide new discursive material for nationalist politicians with an anti-Romani agenda.87 The unique and vulnerable position of the Roma, and consequently the special protection the Roma are entitled to because of this vulnerable position, have also been frequently highlighted by the ECtHR in its jurisprudence. For instance, in the case of D.H. and Others v. the Czech Republic, the Court stresses in paras 181–82 of the judgment that: […] the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases (see Chapman v. the United Kingdom [GC], no. 27238/95, § 96, echr 2001 i, and Connors v. the United Kingdom, no. 66746/01, § 84, 27 May 2004). In Chapman (…), the Court also observed that there could be said to be an emerging international consensus among the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community. 182. As a result of their turbulent history and constant uprooting the Roma have become a specific type of disadvantaged and vulnerable minority (see also the general observations in the Parliamentary Assembly’s Recommendation no. 1203 (1993) on Gypsies in Europe … and point 4 of its Recommendation no. 1557 (2002) on the legal situation of Roma in Europe, …). As the Court has noted in previous cases, they therefore require special protection (…). As is attested by the activities of numerous European and international organisations and the recommendations of the Council of Europe bodies (…), this protection also extends to the sphere of education. The present case therefore warrants particular attention, especially as when the applications were lodged with the Court the applicants were minor children for whom the right to education was of paramount importance.88 87

P. Vermeersch, ‘Reframing the Roma: EU initiatives and the politics of reinterpretation,’ jems, vol. 38, no. 8, 2012, pp.1195–1212. See also Chapter 3 at 4. Different Conceptions of Romani Identity: A Skeptical Appraisal of the Minority Rights Discourse from a Sociological Perspective and at 5. The Minority Rights Discourse and the Paradox of Identity Politics. 88 ECtHR, D.H. and Others v Czech Republic, App. No. 57325/00, Judgment 7.02.2006, Second Section Court, paras 181–182. See also ECtHR, D.H. and Others v Czech Republic, App. No. 57325/00, Judgment 13.11.2007, Grand Chamber.

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This uniqueness of the Roma compared to other minority groups is also of relevance when evaluating the appropriateness of minority treaties, such as the Framework Convention for the Protection of National Minorities and EU non-discrimination legislation, such as the Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin.89 The question arises as to whether national minority treaties, drafted to improve the situation of national minorities in general, are well positioned to tackle the situation of the Roma, when the situation of the Roma minority strongly differs from the situation of other minorities throughout Europe. Another question that needs to be asked is whether non-discrimination legislation, focusing mainly on the discrimination and marginalization faced by the Roma, offers enough guarantees for the respect of cultural minority rights.90 4

Conclusions under Chapter 1

The Roma are descendants of people who left the Indian sub-continent at the end of the first millennium. They are present all over the European continent and form a non-homogeneous ethnic group. Only a small percentage of them are nomadic. The term ‘Roma’ is to be preferred over the term ‘Gypsy’ to designate this ethnic group, as the latter term has a negative connotation. The Roma can be considered to be a minority in the light of international law. However, due to the absence of a generally accepted definition, it remains up to the different states to define the concept of a ‘minority’ in their respective national legal systems, and to decide whether or not the Roma should be considered as such. There are several factors distinguishing the Roma from other minorities, such as the lack of kin-state support, the problematic socio-economic situation of the Roma, and their historical marginalization with nowadays even their ‘securitization.’ The factual recognition of extreme vulnerability justifies a legal differentiation of the Roma versus other minorities and justifies the adoption of specific measures. 89 90

Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 2000, OJ L 180/22. See below Chapter 12 at 4.1 Minority Rights as a Wider Notion Compared to Non-­ Discrimination Rights: not only Protection from Discrimination but also the Promotion of Identity.

Chapter 2

Education as a Key to Inclusion and as an Indispensable Means of Realizing Other Human Rights 1 Introduction This second chapter is dedicated to an analysis of the different problems the Roma face in the educational field, with a focus on the problem of segregation of Roma children in education. First of all, the misconceptions that the Roma can be categorized as ‘nonadaptable,’ that they do not want to integrate into majority society and that they, if they are willing to attend school, receive good quality education are countered and some possible causes of Roma scepticism towards the majority school system are identified. (2) The chapter also highlights the importance of education as a key to social inclusion. Desegregated education is a precondition for the overall integration of the Roma into the majority society and therefore prioritizing education is important in strategies on Roma inclusion. (3) A parallel is drawn with the United States (‘US’) and the case of Brown v. Board of Education of Topeka,1 a case on educational segregation that overturned the American legal doctrine of ‘separate but equal’ and that made segregation legally impermissible in the US. (4) A short overview of the most important legal provisions on the right to education gives insight into the existing legal framework. (5) Apart from the legal reasoning, that is the fulfilment of human rights and minority rights obligations by states, there are also socio-economic and political arguments in favour of an improvement of Roma educational conditions. Indeed, it seems that states also have a non-legal interest in assuring the ­respect of equal access to quality education by the Roma. This question is the subject of the last section of this second chapter, which points at the existence of synergies between the human rights agenda and the economic efficiency agenda when arguing for Roma integration. (6)

1 Brown et al. v Board of Education of Topeka et al., 347 US 483 (1954), Appeal from the United States District Court for the District of Kansas, argued 9 December 1952, reargued 8 December 1953, decided 17 May 1954. © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004354210_004

Education as a Key to Inclusion

2

31

Problems Faced by Roma Children in Education

The problems faced by Roma children in education throughout Europe are multi-facetted, and the impediments to equal access to quality education are diverse. The first part of this chapter is dedicated to a very concise overview of possible constraints to equal access to education on the one hand, and barriers to quality education on the other hand.2 Special attention will be paid to the problem of segregation in education. 2.1 Accessibility: Constraints to Equal Access to Education3 Research conducted by ngos on equal access to quality education for Roma children4 shows that five main factors of constraint to equal access to e­ ducation for the Roma can be identified: legal and administrative requirements; costs; residential segregation and geographic isolation; school and class placement procedures; and language. They will be developed very briefly, before coming to five main barriers to quality education. 2 Several models of assessment of the fulfillment of the right to education are available. There is the 4 A scheme, developed by Special Rapporteur (1998–2004) on the right to education of the United Nations Commission on Human Rights Katharina Tomasevski. According to the 4 A scheme, education should be available, accessible, acceptable and adaptable. A short description of the content of the 4 A’s is available at (accessed 5 October 2011). In the case of the Roma, the availability of education is not the main problem, since all European states offer education to Roma. The problem lies in the lack of equal access to education and the bad quality of education for Roma. Since both acceptability and adaptability can be considered as preconditions for good quality education, the two concepts of acceptability and adaptability are subsumed under the notion of ‘good quality education.’ Therefore the concept of ‘­access to quality education’ also covers accessibility, acceptability and adaptability. 3 The observations under 2.1 Accessibility: Constraints to Equal Access to Education are based on the results of the eumap monitoring project on Equal Access to Quality Education for Roma. The monitoring project was carried out in co-operation with the esp (Education ­Support program) and rpp (Roma Participation Program) of the Open Society Institute. The first monitoring reports on Bulgaria, Hungary, Romania and Serbia were published in 2007. The monitoring concentrates on primary and secondary education (up to age 18), but also assesses pre-school education. Each country report contains a set of specific recommendations aimed at the national government, local authorities, ­intergovernmental bodies and other actors. These recommendations were at the basis for sustained advocacy promoting the d­ evelopment of improved educational policy for the Roma. The reports were prepared in close collaboration with local partners in each of the countries. Open Society Institute EU Monitoring and Advocacy Programme, Equal Access to Quality Education for Roma: Monitoring Reports for Bulgaria, Hungary, Romania and Serbia, Budapest: Open Society Institute, 2007, also available at (accessed 10 October 2011). 4 Ibid.

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2.1.1 Legal and Administrative Requirements Roma families have particular difficulties in meeting the administrative requirements to enrol their children in a school. Legal and administrative requirements for birth and medical certificates and residence papers, as well as the practice of pre-schools defining their own (internal) criteria for admission, among other factors, pose serious obstacles to Roma access to pre-school education. Cases have been reported where Roma children were not admitted to pre-schools due to their parents’ social disadvantage or unemployment.5 2.1.2 Costs Apart from school fees, families also incur additional costs—regarding meals, public transport, excursions, teaching materials etc.—when sending a child to school. This is particularly burdensome for impoverished Roma families. Many Roma families cannot afford the fees set by the municipalities, and the free meals and travel subsidies offered by special schools6 may encourage disadvantages families to enrol their children in such schools. 2.1.3 Residential Segregation and Geographical Isolation A high percentage of Roma lives in compact settlements and is often geographically isolated from the nearest school. Geographical segregation is widespread in Central and Eastern European states, both in urban and rural areas, which gives rise to ‘Roma schools’ in predominantly Roma neighbourhoods. Although parents can choose to send their children to schools outside the area, few Roma parents do so outside of an organized desegregation programme. Moreover, Roma settlements and neighbourhoods are often located at a considerable distance from majority communities and infrastructure, including schools.7 2.1.4 School and Class Placement Procedures Formal and informal procedures and requirements for the placement of Roma children in special schools and for transferring them back to the standard school system8 are disadvantageous for the Roma. Parents’ rights to choose a 5 Ibid. 6 The issue of segregation in special education will be dealt with extensively in 2.3 Different Patterns of Segregation of Roma Children in Central and Eastern Europe. 7 In Hungary, for instance, it is estimated that 60,000, or approximately 13% of the Roma population live in settlement housing isolated from the majority population. See L. Puporka and Z. Zádori, The Health Status of Romas in Hungary, Budapest: World Bank Regional Office Hungary, 1999, also available at (accessed 10 October 2011). 8 Please note that once Roma children have been placed in special schools, it is very difficult for them to return to mainstream education.

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33

school for their children are often not respected and parents are not well informed about the opportunities to appeal against a placement decision. 2.1.5 Language The national education systems of most Central and Eastern European states are not prepared to educate Roma children whose mother tongue is the Romani language. A lot of Romani speaking children do not master the majority language well enough to receive education in that language and there is a pressing need for additional support in the teaching of the majority language to Roma children. Another problem is that the language spoken by the Roma minority is often not recognized as a minority language. The preparedness of the educational system for bilingual education in Roma community schools is often very low or even non-existing. The lack of bilingual facilities and human resources has negative effects on pupils’ achievement.9 2.2 Acceptability and Adaptability: Barriers to Quality Education10 In evaluating the quality of education, the focus should be on input indicators such as the school infrastructure, curriculum and human resources, as well as on output indicators reflected in pupils’ school achievements. There are differences in school infrastructure and human resources between separate schools with a majority body of Roma pupils and mainstream schools. At the same time, differences in the quality of education resulting from curricular differences between special schools and mainstream schools and between remedial classes and mainstream classes exist. Again five main barriers to quality education can be identified: low quality school facilities and shortage in human resources; an inappropriate learning environment; lower curricular standards; negative school-community relations; and discriminatory attitudes.

9

10

As most governments do not maintain records on achievement disaggregated by ethnicity, school results for the Roma cannot be tracked. However, the link between a lack of bilingual facilities and a lack of human resources and worse school achievement is quite obvious and has been established by ngo conducted research in the framework of the eumap monitoring project. See Open Society Institute EU Monitoring and Advocacy Programme, Equal ­Access to Quality Education for Roma: Monitoring Reports for Bulgaria, Hungary, Romania and Serbia, Budapest: Open Society Institute, 2007. The observations under 2.2 Acceptability and Adaptability: Barriers to Quality Education are based on the results of the eumap monitoring project on Equal Access to Quality Education for Roma. Open Society Institute EU Monitoring and Advocacy Programme, Equal Access to Quality Education for Roma: Monitoring Reports for Bulgaria, Hungary, Romania and Serbia, Budapest: Open Society Institute, 2007.

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2.2.1 Low Quality School Facilities and Shortage in Human Resources The school infrastructure for Roma pupils in Central and Eastern Europe is often of a substandard quality: overcrowded schools with poor heating and ­inadequate sanitation occurs frequently. Many Roma schools lack the facilities necessary to educate students adequately, such as computers and laboratories. In the special school networks, sometimes even the most basic equipment, such as desks, textbooks and teaching materials, is inadequate or altogether lacking. With such conditions, these schools cannot attract highly qualified and motivated teachers. As a consequence segregated Roma schools often have a shortage of qualified teachers. Teacher training programmes generally do not include training in areas such as multicultural and bilingual education and the special needs which would facilitate the social integration of the Roma. Teachers are not trained to educate Roma children whilst the presence of teachers who understand the Roma background and the challenges Roma children are facing and who can serve as role models are an important factor in the success of Roma students. Teaching aids, textbooks and curriculum guides are generally not available to teachers to address the special needs of the Roma or to incorporate lessons about Roma language, history or culture.11 2.2.2 An Inappropriate Learning Environment School results depend upon the children’s learning environment: if the learning environment is inappropriate, school results are likely to suffer. Roma children do not have a stimulating learning environment at home. Elder children are often to take care of the younger ones, houses are mostly over-crowded and do not provide for a quiet learning environment.12 2.2.3 Lower Curricular Standards Special schools are often designed to have lower academic standards, especially those aimed at children with intellectual disabilities. Curricula in ­special schools are less demanding than those in mainstream schools and pupils can pass from grade to grade without meeting basic standards.13 Indeed, 11 Ibid. 12 Ibid. 13 In the summer of 2012, Amnesty International and errc visited Ostrava, the Czech Republic, to interview the applicants in the D.H. case, who now have children of their own. Maria, one of the mothers whose children were applicants in the D.H. case, testifies that her granddaughter Laura, who attends School no. 2 in Ostrava-Privoz, a m ­ ainstream ­Roma-only school, is being taught an inferior curriculum. In Laura’s first grade class, the whole class only managed to learn the alphabet up to the letter “N,” thus falling short

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35

for children attending special schools, there are no set standards at all. As a ­consequence, pupils who have attended special schools are unable to go on to further education as in most cases the diplomas obtained after completing a special school do not allow the pupil to access higher education.14 2.2.4 Negative School-Community Relations Parental involvement in educational and school affairs is a major factor in children’s school achievement, particularly for the Roma. A number of factors, including poverty and low levels of education, present significant challenges to parental involvement in their children’s education. The reluctance of parents to send their children to school can be explained by their lack of education or their own negative experiences with school. They may also fear losing their educated children because of the gap education would place between them.15

14

15

of the educational programme requirements under which a pupil at the end of the first grade of elementary school is expected to be able to write and read short texts. Even though Laura’s grandmother insisted on sending her to a mixed mainstream school, Laura’s mother decided to enroll her in School no. 2, a Roma-only school, due to concerns that the girl would be bullied, humiliated and discriminated against if she would go to a mixed mainstream school. See Amnesty International and errc, Five more years of injustice: Segregated education for Roma in the Czech Republic, London and Budapest: Amnesty International and errc, 2012, p. 15, available at (accessed on 29 December 2012). The fact that the curricula in special schools or in mainstream Roma-only school is a lot less ambitious than in mixed mainstream schools in the Czech Republic is confirmed by interviews conducted by the Open Society Justice Initiative in the same region. Veronika Sindelarova was in the third grade when she was moved to a practical school. She was the only Roma student in the class and the teacher continued to pick on her. To protect Veronika, her mother agreed to move her to a practical school, where all the grades were put together in the same room and taught the same programme. See Open Society Justice Initiative, Failing Another Generation: The Travesty of Roma Education in the Czech Republic, New York: Open Society Foundations, 2012, available at (accessed on 29 December 2012). Open Society Institute EU Monitoring and Advocacy Programme, Equal Access to Quality Education for Roma: Monitoring Reports for Bulgaria, Hungary, Romania and Serbia, Budapest: Open Society Institute, 2007. For personal testimonies about the frustrations of the Roma youngsters who were forced into attending a practical school for not being able to access higher education, see also the 2012 Open Society Foundations report: Open Society Justice Initiative, Failing Another Generation: The Travesty of Roma Education in the Czech Republic, New York: Open Society Foundations, 2012. See also below: 2.4.1.1 Another Misconception: the Reasons for the Unwillingness of Roma to Attend School.

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A lot of schools with Roma children are aware of the problem, but do not aim to improve communication between teachers and parents.16 2.2.5 Discriminatory Attitudes eumap research17 on discriminatory attitudes indicates that many teachers and school head teachers harbour negative perceptions of Roma students, but that such attitudes are not overtly expressed, and rather come across in the form of low expectations.18 Apart from these indirect forms of discrimination, also direct forms of discrimination by teachers occur,19 such as the fact that in mixed classes in mainstream schools the Roma often have to sit at the back of the class. The Roma are not only discriminated against by teachers and school head teachers, but also by their non-Roma peers, who bully them because of the fact that they behave different, dress different and sometimes have a lesser standard of physical hygiene than their fellow pupils. The issue of the segregation of Roma children has been frequently referred to both among the constraints to equal access to education as among the barriers to quality education. Since segregation into substandard education20 seems to be the main problem Roma children have to cope with when it comes to the denial of their educational rights, an additional section is entirely and exclusively devoted to the question of segregation in education. Since different patterns of segregation of Roma children exist in Central and Eastern Europe, the different nature of these patterns is pictured, while pointing at the same time to the negative consequences of each of the segregation patterns for the equal access to quality education by Roma children.21 16

Open Society Institute EU Monitoring and Advocacy Programme, Equal Access to Quality Education for Roma: Monitoring Reports for Bulgaria, Hungary, Romania and Serbia, Budapest: Open Society Institute, 2007. 17 Ibid. 18 K. Negrin, ‘The curse of low expectations,’ 18 December 2007, available at (accessed on 1 September 2015). 19 On the differences between direct and indirect discrimination in education, see below Chapter 8 at 3.1 Direct and Indirect Discrimination. 20 The fact that segregation in education is one of the main problems Roma children cope with when it comes to the denial of their educational rights is confirmed by the frequency segregation in education and is referred to in the Opinions of the Advisory Committee to the Framework Convention for the Protection of National Minorities, especially regarding the observations made and the monitoring under Article 12 fcnm. The AC Opinions are available under (accessed on 1 September 2015). 21 Open Society Institute EU Monitoring and Advocacy Programme, Equal Access to Quality Education for Roma: Monitoring Reports for Bulgaria, Hungary, Romania and Serbia, Budapest: Open Society Institute, 2007.

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Different Patterns of Segregation of Roma Children in Central and Eastern Europe22 A major obstacle in assessing the situation of segregated education of the Roma is the absence of comprehensive and accurate data about Roma education. This fact renders the assessment of the status of the Roma in the educational systems of the above mentioned countries a very difficult task. Policies based on non-existent or scarce educational data are bound to fail. Where statistical data about the state of Roma education exist, the information is often highly inaccurate, underestimating the real numbers of the Roma several fold.23 The European Roma Rights Centre (‘errc’) carried out a study mapping the common practices of segregation of Roma schoolchildren in Bulgaria, the Czech Republic, Hungary, Romania and Slovakia.24 The study showed segregation in many forms across the region: Roma students are often placed in ­special schools for the mentally disabled; separate schools may result from residential segregation; Roma students studying in mainstream schools may be placed in classes with inferior curricula and teaching staff. Depending on the different histories and demographic factors, one or more of these forms of segregation are apparent in each country.25 Four main forms of segregation 2.3

22

23

24

25

This part is an excerpt from the following Article: S. Danova, ‘Patterns of Segregation of Roma in Education in Central and Eastern Europe’, in E. Rekosh and M. Sleeper (eds.), Separate and Unequal, Combating Discrimination against Roma in Education, Budapest: Public Interest Law Initiative/Columbia University Kht, 2004, pp. 3–13. The author kindly thanks Mrs. Danova and the Public Interest Law Initiative for having granted permission to reprint substantial parts of the said article (by email of 7 August 2007). In Hungary and the Czech Republic, for example, the absence of ethnically disaggregated data is justified by the prohibition on collecting such data as provided under Hungary’s data protection laws. In Slovakia, some ethnically disaggregated data on education exist. This information is based on the self-identification of Roma and is widely held to be inaccurate, underestimating the numbers of Roma. This inaccuracy stems from the reluctance of many Roma to reveal their identity, because belonging to the Roma ethnicity is associated with the worst stigma in Slovak society. The inaccuracy of the data is conditioned by a failure to ensure that the Roma freely declare their identity. errc, Stigmata: Segregated Schooling of Roma in Central and Eastern Europe, a survey of patterns of segregated education of Roma in Bulgaria, the Czech Republic, Hungary, Romania, and Slovakia, Budapest: errc, 2004, also available at (accessed on 11 October 2011). The report is the result of research undertaken in 2002–2003 with specific project support from the Human Rights Project Fund of the Foreign and Commonwealth Office of the United Kingdom, as well as with core funding from the Open Society Institute, the Ford Foundation and the Ruben and Elisabeth Rausing Trust (renamed Sigrid Rausing Trust in 1996). The data collected by the errc during the research vary in terms of sources and scope: some data were provided by official statistical sources and are based on the

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Chapter 2

o­ ccur: inter-school segregation, intra-school segregation, intra-class segregation and individual segregation. 2.3.1 Inter-school Segregation 2.3.1.1 Separate Causes of Inter-school Segregation Inter-school segregation may have three separate sources which are of a geographical, cultural and social nature. One cause is the existing regional or housing segregation between ethnic groups. Another cause is the presence of private, foundation or faith schools that impose extra requirements, such as entrance exams or tuition fees from which Roma children are de facto excluded on account of their social disadvantage. These two forms of segregation should be distinguished from a third form a segregation, which is related to inappropriate or culturally biased psychological testing leading to placement in remedial schools for mentally disabled children. 2.3.1.2 Segregation of Roma in Special Schools for the Mentally Disabled In each of the five countries subject to the above mentioned errc research, apart from the mainstream schools, there is a parallel system of primary and secondary schools for children with physical and mental disabilities. Children with slight mental disabilities are educated in special primary schools or in special classes within the regular primary schools that do not offer education of a standard equal to that of the regular schools. Special schools permit the adjustment of the regular curriculum to a level considered appropriate for those children. A number of estimates from various sources, including the governments themselves, indicate that the system of remedial special schools functions as a de facto parallel substandard system of education for the Roma.26 A complex of systemic27 deficiencies in the structure and procedures of the educational ­

26

27

self-­identification of the Roma; other data came from the institutions of the local or central government and rely on the identification of Roma children by teachers and school directors; still a third type of data were collected by the errc researchers during their field research in the five countries (Bulgaria, the Czech Republic, Hungary, Romania, and Slovakia) and are based on the researchers’ own impressions. See for example, for the Czech Republic, UN Committee on the Elimination of Racial Discrimination, Reports Submitted by States Parties under Art. 9 of the Convention: Fourth Periodic Report of States Parties Due in 2000, Addendum Czech Republic, [26 November 1999], CERD/C/372/Add.1, 14 April 2000, para. 134. The term ‘systemic’ discrimination does not suggest or implicate deliberate discrimination, but rather the interconnected nature and resultant policies in various fields, with disparate impact on Roma communities.

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system, racially biased assignment to special educational facilities, and widespread anti-Roma racism at various levels of society reinforce one another, with the effect of denying the Roma an equal education. Mainstream schools fail to integrate Roma children due to the lack of institutional mechanisms ensuring that the Roma have equal opportunities when they start school. Instead of creating conditions for the Roma to learn the language of mainstream education before entering school, and instead of helping disadvantaged Roma to acquire the social skills that the majority children have acquired, the educational system assigns them to substandard education. Racially disproportionate effects generated by the educational system are compounded by the individual racism of teachers and school authorities who refuse to educate Roma and knowingly segregate them in remedial special schools. On many occasions, Roma parents and educationists have described situations indicating that Roma children were routed to the remedial special schools as a result of the conscious efforts by teachers and psychologists to keep them out of the mainstream schools. In all of the surveyed countries, IQ tests are used to determine whether the child has a mental disability. Apart from undermining the dignity of the child, the system of intelligence testing has also been proved to produce racially disparate results. A majority of Roma children who are subjected to these tests return results that place them in the category of mentally disabled. Many educationists and psychologists have admitted that the tests used, and even the process of testing itself, do not account for the linguistic and cultural difference of Roma children, and hence do not provide reliable information about the Roma child’s capacities.28 Many Roma begin their education in remedial special schools without even having the chance to start at a regular school. Others who manage to enrol in the regular primary schools face serious barriers to continuing their school careers there. Regular schools do not provide adequate individualized care to meet the needs of the Roma children. On the other hand, the neglectful and denigrating attitudes of teachers and non-Roma schoolmates alike at the mainstream schools often force the child to enrol in a special school where, among the majority Roma student body, he or she would feel more comfortable. Despite the fact that in some countries measures, such as preparatory classes, have been introduced to ensure an equal start for the Roma children at 28

errc, Stigmata: Segregated Schooling of Roma in Central and Eastern Europe, a survey of patterns of segregated education of Roma in Bulgaria, the Czech Republic, Hungary, Romania, and Slovakia, Budapest: errc, 2004, p. 50, also available at (accessed on 11 October 2011).

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Chapter 2

school, these actions have failed to provide any significant results so far. Moreover, in some cases these measures have proved to stimulate the enrolment of children in the special schools rather than deter such enrolment. After some time spent in a remedial school, the Roma children are more likely to continue their education in an environment which is already familiar to them. The disproportionate enrolment of Roma children in remedial special schools also results from the conscious efforts of the authorities in these schools to persuade Roma parents to enrol their children there. Such efforts are motivated by the desire to preserve the student body of the remedial school and, accordingly, it’s teaching staff and the financial benefits the state offers. errc and Bulgarian Helsinki Committee research29 in Bulgaria found that Roma neighbourhoods are the primary target of the enrolment campaigns launched by the remedial special school authorities. According to some special schools’ teachers and psychologists, the authorities at these special schools try to attract pupils by providing additional services such as dormitories, free meals, and textbooks. Although parental consent to the placement in or transfer of a child to a special school is obligatory according to the legal regulations on special education in all five of the countries mentioned above, freedom of choice in the case of Roma parents is often a hollow concept. In many instances, Roma parents appear to voluntarily enrol their children in the remedial schools, but their ‘choice’ is not free30 of the coercive effect of such factors as poverty, the neglect of Roma children by teachers in the mainstream schools, and the racial harassment of the Roma children in those schools. 2.3.1.3

Another Form of Inter-school Segregation: Segregated Roma Ghetto Schools Other forms of inter-school segregation are segregated Roma ghetto schools. High numbers of Roma students attend inferior-quality schools in which the overwhelming majority of children are Roma (also referred to as ‘Roma ghetto schools’). Although there is no legal distinction between Roma ghetto schools and the rest of schools, there is a marked difference in the quality of education provided in the two types of schools. Roma ghetto schools, usually 29 30

Ibid., p. 41. See also the Grand Chamber judgment of D.H. and Others v Czech Republic of 13 November 2007, discussed below in Chapter 9 at 4.1.2 The case of D.H. and Others v. Czech Republic: Grand Chamber Judgment of 13.11.2007, where the European Court of Human Rights (‘ECtHR’) held that the consent by the Roma parents to enroll their children into the substandard segregated educational system in the Ostrava region did not amount to ‘informed consent’ (at paras 202–203 of the judgment).

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known locally as ‘Gypsy schools,’ are generally inferior in material conditions and quality of education: school buildings are run-down and ill-equipped to provide for quality education; teachers lack basic qualifications; textbooks are out-of-date; and teaching aids are wanting. The low quality of education in the ghetto schools is also caused by the prevalence in these schools of unqualified teachers. Research data in Romania31 demonstrated that in 1998, unqualified teachers were present in every rural school with a student body that was more than 50 percent Roma. There was a correlation between the percentage of Roma pupils in a school and the ratio of unqualified teachers. For example, the prevalence of unqualified teachers ranging between 50 and 75 percent per school was approximately three times higher in schools with more than 50 percent Roma children than in the rural system as a whole; in schools where the Roma make up nearly the entire population, this ratio was roughly five times higher than in the total rural school system. A rate of unqualified teachers of more than 75 percent per school was approximately four times higher in schools with more than 50 percent Roma students than in the system as a whole and about ten times higher in schools where the Roma make up nearly the entire population than for the rural school system as a whole.32 Roma ghetto schools have emerged as a result of two general factors: residential segregation of the Roma and the withdrawal of non-Roma students from schools where the percentage of Roma is high. The process of state school ghettoization is also influenced by the racially motivated denial of access of Roma to regular schools. Roma ghetto schools located in the Roma ghettos exist in cities, towns and villages. Many urban Roma live in ghettos on the margins of towns and cities or in the inner parts. Although there are various reasons for the appearance of the urban Roma ghettos, in all countries they have common characteristics: they are overcrowded and have substandard housing facilities. Another process that conditions the emergence of ghetto schools, especially in the rural areas, is the increase in the percentage of Roma among the local population as a result of demographic trends and economic migration,

31

32

errc, Stigmata: Segregated Schooling of Roma in Central and Eastern Europe, a survey of patterns of segregated education of Roma in Bulgaria, the Czech Republic, Hungary, Romania, and Slovakia, Budapest: errc, 2004, pp. 78–79, also available at (accessed on 11 October 2011). M. Surdu, ‘The Quality of Education in Romanian Schools with High Percentages of Romani Pupils,’ Roma Rights Journal, 2002, nos. 3–4, available at (accessed on 11 October 2011).

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mainly of non-Roma, from the rural areas. The increase of the Roma among the general population is reflected in the student body of village schools, many of which are gradually becoming predominantly Roma in composition. Such is the case, for example, with many Bulgarian and Slovak schools in rural areas. 2.3.2

Intra-school Segregation: Separate Buildings or Classes for Roma in the Mainstream Schools In some countries, errc research33 established the phenomenon of the formation of Roma ghetto schools within the mainstream schools. This is the case of mainstream schools which have more than one building. The existence of two or more buildings makes it possible for school authorities to separate Roma children in the frequently older, non-renovated building.34 In every one of the countries the errc surveyed, all-Roma classes within the mainstream schools have been in existence for some time. These classes are defined by various criteria: some are special classes following the curriculum of the schools for mentally disabled children; other classes are set up on the basis of the students’ individual ability, with school officials introducing more advanced classes for talented pupils and catch-up classes for students who are having difficulties in keeping pace with the regular curricula. In many places, however, school officials admitted they maintain classes that are predominantly non-Roma in order to meet the requirements of non-Roma parents, who will then agree to keep their children in the school.35 33

34

35

errc, Stigmata: Segregated Schooling of Roma in Central and Eastern Europe, a survey of patterns of segregated education of Roma in Bulgaria, the Czech Republic, Hungary, Romania, and Slovakia, Budapest: errc, 2004, p. 74, also available at (accessed on 11 October 2011). Such is the case of the school in the village of Hermanovce, in eastern Slovakia. The school had a single building up until 1990. After that, a new building was constructed and all non-Roma children were transferred to the new building, while the Roma children remained in the old one. The two buildings are located next to each other and are known locally as the ‘black one’ and the ‘white one.’ These buildings differ significantly in material conditions, the ‘black one’—with the Roma children—being much worse. In Romania, for example, the school management of the basic School no. 6 in Alexandria, Teleorman County, justified the organization of classes with a reduced number of Roma children as a response to the preferences of non-Roma pupils for specific teachers. By transferring the Roma students out of those classes and granting the preferences of the Romanian parents, the school is able to avoid the transfer of non-Roma pupils to other schools. Elena Otelea, vice-director of the school, told the errc: “We have to consider the preferences of the [non-Roma] parents. Otherwise they go to other schools.” errc interview with Elena Otelea, 14 November 2002, Alexandria, Romania. Class 1B had twenty-five pupils, six of them Roma; 1A had sixteen students, of whom fourteen were Roma; and 1C had seventeen pupils, seven of them Roma. errc, Stigmata: Segregated Schooling of Roma

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2.3.3 Intra-class Segregation Intra-class segregation is created by organizing different subgroups in one school class. It may stem from differing levels of curricular standards within the same class. In the case of the Roma, it takes the shape of less demanding curricular standards for Roma children whereas their class peers have to meet more demanding curricular standards. Intra-class segregation can also take the physical form of putting Roma children at the back of classroom. 2.3.4 Individual Segregation Hungarian sociologists36 have identified so-called ‘home schooling,’ where children are educated at home by their parents—in fact amounting to a school exclusion order—as an additional form of segregation. The problem here lies in the fact that in some countries, especially in Hungary, Roma parents were put under pressure to agree to educate their children at home with the underlying reason that certain school head teachers were not keen on admitting Roma children to their schools. Obviously, in contrast to isolated incidents, only situations that are indicative of a trend or general practice of individual segregation within the education system are of concern here.37 2.3.5 Segregation as a Form of Endemic Discrimination Finally, it needs to be stressed that these different patterns of segregation mostly have a general and systematic character. Therefore most scholars ­qualify the 36

37

in Central and Eastern Europe, a survey of patterns of segregated education of Roma in Bulgaria, the Czech Republic, Hungary, Romania, and Slovakia, Budapest: errc, 2004, p. 58, also available at (accessed on 11 October 2011). According to comprehensive research conducted in Hungary in 2000, 3 percent of Roma students were educated at home, compared with just 0.4 percent of non-Roma children. Ten percent of Roma students aged 14 and older were educated at home, which in the majority cases meant that they received no education at all. As parents must request home schooling, primary schools persuaded many Roma parents to do so. See: G. Havas, I. Kemeny and I. Lisko, Cigany gyerekek az altalanos iskolaban [Gypsy Children in Primary School], Budapest: Új Mandátum, 2002, pp. 163–168, cited in L. Farkas, Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 10 available at (accessed on 1 September 2015). L. Farkas, Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 10 available at (accessed on 1 September 2015).

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segregation Roma children face in education as a form of ‘endemic discrimination’ due to its widespread and systematic character.38 Jack Greenberg, who was one of the lawyers who argued Brown v Board of Education39 travelled frequently to Central and Eastern Europe in 2003, 2007 and 2008 to learn more about segregation in education in the region. He notes that he was astonished by the general lack of information. Segregation throughout Eastern Europe is widespread. In some places there was no segregation, but elsewhere there were all-Roma and non-Roma schools; in others there were separate rooms or parts of rooms for Roma children. Nearly everywhere, there was reluctance to act against any form of this endemic discrimination.40 In the case of the Roma, their segregation in education can be seen as a form of systemic discrimination, precisely due to its general and widespread character combined with the reluctance to act against it. Often school directors or those persons responsible for the segregation do not have the active intention to discriminate and are not fully aware of the perverse effects of segregated education. It is a pattern which has been pre-existent and which is continued, out of a conviction based on a negative perception of the Roma minority. The decision to relegate Roma children to segregated education is also often based on the misconception that the Roma are not capable and not willing to attend school. This misconception will be tackled in the next section. Another Misconception: The Reasons for the Unwillingness of the Roma to Attend School Several causes for the lack of access to quality education have been identified above. Causes of the segregation of Roma children in education and of systemic discrimination are multiple and can be identified both on the side of the non-Roma as on the side of the Roma. They mostly boil down to a relation of mutual distrust between the majority population and the Roma. However, one should be cautious about putting too much of the blame on the Roma themselves. Unfortunately, it is often stated, in particular regarding the Roma minority, that parents do not care about school and do not want to send their children to school. Such statements are unilateral, placing blame 2.4

38 39 40

J. Greenberg, ‘Roma Victimization: From Now to Antiquity,’ Columbia Human Rights Law Review, 2009, vol. 41, no. 1, pp. 1–12. See below at 4.1 The Parallel with Brown v Board of Education of Topeka. J. Greenberg, ‘Roma Victimization: From Now to Antiquity,’ Columbia Human Rights Law Review, 2009, vol. 41, no. 1, p. 3.

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only on the minority group itself, and do not consider whether schools, which represent the majority, welcome and accommodate minority children into mainstream education. It is more likely the case, considering the legacy of past political regimes and more traditional teaching methods and approaches to school governance, that most mainstream state schools are not welcoming for Roma children at all. In fact, schools are often completely insensitive to the needs of Roma children. They lack appropriate and meaningful curricula, teaching materials, assessment practices and teaching strategies. Teachers are not trained to work effectively with Roma students, their families and communities, while school administrators may not have any commitment to their success. Combined with this, school environments are often biased toward Roma children and the Roma in general. After having faced instances of discrimination and prejudice, it is not surprising that the Roma may be sceptical and hesitant to send their children to school.41 2.4.1 European Educational Systems: Tailored to the Majority Group Fact is that the European educational system is mostly tailored to the majority group and orientated towards the needs and aspirations of the majority group. It is thus often forgotten that school does not automatically suit the needs and aspirations of other groups living in the majority society. The Roma community has its own expectations of the educational system and unfortunately, up to now, there has been very few or even no correlation for young Roma between scholastic success and economic or social success.42 Indeed, for a Roma child the benefits of education may not be self-evident. Roma pupils rarely learn anything of their culture, language or values in a classroom. They are presented with a stark choice of denying their cultural identity and perhaps consequently suffering rejection at home.43 Jean-Pierre Liégeois notes that school attendance is often a long, difficult, frequently painful process which has only rarely paved the way towards economically viable skills, or even useful ones. On the contrary, school attendance can handicap the Roma child, in that it keeps them from their in-family apprenticeship while discrimination and the socio-economic context prevent

41

42 43

Ch. McDonald, The education of Roma children: inroads to good practice, the rei example, New York: Soros, 2009, available at ­(accessed on 11 October 2011). J.-P. Liégeois, Roma, Gypsies, Travellers, Strasbourg: Council of Europe, 1994, pp. 204–205. H. O’Nions, Minority Rights Protection in International Law: The Roma of Europe, Hampshire: Ashgate, 2007, p. 132.

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them from utilizing what they have learned in school. As a result, such a child is doubly marginalized. The aspirations and values of Roma families, and those of teachers, the school, non-Roma institutions in general and the policies behind them may be very different and their confrontation produces conflict within the school.44 2.4.2 The Curse of Low Expectations ‘The Curse of Low Expectations’ is the title of a contribution by Katy Negrin, senior editor at eumap, the EU Monitoring and Advocacy Program of the Open Society Institute, on a series of monitoring reports on Equal Access to Quality Education for the Roma. She describes how Roma children in schools are living up to low expectations: The odds are stacked against Roma children from the very beginning. Growing up in a house where there may not be light to read by, never mind a book to read, Roma children come to school where they are immediately singled out by fellow pupils and teachers alike. Other children may mock inadequate clothes, or a limited understanding of the majority language. Teachers see a child who needs extra support, support they may not be able to give in a full class and without adequate training and preparation. Roma children may have few role models at home to encourage them to stick with school; they struggle to keep up in an unfamiliar language, they don’t find any material about their community or culture in the textbooks, they know that their classmates’ parents don’t want to have them over after class. The lesson that many Roma get about school in the end is, “this isn’t for you.” With such a clear message, in fact it’s more surprising that so many Roma families do make every effort to put their children through school. With support from community activists and nongovernmental initiatives, some Roma parents are finding the support they need to see their children get the quality education to which they’re entitled. […]Roma are, incontrovertibly, part of European society, and the choice to be made is whether they will stay at the margins, or whether they are drawn into a more inclusive, cohesive social setting. It’s time to lay the curse of low expectations to rest.45 44 45

J.-P. Liégeois, Roma, Gypsies, Travellers, Strasbourg: Council of Europe, 1994, p. 205. K. Negrin, ‘The Curse of Low Expectations,’ 18 December 2007, available at (accessed on 13 October 2011).

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Data on teacher expectation research have revealed that some teachers treat high- and low-achieving students differently and that teachers’ expectations appear to be associated with student achievement.46 Findings in the field of educational psychology confirm that low teacher expectations function as a self-fulfilling prophecy.47 Scholars have investigated the processes by which teachers communicate differential performance expectations to different children through observational study of dyadic contacts between teachers and individual students in classroom. Differential teacher expectations for different children were associated with a variety of interaction measures, although many of these relationships are attributable to objective differences. However, other differential teacher behaviour was observed which is not attributable to objective differences among the children and which is consistent with the hypothesis that differential teacher expectations function as self-fulfilling prophecies. This hypothesis was confirmed: teachers demanded better performance from those children for whom they had higher expectations and were more likely to praise such a performance when it was elicited. In contrast, they were more likely to accept poor performance from students for whom they held low expectations and were less likely to praise a good performance from these students when it occurred, even though it occurred less frequently. As teachers’ expectations for Roma children are mostly low, this contributes to lesser performances by Roma children. And reversely, higher teacher expectations can contribute to the better achievement of Roma pupils in class. Therefore a positive teacher attitude towards teaching Roma children is important in breaking the vicious circle of low school achievement. 2.4.3 Fear of Assimilation by Means of Majority Education As the relations between the Roma and non-Roma communities to a large degree remain antagonistic, the behaviour of Roma parents and children will be largely determined by this negative attitude.48 Liégeois stresses that Roma parents consider school, being an institution which is part of an environment 46 47

48

T.L. Good, ‘Teacher Expectations and Student Perceptions: A Decade of Research,’ Educational Leadership, 1981, vol. 38, no. 5, pp. 415–22. J.E. Brophy and T.L. Good, ‘Teachers’ communication of differential expectations for children’s classroom performance: Some behavioral data,’ Journal of Educational Psychology,1970, vol. 61, no. 5, pp. 365–374; W.D. Crano and P.M. Mellon, ‘Causal influence of ­teachers’ expectations on children’s academic performance: A cross-lagged panel analysis’, Journal of Educational Psychology,1978, vol. 70, no. 1, pp. 39–49; C.E. Snow et al., Unfulfilled expectations: Home and school influences on literacy, Cambridge MA: Harvard University Press, 1991. J.-P. Liégeois, Roma, Gypsies, Travellers, Strasbourg: Council of Europe, 1994, pp. 205–206.

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perceived by the Roma as coercive, to be another imposition, a sort of tentacle grasping their children towards assimilation. Parents are aware of the fact that the school’s impact on a child can be formative—but this may be toward conformity, reform or deformation.49 In sending their children to school, Roma parents face a certain dilemma. On the one hand, the school is perceived as a tool used by the majority population for assimilation. On the other hand, it is only through quality schooling that Roma children can integrate into society. The main problem is that Roma parents, due to their far going distrust, are not convinced that having a proper education is an important means for Roma children to be able to come out of their difficult socio-economic situation.50 However, the first step in climbing up the social ladder is a good quality education. The importance of equal access to a quality education for integration is highlighted in the next section. 3

The Importance of Education: Education as a Means of Integration and Effective Participation in Society

Personal and Societal Gains Offered by Education: References to Legal Provisions Education is one of the most important vehicles by which the integration of minorities into mainstream society can be promoted. In its General Comment No. 13 on Education,51 the Committee on Economic, Social and Cultural Rights (‘cescr’),52 the body of independent experts that monitors the ­implementation of the International Covenant on Economic, Social and 3.1

49 50 51

52

Ibid., p. 207. Ibid., p. 209. Paragraph 1 of General Comment No. 13 on the Right to Education, of the Committee on Economic, Social and Cultural Rights E/C.12/1999/10 of 8 December 1999 reads as follows: “Education is both a human right in itself and an indispensable means of realizing other human rights. As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children can lift themselves out of poverty and obtain the means to participate fully in their communities. Education has a vital role in empowering women, safeguarding children from exploitative and hazardous labour and sexual exploitation, promoting human rights and democracy, protecting the environment, and controlling population growth. Increasingly, education is recognized as one of the best financial investments States can make. But the importance of education is not just practical: a well-educated, enlightened and active mind, able to wander freely and widely, is one of the joys and rewards of human existence.” The Committee was established under ecosoc Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions assigned to the United Nations Economic and Social Council (‘ecosoc’) in Part iv of the Covenant.

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­Cultural Rights by its states parties, underlined that education is an indispensable means of realizing other human rights.53 As an empowerment right, education is the primary vehicle by which economically and socially marginalized adults and children—such as the Roma—can lift themselves out of poverty and obtain the means to participate fully in their communities.54 The personal and societal gains offered by education are also underlined in several international legal documents.55 Art. 26 (2) of the Universal Declaration of Human Rights (1948) stipulates that [e]ducation shall be directed to the full development of the human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups, and shall further the activities of the United Nations for the maintenance of peace. Sia Spilioupoulou Ǻkermark56 notes that similar statements can be found in several other documents, such as Art. 5 (1) (a) of the unesco Convention against Discrimination in Education (1960) and Art. 13 (1) of the International Covenant on Economic, Social and Cultural Rights (1966). The importance of education for the co-existence of different groups is evident. There is thus a clear linkage with the protection of minority groups. According to Ǻkermark, this is even more apparent in the aims of education as described in the Convention on the Rights of the Child (1989). In Art. 29 (1) states parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; 53

It should be noted that, as human rights are interdependent in practice, the denial of other civil, political, economic, social and cultural rights has a negative impact on the realization of minority rights in education. 54 Committee on Economic, Social and Cultural Rights, General Comment No. 13, E/C.12/1999/10, para 1. 55 S. Spiliopoulou Akermark, ‘Minority rights in education: international rules and trends’ in L. Huss, A. Camilleri Grima and K.A. King (eds.), Transcending Monolingualism, Linguistic Revitalisation in Education, Lisse: Swetz & Zeitlinger Publishers, 2003, p. 20. 56 Ibid.

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(d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment57 Ǻkermark hereby also notes that Arts 2858 and 29 of the Convention on the Rights of the Child are followed by Art. 30 on the protection of children belonging to minorities.59 The contextual reading of both articles re-enforces the importance of an education which respects and develops the cultural identity and language of the child. 3.2 Education as a Vital Element for the Survival of Culture The interrelationship between culture and education is highlighted in the unesco Guidelines on Intercultural Education. These Guidelines underscore that culture and education are intertwined: Culture forges educational content, operational modes and contexts ­because it shapes our frames of reference, our ways of thinking and acting, our beliefs and even our feelings. All actors involved in education – teachers and learners, curriculum developers, policy makers and ­community members – invest their cultural perspectives and cultural aspirations into what is taught, and how it is conveyed. Yet education is also ­vital to the survival of culture. As a collective and historical phenomenon, culture cannot exist without continual transmission and enrichment through education, and organized education often aims to achieve this very purpose.60 The unesco Guidelines on Intercultural Education underscore that education systems need to be responsive to the specific educational needs of minorities. 57 58 59

60

Emphasis added. For a commentary on Art. 28 on the right to education of the Convention of the Rights of the Child, see M. Verheyde, Article 28: The Right to Education, A Commentary on the Convention of the Rights of the Child, Leiden: Nijhoff, 2006. Art. 30 of the Convention on the Rights of the Child reads as follows: “In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language.” unesco, unesco Guidelines on Intercultural Education, Paris: unesco, s.d., pp. 12–13, available at (accessed on 11 October 2011).

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Among the issues to be considered is how to foster the cultural, social and economic vitality of such communities through effective and adequate educational programmes that are based on the cultural perspectives and orientations of the learners, while at the same time providing for the acquisition of knowledge and skills that enable them to participate fully in the larger society.61 In order to strengthen democracy, education systems need to take into account the multicultural character of society, and aim at actively contributing to peaceful coexistence and positive interaction between different cultural groups. There have traditionally been two approaches in this respect: multicultural education and intercultural education.62 The differences between these two approaches will be discussed in the next section. 3.2.1 On the Differences between Multi- and Intercultural Education Multicultural education and intercultural education play an important role in fostering tolerance, dialogue and mutual understanding between various groups in society. The separate use of these two terms in international legal instruments would denote, by inference, a clear distinction in meaning between them. However, regrettably most scholars use the terms of multicultural and intercultural education as interchangeable terms and do not differentiate between them.63 The unesco Guidelines on Intercultural Education give guidance on the difference between the two concepts, underscoring that: 61 62 63

Ibid., p. 17. Ibid., p. 18. In the United States and Canada, scholars mostly refer to the term ‘multicultural education’ and the two terms are often used without differentiating between them. See e.g., E.M.A. Thornhill, ‘Multicultural and Intercultural Education: The Canadian Experience,’ Revue québécoise de droit international, vol. 12, no. 1, 1999, pp. 79–89. Banks and Banks, who wrote the reference work for research on multicultural education in the United States, define multicultural education as: “a field of study and an emerging discipline whose major aim is to create equal educational opportunities for students from diverse racial, ethnic, social-class, and cultural groups. One of its important goals is to help all students to acquire the knowledge, attitudes, and skills needed to function effectively in a pluralistic democratic society and to interact, negotiate, and communicate with peoples from diverse groups in order to create a civic and moral community that works for the common good. … Consequently, we may define multicultural education as a field of study designed to increase educational equity for all students that incorporates, for this purpose, content, concepts, principles, theories, and paradigms from history, the social and behavioral sciences, and particularly from ethnic studies and women studies.” J.A. Banks and C.A.M. Banks (eds), Handbook of research on multicultural education, New York: Macmillan, 2001, pp. xi–xii. Since they also focus on the aspect of interaction and communication, which goes beyond mere peaceful coexistence, one could argue that their definition of multicultural education rather corresponds to the unesco definition of intercultural education.

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[m]ulticultural education uses learning about other cultures in order to produce acceptance, or at least tolerance, of these cultures. Intercultural education aims to go beyond passive coexistence, to achieve a developing and sustainable way of living together in multicultural societies through the creation of understanding of, respect for and dialogue between the different cultural groups.64 If one adopts such a definition, intercultural education appears to be a lot more ambitious than multicultural education. Whereas multicultural education aims at a situation of passive coexistence and a peaceful living together in harmony of different cultures, intercultural education goes one step further. The term ‘multicultural’ describes the culturally diverse nature of human society, but does not aim at far-going interaction, whereas interculturality does. According to the unesco Guidelines, interculturality is a dynamic concept and refers to evolving relations between cultural groups. It has been defined as ‘the existence and equitable interaction of diverse cultures and the possibility of generating shared cultural expressions through dialogue and mutual respect.’ Interculturality presupposes multiculturalism and results from ‘intercultural’ exchange and dialogue on the local, regional, national or international level.65 The distinct aims of intercultural education can be summarized under the headings of ‘the four pillars of education’ as identified by the International Commission on Education for the Twenty-First Century.66 According to the conclusions of this Commission, education should be broadly based on the four pillars of: learning to know; learning to do; learning to live together; ­learning to be.67 The most important of these four pillars might be the pillar on learning to live together. This pillar underscores the importance of the need 64 65 66

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unesco, unesco Guidelines on Intercultural Education, Paris: unesco, s.d., p. 16. Ibid., p. 15. For more information on the International Commission on Education for the TwentyFirst Century, see the following website: (accessed on 1 September 2015). See also J. Delors, ‘Learning: The Treasure Within: Report to unesco of the International Commission on Education for the Twenty-first Century,’ Paris: unesco, 1996, cited by unesco, unesco Guidelines on Intercultural Education, Paris: unesco, s.d., p. 19 fn 21. For a detailed description of these four pillars, see unesco, unesco Guidelines on Intercultural Education, Paris: unesco, s.d., pp. 19–20.

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to acquire knowledge, skills and values that contribute to a spirit of solidarity and co-operation among diverse individuals and groups in society. 3.2.2

Intercultural Education as a Precondition for Social Inclusion and Desegregation of the Roma: Adopting a Positive Attitude towards the Roma Cultural Model The Roma cultural model and the Roma way of life are often perceived by the majority as incompatible with mainstream social order because of its alleged isolationist and ethnocentric nature.68 The Roma are also often reproached for not assuming social responsibilities. Intercultural education, fostering intercultural exchange and dialogue, can be a means to tackle this negative perception of the Roma and Roma culture, as it can foster mutual understanding about each other’s culture. Teachers in schools, especially in regions where Roma minorities are present, should teach the majority about the positive aspects of the Roma culture, about the need to combat racism and intolerance, and about the benefits of cultural diversity. Hereby the use of and support for awareness-raising campaigns is of utmost importance. As soon as the Roma in question find acceptance instead of rejection, they will also be more willing to accept social responsibilities and become less sceptical69 towards the mainstream educational institutions. Therefore the social construct of mutual cooperation,70 e.g., in the form of intercultural education, is identified by sociologists as a precondition for the success of the fulfilment of minority rights.71 3.3 Education as a Means towards Social Inclusion 3.3.1 Education as a Means to Combat Exclusion due to Poverty A first step towards social inclusion is the combating of severe poverty. The importance of education in the fight against poverty cannot be underestimated. 68 69

70 71

I. Unzunova, ‘Roma Integration in Europe: why minority rights are failing,’ Arizona Journal of International and Comparative Law, 2010, vol. 27, no. 1, p. 323. As mentioned above, this scepticism towards and mistrust of mainstream society and mainstream society institutions is understandable considering the history of racial prejudice, the economic segregation, the exclusion and the extreme poverty the Roma face. See also unesco and Council of Europe, ‘Education of Roma children in Europe: Towards quality education for Roma children: transition from early childhood to primary education,’ DGIV/EDU/ROM(2007)5, Report of the unesco and Council of Europe Expert Meeting, Paris, 10–11 September 2007, available at (accessed on 11 October 2011). On the social construct of mutual cooperation and reciprocal recognition, see below Chapter 3 at 6. Strategies for Making the Minority Rights Discourse Work, and especially at 6.2 Mutual Cooperation and Reciprocal Recognition. I. Unzunova, ‘Roma Integration in Europe: why minority rights are failing,’ Arizona Journal of International and Comparative Law, 2010, vol. 27, no. 1, p. 323.

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Research shows that people with only primary education are four times more likely to end up in poverty than people who hold a higher education degree.72 Ides Nicaise, head of the Belgian hiva Research Institute for Labour and Society [Onderzoeksinstituut voor Arbeid en Samenleving], has done extensive research on the nexus between poverty and education. The outcome of his research confirms that education and training is [sic] indeed very important in the fight against poverty. People born into poverty are much more likely to end up in poverty later too. A good education has been found to be the way par excellence to break this vicious circle. In other words, education really can make the difference.73 These findings confirm that the best way to combat exclusion due to poverty is by offering access to quality education. 3.3.2

INCLUD-ED: Research on Strategies for Inclusion and Social Cohesion from Education Recently, a lot of research has been conducted on strategies for inclusion and social cohesion from education. One ongoing project worth mentioning is the INCLUD-ED project, an integrated project aimed at analysing educational strategies that contribute to social cohesion on the one hand and social exclusion on the other hand, providing key elements and lines of action to ­improve educational and social policy.74 In other words, the INCLUD-ED project is ­oriented towards identifying what works and what does not work in terms of student success and social inclusion. The project concentrates on describing the elements that can influence school failure or success and their ­relationship 72

Press Release, ‘Fighting Poverty with Education,’ published by the Belgian Presidency of the Council of the European Union, 27.09.2010, available at (accessed on 11 October 2011). See also H. Frazer, E. Marlier and I. Nicaise, A Social Inclusion Roadmap for Europe 2020, Antwerp, Apeldoorn: Garant, 2010 and I. Nicaise (ed.), The Right to Learn: Educational Strategies for Socially Excluded Youth in Europe, Bristol: The Policy Press, 2000. 73 Press Release, ‘Fighting Poverty with Education,’ published by the Belgian Presidency of the Council of the European Union, 27.09.2010, available at (accessed on 11 October 2011). 74 The INCLUD-ED project is managed by crea, the Centre of Research in Theories and Practices that Overcome Inequalities of the University of Barcelona, and a project description is available at (accessed on 12 October 2011). See also the project presentation folders, available at (accessed on 12 October 2011).

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with other areas of society (housing, health, employment, and social and political participation). There is a specific focus on social groups which are vulnerable to being socially excluded, such as the Roma. The outcome of the research project focuses on inclusive strategies and community involvement and can be summarized as follows: [i]t is necessary to organize educational systems and schools in such a way that students are not segregated according to their level of attainment. Within the framework of educational systems, this involves avoiding early tracking or delaying it to guarantee better levels of lifelong inclusion for all students. Within schools, it involves working with heterogeneous groups of students and at the same time ensuring that everyone learns the material set out in the curriculum in order to achieve academic success. Inclusive practices such as including additional human resources into the classroom or dividing the class into heterogeneous groups with additional teachers, extending the learning time for students with more difficulties and individualizing the curriculum to facilitate student learning help towards the achievement of educational success. Greater involvement of the families and the wider community in schools also contributes to children’s achievement. Firstly, the community can access the school facilities in order to receive basic education in instrumental areas, which transforms the children’s environment and their interactions. Secondly, the community can participate in the school not only by being informed about the school’s organization but also by taking part in decision-making processes and in the students’ learning activities. Both types of participation contribute to increasing the quality of schools.75 The successful actions which were identified by the INCLUD-ED research project—heterogeneous grouping with the reallocation of existing human resources; extending the learning time; and family education—have proven wrong those discourses that tend to blame pupils or their environment for school failure. On the contrary, it has been found that when these successful actions are implemented in schools with predominantly immigrant and ­minority student populations, such as the Roma, in disadvantaged areas, their 75

INCLUD-ED, ‘Strategies for inclusion and social cohesion in Europe from education, Synbook Report Cluster 1,’ 15 December 2008, available at (accessed on 12 October 2011). A complete bibliography of articles published in, among others, Revista Psicodidáctica, Revista Signos, Estudios de Lingüística, and International Studies in Sociology of Education can be consulted at (accessed on 12 October 2011).

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educational results improve.76 A key feature of these successful actions is the engagement in an intercultural dialogue with all actors involved. The outcome of the research project clearly confirms that specific educational actions and strategies increase school success and contribute towards social cohesion and inclusion. And conversely, separation77 of students from vulnerable groups into special education centres, or policies based on mixture78 and streaming79 should be avoided and substituted by inclusive80 ways of grouping students. Thus, in order to increase the school achievement of all 76

77

78

79

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European Commission/European Research Area, INCLUD-ED Factsheet, ‘Strategies for Inclusion and Social Cohesion in Europe from Education: Research objectives, results to date and future results,’ 2010, available at (accessed on 1 September 2015). Research done in the framework of the INCLUD-ED project confirms that the separation into special education programmes and schools of students from ethnic minorities such as the Roma, second language learners, such as immigrants, and students with disabilities increases dropout levels and racism. European Commission, European Policy Brief, ‘INCLUD-ED: Strategies for inclusion and social cohesion in Europe from Education,’ Brussels, November 2011, available at (accessed on 1 September 2015). See also J. Gomez and J. Vargas, ‘Why Roma do not like mainstream schools: voices of people without territory,’ Harvard Educational Review, 2003, vol. 73, no. 4, p. 559–590. Mixture is a term for the way of organizing heterogeneous classrooms where all students are together with the same teacher. This modality of grouping students, with only one teacher who teaches a large group of students with diverse cultural backgrounds and abilities causes that there are students who are not well-attended to. Streaming is a term for the separation of students through ability grouping within schools. Streaming is trying to respond to the difficult situation of mixture through adapting the curriculum, creating ability groups, and often using additional human resources to separate those students who do not follow the mainstream classroom. Researchers have found a negative relationship between streaming and academic results: streaming reproduces or lowers the achievement of low performing students and students from vulnerable groups. Streaming should therefore be avoided and substituted by inclusive ways of grouping students. It is important not to confuse inclusion and mixture, which are two different strategies of grouping students. Studies and statistics often compare streaming with mixture and inclusion, which are sometimes regarded as being the same. Whereas mixture and streaming are related to exclusion, only inclusion promotes educational success and social ­cohesion. Inclusion consists of introducing the same resources that are used for segregated educational practices aimed at students with more difficulties into the regular classroom in ­order to educate all students together. Unlike mixture, in inclusion policies all students actively follow the learning process with the help of the teacher. The inclusion approach is oriented towards equality of results for all students. See INCLUD-ED, Actions for success in schools in Europe, Brussels: European Commission, 2009, available at (accessed on 12 October 2011).

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students and improve inter-group relations in classrooms, schools and society, inclusion actions for students from vulnerable groups should be promoted and all forms of segregation or exclusion should be avoided. Education as a Human Right and an Indispensable Means of Realizing other Human Rights The General Comment No. 1381 on the right to education by the Committee on Economic, Social, and Cultural Rights describes education as ‘both a human right and an indispensable means of realizing other human rights.’ In the particular context of minority rights, the possibilities to enjoy these minority rights are severely reduced in the absence of a coherent education strategy. Patrick Thornberry, in his comment under Art. 12 fcnm, stresses that minority empowerment in education leads to empowerment in other areas. Conversely, educational dis-empowerment leads to disadvantages in other areas.82 The chances of political and social participation; effective equality; success in economic and cultural life; and the realization of freedom of expression through minority media are severely reduced by a lack of fulfilment of the right to education. The consequences of this deficiency are seen in the case of the Roma, for whom educational deprivation connects with cumulative and systemic discrimination against them.83 3.4

4

Challenging the ‘Separate but Equal’ Doctrine by Challenging Segregation in Education: Education as a Backbone for Integration in the United States

4.1 The Parallel with Brown v Board of Education of Topeka By choosing the title ‘Separate and Unequal’ for their Source Book on combating discrimination against the Roma in education,84 the Public Interest Law Initiative is drawing a parallel with the American ‘separate but equal’ 81

Comment No. 13 on the Right to Education of the Committee on Economic, Social and Cultural Rights, E/C.12/1999/10, 8 December 1999. 82 P. Thornberry, ‘Article 12’ in M. Weller, The Right of Minorities in Europe: A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: oup, 2005, p. 372. 83 Ibid. 84 E. Rekosh and M. Sleeper (eds.), Separate and Unequal, Combating Discrimination against Roma in Education, Budapest: Public Interest Law Initiative/Columbia University Kht, 2004.

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­doctrine,85 a tool used to describe a system of segregation which justified the instalment of separate public facilities or services for different groups of people (black and white) with the claim that each group still received an equal quality of treatment.

85

The ‘Separate but Equal’ doctrine was a legal doctrine under United States constitutional law which justified systems of segregation. Under this doctrine, services, facilities and public accommodations were allowed to be separated by race, on the condition that the quality of each group’s public facilities was to remain equal. The phrase was derived from a Louisiana law of 1890. On the doctrine of ‘Separate but Equal,’ race segregation in the US, the Brown v. Board of Education case and its legacy, see, among others: J.M. Balkin, ‘What Brown Teaches Us About Constitutional Theory’, Virginia Law Review 6, 2004, vol. 90 , pp. 1537–1577; D. Bell, Race, Racism and American Law, New York: Aspen Publishers, 2004; D. Bernstein, ‘The Supreme Court and ‘Civil Rights’. 1886–1908,’ Yale Law Journal 3, 1990, vol. 100, pp. 725–744; J. Brinbaum and T. Clarence (eds.), Civil Rights Since 1787: A Reader on the Black Struggle, New York and London: New York University Press, 2000; K. Brown, ‘The Road not Taken in Brown: Recognizing the Dual Harm of Segregation,’ Virginia Law Review 6, 2004, vol. 90, pp. 1579–1599; Ph. T.K. Daniel, ‘Accountability and Desegregation: Brown and its Legacy,’ Journal of Negro Education 3, 2004, vol. 73, pp. 255–267; H.T. Edwards, ‘The Journey from Brown v. Board of Education to Grutter v. Bollinger: From Racial Assimilation to Diversity,’ Michigan Law Review 5, 2004, vol. 120, pp. 944–978; J.D. Ficker, ‘From Roberts to Plessy: Educational Segregation and the ‘Separate but Equal’ doctrine,’ Journal of Negro History 4, 1999, vol. 84, pp. 301–314; W.E. Gauerke, ‘The courts and Segregation of Races in the Schools,’ The Elementary School Journal 1, 1953, vol. 54, pp. 13–22; H.E. Groves, ‘Separate but Equal – The Doctrine of Plessy v. Ferguson,’ Phylon 1, 1951, vol. 12, pp. 66–72; H.E. Groves, ‘A Re-examination of the ‘Separate but Equal’ Doctrine in Public Education,’ Journal of Negro Education 4, 1951, vol. 20, pp. 520–534; E.H. Hobbs, ‘Negro Education and the Equal Protection of the Laws,’ Journal of Politics 3, 1952, vol. 14, pp. 488–511; P.G. Kauper, ‘Segregation in Public Education: The Decline of Plessy v. Ferguson,’ Michigan Law Review 8, 1954, vol. 52, pp. 1137–1158; L.W. Levy and H.B. Philips, ‘The Roberts Case: Source of the ‘Separate but Equal’ Doctrine,’ American Historical Review 3, 1951, vol. 56, pp. 510–518; J.T. Patterson, Brown v. Board of Education: A Civil Rights Milestone and its Troubled Legacy, New York: oup, 2001; J.S. Ransmeier, ‘The Fourteenth Amendment and the ‘Separate but Equal’ Doctrine,’ Michigan Law Review 2, 1951, vol. 50, pp. 203–260; J.P. Roche, ‘The Future of ‘Separate but Equal’,’ Phylon 3, 1951, vol. 12, pp. 219–226; J.P. Roche, ‘Education, Segregation and the Supreme Court. A Political Analysis,’ University of Pennsylvania Law Review 7, 1951, vol. 99, pp. 949–959; N. Seegert, ‘Constitutional Law: Fourteenth Amendment: Equal Protection of the Laws: Racial Segregation in Public Educational Institutions,’ Michigan Law Review 5, 1948, vol. 46, pp. 639–645; M.V. Tushnet, ‘The Significance of Brown v. Board of Education’, Virginia Law Review 1, 1994, vol. 80, pp. 173–184; M.V. Tushnet, ‘Some Legacies of Brown v. Board of Education,’ Virginia Law Review 6, 2004, vol. 90, pp. 1693–1720; J.H. Wilkinson, From Brown to Bakke. The Supreme Court and School Integration: 1954–1978, New York: oup, 1979.

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This American legal doctrine of ‘separate but equal’ was overturned86 by the landmark decision of the United States Supreme Court Brown v. Board of Education of Topeka.87 The Brown case made segregation legally impermissible in the United States (‘US’) and overturned earlier rulings going back to Plessy v. Ferguson88 in 1896, declaring the establishment by state law of separate state schools for black and white students inherently unequal. Handed down on 17 May 1954, the Warren Court’s89 unanimous (9-0) decision stated that “separate educational facilities are inherently unequal.” As a result, de jure racial ­segregation was ruled a violation of the Equal Protection Clause of the ­Fourteenth Amendment, this victory thereby paving the way for the i­ ntegration of black people and the Civil Rights Movement. It was certainly not a coincidence that Brown v. Board of Education of Topeka, the case which overturned the ‘separate but equal’ doctrine, was a case on educational segregation.90 Even though almost all public facilities were segregated, the adverse effect of racial segregation is the most visible and the most condemnable in the educational sphere, especially because of the negative effect it has on the self-esteem of the segregated children.91 Brown v. Board of Education of Topeka is undoubtedly the most famous of a series of US Supreme Court cases that deal principally with the efforts of racial 86 87 88 89 90

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The Court rejected the argument that segregation could be non-discriminatory on the grounds of a principle of ‘separate but equal.’ The stigma attached to black children forced to attend segregated schools was itself a form of discrimination. Brown v. Board of Education of Topeka, 347 U.S. 483 (1954). In the 1896 case of Plessy v. Ferguson, the Supreme Court concluded that a Louisiana law requiring whites and blacks to ride in separate railroad cars did not violate the Equal Protection Clause. See also R.L. Carter, ‘The Warren Court and Desegregation’, Michigan Law Review, 1968, vol. 67, no. 2, pp. 237–248. The issue of whether public facilities may be segregated based on race first arose in the context of transportation, not education, with the 1896 case of Plessy v. Ferguson. However, in the Plessy case the Supreme Court decided that the Equal Protection Clause was not violated and the doctrine of ‘separate but equal’ was upheld. Beginning in the 1930s, the naacp—under the leadership of African-American attorney Charles Hamilton Houston—began its assault on the ‘separate but equal’ doctrine announced in Plessy. Houston chose to concentrate his efforts on segregation in public education, where he thought the adverse effects of the enforced racial separation could be most easily demonstrated. In 1938, Houston persuaded the Supreme Court that Missouri’s refusal to provide legal education for blacks within its own borders (Missouri sent its qualified black law students to neighboring states’ schools, paying the tuition) denied blacks the equal protection of the laws. In subsequent victories in the Court, the naacp gave teeth to the ‘equal’ part of separate but equal: states would have to ensure that separate educational programs were truly equal in terms of resources, reputation, and other measures. On the negative effects of school segregation, see R.L. Green, ‘School Desegregation and its Effects: An Introduction,’ The Urban Review, 1981, vol. 13., no. 2, pp. 51–56.

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activists to promote the interests of the people they represented. A parallel with the segregation of the Roma in education clearly exists.92 In the case of the Roma all the same, educational desegregation is one of the main preconditions for the integration of the Roma into society. The need to bridge the gap between the education level of the Roma and that of the majority population has been widely recognized as the only way to deal with the ‘dependency trap’93 and to avoid further marginalization and ghettoization of the Roma in society.94 92

93

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A nice illustration of this parallel of the segregation of African-Americans in the US in the late 19th and early 20th century on the one hand and the segregation of Roma nowadays in Europe on the other hand consists in the fact that several writings of civil rights activists dating from the mid-20th century on African-American integration still today are of interest, if one replaces the references to ‘Negroes’ by the word ‘Roma.’ See, for instance, a text written by James Farmer in 1965 on the difference between integration and desegregation. J. Farmer, ‘Integration or Desegregation,’ 1965, available at (accessed on 1 September 2015). For a general comparison between the situation of the Roma and African-American slavery see J. Greenberg, ‘Roma Victimization: From Now to Antiquity,’ Columbia Human Rights Law Review, 2009, vol. 41, no.1, pp. 4–6 and for a comparison of segregation of schools in the Southern United States in the 1950s and segregation of Roma in education see J. Greenberg, ‘Roma Victimization: From Now to Antiquity,’ Columbia Human Rights Law Review, 2009, vol. 41, no.1, pp. 7–8. undp, Avoiding the Dependency Trap, Bratislava: undp, 2003, available at (accessed on 1 September 2015). The report is a result of joint endeavors by the United Nations Development Programme’s Regional Bureau for Europe and the Commonwealth of Independent States and researchers from the Czech Republic, Slovakia, Hungary, Romania and Bulgaria. Across Central and Eastern Europe, a high share of Roma populations—in some cases as high as 70 percent—derive their incomes primarily from state transfers such as child allowances, unemployment benefit and pensions. At the same time, health standards are disproportionately poor and educational levels of Roma youth are broadly inadequate for the acquisition of marketable skills. These problems increase dependency on the state, creating a vicious circle that further widens the socio-economic gap between Roma and majority populations with damaging social and political consequences. Analyzing the problem through the prism of human development, this report explains why and how the dependency trap into which many Roma have fallen can be avoided. It draws on pioneering survey data to show that the Roma want to integrate productively into the countries in which they live without losing their distinctive cultural identities, and outlines a number of concrete proposals on how this can be better achieved. Above all, it argues that integration does not have to mean assimilation—but it will require affected governments and the international community to redouble and reshape their efforts to address the broader development needs faced by Roma communities. A. Mirga, ‘The challenges of adaptation: from segregation to inclusive education’ in Council of Europe, Filling the Frame: Five years of monitoring the fcnm, Strasbourg: Council of Europe Publishing, 2004, p. 229.

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4.2 The Roma: Not ‘Separate but Equal’ but Separate and Unequal Even though there is a clear parallel with the ‘separate but equal’ doctrine in the case of the Roma, one should note that the separate educational institutions in place for the Roma are mostly not equal, but rather unequal, compared to the educational institutions for the non-Roma children. Scholars such as Morag Goodwin, while referring to the Brown v. Board of Education of Topeka case, clearly underscore that in the case of the Roma, the segregated educational institutions are not only separate, but also clearly unequal, as the Roma are relegated to substandard education. Goodwin notes that [u]nlike the applicant’s claim in Brown, the main element of the determination to fight racial segregation of Roma children is less the psychological harm of being labelled learning impaired—although that is clear—but that placement in such schools in denying access to a decent education has an enormous implication for the life chances of any child. The segregation of Roma children into special schools should never be mistaken for being ‘separate but equal.’95 The Roma children thus face a double disadvantage: the disadvantage of being separated and segregated from the non-Roma children and being labelled ‘inferior’ with a negative impact on their self-esteem, and the disadvantage of enjoying an inferior curriculum compared to the curriculum offered in mainstream schools. This double disadvantage is of relevance when it comes to distinguishing between the concepts of separation on the one hand and segregation on the other hand. 4.3 On the Difference between Separation and Segregation Even though the concepts of separation and segregation are often used in literature as synonyms, it is very important to distinguish between them, as they have different meanings. Whereas segregation always amounts to discrimination due to its forcible character, self-separation, if it is done in a context of truly freedom of choice, does not necessarily amount to discrimination, as it does not amount to differential treatment having negative consequences for those who decided to separate themselves from the majority. 95

M. Goodwin, ‘Multidimensional exclusion, Viewing Roma marginalization through the nexus of race and poverty,’ in D. Schiek and V. Chege (eds.), European Union Non-­ Discrimination Law, Comparative Perspectives on Multidimensional Equality Law, Abingdon: Routledge, 2009, p. 145.

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The difference between separation on the one hand, and segregation on the other hand, is very well explained by James Farmer96 in a text on ‘Integration or Desegregation,’ written in 1965 in the context of Afro-American desegregation. In the case of separate educational institutions, the free choice by the minority in question to send their children to separate minority schools would not constitute segregation if it would be freely made and would carry no stigma of inferiority or subjugation. Framer comments on the thin line between voluntary separation and forced segregation with the following observations: If, in his heart of hearts, the Negro believes that self-separation is only a rationalization for cowardly acceptance of segregation, then separation will fail. The only way Negro separation would not mean segregation is if the Negro has the sense that he chooses to live separately, and this will happen only when total freedom of choice is a reality in America. Desegregation and the development of Negro self-pride work side by side. Desegregation makes separation possible. These observations are still valid as of today for the Roma minorities in Europe. As long as being Roma triggers negative stereotyping, separation of Roma 96

James Farmer (1920–1999), a major figure in the civil rights movement of the 1950s and ’60s, describes the distinction between integration and desegregation, two terms often used interchangeably and often confused. He also points at the differences between voluntary self-separation and segregation. See J. Farmer, ‘Integration or Desegregation’, 1965, available at (accessed on 1 September 2015). According to Farmer, who in 1965 was the national director of the Congress for Racial Equality (core), as the civil rights movement gained momentum, the demand that public facilities be open to African Americans evolved into a desire to see blacks dispersed throughout white America. In some cases this led to nearly comic ironies, like quotas to include only a certain number of blacks and no more; while in other cases it reflected negatively on black institutions and on blacks themselves. Farmer argues for desegregation, which would give African Americans the choice to integrate or live separately. In a desegregated society, the choice to live apart would not constitute segregation because it would be freely made and would carry no stigma of inferiority or subjugation. Thus the freedom afforded by desegregation would change the meaning of racial separation. Farmer’s comments indicate that the civil rights movement was not a monolithic mass of like-minded activists but was rather as diverse as the beliefs of its participants. Farmer and others did not see integration as wholly beneficial to African Americans; he thought desegregation was, however. The theories developed in the context of the American civil rights movement are still today of importance and of interest for the plight of the Roma, who face similar challenges nowadays in Europe as the Afro-Americans did at the end of the 19th century and the beginning of the 20th century in the US.

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children in non-mainstream educational facilities, irrespective of their quality and of the equivalence of the diplomas issued there, will continue to trigger a feeling of inferiority vis-à-vis the majority population. Therefore separate educational institutions for Roma children, which are not discriminatory, only make sense when the separation is truly voluntary. As long as true desegregation in education has not been achieved throughout Europe, separate educational facilities for Roma children cannot be truly separate, but are rather segregationist.97 It is clear from the above that in the US since Brown racial segregation in education is ruled a violation of the Equal Protection Clause of the Fourteenth Amendment. The next section is to examine what international and regional standards of international law apply in cases of racial segregation in education. 5

International and Regional Standards of International Law Applicable in Cases of Segregation in Education

International legal standards can be distinguished according to their international or regional nature. This distinction will be adopted in the present section of this chapter. However, it is also possible to categorize these standards according to another criterion, namely the legal nature (general human right standards, anti-discrimination standards, right to education standards) and the personal scope of application (applicable to all persons, applicable to children only, applicable to persons belonging to minorities only).98 In the light of these different criteria, it is possible to distinguish 5 categories of international standards applicable to Roma in the field of education. These are: general anti-discrimination standards; general right to education standards; general minority protection standards; minority education standards; and rights of the child standards. The different approaches between minority 97

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This in contrast to separate educational facilities of other (national) minorities, who do not have a status of (socio-economic) inferiority vis-a-vis the majority population, such as the separate educational facilities for minorities in South Tirol (Italy), Hungary or Scandinavia. In such cases where a national minority freely decides that it believes that separate educational facilities for the children of this minority are pedagogically sound and might present an added value for the pedagogical development of these children, separation of children belonging to a certain minority in separate educational facilities might be useful, provided that it does not entail complete segregation from the majority population and does not hamper the integration of the minority into majority society. The relation between human rights, minority rights and non-discrimination rights will be analysed in Chapter 3 at 2. Human Rights, Minority Rights and Non-Discrimination Rights.

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rights instruments on the one hand and anti-discrimination standards on the other hand will be discussed in detail below.99 This section merely gives a brief overview of the existing international instruments and European instruments on the right to education with an evident focus on minority education. Its aim is to describe the international context in which the provisions of the Framework Convention for the Protection of National Minorities and of Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin related to minority education should be read. 5.1 International Instruments A number of general human rights texts address issues of content and access in the field of education: the Universal Declaration of Human Rights of 1948 (1); the unesco Convention against Discrimination in Education of 1960 (2); the International Covenant on Civil and Political Rights of 1966 (3); the International Covenant on Economic, Social and Cultural Rights of 1966 (4); the Convention of the Rights of the Child of 1989 (5); and the International Convention on the Elimination of all Forms of Racial Discrimination of 1965 (6). 5.1.1 The Universal Declaration of Human Rights of 1948 The human right to education was one of the first fruits of the human rights movement.100 Article 26101 of the Universal Declaration of Human Rights102 (‘udhr’) provides that everyone has the right to education, which shall be free, “at least in the elementary and fundamental stages,” and that elementary education shall be compulsory. Furthermore, education “shall be directed to the full development of human personality and to the strengthening of respect for human rights and fundamental freedoms. It shall promote understanding, tolerance and friendship among all nations, racial or religious groups …”.103 Apart from this reference to ‘racial or religious groups’ the udhr does not contain any specific reference to persons belonging to minorities. 99 See below Chapter 3 at 2.3 The Different Aims of Minority Rights and Equality Law. 100 P. Thornberry, ‘Article 12’ in M. Weller, The Right of Minorities in Europe: A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: oup, 2005, p. 367. 101 For observations on the drafting of the article, see J. Morsink, The Universal Declaration of Human Rights: Origins, Drafting and Intent, Philadelphia: University of Pennsylvania Press, 1999, pp. 212–217. 102 unga Res 217 A (iii) ‘Universal Declaration of Human Rights’, 10 December 1948, gaor 3rd Session Part I Resolutions, p. 71. 103 P. Thornberry, ‘Article 12’ in M. Weller, The Right of Minorities in Europe: A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: oup, 2005, p. 367.

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5.1.2 The unesco Convention against Discrimination in Education of 1960 Only a few international standards specifically relating to minority rights in education exist. The first instrument to be mentioned is the unesco Convention against Discrimination in Education of 1960.104 The state parties to this convention confer certain educational rights upon members of national minorities, which are formulated in Art. 5 (1) (c). This Article reads as follows: (c) It is essential to recognize the right of members of national minorities to carry on their own educational activities, including the maintenance of schools and, depending on the educational policy of each State, the use or the teaching of their own language, provided however: (i) That this right is not exercised in a manner which prevents the members of these minorities from understanding the culture and language of the community as a whole and from participating in its - activities, or which prejudices national sovereignty; (ii) That the standard of education is not lower than the general standard laid down or approved by the competent authorities; and (iii) That attendance at such schools is optional. The content of the article was criticized by scholars for not being far-going enough. Scholars such as Duncan Wilson105 underscore that the result of this article is only a partial guarantee of minority rights in education. It is not a guarantee of multi-lingual, multi-public education, but rather a negative guarantee of freedom from state interference in establishing parallel minority schools privately. The danger, according to Wilson, in this partial rights-based approach is that, in simply permitting the establishment of separate schools rather than increasing bilingual, intercultural education, education may actually contribute to the entrenchment of the separation of communities as each group can establish its own schools and teach its own curriculum in its own language.106 This amounts to merely recognizing minority rights in education as a ‘freedom’ and to ignoring the place of education in promoting substantive equality and the realization of rights through education.107 104 unesco Convention against Discrimination in Education, adopted 14 December 1960, entered into force 22 May 1962, 429 unts, p. 93. 105 D. Wilson, Minority rights in education, Lessons for the European Union from Estonia, Latvia, Romania and the former Yugoslav Republic of Macedonia, December 2002, pp. 11–12, available at (accessed on 1 September 2015). 106 Ibid. 107 Ibid.

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5.1.3 The International Covenant on Civil and Political Rights of 1966 Art. 27 of the International Covenant on Civil and Political Rights (‘iccpr’)108 of 1966 is the mostly widely cited provision on minority rights. It reads as follows: In those States in which ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practise their own religion, or to use their own language. The article sets out a basic standard of minority rights in terms of culture, religion, and language, but does not specifically account for education. In reviewing state reports, the Human Rights Committee, the body of independent experts that monitors the implementation of the iccpr by its state parties, frequently makes reference to education, and thus in fact promotes minority rights in education. However, the most substantive case law on education relates primarily to Art. 26 iccpr rather than to Art. 27 iccpr.109 The Human Rights Committee has interpreted Art. 26 iccpr110 (on equal protection) to be of a general character and not limited to the rights protected in the iccpr,111 and therefore it can refer to education in its case law under Art. 26 iccpr. Scholars112 note that a dynamic interpretation of Art. 27 iccpr—in that the article imposes positive and even financial obligations on the state in order for the rights enumerated in it to be effective and efficient—has been 108 International Covenant on Civil and Political Rights, adopted 19 December 1966, entered into force 23 March 1976, 999 unts p. 171. 109 UN Human Rights Committee, Waldman v. Canada, 1999, Comm. No. 694/1996, UN Doc. CCPR/C/67/D/694/1996, 1999, pp. 86–102. 110 For a short analysis of Art. 26 iccpr see DH-MIN (2006)018, ‘The impact of international norms on the protection of national minorities in Europe: the added value and essential role of the fcnm,’ report prepared by R. Hofmann, 5 December 2006, pp. 6–7. Rainer Hofmann notes that so far Art. 26 iccpr has been of very little relevance to the rights of persons belonging to national minorities, since all views of the Human Rights Commission which are considered to be relevant for the protection of the rights of persons belonging to national minorities have been based upon Art. 27 of the iccpr. 111 D. Wilson, Minority rights in education, Lessons for the European Union from Estonia, Latvia, Romania and the former Yugoslav Republic of Macedonia, December 2002, p. 12, available at (accessed on 1 September 2015). 112 K. Henrard, ‘The Definition of “Minorities” and the Rights of Minorities Regarding Education in International Law,’ in J. De Groof and J. Fiers (eds.), The legal status of minorities in education, Leuven/Amersfoort: Acco, 1996, p. 60.

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acknowledged by the UN Declaration regarding the Rights of Persons ­Belonging to ­National or Religious, Ethnic and Linguistic Minorities of 1992.113 According to Kristin Henrard, the UN Declaration regarding the Rights of Persons Belonging to National or Religious, Ethnic and Linguistic Minorities was conceived as an ‘implementation’ of Art. 27 iccpr. Although the UN Declaration is not legally binding, it nevertheless has great moral and political importance and can furthermore be used as an interpretative guideline for Art. 27 iccpr.114 5.1.4

The International Covenant on Economic, Social and Cultural Rights of 1966 Art. 13 of the International Covenant on Economic, Social and Cultural Rights (‘icescr’) of 1966115 reiterates Art. 26 udhr on the purposes of education, adding that “education shall enable all persons to participate effectively in a free society.” It is equally relevant to members of minorities, although they are not specifically focused upon in the icescr. Article 13 icescr is the subject of the extensive General Comment No. 13 on the right to education116 by the Committee for Economic, Social and Cultural Rights, the body of independent experts that monitors the implementation of the icescr by its state parties. The Committee has pointed to four features which need to characterize all forms of education: availability; accessibility,

113 unga Res 47/135 ‘Declaration on the Rights of Persons Belonging to National or Ethnic, Religious and Linguistic Minorities,’ 18 December 1992, gaor 47th Session Supp 49 vol. 1, p. 210. 114 K. Henrard, ‘The Definition of “Minorities” and the Rights of Minorities Regarding Education in International Law,’ in J. De Groof and J. Fiers (eds.), The legal status of minorities in education, Leuven/Amersfoort: Acco, 1996, p. 61. 115 International Covenant on Economic, Social and Cultural Rights, adopted 16 December 1966, entered into force 3 January 1976, 993 unts, p. 3. 116 Comment No. 13 on the Right to Education of the Committee on Economic, Social and Cultural Rights, E/C.12/1999/10, 8 December 1999, para 6. These four A’s have also been emphasized by Katarina Tomasevski, Special Rapporteur to the Commission on Human Rights on the right to education. See the Statement by the Special Rapporteur on the Right to Education, Commission on Human Rights, Geneva, 22 March-20 April 1999 and the Preliminary Report of the Special Rapporteur on the Right to Education, UN Doc. E/CN.4/1999/49. See also K. Tomasevski, Human Rights obligations: making education available, accessible, acceptable and adaptable, Right to Education Primers No. 3, 2001, available at (accessed on 1 September 2015) and K. Tomasevski, The Four A Scheme, Nijmegen: Wolf Legal Publishers, 2006.

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which entails non-discrimination, physical accessibility and economic accessibility;117 acceptability; and adaptability. These four features are also known as the ‘four A scheme.’118 The ‘Education Rights Circle Diagram’ as conceived by the ngo Action Aid visualizes this four A scheme and presents (see Figure 1) different criteria by which education could be evaluated in the light of the ‘four A scheme.’ The four circles show different aspects of the right to education. The inner circle shows issues that will make education acceptable to the individual or group. The second circle identifies the features that would make education available. The third circle shows features that would make education accessible, and this is framed within the context of the wider environment of how adaptable education is—the outer circle.119 Of these four features, some have specific significance for minority groups, such as the Roma, notably on accessibility and the emphasis of non-­ discrimination in access to education, and the notion of acceptability. On acceptability, General Comment No. 13 explains that education must be “­relevant, culturally appropriate and of good quality.”120 Patrick Thornberry notes in this

- safe buildings - school in village - enough teachers - free text books and uniforms - sanitation facilities - appropriate transport

Figure 1

ac

adaptable accessible lab avai le p ce tab

le

- no child labour - no gender discrimination - no disability discrimination - affirmative action to include the most marginalised school - within reachable distance

to the specific needs: - of the children - to the local context - changing needs of society - contributing to gender equality - relevant - pluralistc - quality education - quality teaching

The Education Rights Circle Diagram. Copyright: Action Aid. Source: (accessed on 1 September 2015)

117 P. Thornberry, ‘Article 12’ in M. Weller, The Right of Minorities in Europe: A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: oup, 2005, p. 368. 118 On the four A scheme see Right to Education Project, Education and the 4As, available at (accessed on 1 September 2015). 119 Right to Education, ‘Visualising the 4 As,’ available at (accessed on 1 September 2015). 120 P. Thornberry, ‘Article 12’ in M. Weller, The Right of Minorities in Europe: A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: oup, 2005, p. 368.

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context that “[i]nstruments on minority rights are not rendered redundant by this general affirmation of culturally appropriate education; on the contrary, while binding in their own right, they supply essential guidance for the convent of the Covenant, giving further expression to the interrelationship of human rights instruments.”121 The ‘four A scheme’ as developed in General Comment No. 13 thus offers some basic quality criteria from a human rights perspective. Worth noting is that the Advisory Committee to the Framework Convention for the Protection of National Minorities also extensively refers to the ‘four A scheme’ as a particularly useful tool in its Thematic Commentary on Education under the Framework Convention for the Protection of National Minorities.122 5.1.5 The Convention on the Rights of the Child of 1989 Arts 28 and 29123 of the Convention of the Rights of the Child124 (‘crc’) have a logic which is similar to that in Art. 26 of the Universal Declaration of Human 121 Ibid. 122 acfc, ‘Commentary on Education under the Framework Convention for the Protection of National Minorities,’ 2 March 2006, ACFC/25DOC(2006)002, pp. 27–28 available at (accessed on 1 September 2015 ). On the Thematic Commentary on Education under the Framework Convention for the Protection of National Minorities, see below Chapter 7 under 4. Thematic Commentary on Education. 123 The two articles read as follows: Article 28 1. States Parties recognize the right of the child to education, and with a view to achieving this right progressively and on the basis of equal opportunity, they shall, in particular: (a) Make primary education compulsory and available free to all; (b) Encourage the development of different forms of secondary education, including general and vocational education, make them available and accessible to every child, and take appropriate measures such as the introduction of free education and offering financial assistance in case of need; (c) Make higher education accessible to all on the basis of capacity by every appropriate means; (d) Make educational and vocational information and guidance available and accessible to all children; (e) Take measures to encourage regular attendance at schools and the reduction of dropout rates. 2. States Parties shall take all appropriate measures to ensure that school discipline is administered in a manner consistent with the child’s human dignity and in conformity with the present Convention. 3. States Parties shall promote and encourage international cooperation in matters relating to education, in particular with a view to contributing to the elimination of ignorance and illiteracy throughout the world and facilitating access to scientific and ­technical knowledge and modern teaching methods. In this regard, particular account shall be taken of the needs of developing countries.

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Rights, and Art. 13 icescr. Hereby Arts 28 and 29 crc additionally emphasize the aims and objectives of education from the perspective of the child and the positive obligations of states in order to ensure access to education for all.125 The articles are the focus of the first General Comment by the Committee on the Rights of the Child on ‘The Aims of Education’ issued in 2001.126 The General Comment insists that the child’s right to education is not only a matter of access but also of content, and underscores the importance of the reading of the crc as a whole, including Article 30 crc.127 The wording of Article 30 crc on the rights of children belonging to minorities and the indigenous is very similar to the wording of Art. 27 iccpr,128 which has been discussed above under 5.1.3.

124 125

126 127

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Article 29 1. States Parties agree that the education of the child shall be directed to: (a) The development of the child’s personality, talents and mental and physical abilities to their fullest potential; (b) The development of respect for human rights and fundamental freedoms, and for the principles enshrined in the Charter of the United Nations; (c) The development of respect for the child’s parents, his or her own cultural identity, language and values, for the national values of the country in which the child is living, the country from which he or she may originate, and for civilizations different from his or her own; (d) The preparation of the child for responsible life in a free society, in the spirit of understanding, peace, tolerance, equality of sexes, and friendship among all peoples, ethnic, national and religious groups and persons of indigenous origin; (e) The development of respect for the natural environment. 2. No part of the present article or article 28 shall be construed so as to interfere with the liberty of individuals and bodies to establish and direct educational institutions, subject always to the observance of the principle set forth in paragraph 1 of the present article and to the requirements that the education given in such institutions shall conform to such minimum standards as may be laid down by the State. Convention on the Rights of the Child, adopted 20 November 1989, entered into force 2 September 1990, 1577 unts, p. 3. S. Spiliopoulou Akermark, “Minority rights in education: international rules and trends” in L. Huss, A. Camilleri Grima and K.A. King (eds.), Transcending Monolingualism, Linguistic Revitalisation in Education, Lisse, Abingdon, Exton (PA) and Tokyo, Swetz & Zeitlinger Publishers, 2003, p. 24. UN Committee on the Rights of the Child, General Comment No. 1, The Aims of Education, 17 April 2001, UN Doc CRC/GC/2001/1. Art. 30 crc reads as follows: In those States in which ethnic, religious or linguistic minorities or persons of indigenous origin exist, a child belonging to such a minority or who is indigenous shall not be denied the right, in community with other members of his or her group, to enjoy his or her own culture, to profess and practise his or her own religion, or to use his or her own language. D. Wilson, Minority rights in education, Lessons for the European Union from Estonia, Latvia, Romania and the former Yugoslav Republic of Macedonia, December 2002, p. 12,

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5.1.6

The International Convention on the Elimination of All Forms of Racial Discrimination of 1965 Finally, the International Convention on the Elimination of All Forms of Racial Discrimination129 (‘icerd’) refers to ‘the right to education and training’ as among the rights to be protected against discrimination in its Art. 5 (e) (v). Additionally, Art. 7 icerd calls for anti-racist education, and the promotion of tolerance and friendship among national and racial or ethnic groups and for human rights education in general.130 Worth mentioning here is that the icerd explicitly condemns segregation as a form131 of discrimination in its Art. 3, which stipulates that “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” 5.2 European Instruments At a regional level, there are two different strands of instruments: on the one hand the instruments developed by the coe (1), and on the other hand the instruments developed by the Organization for Security and Co-operation in Europe (‘osce’, formerly csce) (2). The European Union (3) does not have the competence to legislate either in the field of minority protection or in the field of education, but it does have the competence to legislate on non-­ discrimination issues,132 which it has done in the form of, among others, ­Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. ­ available at (accessed on 1 September 2015). 129 unga Res 1904 (xviii), ‘United Nations Declaration on the Elimination of All Forms of Racial Discrimination,’ 20 November 1963, gaor 18th Session, Supp 15, p. 35. 130 P. Thornberry, ‘Article 12’ in M. Weller, The Right of Minorities in Europe: A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: oup, 2005, p. 369. 131 Reference to segregation as a ‘severe form of discrimination’ is also made in national legislation, for instance, in Notification No 29323 of 20.04.2004 of the Romanian Ministry of Education and Research. As a result of the civil society and other actors’ lobby, the Romanian Public Ministry issued Notification No 29323 which bans segregation of Roma children in the educational system. The Notification explicitly condemns segregation as a ‘severe form of discrimination’ and shows that its consequence is unequal access to quality education. 132 This will be discussed in detail in the section on the Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin below in Chapter 4 at 4. An Introduction to the Racial Equality Directive.

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5.2.1 Council of Europe At the level of the Council of Europe, the first regional instrument relevant for the protection of Roma educational rights that needs to be mentioned is the Convention for the Protection of Human Rights and Fundamental Freedoms (‘echr’),133 which does not contain any minority specific provision. It does contain a non-discrimination provision in Art. 14 echr,134 which has an ­accessory nature and relates only to the articles within the convention. Nevertheless, Art. 14 echr does include a reference to minorities, as ‘association with a national minority’ is listed up explicitly as a prohibited ground of discrimination. Another relevant article is Art. 2 of Additional Protocol No 1 to the echr. This Article establishes the right to education, which in combination with Art. 14 echr prevents discriminatory practices as to access to educational institutions, both public and state funded.135 The article furthermore contains the rights of parents to ensure that education and teaching is in conformity with their own religious and philosophical convictions.136 The only legally binding document exclusively focused on minority rights is the coe Framework Convention for the Protection of National Minorities (‘fcnm’). Articles 12, 13 and 14 fcnm specifically deal with education issues.137 Another coe minority rights instrument, this one focusing on languages only, is the European Charter on Regional and Minority Languages (‘Language Charter’). The Language Charter contains a provision on education in Art. 8.

133 coe ‘Convention for the Protection of Human Rights and Fundamental Freedoms,’ signed 4 November 1950, entered into force 3 September 1953, 213 unts, p. 221. 134 For an in depth comment on Article 14 echr, see W. Peukert, ‘Artikel 14 (Diskriminierungsverbot)’ in J.A. Frowein and W. Peukert, Europäische Menschenrechtskonvention: EMRK-Kommentar, Kehl am Rhein: Engel, 2009, pp. 401–418. 135 The European Court of Human Rights determined the limits of the right to education in Additional Protocol No. 1 to the echr in the landmark Belgian Linguistic Case of 1968. European Court of Human Rights, Case Relating to Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), Judgment of 23 July 1968, Series A, vol. 6, p. 31. The Court found that the state has a right to determine the official language of instruction in public schools and denied that there was a right to instruction in the language of one’s choice. It should be noted that this case was decided before the adoption of the Convention on the Rights of the Child. 136 See K. Henrard, ‘The Definition of “Minorities” and the Rights of Minorities Regarding Education in International Law,’ in J. De Groof and J. Fiers (eds.), The legal status of minorities in education, Leuven/Amersfoort: Acco, 1996, p. 63. 137 These Articles are analysed in detail below in Chapter 7 at 3.1 Key Provisions on the Right to Education: the Articles 12, 13 and 14 fcnm.

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This article offers a kind of multiple choice for state obligations. For each of six concrete commitments, the state has either three of four options to ‘pick and mix’138 the strength of its commitments. Nevertheless, the Language Charter recognizes the existence of ‘non-territorial’ languages, such as Romani, extending the general principles for all minority languages mutatis mutandis to nonterritorial languages.139 5.2.2 Organization for Security and Co-operation in Europe The osce knew a major breakthrough regarding minority rights since the Copenhagen Conference on the Human Dimension of 1990, during which the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the csce was adopted.140 It needs to be said however that the osce standards are not legally binding. In spite of their non-binding character, it is generally accepted that they do have great political importance and can furthermore be used as guidelines for legal developments, as they show the potential commitment of the states to analogous legal obligations.141 The fcnm can largely be seen as translating osce commitments in legal provisions.142 There is also an explicit reference to the Copenhagen Document of 29 June 1990 in the preamble of the fcnm. On the basis of his experience in many different minority situations, the osce High Commissioner on National Minorities took the initiative in 1995 for a seminar of experts, mainly from the disciplines of law and linguistics, 138 D. Wilson, Minority rights in education, Lessons for the European Union from Estonia, Latvia, Romania and the former Yugoslav Republic of Macedonia, December 2002, p. 16, available at (accessed on 1 September 2015). 139 Ibid. 140 Conference on Security and Co-operation in Europe ‘Document of the Copenhagen Meeting of the Conference on the Human Dimension of the csce,’ done 29 June 1990, ilm, 1990, vol. 29, p. 1305. 141 K. Henrard, ‘The Definition of “Minorities” and the Rights of Minorities Regarding Education in International Law,’ in J. De Groof and J. Fiers (eds.), The legal status of minorities in education, Leuven/Amersfoort: Acco, 1996 pp. 62–63. See also A. Fenet, ‘Europe et les minorités’ in A. Fenet, G. Koubi and I. Schulte-Tenckhoff (eds.), Le droit et les minorités: analyses et textes, Bruxelles: Bruylant, 1995, pp. 92–93. 142 See coe Document H(1998)005 rev. 11, ‘Introduction to the Framework Convention for the Protection of National Minorities,’ where the last paragraph of the introduction reads as follows: “[i]n elaborating the draft for the Framework Convention the cahmin paid particular attention to the commitments concerning the protection of national minorities contained in the Copenhagen and other documents of the osce (then: csce) with a view, as agreed at the Vienna summit, to transforming, to the greatest possible extent, these political commitments into legal obligations.”

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in order to develop recommendations concerning minority education in the osce region. The recommendations are known as ‘The Hague Recommendations Regarding the Education Rights of National Minorities’.143 Since its adoption in 2003, the Action Plan on Improving the Situation of Roma and Sinti in the osce Area has provided the blueprint for osce States, institutions and field missions in addressing the marginalization, discrimination and, sometimes, hostility and violence that Roma communities and ­individuals face. Ministerial Council Decision No 6/08144, adopted in Helsinki in 2008, was a direct result of the adoption of the first Status Report 2008145 assessing the implementation of the provision of the Action Plan on Improving the Situation of Roma and Sinti within the osce area. The Ministerial Council Decision focuses on ensuring access to early education for Roma and Sinti children as a prerequisite for an equal starting point and for future educational success, which is vital to better social inclusion and integration.146 A second Status Report147 was published in 2013, ten years after the Action Plan’s adoption. In its appendix ii, it maps the development stages, from human dimension commitments and reports on Roma and Sinti to relevant actions and ­recommendations. It also maps practical initiatives undertaken to implement 143 S. Spiliopoulou Akermark, ‘Minority rights in education: international rules and trends’ in L. Huss, A. Camilleri Grima and K.A. King (eds.), Transcending Monolingualism, Linguistic Revitalisation in Education, Lisse, Abingdon, Exton (PA) and Tokyo: Swetz & Zeitlinger Publishers, 2003, p. 28. Sia Akermark notes here that the value of the recommendations, not being legally binding documents, depends on the fact that they have been produced by a number of internationally recognized independent experts and upon the initiative of the osce High Commissioner on National Minorities. The High Commissioner uses The Hague Recommendations in his contacts with governments. For an in depth analysis of The Hague Recommendations and their objective, see A. Eide, ‘The Hague Recommendations Regarding the Education Rights of Minorities: Their Objective,’ ijmgr, 1996, vol. 4, no. 2, pp. 163–170. 144 osce Ministerial Council, ‘Decision No. 6/08 Enhancing osce Efforts to Implement the Action Plan on Improving the Situation of Roma and Sinti within the osce Area,’ MC.DEC/6/08, 5 December 2008, available at (accessed on 1 September 2015). 145 osce/odihr, Implementation of the Action Plan on Improving the Situation of Roma and Sinti Within the osce Area, 24 September 2008, available at (accessed on 1 September 2015). 146 A. Mirga, ‘Roma and Sinti: Status and Outlook,’ in Institute for Peace Research and Security Policy at the University of Hamburg/ifsh (ed.), osce Yearbook 2011, Baden-Baden: Nomos, 2012, 303–318. 147 osce/odihr, Implementation of the Action Plan on Improving the Situation of Roma and Sinti Within the osce Area, Status Report 2013, 24 October 2013, available at (accessed on 1 September 2015).

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various chapters of the Action Plan, such as the mapping of Participation of Roma and Sinti children in Early Education Process within the osce region of November 2010.148 Particular attention is paid to the importance of education in breaking the inter-generational exclusion gap in the osce Parliamentary Resolution on Promoting Policies in Favour of the Roma Population, adopted in Belgrade in July 2011.149 In November 2013, the osce conducted also a Field Assessment visit to the Czech Republic on Equal Access to Quality Education for Roma children. The ensuing report recommended that more be done to reform the school ­system and prioritize inclusive education, as well as the removal of all discriminatory barriers that prevent Romani children from benefitting from quality education.150 On 13 November 2017, the osce Office for Democratic Institutions and Human Rights (odihr) joined with other global and regional intergovernmental human rights organizations in calling for greater efforts to ensure inclusive education, in a statement151 issued together with the United Nations Human Rights Office (ohchr), the European Union Agency for Fundamental Rights (fra), the European Network of National Human Rights Institutions (ennhri) and the European Network of Equality Bodies (Equinet). The statement calls for a redoubling of efforts to bring children together in education in the spirit of commitment to dignity, equality and human rights, in the light of evidence that, despite efforts since the European Court of Human Rights’ 2007 D.H. judgement, the segregation of Roma children in schools is increasing. It also calls on States to “redouble their efforts to develop their knowledge base as well as to produce and make public data in this area, with due consideration to privacy and data protection.”152 148 osce odihr, Mapping of Participation of Roma and Sinti children in Early Education Process within the osce region, Warsaw, November 2010, available at (accessed on 1 September 2015). 149 osce Parliamentary Assembly Resolution on Promoting Policies in Favour of the Roma Population, Belgrade, July 2011, available at (accessed on 1 September 2015). 150 osce odihr, Factsheet odihr and Roma and Sinti Issues, “Field Assessment Visits”, available at (accessed on 1 September 2015). 151 osce odihr, ‘Call to Action : Bring Children Together for Diversity – As segregation of Roma in education is worsening, equality and human rights organizations call for redoubles efforts at inclusive education’, Brussels, Strasbourg, Vienna, Warsaw, 13 November 2017, available at (accessed on 1 January 2018). 152 Ibid.

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5.2.3 European Union The last regional instrument relevant for Roma education rights to be mentioned here is the EU Directive 2000/43/EC adopted on the basis of Art. 19 tfeu (ex-Art. 13 EC Treaty) and implementing the principle of equal treatment between persons irrespective of racial or ethnic origin,153 also known as the ‘Racial Equality Directive’. Although the Racial Equality Directive was not designed as such for the protection of persons belonging to national minorities, it clearly constitutes an important step to safeguard the legal position of persons belonging to racial and ethnic minorities, including the Roma. What should be borne in mind here is that, since a considerable number of highly important coe Member States are not EU Member States, the Directive will be without any direct legal relevance for those coe Member States not being member of the EU.154 Another legal instrument recently adopted at EU level, which is not legally binding, as it is merely a recommendation, but which has an important political value, is the December 2013 Council Recommendation on Effective Roma Integration Measures in the Member States.155 It is the first ever EU-level legal instrument for Roma inclusion. With the adoption of the Recommendation, Member States are committed to taking targeted action towards Roma inclusion, among others in the field of education. The instrument is discussed in more detail in Chapter 11 below.156 153 For more on the Racial Equality Directive and its relevance for the protection of national minorities and the Roma in particular, see O. De Schutter and A. Verstichel, ‘The Role of the Union in Integrating the Roma: Present and Possible Future,’ European Diversity and Autonomy Papers 2, 2005, available at (accessed on 1 September 2015). The paper describes the important contribution the Racial Equality Directive has made to improve the situation of the Roma in the EU. It also highlights, however, the insufficiencies of the instrument when confronted to the specific needs of the Roma and to their situation in the EU. 154 As of January 2018, the coe counted 47 Member States, of which 28 were EU Member States and 19 non EU Member States. The latter are: Albania, Andorra, Armenia, Azerbaijan, Bosnia and Herzegovina, Georgia, Iceland, Liechtenstein, Moldova, Monaco, Montenegro, Norway, the Russian Federation, San Marino, Serbia, Switzerland, fyrom, Turkey, and Ukraine. 155 Council of the European Union, ‘Council Recommendation on effective Roma integration measures in the member states,’ Employment, Social Policy, Health and Consumer Affairs Council Meeting, Brussels, 9 and 10 December 2013, available at (accessed on 1 January 2014). 156 See Chapter 11 under 5. More than a Policy Document: the December 2013 Council Recommendation on Effective Roma Integration Measures in the Member States.

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Recent Roma policy initiatives taken by the European Union such as the Platform on Roma Inclusion and the EU Framework for the national Roma Integration Strategies up to 2020 are discussed in Chapter 11 below. 6

Synergies between the Human Rights and Economic Efficiency Agendas

The denial of Roma educational rights can be seen as a violation by states of international and regional human rights obligations as mentioned in the previous section. However, attention should be paid also to the non-legal discourse, as there are also non-legal, socio-economic arguments in favour of an improvement in Roma educational conditions. 157 Segregated educational systems cause social exclusion, which has a negative effect on the free market and on the economy. It is apparent that special schools have a distinct social stigma attached to them. Most children are taught a substandard curriculum and leave without any formal qualification. These children are consequently unable to secure post-school training or to enter into higher education. As a result a large majority of Roma children fail to secure work, to earn an adequate income, and to support themselves and their families. Roma children leaving special schools have not received a basic education and accordingly have limited skills in numeracy and literacy. Consequently, they are subjected to a life of exclusion and underachievement. The stigma associated with these special schools has a marked effect upon their confidence and employability. Roma children are often excluded from professional training and higher education. There is a consequent serious distortion to the labour market supply and most Roma are not able to access the employment market on equal terms.158 The above factors lead to the Roma, on average, earning approximately 20% of the average,159 and this has a detrimental impact in terms of family life, poor diet and health. This combination of factors, largely created as a result of the 157 P. Shiner for Public Interest Lawyers, ‘Complaint to European Commission: Institutionalized discrimination against the Roma in education systems in the Czech Republic, Hungary and Slovakia,’ PS/SA/ROMA/10090, 17 February 2004, available at (accessed on 1 September 2015). 158 Ibid. 159 This is a rough estimate. See P. Shiner for Public Interest Lawyers, ‘Complaint to European Commission: Institutionalized discrimination against the Roma in education systems in the Czech Republic, Hungary and Slovakia,’ PS/SA/ROMA/10090, 17 February 2004, available at (accessed on 12 October 2011).

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segregated education system described above, is, according to some medical authorities, a main reason for the early death of Roma adults whose life expectancy is around 15 years less than the average population. In the Czech Republic, Hungary and Slovakia mainstream unemployment rates are around 5–6%.160 By comparison, unemployment rates for the Roma are around 65%, with some communities experiencing 100% unemployment.161 It is apparent that the earning capacity of the Roma is severely diminished as a result of this state policy. At the same time the Roma population is rising. These two factors give rise to a significant and increasing underperformance of the economies of countries with large Roma populations. In the case of Hungary there are estimates that the cost of the underperformance of the economy related to these factors amounts to over 3 billion Euros per year.162 Thus, poor educational outcomes are not only a problem for Roma people, but also for the countries they live in. In an era of declining birth rates, impending labour shortages, and growing demands on citizens, no country can afford to have a substantial part of its population without adequate skills for citizenship and employment.163 In policy terms, there is an increasing convergence between a rights-based approach and arguments for economic and social efficiency, and a growing recognition that the costs of exclusion and discrimination take a heavy toll on social cohesion, and that social inclusion is economically smart and ethically sound. Put very simply, the argument for linking economic and human rights concerns centres around the contribution of human rights to creating more  cohesive and equitable societies. Respect for basic human rights creates more cohesive and stable societies, and stable societies generate stronger growth and economic development.164 Bernard Rorke, lecturer in political theory and international research and advocacy director for the Open Society Roma Initiatives, underscores that [s]tudies show that inclusive education policies directed towards the youngest, fastest growing, and most impoverished demographic segment 160 According to figures of 2004. 161 Ibid. 162 Ibid. 163 Ch. McDonald, The education of Roma children: inroads to good practice, the rei example, New York: Soros, 2009, available at (accessed on 1 September 2015). 164 B. Rorke, Beyond Rhetoric: Roma Integration Roadmap for 2020: Priorities for an EU framework for national Roma integration strategies, 2011, Budapest: Roma Initiatives Open Society Institute, p. 15.

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of Europe’s population will yield substantive benefits in the future and enable young people to compete in the labour market and to take their place in society as active citizens.165 Rorke summarizes that “Roma inclusion needs to be seen not just as beneficial for Roma, for integration brings with it benefits for the entire society in terms of lower rates of welfare dependency and higher rates of production.”166 A new World Bank Report on ‘The Diagnostics and Policy Advice for Supporting Roma Inclusion in Romania’167 released in April 2014 confirms this thesis and suggests that achieving Roma inclusion is ‘smart economics’ for a country like Romania.168 The report examines the social and economic barriers most Roma in Romania face throughout their entire lives. This comprehensive study was prepared at the request of the Ministry of Labour, Social Protection, and the Elderly, and financed through the European Union (EU) structural funds in order to assist the Government of Romania develop national policies and identify cost-effective programs for the integration of the Roma. It provides diagnostics and policy options related to poverty, social safety nets, employment, education, housing, health, combating discrimination, local service delivery, and options to better use the EU financial instruments. The report points out that Roma exclusion is perpetuated over generations. Inadequate education, lack of skills, and poor health hamper the Roma population’s access to earning opportunities. This, in turn, results in insufficient resources to support the Roma children’s continued education and secure living conditions conducive to good health. That is why a life-cycle approach to devise policy interventions is important to break the intergenerational cycle of Roma exclusion. For many Roma, discrimination and exclusion are interwoven into different elements of their daily existence and persist throughout their entire lives. For example, the socio-economic conditions in which Roma grow up and live expose them to greater risk to their health in comparison with their non-Roma 165 Ibid. 166 Ibid. 167 K. Anan, et al., The Diagnostics and Policy Advice for Supporting Roma Inclusion in Romania, Washington, DC: World Bank Group, 2014, available at (accessed on 1 September 2015). 168 World Bank, Achieving Roma Inclusion is Smart Economics for Romania, Bucharest, 7 April 2014, available at (accessed on 1 September 2015).

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neighbours. Health problems that often result from poor health and nutrition in early childhood are exacerbated by a lack of access to healthcare and treatment later in life. Further complicating these health issues, according to the report, is the fact that 42% of Romanian Roma do not seek health care when they actually need it because they cannot afford the care – leading to increased health problems and early death. Roma will also likely face employment difficulties, born from limited access to education and training. Inequalities start early in life, with enrolment in preschool among Roma in the country being only 37%, compared to 63% for non-Roma children living in the same neighbourhood. By the age of 16 only 29% of Roma men and 18% of Roma women are still in school – contributing to an employment rate that is just 42% for men and 19% for women.169 Labour market exclusion will continue among future generations of Roma un­less the inequality of opportunity is addressed. The inequalities start early in life and continue in preschool and through compulsory and upper-­secondary education. This vicious cycle is not only detrimental to the health and livelihoods of the Roma in Romania; it also hampers the robustness of the country’s economy as a whole. With an ageing population and a young and growing Roma minority, countries like Romania cannot afford to leave Roma children, youth, or their families behind. Survey data170 indicate that just over 37% of the Romanian Roma population is under the age of 15 – a sharp contrast to the rest of Romania, which faces demographic challenges as its population gets older. Social inclusion of the Roma is critical in helping the country face this challenge and is a key element to unlocking some of the country’s untapped economic potential: it is estimated that equalizing labour market earnings in Romania for the Roma could result in potential annual economic benefits that range between €887 million and €2.9 billion annually.171 In order to unlock this potential, it is necessary to promote Roma inclusion that is based on a comprehensive understanding of the interconnected dimensions of exclusion. By taking a more complete look at the various and complementary socio-economic factors that prevent the Roma from receiving adequate health care, completing their education, and integrating themselves into the labour market, this latest report aims toward designing targeted interventions and institutional mechanisms capable of affecting positive change across a variety of intersecting dimensions. 169 Ibid. 170 Ibid. 171 Ibid.

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The report argues that adequate development for Roma children in the first 1,000 days of life, better access to quality education, investments in skills development for the Roma outside of the education system, improving living conditions, and combating negative stereotypes will provide equal opportunities for the next generation of Roma and will boost the wellbeing of their families. The report recommends a set of targeted interventions, such as investments in programs for maternal and child nutrition, health, and pre-school education, skills development through quality basic education, and measures to facilitate insertion in the labour market. Improving the housing conditions and ensuring access to basic infrastructure will improve Roma families’ welfare and create the appropriate environment for childhood development. These synergies between the human rights and the economic efficiency agendas are valuable for human right advocates looking for additional arguments to convince governments to adopt inclusive policies towards the Roma. Arguments of economic efficiency in the context of educational rights for the Roma have become stronger in the last years, as the pure human rights and minority rights approach has not yielded the desired results. However, certain scholars, such as Ingi Iusmen,172 criticize the economic framing of Roma policy, especially at EU level. Iusman indicates that the ­framing of Roma inclusion as primarily an economic investment for the common market might undermine the EU’s legal and constitutional commitments to human rights as transpiring from the Lisbon Treaty provisions. For Iusmen, by endorsing a Roma policy that is mainly linked to EU economic objectives, the EU downplays the role and scope that human rights protection should play in relation to the European project. He therefore pleads for a stronger anti-discrimination and human rights based approach to EU Roma policy.173 A critical stance towards the human rights and minority rights approach in the case of the Roma is adopted in the next chapter, which points at the paradox of identity politics and the possible negative consequences of a human rights and minority rights approach.

172 I. Iusmen, ‘A Means to an End or an End in Itself? EU Roma Policy, Human Rights and the Economic Investment Myth,’ jcms, 12 December 2017, doi: 10.1111/jcms.12691. 173 For an analysis of the EU Roma policy, see below Chapter 11 Recent Roma Policy Initiatives at the Council of Europe and at the European Union, and especially point 2.4 Critical Appraisal of the EU Framework for National Roma Integration Strategies.

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Conclusions under Chapter 2

In Europe, equal access to quality education for the Roma is not guaranteed. The Roma encounter several constraints to access to education as well as barriers to quality education. A particular problem is the systematic segregation of the Roma into classes for children with mental deficiencies. The ­education provided in these segregated classes is of a low quality and prevents Roma pupils from accessing higher education. The providing of equal access to a quality education for the Roma is hampered by the fact that some Roma parents have often tended to disapprove of formal education and considered it unnecessary for their traditional lifestyle, due to their own negative experience with the educational system. Roma parents consider school to be part of a coercive environment and perceive it as a sort of tentacle grasping their children towards assimilation. Moreover, there often is a prevailing understanding among the majority population that Roma culture and traditions hold back their social advancement, instead of seeing Roma culture as enriching. The importance of access to quality education for the integration of minorities and for the effective participation of minorities in society cannot be underestimated. Therefore it is of paramount importance to tackle factors responsible for exclusion from education in order to achieve social inclusion and integration. Factors responsible for exclusion from education are diverse and have a systematic character. Discrimination in access to quality education has a dual nature: discrimination is both a consequence of exclusion as well as its primary cause.174 Addressing these systemic factors can reduce discrimination. A first step towards desegregation in education and social inclusion is therefore the combating of stereotyping and prejudice and the establishment of a true inter-cultural dialogue between the Roma and non-Roma communities by means of inter-cultural education, instead of only seeking the causes for the desolate situation of the Roma within the Roma themselves. Inclusive educational strategies contribute to social cohesion, whereas segregation only reinforces negative stereotypes and racism. The problems faced by the Roma in education can be compared with the racial segregation of black pupils in the United States in the late 19th century and in the first half of the 20th century. Whereas the American legal doctrine 174 undp, Avoiding the Dependency Trap, Bratislava: undp, 2002, p. 3 available at (accessed on 1 September 2015).

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of ‘separate but equal,’ which was overturned by the Brown case in 1954, provided for separate state educational facilities of equal or comparable quality for black and white, the Roma are not only separated from their non-Roma peers, but additionally relegated to a substandard education of lesser quality. They thus face a double disadvantage: the disadvantage of having to cope with a feeling of inferiority and the disadvantage of receiving an inferior curriculum not allowing access to higher education. Segregation, as a severe form of racial discrimination is not only legally inacceptable, but there are also arguments for economic and social efficiency rejecting exclusionist policies: integration brings along benefits for society as a whole in terms of lower rates of welfare dependency and higher rates of production.

Chapter 3

A Critical Stance towards the Human Rights and Minority Rights Approach in the Case of the Roma 1 Introduction When tackling the problems of the Roma in education through the Framework Convention for the Protection of National Minorities and through the implementation of the Racial Equality Directive, a rights-based approach is adopted. In the case of the fcnm, the rights-based approach is founded mainly on the promotion of the realization of minority rights, whereas the rights-based approach of the Racial Equality Directive is founded mainly on the realization of the right not to be discriminated. Another, third rights-based approach is the general human rights approach, as adopted in the different general human rights instruments listed up in the previous chapter. However, a critical stance towards the adoption of a rights-based approach can and should be adopted, in order to avoid adopting implementation strategies which hamper the success of these legal instruments. First of all this chapter tries to clarify what the relationship is between nondiscrimination rights, minority rights, and human rights in general. It also highlights the different aims of non-discrimination law and minority rights. (2) When assessing the added value for the Roma of the fcnm and the Racial Equality Directive, it should be kept in mind that these two legal instruments are basically founded on pure western-European concepts. The fcnm of 1998 was rather a Western-European product, conceived by Western-European states and exported to Central and Eastern Europe. Also the Racial Equality Directive, adopted in the year 2000, is a product of the EU15, and the input in the conception of the Racial Equality Directive by the EU10 acceding on 1 May 2004 was rather limited. The question arising here is whether—considering the disparities in the attitude towards the Roma in Eastern and Western Europe—these Western models of minority rights and non-discrimination rights can be ‘exported’ to Central and Eastern Europe. (3) Human rights and minority rights can be considered as a set of legal categories and thus as an instrument of government. They foster political movements that respond to the challenge of building a just social order. Most legal scholars adopt a quite positive stance towards the minority rights discourse for the Roma, and consider this discourse to be—amongst others—a language

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of e­ mpowerment and equality. However, several scholars, mainly those active in the field of social sciences, identify a gap between the actual needs of the Roma, and the rights granted to them since the collapse of communism. According to these scholars it is questionable whether the human and minority rights discourse as an instrument of government really reflects the interests of the individuals and groups the rights are to protect. There is a certain danger that the human and minority rights discourse does not primarily reflect the interests of those persons the said rights intend to protect, but rather the interests of the authorities. Social scientists often point to the limited utility of minority rights regimes to persons and peoples such as the Roma, who are mostly reluctant to admit their ethnicity. It is debatable in how far the human rights discourse and the minority rights discourse is appropriate to tackle the problems met by the Roma in education. This sceptical stance towards the human and minority rights discourse is voiced in the fourth section. (4) Human rights claims are made on the basis of identity. International legal instruments conferring special minority rights to the Roma and/or focusing on the right to non-discrimination define Roma identity through the prism of ethnicity. Under the fcnm the Roma are seen as a national minority and under the Racial Equality Directive the Roma are considered to be a racial and/or ethnic minority. The national/racial/ethnic minority frame is only one framework through which Roma identity can be defined. Other frames of defining identity can be adopted as well. The advantages and disadvantages of three different frames for defining identity in the case of the Roma (the national minority frame, the non-territorial minority frame, the Roma as an ethnoclass) are analysed in the second part of the fourth section. (4) These different frameworks of understanding Roma identity have implications for identity claims and the rights they generate. There is a strong inherent tension here. On the one hand, seeing and portraying the problems faced by the Roma through the prism of ethnicity is not without dangers, especially for the Roma themselves. On the other hand, the Roma must define themselves and their group in a way in which special rights policies can be directed to them. This is the paradox of identity politics, which will be elaborated in section 5. (5) There is an ongoing debate on how to best address the needs of ethnic and national minorities, which includes two contrasting approaches: a specific approach (targeted at a specific minority) or a general approach identifying its beneficiaries on another basis than on the basis of minority criteria. A means to go beyond this debate and at the same time to overcome the negative consequences of identity politics is to introduce an ‘explicit but not exclusive approach’ with policies explicitly, but not exclusively targeting the Roma. (5)

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The last section of this chapter wants to suggests two strategies which should be adopted in order to make the minority rights discourse work: avoiding a narrative of victimhood and instead focusing on a narrative of socio-­ economical rights shared by all citizens on the one hand, and creating a social construct of mutual cooperation, reciprocal recognition and co-governance on the other hand. (6) 2

Human Rights, Minority Rights and Non-Discrimination Rights

2.1 Minority Rights as Part of Human Rights There is no doubt that minority rights form an integral part of the international protection of human rights.1 Minority rights are firmly established in general international law as far as the protection of existence and from discrimination is concerned. They enjoy the special international constitutional status of jus cogens and erga omnes obligations.2 Minority rights and human rights are not identical notions. Human rights means equal enjoyment of basic rights for everybody, whereas minority rights can be described as special rights recognized to the exclusive benefit of minority groups.3 The doctrine of minority rights as part of human rights is considered by several authors, such as Hans-Joachim Heintze,4 as a so-called ‘balancing act,’ balancing between on the one hand the need to reassure governments that the granting of rights to minorities does not undermine the principles of sovereignty and territorial integrity, and on the other hand the need to ensure that persons belonging to national minorities are able to maintain their identity and enjoy their rights as a member of a minority group. 1 For instance, Article 27 of the iccpr situates the issue of minorities within a wider context of human rights entitlements. The fcnm confirms this by explicitly recognizing minority rights as a human rights issue (Article 1 fcnm) and the same notion is reflected in the preamble to the 1992 UN Declaration and paragraph 30 of the 1990 osce Copenhagen Document. See G. Pentassuglia, Minorities in international law, Strasbourg: Council of Europe Publishing, 2002, p.48. 2 M.Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: oup, 2005, p. 637. 3 G. Pentassuglia, Minorities in international law, Strasbourg, Council of Europe Publishing, 2002, p.48. 4 H.-J. Heintze, ‘Article 1,’ in M. Weller (ed.), The Rights of Minorities in Europe, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: oup, 2005, pp. 77–96.

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However, the inclusion of minority rights in the human rights system generates problems, notably concerning the relationship between non-­ discrimination and positive minority rights. Guido Schwellnus5 points at two main differences between the general non-discrimination approach and the minority rights approach. Firstly, non-discrimination is a general human rights principle—so that ‘belonging to a national minority’ is only one of many reasons for discrimination to be eliminated, whereas special minority rights are rather group-specific, that is, targeted at particular persons or groups. Secondly, while non-discrimination aims at the removal of all obstacles to the enjoyment of equal rights, special minority protection requires ­permanent positive action in support of the minority group, in order to preserve its identity and prevent forced assimilation. Although non-discrimination is increasingly interpreted in a way that allows for positive measures to counter de facto inequalities, the aims of non-discrimination and minority protection remain different: positive measures under non-discrimination are by definition only to be employed temporarily and are put into place to remove or render irrelevant the underlying distinction, while special minority rights are essentially permanent and aim at the preservation of the distinctive character of the minority group.6 However, in spite of the apparent tension between non-discrimination and positive minority rights, human rights and minority rights should be considered as complementary and mutually reinforcing rights,7 whereby minority rights present a clear added value compared to non-discrimination rights. This added value of the minority rights discourse is analysed in the next section. 5 G. Schwellnus, ‘Looking back at ten years of EU minority conditionality vis-à-vis Central and Eastern European Candidate States,’ European Yearbook of Minority Issues, 2004/2005, vol. 4, p. 325. 6 Ibid. Schwellnus remarks that non-discrimination aims to achieve the full integration of persons belonging to minority groups into society, whereas special minority rights have a tendency to promote a certain degree of segregation. One should note that the term ‘segregation,’ as used by Schwellnus, is unfortunate. The statement that minority rights promote a degree of segregation can be criticized. The aim of minority rights is the prevention of assimilation, but in wanting to support the minority in preserving its identity, minority rights do support the integration of the minority in society and general social inclusion. To claim that minority rights stand for segregation or promote a degree of segregation is, in the view of the author of this book, wrong. One could say that minority rights have a tendency to promote a certain degree of differentiation, as will be discussed below, but the use of the term ‘segregation’ is too strong in this context. 7 G. Pentassuglia, Minorities in international law, Strasbourg: Council of Europe Publishing, 2002, p.48.

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Do We Need Minority Rights? On the Added Value of the Minority Rights Discourse versus the Human Rights Discourse8 In his report on ‘The impact of international norms on the protection of national minorities in Europe: the added value and essential role of the fcnm,’9 drafted for the Committee of Experts on Issues Relating to the Protection of National Minorities (‘DH-MIN’), Rainer Hofmann analyses the added value of the minority rights approach versus the non-discrimination approach. After having discussed the impact of international instruments on non-discrimination and their impact on the situation of minorities in Europe on the one hand and the added value of the fcnm on the other hand, Hofmann concludes that: 2.2

the goal of adequately protecting the rights of persons belonging to national minorities cannot be achieved solely by operation of the right to non-discrimination but requires the existence of additional rights. At the outset, it must be stressed that all human beings are, as such, holders of the right not to be discriminated against. Since persons belonging to national minorities are, of course, human beings, they share this right, this protection resulting from the prohibition against discrimination, with all persons belonging to the “majority.” And it seems that for persons belonging to that “majority,” to be protected by the generally applicable human rights, including the right to non-discrimination, is sufficient in order to safeguard their individual right to preserve and develop their identity. However, in order to assure to persons belonging to national minorities their individual right to maintain and develop their distinct identity, more is needed: A set of specific human rights, a set of human rights protecting the specific rights which such persons need in order not to be assimilated against their will into the majority population and to preserve and develop their distinct identity. From this explanation it is clear that the non-discrimination approach (being part of the human rights approach) should be completed by a set of specific 8 Do we need minority rights? is the title of a book edited by Juha Raikka. See J. Raikka (ed.), Do We Need Minority Rights, The Hague: Nijhoff, 1996. The book is overall rather skeptical about minority rights and investigates important philosophical questions regarding minority protection and also certain related practical and legal problems. See also J. Raikka, ‘On the Ethics of Minority Protection,’ in M. Suksi (ed.), Autonomy: Applications and Implications, The Hague: Kluwer, 1998, pp. 33–42 and M. Scheinin and R. Toivanen (eds.), Rethinking NonDiscrimination and Minority Rights, Turku: Institute for Human Rights of Ǻbo Akademi University, 2004. 9 R. Hofmann, ‘The impact of international norms on the protection of national minorities in Europe: the added value and essential role of the fcnm,’ DH-MIN (2006)18, 5 December 2006.

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human rights—minority rights—in order to respond adequately to the needs of persons belonging to minorities.10 Indeed, the added value and the necessity of special rights for minorities have become generally accepted.11 Several authors rely for their arguments in favour of special rights on the Permanent Court of International Justice’s (‘pcij’) Advisory Opinion regarding the minority schools of Albania,12 and more specifically its postulate that differential treatment for the members of minorities is necessary to realize substantive or real equality.13 Kristin Henrard 10

11

12 13

Cf. G. Alfredsson, Discussion Paper of Workshop i at the Strasbourg Conference on Parliamentary Democracy: Human Rights, Fundamental Freedoms and the Rights of Minorities, Essential Components of Democracy, Strasbourg: Council of Europe, 16–18 September 1991, p. 12. Gudmundur Alfredsson stresses here that “non-discrimination in the enjoyment of general rights and freedoms does not suffice. A group does not really enjoy an equal status with the majority population, unless it is accorded conditions equivalent to the majority. Even then, the group will continue to be disadvantaged in the light of the majority population’s dominance in the organization of national policy and the economy. It is argued that only special rights with minorities using native languages, running their own schools, benefiting from access to services provided by the group for the group and participating in the political and economic affairs of states, will approximate circumstances which the majority takes for granted.” Ibid. See also F. Benoit-Rohmer, The Minority Question in Europe, towards a Coherent System of Protection of National Minorities, Strasbourg: International Institute for Democracy, 1996, p. 16; J. Duffar, ‘La Protection Internationale des Droits des Minorités Religieuses,’ Revue de droit public et de la science politique en France et à l’étranger 6, 1995, vol. 111, p. 1525; A. Eide, Preliminary Report: Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems Involving Minorities, UN Doc. E/CN.4/Sub.2/1991/43, 24 June 1991, pp. 11–12; H. Hannum, ‘The Limits of Sovereignty and Majority Rule: Minorities, Indigenous Peoples and the Right to Autonomy,’ in E. Lutz et al. (eds.), New Directions in Human Rights, Philadelphia: University of Pennsylvania Press, 1989, p. 20; W. Mc Kean, Equality and Discrimination under International Law, Oxford: Clarendon Press, 1985, pp. 141–142; P. Thornberry, International Law and the Rights of Minorities, Oxford: Oxford University Press, 1991, p. 10; P. Thornberry, ‘The UN Declaration on the Rights of Persons belonging to National, Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations and an Update,’ in A. Philips and A. Rosas (eds.), Universal Minority Rights, Ǻbo: Ǻbo Akademis Tryckeri, 1995, pp. 18 and 24. pcij, Minority Schools in Albania (Advisory Opinion), pcij A/B No 64. The advisory opinion of the pcij regarding the Minority Schools in Albania is often ­referred to by authors when discussing minority protection. See also F. Capotorti, ‘The Protection of Minorities under Multinational Agreements on Human Rights,’ Italian Yearbook of International Law, 1976, p. 4; M. Tabory, ‘Language Rights as Human Rights,’ Israel Yearbook on Human Rights, 1980, vol. 10, p. 221; P. Thornberry, ‘The UN Declaration on the Rights of Persons belonging to National, Ethnic, Religious and Linguistic Minorities: Background, Analysis, Observations and an Update,’ in A. Philips and A. Rosas (eds.), Universal Minority Rights, Ǻbo: Ǻbo Akademis Tryckeri, 1995, p. 16. Contra: J. Packer, ‘On the Concept of Minority Rights,’ in J. Raikka (ed.), Do We Need Minority Rights?, The Hague: Martinus Nijhoff, 1996, p. 145 who thinks it inappropriate to use that opinion as a point of departure for a discussion of minority rights.

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raises the additional argument that special measures for (members of) minorities are not only necessary to realize real and effective equality, but also to ­satisfy the requirement to respect the separate identity of minorities.14 2.3 The Different Aims of Minority Rights and Equality Law Although minorities benefit from the principles of equality and non-­ discrimination, an important distinction has to be made between the anti-­ discrimination approach and minority rights.15 When explaining the themes of its mandate, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities gave useful guidance on the matter of the difference between minority rights and equality law. It stated during its first session in 1947: 1. Prevention of Discrimination is the prevention of any action which denies the individual or groups of people equality of treatment which they may wish. 2. Protection of minorities is the protection of non-dominant groups which, while wishing in general for equality of treatment with the majority, wish for a measure of differential treatment in order to preserve basic characteristics which they possess and distinguish them from the majority of the population. …16 Gaetano Pentassuglia summarizes the difference between the prevention of discrimination and the protection of minorities in the following words: The protection of members of minorities against discrimination in essence constitutes a statute of prohibited treatment, but does not systematically embrace minority rights. The basic aim of the prevention of discrimination is ‘the integration of persons by legal means.’ (…) Hence, whereas the prevention of discrimination demands in general equality, including special, temporary measures designed to remove not only legal but also social and/or economic obstacles to the enjoyment of rights and freedoms (…), the core of the ‘protection of minorities’ lies in special, essentially permanent measures which are intended to safeguard the identity of certain groups.17 14 15 16 17

K. Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination, The Hague/London/Boston: Martinus Nijhoff Publishers, 2000, p. 228. Ibid., p. 90. UN Commission on Human Rights, Sub-Commission on the Prevention of Discrimination and the Protection of Minorities, ‘Report submitted to the Commission on Human Rights,’ 1st session, 24 November 1947-6 December 1947, Section v, p. 13. G. Pentassuglia, Minorities in international law, Strasbourg: Council of Europe Publishing, 2002, p. 91.

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Pentassuglia further stresses that the right not to be discriminated against and minority rights thus represent complementary but distinct categories. The issue of respect for minority rights is independent of whether minority members are treated in a non-discriminatory way. Even if minorities are not discriminated against, they still are entitled to special rights allowing them to preserve their physical and cultural integrity. This clearly shows that minority rights are a much wider notion than the right not to be discriminated against.18 Consequently, legal tools designed to combat discrimination will contribute to the protection of minority rights, but are not sufficient to protect minority rights. Recent commentaries19 on the UN Declaration on the Rights of Persons Belonging to National, Religious and Linguistic Minorities of 1993 declare that minority protection is based on four tenets: protection of existence, non-­exclusion, non-discrimination and non-assimilation of the groups concerned. If non-discrimination is one of the tenets on which minority protection is based, this implies that minority protection is a much broader concept than non-discrimination. One could say that minority rights embrace non-­ discrimination, but cannot be reduced to it. Minority rights policies based principally or exclusively on non-discrimination are thus bound to fail. This should be kept in mind when evaluating the added value of the Racial Equality Directive on the one hand and of the fcnm on the other hand in the field of Roma education. 3

Excursus: Disparities in the Attitude towards the Roma in Eastern and Western Europe – Can Western Models of Minority Rights be exported to Central Eastern Europe?

Policy and Legislative Initiatives in Central and Eastern Europe: Converging Trends as a Result of EU Pressure Over the last two decades, an array of policy and legislative initiatives related to the Roma has been initiated in the countries of Central and Eastern Europe. The adoption of anti-discrimination legislation, the ratification of the fcnm, and the adoption of programmes for the integration of the Roma are considered by scholars as three areas of ‘converging trends,’ whereby it should be ­noted that this convergence is a consequence of the legal obligation to transpose the Racial Equality Directive, the binding legal nature of the fcnm and 3.1

18 19

Ibid., pp. 91–93. A. Eide, ‘Final Text of the Commentary to the UN Declaration on the Rights of Persons Belonging to National, Ethnic, Religious and Linguistic Minorities,’ 2001, UN Doc.E/CN.4/ Sub.2/AC5/2001/2, para.23.

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the political commitments made by governments on a high political level in the case of programmes for Roma integration. In other words, the convergence is not a coincidence but the consequence of the implementation of legally binding instruments. Bernd Rechel notes that all of these legislative and policy changes can be directly related to pressure from the EU in the light of the accession process.20 In this sense, the Racial Equality Directive and the fcnm can both be considered tools used by the EU15—the ‘old’ mainly ‘Western’ European member states— of EU conditionality for membership of the EU10, the ten candidate countries from Central and Eastern Europe. The most important step towards the EU’s political conditionality was taken at the European Council in Copenhagen in June 1993, which set out the ‘Copenhagen criteria’21 for membership. These criteria required, inter alia, “that the candidate country has achieved stability of institutions guaranteeing (…) respect for and protection of minorities.”22 Rechel stresses that the political Copenhagen criteria for membership were of particular relevance for the protection of minorities, as this policy area was, until the adoption of the Racial Equality Directive in 2000, not covered by the acquis communautaire. As the EU at the time of the accession process did not have a legal basis for the setting up of its own standards in the area of minority protection, it has encouraged candidate countries to ratify the fcnm. Hence the fcnm has been described by scholars as the European Commission’s ‘primary instrument for translating the minority criterion into practice.’23 The fcnm was thus a key reference 20

B. Rechel, ‘Introduction’ in B. Rechel, Minority Rights in Central and Eastern Europe, London: Routledge, 2009, p. 7. 21 The Copenhagen criteria are the criteria defining whether a country is eligible to join the European Union. The criteria require that a state has the institutions to preserve democratic governance and human rights, has a functioning market economy, and accepts the obligations and adheres to the aims of the EU. These membership criteria were laid down at the June 1993 European Council in Copenhagen, Denmark, from which they take their name. 22 EU, Presidency Conclusions, Copenhagen European Council, DOC/93/3, 21–22 June 1993, Brussels: European Union. 23 G. Sasse, ‘Democracy Promotion in cee: The Political Rights of National Minorities,’ paper presented at cii iccees World Congress, Humboldt University, Berlin, 25–30 July 2005, p. 13. See also G. Sasse, ‘The Political Rights of National Minorities: Lessons from Central and Eastern Europe,’ in W. Sadurski (ed), Political Rights under Stress in 21st Century Europe, Oxford: Oxford University Press, 2007, pp. 239–82. It should be noted however that this criterion of ratification of the fcnm as a precondition for EU membership of the EU10 has not been consistently or strictly applied, since Latvia had not ratified the fcnm by the time it became a member of the EU on 1 May 2004, but only ratified the fcnm in the year 2005.

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point in the EU’s monitoring of candidate countries’ respect for and protection of minorities. The impact of the EU on minority protection in candidate countries was most evident in the area of anti-discrimination legislation, as in this area there was a legal basis for the EU to legislate, notably Art. 13 tec (now Art. 19 tfeu). All ten new EU member states from Central and Eastern Europe have made legislative changes to transpose this part of the acquis, although with varying degrees of speed and comprehensiveness.24 Accession to the EU of ten new member states from Central and Eastern Europe was thus one of the factors contributing to a shift in policies towards minority rights. However, this shift was one which was conducted and orchestrated by Western European states, who formulated conditions for Central and Eastern European states to ‘join their club.’ In so far, both the Racial Equality Directive and the fcnm can be considered as ‘export products,’ exported from Western Europe to Central and Eastern Europe. Export of a ‘Western’ Minority Rights Model to Central and Eastern Europe Countries in post-communist Europe differ significantly from Western countries in terms of history, demography, geopolitical stability, economic development and democratic consolidation. These fundamental differences have prompted scholars such as Will Kymlicka25 to question whether the minority rights model, which is primarily a ‘Western’ model, can and should be ‘exported’ to Central and Eastern Europe and ‘internationalized.’ Kymlicka focuses in his analysis on sub-state nationalism and multination federalism. Therefore not all of his arguments apply to the case of the Roma, who, for instance, do not claim territorial autonomy or official language status. Still, his analysis is of interest for judging the added value and the effectiveness of minority rights instruments such as the fcnm and the Racial Equality Directive. Kymlicka argues that the decision to make minority rights one of the criteria for ‘rejoining’ Europe rests on a number of controversial assumptions.26 Indeed, there was relatively little public debate or scholarly analysis 3.2

24 25 26

B. Rechel, ‘Introduction’ in B. Rechel, Minority Rights in Central and Eastern Europe, London: Routledge, 2009, p. 7. W. Kymlicka, ‘Multiculturalism and Minority Rights: West and East,’ jemie, 2002, vol. 4, pp. 1–26. W. Kymlicka, ‘Multiculturalism and Minority Rights: West and East,’ jemie, 2002, vol. 4, pp. 2. These controversial assumptions are explored in depth in W. Kymlicka and M. Opalski, Can Liberal Pluralism Be Exported? Western Political Theory and Ethnic Relations in Eastern Europe, Oxford: oup, 2001. The book is about how many post-communist

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about the wisdom of the decision to ‘export’ the Western European model of minority rights protection and Kymlicka rightly stresses that the difficulties this raises were perhaps not fully considered before the decision was taken.27 In the meantime, the Western models of multiculturalism and minority rights have been applied to Central and Eastern Europe and thus it seems a bit too late to discuss the appropriateness of this decision. However, it still is important to underline that Western organizations on the one hand did have some success at pushing various Central and Eastern European countries to live up to certain minimal standards regarding minority rights. On the other hand, Western organizations have not effectively challenged dominant ideologies in Central and Eastern Europe. Scholars such as Istvan Pogany,28 Magdalena Opalska and Will Kymlicka29 seem to be very sceptical about the degree of compatibility of the Western models of multiculturalism and minority rights with the nationalistic, exclusivist political and social currents of the Central and Eastern European states. Indeed, it seems that Western European policy makers at international organizations such as the coe and the EU have not been taking the different dominant ideologies in Western and Eastern Europe into account when devising their pan-European minority rights instruments. It is therefore important to stimulate greater reflection on the goals international organizations should be pursuing, such as the creation of meaningful democratic spaces to deliberate about the needs and aspirations of minorities such as the Roma in a free and informed way. Despite numerous initiatives for the Roma, changes on the ground have remained remarkably limited.30 One of the grounds for the failing minority policies targeting the Roma can probably be related to the limited degree of

27 28 29 30

countries in Central and Eastern Europe are being encouraged and even pressured by Western countries to improve their treatment of ethnic and national minorities and to adopt Western models of minority rights. It investigates what these Western models are and if and how they work in Eastern Europe. Kymlicka describes the model of Western ‘liberal pluralism,’ discussing what would be involved in adopting it in Eastern Europe. W. Kymlicka, ‘Multiculturalism and Minority Rights: West and East,’ jemie, 2002, vol. 4, p. 2. I. Pogany, ‘Refashioning Rights in Central and Eastern Europe: Some implications for the Region’s Roma,’ European Public Law, 2004, vol. 10, no. 1, pp. 85–106. W. Kymlicka and M. Opalski, Can Liberal Pluralism Be Exported? Western Political Theory and Ethnic Relations in Eastern Europe, Oxford: oup, 2001. See also the case study below in Chapter 10, especially at 3. Findings of 3 Recent EU Reports: the 2011 fra Annual Report, the 2010 Comparative Review of the Transposition of the Racial Equality Directive, and the 2012 fra Report on the Application and Challenges of the Racial Equality Directive.

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compatibility of these Western models when exported to Central and Eastern Europe. More research in the field of political and social sciences should be conducted on this issue in order to identify the weaknesses related to the ‘export’ of this Western model to Central and Eastern Europe. Whereas political theory assists lawyers in questioning whether Western minority rights models can and should be exported to Central Eastern Europe, sociologists question the appropriateness of the minority rights discourse per se, which is the subject of the next section. 4

Different Conceptions of Romani Identity: A Sceptical Appraisal of the Minority Rights Discourse from a Sociological Perspective

Political scientists31 have analysed the different conceptions of Romani identity used by Romani movement actors to mobilize a constituency. Peter Vermeersch contends that in Central and Eastern Europe, three main types of Romani identity frames were used to describe and underpin Romani collective action: the Roma as a national minority; the Roma as a non-territorial nation or as a transnational minority; and the Roma as an ethnoclass. These conceptualizations of the Roma are not without implications, some of them with negative effects for the realization of Roma rights. The negative consequences of the conceptualization of the Roma as a (national) minority, as a transnational minority, or as an ethnoclass are described in the sections below. The Negative Consequences of the Conceptualization of the Roma as a (National) Minority According to a study on the Romani movement by Peter Vermeersch,32 not all Romani activists are convinced about the positive implications of tackling the problems of the Roma through a minority rights perspective, as they are sceptical about the conceptualizing of the Roma as a national minority, and this for a number of various reasons. First, the experiences of the Roma were very different from that of other national minorities. In contrast to other national minorities, for example, the Roma have never had the intention to voice demands for political autonomy or 4.1

31 32

See, among others, P. Vermeersch, The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe, New York, Oxford: Berghahn Books, 2006. P. Vermeersch, The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe, New York, Oxford: Berghahn Books, 2006, pp. 165–166.

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territorial self-determination. This was the case not only in Slovakia, but also in the Czech Republic and Hungary.33 Secondly, parties and interest groups from other national minorities have often distanced themselves from the Romani perspective. Slovak Romani activists, for example, estimated that only a small portion of the Hungarian minority in Slovakia would fully identify itself with the plight of the Roma, and in the Czech Republic there was even less opportunity to ally with other national minorities. The third reason for the reluctance of Romani activists to categorize the Roma as a national minority was the fear that national minority rights would not primarily reflect Romani interests, but rather the interests of the authorities. According to this argument, the issue of national minority rights played a fundamental role in the negotiation of the relationship between the EU member states and the post-communist candidate countries. Among the sceptics was also Nicolae Gheorghe,34 a Romanian Romani activist and advisor for Roma and Sinti issues at the Contact Point for Roman and Sinti Issues (‘cprsi’), linked to the OSCE’s Office for Democratic Institutions and Human Rights (‘odihr’). He formulated the matter as follows: The discourse of national minorities is another way to reproduce and to reinforce the nation-state. The fact that the nation-states are so generous now to these ‘minorities’ is just one device to reinforce the legitimacy of these states as ethnic states, states which actually belong to an ethnic ‘majority’. [...] I personally am critical towards this trend in the Romani movement which seeks to fashion Romanies [sic] as a national minority because I consider that in reality, the true concept of national minority is only a by-product of nation-state building. ... Ethnic minority policies are exhibited as if in a display cabinet, like a showcase in international politics to

33

34

When in 1993 the Roma in Hungary were legally recognized as a national minority, Romani activists were pleased as well as worried. Some of them had immediately voiced doubts as to whether the Hungarian system of national minority rights protection (primarily the self-government system) was the right response to the problems the Roma were facing. Nicolae Gheorghe is also former coordinator of the Roma Center for Social Intervention and Studies (Rromani criss) in Romania, a former member of the Project on Ethnic Relations Council for Ethnic Accord and the vice-president of the International Romani Union.

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make sure that the Council of Europe and the western democracies think that things are good in Eastern Europe.35 An emphasis on the ethnic distinction between the Roma minority and the non-Roma majority can even enable states to evade responsibility towards minority groups by reinforcing the validity of the nation-state of the ethnic majority. The categorization of Roma as a (national) minority might only additionally stress the difference between the Roma minority and the majority and construct a barrier to societal solidarity.36 The minority rights framework responds to the recognition that policies can be made more effective by including Roma within the policy-making and implementation process. Yet, in creating a separate agenda for Roma politics, it disconnects Roma people and their concerns from the wider political scene. Martin Kovats concludes his argument against the categorization of the Roma as a minority by stating that “the encouragement of Roma political ethnocentrism places an obstacle to solidarity between Roma and non-Roma and means that, as a minority, any coherent Roma mobilization can be countered by elements from mainstream society.”37 Another author who is very sceptical towards the minority rights discourse in the case of the Roma is Istvan Pogany. He notes that the rhetoric of human and minority rights has done little to alter popular prejudices about the Roma in the region, which makes that successful, integrated Roma in Central and Eastern Europe frequently prefer to draw a veil over their ethnicity.38 Pogany underlines the fact that measures on behalf of the Roma frequently lack significant support from the general public and states that in contrast to the anti-Gypsy sentiment, which largely comes from ‘below,’ i.e. from what ordinary people think privately or say amongst family, work-mates or friends, human rights initiatives, particularly those aimed at extending Roma rights, have mostly been imposed from ‘above.’ They represent progressive measures introduced by governments and ­bureaucracies which, at least in part, are intended to satisfy international 35

N. Gheorghe, ‘The social construction of Romani identity,’ in T. A. Acton (ed.), Gypsy Politics and Traveller Identity, Hertfordshire: University of Hertfordshire Press, 1997, p. 160. 36 M. Kovats, ‘Opportunities and Challenges – EU Enlargement and the Roma/Gypsy Diaspora,’ eumap, 1 November 2001, on-line article available at (accessed on 1 September 2015). 37 Ibid. 38 I. Pogany, ‘Refashioning Rights in Central and Eastern Europe: Some implications for the Region’s Roma,’ European Public Law 1, 2004, vol. 10, p. 98.

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treaty obligations or simply to curry favour with the West. At bottom, they are part of the price of admission to coveted western “clubs” such as the Council of Europe, nato and, ultimately, the European Union.39 Indeed, one of the reasons why the rhetoric of human and minority rights has failed so far in the case of the Roma is the lack of support from the general public. Therefore it is of crucial importance that minority rights instruments, such as the fcnm, do not focus exclusively on the rights of the minorities falling under their scope of application, but also pay attention to awareness raising within the majority population through the promotion of information on the Roma and through awareness raising campaigns.40 When developing and implementing minority rights instruments, in order for them to be successful and yield the desired results, it is crucial to be aware of the negative inherent ‘side-effect’ of minority policy, which is the dichotomy created between the ‘majority’ on the one hand and the ‘minority’ on the other hand. This negative ‘side-effect’ can be reduced or compensated by ascertaining the support by civil society for Roma rights policies by adopting a ‘bottom up’ approach instead of imposing the policy ‘from above.’ The Negative Consequences of the Conceptualization of Roma as a Non-territorial European Minority The above mentioned critiques have prompted some Romani intellectuals and activists to call for a new status as a legally recognized transnational, non-­ territorial minority, a status that would be afforded irrespective of citizenship and residence.41 The Roma National Congress (‘rnc’) drew attention to the unique history of the Roma as a non-territorial minority confronted with racism and persecution, and advocated a ‘European Charter on Romani Rights’ to provide a firm legal status for the Roma throughout Europe.42 4.2

39 Ibid. 40 A nice example of these awareness raising campaigns is the Dosta! campaign, a joint initiative of the Council of Europe and the European Commission, aiming at bringing non-Roma closer to Roma citizens. More information on the campaign ‘Dosta! Enough! Go beyond prejudice, meet the Roma’ is available at (accessed on 1 September 2015). 41 Roma National Congress, Report on the situation of the Roma in Europe, Hamburg: rnc, 1995, p. 1, cited by H. O’Nions, Minority Rights Protection in International Law, The Roma of Europe, Hampshire: Ashgate, 2007, p. 21. 42 Roma National Congress, ‘Roma in Europe: Status Regulation through self-determination,’ Statement prepared for the csce Seminar on Roma in the csce Region, Warsaw 20–23 September 1994, cited by H. O’Nions, Minority Rights Protection in International Law, The Roma of Europe, Hampshire: Ashgate, 2007, p. 21.

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The general principles of the ‘Roma Participation Program’ of the Open Society Institute in Budapest echoes the need to draw on transnational perspectives: As a de facto non-territorial minority in Europe, the Roma occupy a unique position, both historically and politically. Their situation is analogous with that of European Jewry, except that the Roma do not have the option of claiming political sovereignty as an independent state. Efforts to improve the situation of Roma must acknowledge this unique position.43 While this may be an appropriate description of the Roma today, O’Nions notes that it might sit uneasily with the individual emphasis of human rights standards, as well as with the primacy of the state as evidenced through the importance of territorial integrity. Newly emerging concepts of national minority intrinsically favour loyalty to the state over any minority identity. Thus, for O’Nions, such a claim will be unlikely to receive support from the major players, the member states, who may regard their territorial integrity as under threat.44 Another scholar who is quite sceptical about the categorization of the Roma as a non-territorial minority is Martin Kovats, who notes that this categorization entails the danger of obscuring the diversity of the Roma communities throughout Europe.45 Kovats refers first of all to Council of Europe Recommendation 1203 on Gypsies in Europe, which declared the Roma to be a “true European minority.”46 However, according to Kovats, treating the Roma diaspora as a specific political entity may obscure the considerable diversity of Roma communities and their circumstances. He notes that: [s] ignificant disparity exists between Eastern and Western Europe in both the absolute and relative sizes of national Roma/Gypsy ­populations. 43 44 45

46

Roma Participation Program, ‘About the rpp,’ Reporter, 1998, cited by H. O’Nions, Minority Rights Protection in International Law, The Roma of Europe, Hampshire: Ashgate, 2007, p. 22. H. O’Nions, Minority Rights Protection in International Law, The Roma of Europe, Hampshire: Ashgate, 2007, p. 21. M. Kovats, ‘Opportunities and Challenges – EU Enlargement and the Roma/Gypsy Diaspora,’ eumap, 1 November 2001, on-line article available at (accessed on 1 September 2015). coe, Recommendation 1203 of the Parliamentary Assembly on Gypsies in Europe, 1993, CM/AS(94)Rec1203final.

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Furthermore, there are profound historical, social, economic, linguistic and cultural differences amongst Roma/Gypsies in the different halves of the continent, as well as considerable diversity within each of these regions, between the Roma/Gypsy populations of neighbouring states and even between Roma/Gypsy communities within individual countries.47 Reference should be made here to the osce High Commissioner on National Minorities who has noted in his 1993 Report on Roma in the csce Region that the Roma “comprise an extremely heterogeneous set of communities that are perhaps best understood in their own specific circumstances.”48 It should also be noted that there is no common tongue within the diaspora as there are between 50–100 dialects. Romani dialects are not mutually comprehensible except at very basic levels, such as words relating to food and family.49 Only around two and a half million Roma speak Romani, whereas almost all are fluent in their national languages.50 Roma lifestyles vary enormously, from large urban communities through to small itinerant groups, and Roma can be found at all points along the spectrum of interaction with mainstream society, from close integration to extreme isolation. Kovats concludes that “there is no common trans-European Roma culture”51 and therefore he rejects the conceptualization of Roma as a non-territorial minority. The need to fit the construct of a non-territorial, true European minority has led some of the Roma elite to strive to present a unified homogenous community with a common cultural identity. This approach, however, denies the great variety of existing Roma-subgroups, with not only varying lifestyles but also

47

M. Kovats, ‘Opportunities and Challenges – EU Enlargement and the Roma/Gypsy ­Diaspora,’ eumap, 1 November 2001, on-line article available at (accessed on 1 September 2015). 48 osce High Commissioner on National Minorities, ‘Roma in the csce Region,’ Report of the High Commissioner on National Minorities, September 1993, Warsaw: osce odihr, p. 3, available at (accessed on 1 September 2015). 49 D. Kenrick, ‘Inflections in Flux,’ Transitions Online, 6 April 2002, on-line article available at (accessed on 1 September 2015). 50 Ibid. 51 M. Kovats, ‘Opportunities and Challenges – EU Enlargement and the Roma/Gypsy ­Diaspora,’ eumap, 1 November 2001, on-line article available at (accessed on 1 September 2015).

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varying political aspirations. In sum, the concept of a non-territorial minority thus does not provide a good solution for the case of the Roma. The Categorization of the Roma as an Ethnoclass: a Valuable Alternative? One possible alternative to the categorization of the Roma as a (national) minority or as a non-territorial transnational minority is the categorization of the Roma as an ‘ethnoclass.’52 Those scholars advocating the categorization of the Roma as an ethnoclass rather focus on the conferral of socio-economic rights, such as the need for education, better housing and employment. The protection of cultural aspects of Romani identity rather plays a less prominent role when categorizing the Roma as an ethnoclass. In general, those advocating the categorization of the Roma as an ethnoclass advocate a degree of ethnic anonymity, while retaining the understanding that the social disadvantage of the Roma as an ethnic group has historical roots.53 The categorization of the Roma as an ethnoclass might indeed deconstruct the barrier of societal solidarity in categories of Roma versus non-Roma. But at the same time a new barrier of societal solidarity in categories of ‘poor’ versus ‘rich’ might be created, leaving the said problem of a dichotomy between different societal groups unsolved. Moreover, the categorization of the Roma as an ethnoclass, focusing on the conferral of socio-economic rights instead of minority rights would create a new problem, consisting in the increased danger of assimilation. Minority rights guarantee the preservation of minority language, tradition and culture. When categorizing the Roma as an ‘ethnoclass’ on the basis of socio-­economic criteria, there is no basis on which rights guaranteeing the preservation of their specific ethnicity can be conferred to them. This relates to the inherent paradox of identity politics, which will be analysed in more detail in the next section. 4.3

52

53

P. Vermeersch, The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe, New York, Oxford: Berghahn Books, 2006, pp. 166–167. Vermeersch borrowed the term from Ted Robert Gurr and Barbara Harff. See T. R. Gurr and B. Harff, Ethnic Conflict in World Politics, Boulder, San Francisco, Oxford: Westview Press, 1994. Gurr and Harff have defined an ethnoclass as an ethnic group that resembles a class. Members of ethnoclasses are disproportionately concentrated in occupations at or near the bottom of the economic and social hierarchy. Those scholars who frame Romani identity in this way emphasize especially the detrimental social circumstances of Romani life, characterized by a position at the bottom of the social ladder. P. Vermeersch, The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe, New York, Oxford: Berghahn Books, 2006, p. 166.

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The Minority Rights Discourse and the Paradox of Identity Politics

5.1 Identity Politics 5.1.1 What are Identity Politics? The phenomenon referred to as ‘identity politics’ primarily appeared during the politically tumultuous years following the passage of the Civil Rights Act54 in 1964. While much of the attention was focused on the plight of disenfranchised African-Americans, other groups also sought recognition and acceptance through political activism and collective awareness-raising by means of identity politics. The concept of ‘identity politics’ is defined by the Oxford English Dictionary as “the adherence by a group of people of a particular religion, race, social background, etc., to political beliefs or goals specific to the group concerned, as opposed to conforming to traditional broad-based party politics.”55 Darren Zook56 uses the term to mean the interaction between four different—but not necessarily mutually exclusive—spheres of political action: First, I refer to the collective set of actions by which groups enter the political process, nationally or internationally, to make rights claims on the basis of identity. Second, the term denotes the act of creating new instruments or re-interpreting existing human rights documents to support or protect various facets of human identity. Third, there is the process by which individuals and groups construct their identities with the express purpose of using such identities to asset claims of recognition in, or enhanced protection from, the framework of human rights law. Fourth, and finally, I understand the term to means the process of contestation and deliberation by which states and other actors support or deny claims for recognition. The field of identity politics is a rich and dynamic area of political action, and it requires an equally rich and dynamic human rights framework to ensure that fairness and justice are achieved in the complex and highly charged world of identity formation and contestation.57

54 55

Civil Rights Act of 1964, Pub L No. 88–352, 78 Statutes at Large, p. 241. Oxford English Dictionary, ‘Identity Politics,’ available on line at (accessed on 1 September 2015). 56 D. C. Zook, ‘Decolonializing Law: Identity Politics, Human Rights and the United Nations,’ Harvard Human Rights Journal, vol. 19, p. 97. 57 Ibid.

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Both national and international actors have supported the development of Romani ethnic group formation and of Romani identity politics, and Romani identity has increasingly found an ‘institutional niche.’58 The growing institutionalization of Romani identity continues both at the national and the international level59 but, as mentioned above, portraying the problems faced by the Roma exclusively through the prism of ethnicity can entail several negative consequences. These possible negative consequences are described in the following section, which is dedicated to the inherent paradox of identity politics. 5.1.2 The Paradox of Identity Politics On the one hand, Roma activists demand equality, protest against those who see them as different and thus are sceptical towards them being categorized as a ‘minority’ different from the majority population. On the other hand, they must define their own group for political purposes, so that policies can be directed towards them, and in order to be able to do this, they must reaffirm the difference between the Roma and the non-Roma. This is the paradox of identity politics.60 Moreover, since Romani identity has popularly always been associated with negative characteristics, these negative stereotypes and prejudices can even reinforce the antagonism and dichotomy of the Roma versus the non-Roma. Vermeersch notes in this context that defining the Roma through the prism of ethnicity might at best attract attention to [the problems Roma face], and it might encourage Roma to engage in political and civic action and provide a channel through which they can help to change their situation. But if relations between communities do not improve, if problems of poverty, inequality, discrimination, segregation and social distance persist, then ethnic politics may [...] sharpen boundaries between ethnic groups, ­reinforce stereotypes on both sides of the boundaries, and strengthen discourses of mutual recriminations. (…) And more importantly, if ethnically framed programs for whatever reason do not lead to any palpable changes, they run the risk of reinforcing the idea that there is something 58 59 60

P. Vermeersch, The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe, New York, Oxford: Berghahn Books, 2006, p. 229. See the adoption of several Roma targeted policies and programmes at national and international levels. P. Vermeersch, The Romani Movement: Minority Politics and Ethnic Mobilization in Contemporary Central Europe, New York, Oxford: Berghahn Books, 2006, p. 229.

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in the ethnicity of the target group that prevents these programs from being successful.61 Minority rights instruments such as the fcnm and non-discrimination instruments such as the Racial Equality Directive are exactly focusing on Roma identity and Roma ethnicity and thus on being ‘different.’ It is therefore important, in order to minimize or compensate for the dichotomy created by these instruments, to additionally cultivate solidarity ties and stress the common interests of the Roma minority on the one hand and other societal (also non-ethnic) groups on the other hand. One of the possible means to go beyond the debate of either a specific identity based or a general approach is the introduction of an ‘explicit but not exclusive approach.’ 5.2 A Possible Solution: Explicit but not Exclusive Targeting The ‘explicit but not exclusive’ approach implies focusing on Roma people as a target group for specific policy measures without excluding others who live under similar socio-economic conditions. Policies and projects should be geared towards ‘vulnerable groups,’ groups at the margins of the labour market, ‘disadvantaged groups,’ or ‘groups living in deprived areas,’ etc. with a clear mention that these groups include the Roma. This approach is particularly relevant for policies or projects taking place in areas populated by the Roma together with other ethnic minorities or marginalized members of society.62 It can prevent an unnecessary magnification of the Roma versus non-Roma dichotomy and can stimulate the cultivation of a feeling of solidarity which can contribute to more inclusion.63 61 Ibid. 62 See Principle 2 of the Vademecum on the 10 common basic principles on Roma inclusion. European Commission, ‘The 10 Common Basic Principles on Roma Inclusion,’ Brussels: EU Publications Office, June 2009. 63 An example of exclusive targeting of the Roma is the planned Strategy of Roma Inclusion for 2011–2015 of the Czech government. This strategy was presented in December 2011 and aims exclusively at Roma children. It foresees that Roma children from socially excluded locations should attend kindergarten compulsory and free of charge, and receive subsidies for transport fees, food, and school trips. The strategy also foresees the closing of practical schools for children with learning difficulties and the gradual inclusion of Roma pupils in mainstream regular schools. However, it exclusively targets Roma children at the expense of other non-Roma children who need similar support. Therefore the strategy was severely criticized; a wave of protest followed after the communication of it and the Association of Special Teachers started up a petition action. By mid-December 2011 the petition against the Roma Inclusion Strategy had been signed by already 23,500

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In order to make minority rights and non-discrimination rights work, there is a need to abandon the discourse based on the differentiation between societal groups (majority versus minority) which distances the Roma from the majority community in which they live, and to focus on a discourse of mutual cooperation, reciprocal recognition and co-governance. 6

Strategies for Making the Minority Rights Discourse Work

6.1 Avoiding a Narrative of Victimhood Whereas a decade ago Romani marginalization was primarily understood in terms of socio-economic problems, now it is often qualified as an issue of discrimination. Some scholars have argued that the over-stressing of the right not to be discriminated against and the focus on the Roma as suffering multiple instances of discrimination creates a narrative of victimhood, which should be avoided, as this narrative is disempowering.64 Scholars such as Morag Goodwin note in this context that there is a shift in self-understanding whereby a practical attitude to problems— we need housing—is replaced with a narrative of victimhood: we are ­victims of discrimination. Like the danger of further polarising communities, this shift risks denying the dialogical nature of interaction between Roma and non-Roma, portraying the relationship instead as one in which the non-Roma act and the Roma suffer. Such a narrative is disempowering, despite the seemingly uplifting rhetoric of Roma Rights, and it also relieves Roma of the burden of any responsibility for the good functioning of inter-community relations.65

people. See Prague Daily Monitor, ‘Thousands sign against Roma inclusion strategy,’ 2 December 2011, available at (accessed on 1 September 2015). Paradoxically, the strategy, due to its exclusive character focusing on Roma children only, further deteriorated the tense atmosphere between the Roma and non-Roma. This could have been avoided with the adoption of a strategy which explicitly targets Roma, but not exclusively, such as a strategy focusing on all children from deprived areas who need financial and other support. 64 M. Goodwin, ‘Multidimensional Exclusion: Viewing Romani Marginalization through the Nexus of Race and Poverty’ in D. Schiek and V. Chege (eds.), European Union NonDiscrimination Law: Comparative Perspectives on Multi-Dimensional Equality Law, London and New York: Routledge-Cavendish, 2009, p. 153. 65 Ibid.

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There are strong disagreements among scholars66 over whether programs targeting the Roma as victims of discrimination foster autonomy or dependency in the long term. A reference can be made here to the opinion of Judge Thomas in the Adarand Constructors Inc v. Pena case arguing that affirmative action programs “stamp minorities with a badge of inferiority and may cause them to develop dependencies or to adopt an attitude that they are ‘entitled’ to preferences.”67 Indeed, when adopting a legal discourse which singles out the Roma, it is crucial to avoid a narrative of victimhood and an unconscious confirmation of victimizing stereotypes picturing the Roma as inferior compared to the majority population. 6.2 Mutual Cooperation and Reciprocal Recognition Law makers, policy makers and monitoring institutions can remedy the negative consequences of identity politics if they anticipate the polarization of Roma versus non-Roma as well as other unintended negative consequences of the categorization of the Roma as a minority. If additional measures are taken aiming at restricting these negative consequences in the best way possible and aiming at creating certain solidarity ties, mutual sympathy and a shared social feeling between Roma and non-Roma, the adoption of a minority rights approach in the case of the Roma is likely to be a lot more successful. Better results when adopting a minority rights approach in the case of the Roma can be achieved if it is accompanied by a social construct of mutual cooperation and reciprocal recognition. Apart from that, it is important to combat antiGypsyism, as negative stereotypes only reinforce the polarization between the different communities. 6.2.1 Combating anti-Gypsyism The Council of Europe European Commission against Racism and Intolerance (ecri) defines anti-Gypsyism in its Policy Recommendation No 13 of 201168 as “a specific form of racism, an ideology founded on racial superiority, a form of dehumanisation and institutional racism nurtured by historical 66 67 68

The polemics are very well described by J. Greenberg in the following contribution: J. Greenberg, ‘Roma Victimization: From Now to Antiquity,’ Columbia Human Rights Law Review 1, 2009, vol. 41, p. 10. (1995) 515 US p. 241. coe ecri, General Policy Recommendation No. 13 on combating anti-Gypsyism and discrimination against Roma, adopted on 24 June 2011, available at (accessed on 1 September 2015).

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d­ iscrimination, which is expressed, among others, by violence, hate speech, exploitation, stigmatisation and the most blatant kind of discrimination.” ecri recalls in its Policy Recommendation No 13 that the fight against racism, ­xenophobia, (…) and intolerance is an integral part of the protection and promotion of universal and indivisible human rights. It identifies the persistent prejudice against Roma as the cause of discrimination against them in many areas of social and economic life, and that holds that these prejudices provide considerable fuel for the process of social exclusion affecting Roma. Whereas the European Commission has so far been reluctant to use the concept of anti-Gypsyism in official documents, the European Parliament has adopted the same definition as ecri in its European Parliament Resolutions. The definition is officially used for the first time in the European Parliament resolution of 15 April 2015 on the occasion of International Roma day – ­anti-Gypsyism in Europe and EU recognition of the memorial day of the Roma genocide during World War ii.69 In this resolution, the European Parliament identifies anti-Gypsyism as one of the main causes of the discrimination and marginalization that the Roma people have suffered historically in many European countries. On a global level, the problem of anti-Gypsyism is also recognized by the UN Office of the High Commissioner for Human Rights as one of the root causes of the structural discrimination the Roma face. The Report of the Special Rapporteur on the human rights situation of the Roma worldwide,70 which was presented to the Human Rights Council by the Special Rapporteur at its 29th Session on 15 June 2015, contains a particular focus on the phenomenon of anti-Gypsyism. The report provides an overview of the human rights situation of Roma worldwide, applying a minority rights-based approach to the protection and promotion of the rights of the Roma. In order for such a minority rights-based approach to be effective, it needs to be grounded in four pillars: the protection of the Roma’s existence and the prevention of violence against Roma; the protection and promotion of Roma identity; the guarantee of the rights to non-discrimination and equality, including combating racism, antiGypsyism and structural discrimination; and the guarantee of the right of the

69 70

European Parliament, Resolution of 15 April 2015 on the occasion of International Roma day – anti-Gypsyism in Europe and EU recognition of the memorial day of the Roma genocide during World War ii, OJ [not yet published], 15 April 2015. UN General Assembly, Human Rights Council, Report of the Special Rapporteur on minority issues, Rita Izsák, Comprehensive study of the human rights situation of Roma worldwide, with a particular focus on the phenomenon of anti-Gypsyism, A/HRC/29/24, 11 May 2015.

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Roma to effective participation in public life, especially with regard to decisions affecting them. Iskra Uzunova71 notes the irony of the fact that even though the last two decades have been the ‘heydays of multiculturalism and identity politics,’72 and belonging to a minority group has never been as accommodated and institutionally managed as it is nowadays, there seem to be new discriminatory responses, produced for each step taken towards more equal societies. She argues that the success of minority rights policies in the case of the Roma is undermined by, among others, anti-Gypsyism. Uzunova identifies anti-Gypsyism as a social norm, which is a more powerful factor in shaping the dynamics of society than are written legal rules. Legal norms, such as minority rights, have to be ‘internalized’ in a society. It is this process of norm-internalization which makes that certain legal norms— such as non-discrimination on the basis of race or ethnicity—become social norms.73 Scholars argue that social norms are not only stronger than legal norms in a society, but that social norms also influence how legal norms are interpreted and enforced.74 A necessary catalyst for norm-internalization according to Harold Koh75 is interaction between various actors. However, in the case of the Roma, there is no real or systemic interaction between Roma and non-Roma communities on the domestic level.76 On the contrary, anti-Gypsyism rather prescribes avoiding interaction. Uzunova underscores that, while some interaction is happening at the national level, there is still no interaction between the Roma and non-Roma where the problem exists and persists, namely in the villages and cities where Roma communities are still separate, segregated, and isolated, and where existing social norms prevail. What Roma policies fail to address is how to achieve the frequency of interaction necessary.77 71

I. Uzunova, ‘Roma Integration in Europe: Why Minority Rights are Failing,’ Arizona Journal of International and Comparative Law, 2010, vol. 27, no. 1, p. 283. 72 Ibid. 73 H. H. Koh, ‘Why Do Nations Obey International Law?,’ Yale Law Journal, 1997, vol. 106, no. 8, p. 2646. 74 L. M. LoPucki and W. O. Weyrauch, ‘A Theory of Legal Strategy,’ Duke Law Journal, 2000, vol. 49, no. 6, pp. 1405–86. 75 H. H. Koh, ‘Why Do Nations Obey International Law?,’ Yale Law Journal, 1997, vol. 106, no. 8, p. 2646. 76 L. K. Yuille, ‘Nobody Gives a Damn About the Gypsies: The Limits of Westphalian Models for Change’ Oregon Review of International Law, 2007, vol. 9, no. 2, pp. 369–98. 77 I. Uzunova, ‘Roma Integration in Europe: Why Minority Rights are Failing,’ Arizona Journal of International and Comparative Law, 2010, vol. 27, no. 1, p. 313.

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Campaigns to break anti-Romani stereotypes are needed and essential if other goals such as the fulfilment of the right to non-discrimination and equal access to quality education are to be effectively achieved. The mere dissemination of general information about minority rights in this context is not enough to reverse an entrenched practice of discrimination, prejudice and profound mutual mistrust that currently operates between the Roma and non-Roma.78 As long as policy makers fail to foster a meaningful dialogue about the hostile attitudes between the Roma and non-Roma, human rights instruments are unlikely to lead to real improvement. 6.2.2 Mutual Cooperation Uzunova identifies the social construct of mutual cooperation as a precondition for the success of minority rights and non-discrimination rights. She identifies the social construct of mutual cooperation as a more adequate goal for the current dynamic between the Roma and non-Roma: the unique nature of anti-Gypsyism as a type of moral judgment toward a cultural model [is] seen as incompatible with mainstream social order. The political majority sees negative attitude toward the Romani “cultural model” as justified especially since Roma are perceived not only as isolationist and ethnocentric, but as refusing to accept social responsibilities. Roma, on the other hand, view most media coverage and discussion of Roma statistics, culture, or practices as fuelling stereotypes and discrimination, especially in light of their long history of oppression in Europe and the pervasiveness of anti-Gypsyism. Changing the legal framework and educating the public about norms of non-discrimination and minority rights are unlikely to affect these engrained social norms. Political will to foster integration cannot be easily summoned and legislating nondiscrimination is unlikely to succeed where the predominant attitude between Roma and non-Roma is one of profound mistrust. A more adequate goal for the current dynamic between the group, one that would address their mistrust of each other and enable repeated interaction on a broad scale, might be mutual cooperation.79 Uzunova criticizes the fact that Central and Eastern European states were obliged to adopt a minority rights framework, such as the ratification of the fcnm as a precondition for EU accession and the transposition of the Racial 78 79

Ibid., p. 320. Ibid., p. 323.

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Equality Directive as part of the acquis communautaire, without special attention being paid to the social construct of mutual cooperation. She argues that these minority rights and non-discrimination rights have not been ‘internalized’ in Central and Eastern Europe, which makes them ineffective.80 In order for minority rights and non-discrimination rights to be effective, such a social construct of mutual cooperation should be developed. It is only through positive and constructive interaction between the Roma and the non-Roma that norm internalization will follow. 6.2.3

Reciprocal Recognition and Recognizing the Interdependence of Inclusion and Anti-discrimination Strategies This social construct of mutual cooperation should be shaped in such a way that it leads to mutual recognition and the gaining of acceptance of Romani difference. These models do not replace a legal approach but complement it. It is certainly not suggested that one should renounce the legal approach or the legal structure of rights. But mutual cooperation and recognition should complement a rights based approach in order to compensate for the possible polarization the rights based approach and the identity politics behind it cause.81 From a sociological perspective reciprocal recognition is a precondition for successful integration. Sociological studies on the integration of Muslims in Germany have proven that mutual suspicion hampers integration.82 The results of the study are also valid for other ethnic minorities, such as the Roma: mutual suspicion between the Roma and non-Roma hamper the successful integration of the latter. The Roma are less willing to integrate if they face a hostile climate in the majority society and vice versa, members of the ­majority society are less keen on making an effort towards integrating the Roma if a climate of intolerance, negative stereotypes and negative attitudes towards the Roma is created. A rights based approach can thus be successful if it recognizes the necessities of mutual cooperation and reciprocal recognition between the majority society and the Roma and takes these necessities into account when drafting, adopting and implementing legal instruments. 80 81

82

Ibid., p. 308. See also M. Goodwin, ‘Multidimensional Exclusion: Viewing Romani Marginalization through the Nexus of Race and Poverty’ in D. Schiek and V. Chege (eds.), European Union Non-Discrimination Law: Comparative Perspectives on Multi-Dimensional Equality Law, London and New York: Routledge-Cavendish, 2009, p. 156. C. Hawley, ‘Study Hints that Mutual Suspicion is Slowing Integration,’ 1 March 2013, ­Spiegel Online, available at (accessed on 1 September 2015).

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Finally, it is crucial that states recognize the interdependence of inclusion and anti-discrimination strategies: any strategy aiming at improving the educational and socio-economic situation of the Roma and aiming at Roma inclusion must include measures combating discrimination and addressing anti-Gypsyism.83 The fact is that racist or stigmatizing anti-Roma rhetoric has been on the rise both in public and political discourse, including accusations that the Roma as members of an ethnic group are engaged in criminal behaviour.84 In some cases, anti-Roma rhetoric can be understood as encouraging violent action against the Roma, such as mob riots or other acts of violence. Violence against the Roma remains a serious problem and the recognition of racial motivation as an aggravating circumstance of the crimes committed is rare.85 Anti-Roma rhetoric, violence against the Roma and discrimination of Roma in general have a serious negative impact on the degree of confidence of the Roma in majority society institutions, on the will of the Roma to integrate into majority society and thus also on their will to participate in the education organized by majority society. Measures to promote Roma integration, such as the EU Framework for National Roma Integration Strategies86 focusing on education, health, employment and housing should also focus on the overall aim of combating discrimination.87 How Thematic Commentary No 4 on the Scope of Application of the Framework Convention for the Protection of National Minorities Contributes to Making the Minority Rights Discourse Work The awareness that an effective minority rights policy cannot mainly be based on the expression of difference, which antagonises the minority versus the majority, but should instead also establish a social construct of mutual cooperation and reciprocal recognition, as described above, has been growing in 6.3

83

See also errc, State response to violence against Roma, Statement prepared for the U.S. Helsinki Commission Hearing, 15 February 2012, available at (accessed on 1 September 2015). 84 There are well-documented examples from France, Italy, Hungary, Slovakia, Bulgaria and the Czech Republic. errc, State response to violence against Roma, Statement prepared for the U.S. Helsinki Commission Hearing, 15 February 2012, available at (accessed on 1 September 2015). 85 Ibid. 86 See below Chapter 11 at 2.2 The EU Framework for National Roma Integration Strategies. 87 On criticism towards the EU Framework for National Roma Integration Strategies for not referring to the need to adopt anti-discrimination measures, see below Chapter 11 at 2.3.3 Criticism as to the Lack of Action to Combat Racism and Discrimination.

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the last decade, especially at the level of the Council of Europe. The above principles are nicely reflected in the fourth thematic commentary on the scope of application of the Framework Convention for the Protection of National Minorities, which was adopted on 27 May 2016.88 The executive summary of this fourth commentary stresses that the Framework Convention “supports states parties in managing diversity by creating appropriate societal conditions that allow for the expression and acknowledgment of difference, for equal access to rights and resources despite difference, and for social interaction and inclusion across difference.”89 This statement identifies the 3 main pillars for minority rights protection which the Framework Convention would like to promote, notably (1) the expression of difference, based on the concept of free self-identification with a national minority, whereby the idea of a fixed identity should be abandoned in favour of the idea of identity or identification as an ongoing process (2) equal access to rights and resources despite difference, which reflects the principle of non-discrimination, as discrimination also hampers selfidentification and hampers diversity (3) social interaction and inclusion across difference, which reflects the idea of intercultural dialogue and a social construct of mutual cooperation and reciprocal recognition as described in the above section. Hereby the interdependence of anti-discrimination strategies and inclusion strategies are highlighted and the need for true inter-cultural dialogue, which allows for the freedom to feel comfortable in expressing difference,90 is regarded as essential for minority rights.

88

89 90

coe acfc, ‘Commentary on the scope of application of the Framework Convention for the Protection of National Minorities,’ 27 May 2016, ACFC/56DOC(2016)001, available at (accessed on 1 January 2018). See also below Chapter 4 at 2.3.2 Article-by-Article v. Thematic Approach for more information on the thematic commentaries of the Advisory Committee to the fcnm. For more on the scope of application of the fcnm, see below Chapter 5 at 2. Do the Roma Fall into the Personal Scope of Application of the fcnm? Ibid., executive summary. See also the speech by professor Brigitta Busch at the launching conference of the Fourth Thematic Commentary on the Scope of Application “The Framework Convention: a key tool to managing diversity through minority rights,” held in Strasbourg on 11 October 2016. The speech is available as a podcast at (accessed on 1 January 2018) and the general conference website is available at (accessed on 1 January 2018).

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The commentary stresses that the common understanding of the protection of national minorities and what it entails has changed over the two decades since the adoption of the Framework Convention in 1995. At that time, the concept of minority rights was mainly associated with the preservation of minority identities and with their protection from assimilation. Since then, attention has shifted to the challenge of forming integrated and inclusive societies where diversity is acknowledged and welcomed.91 7

Conclusions under Chapter 3

The right not to be discriminated against on the one hand and minority rights on the other hand represent complementary but distinct categories: minority rights are a much wider notion than the right not to be discriminated against. Consequently, legal tools designed to combat discrimination will contribute to the protection of minority rights, but are not sufficient to protect minority rights. The ‘export’ of legal anti-discrimination and minority rights instruments from Western to Central and Eastern Europe has been criticized. The Racial Equality Directive and the fcnm can both be considered tools used by the Western European EU member states as tools of EU conditionality for membership of the candidate countries from Central and Eastern Europe. The two legal instruments can thus be considered as ‘export products,’ exported from Western Europe to Central and Eastern Europe. However, scholars are sceptical about the degree of compatibility of the Western models of multiculturalism and minority rights with the nationalistic, exclusivist political and social currents of the Central and Eastern European states. More research in the field of political and social sciences should be conducted on this issue in order to identify the weaknesses related to the ‘export’ of this Western model to Central and Eastern Europe. The minority rights discourse, categorizing the Roma as a (national) minority or alternatively as a non-territorial European minority has been criticized for its negative, polarizing consequences, as it highlights the differences between the minority versus the majority and can thus hamper inclusion. The alternative of categorizing the Roma as an ethnoclass deconstructs the barrier of societal solidarity in categories of Roma versus non-Roma. However, this alternative, based purely on socio-economic criteria, does not seem to be a valuable one, as it would prevent the Roma from establishing a basis on which 91

Ibid., Part viii Conclusions.

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rights guaranteeing the preservation of their specific ethnicity can be conferred to them. This is the paradox of identity politics: Romani identity politics are necessary in order to define their own group for political purposes, so that policies can be directed towards them, but at the same time Romani identity politics stress the difference of the Roma versus the non-Roma. A means to overcome, or at least significantly reduce, the negative consequences of Romani identity politics lies in the adoption of policies aiming at explicit but not exclusive targeting. If policy makers are aware of the possible negative consequences of the minority rights discourse, they can develop strategies to confine these negative consequences. Possible strategies for making the minority discourse work in spite of the dangers of identity politics are the avoidance of a narrative of victimhood and the establishment of a social construct of mutual cooperation and reciprocal recognition. Thereby the interdependence of inclusion strategies and anti-discrimination strategies should be borne in mind. These 3 main elements of a successful minority rights discourse are reflected in the fourth thematic commentary on the scope of application of the Framework Convention for the Protection of National Minorities. The thematic commentary suggests that the Framework Convention was designed not only as a minority rights instruments, but as a tool to assist states in managing diversity. The challenge of forming integrated and inclusive societies through the protection of minority rights should be tackled threefold, by promoting societies where: (1) difference is expressed and affirmed (non-assimilation), (2) equal access to rights and resources despite difference is facilitated (non-­ discrimination), and where (3) social interaction, constant dialogue and inclusion are promoted across difference.

Chapter 4

An Introduction to the Framework Convention for the Protection of National Minorities and to the Racial Equality Directive — The Place and Role of the fcnm and the Racial Equality Directive in the Labyrinth of International Standards 1 Introduction This fourth chapter is dedicated to the place and role of the fcnm and of the Racial Equality Directive in the labyrinth of international standards. In the first part, the fcnm will be introduced by means of a short description of its genesis, an overview of the monitoring procedure, a summary of the critiques launched after the first monitoring cycle and some remarks on the thematic approach by the Advisory Committee to the Framework Convention (‘acfc’) in the field of education. Secondly, the relation of the fcnm towards other existing international standards on Roma education rights will be examined. These international standards on Roma education were briefly discussed and listed up in Chapter 2, Section 5 above. A core provision on the relation of the fcnm towards other international standards is Art. 1 fcnm, which stipulates that “the protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights […].” The meaning of this article will be explored. Thirdly, the Racial Equality Directive, establishing a “framework for combating discrimination on the grounds of ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment”1 is briefly introduced. In a fourth and last part, the provisions of international treaties (and the jurisprudence of international treaty bodies), invoked in the Preamble of the Racial Equality Directive and providing guidance as to the meaning and content of some notions in the Directive are discussed.

1 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, 2000, OJ L 180/22, Art. 1.

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An Introduction to the Framework Convention for the Protection of National Minorities

2.1 Background Much information about the background, the genesis and the meaning of the fcnm can be found in the Explanatory Report to the fcnm, of which the first part reads as follows: “1. The Council of Europe has examined the situation of national minorities on a number of occasions over a period of more than forty years. In its very first year of existence (1949), the Parliamentary Assembly recognized, in a report of its Committee on Legal and Administrative Questions, the importance of “the problem of wider protection of the rights of national minorities.” In 1961, the Parliamentary Assembly recommended the inclusion of an article in a second additional protocol to guarantee to national minorities certain rights not covered by the European Convention on Human Rights (echr). The latter simply refers to ‘association with a national minority’ in the nondiscrimination clause provided for in Article 14. Recommendation 285 (1961) proposed the following wording for the draft article on the protection of national minorities: Persons belonging to a national minority shall not be denied the right, in community with the other members of their group, and as far as compatible with public order, to enjoy their own culture, to use their own language, to establish their schools and receive teaching in the language of their choice or to profess and practice their own religion. 2. The committee of experts, which had been instructed to consider whether it was possible and advisable to draw up such a protocol, adjourned its activities until a final decision had been reached on the Belgian linguistics cases concerning the language used in education (European Court of Human Rights. Judgment of 27 July 1968, Series A No. 6). In 1973 it concluded that, from a legal point of view, there was no special need to make the rights of minorities the subject of a further protocol to the echr. However, the experts considered that there was no major legal obstacle to the adoption of such a protocol if it were considered advisable for other reasons. 3. More recently, the Parliamentary Assembly recommended a number of political and legal measures to the Committee of Ministers, in particular the drawing up of a protocol or a convention on the rights of national minorities. Recommendation 1134 (1990) contains a list of principles which the ­Assembly

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considered necessary for the protection of national minorities. In October 1991, the Steering Committee for Human Rights (cddh) was given the task of considering, from both a legal and a political point of view, the conditions in which the Council of Europe could undertake an activity for the protection of national minorities, taking into account the work done by the Conference on Security and Co-operation in Europe (csce) and the United Nations, and the reflections within the Council of Europe. 4. In May 1992, the Committee of Ministers instructed the cddh to examine the possibility of formulating specific legal standards relating to the protection of national minorities. To this end, the cddh established a committee of experts (DH-MIN) which, under the new terms of reference issued in March 1993, was required to propose specific legal standards in this area, bearing in mind the principle of complementarity of work between the Council of Europe and the csce. The cddh and the DH-MIN took various texts into account, in particular the proposal for a European Convention for the Protection of National Minorities drawn up by the European Commission for Democracy through Law (the so-called Venice Commission), the Austrian proposal for an additional protocol to the echr, the draft additional protocol to the echr included in Assembly Recommendation 1201 (1993) and other proposals. This examination culminated in the report of the cddh to the Committee of Ministers of 8 September 1993, which included various legal standards which might be adopted in this area and the legal instruments in which they could be laid down. In this connection, the cddh noted that there was no consensus on the interpretation of the term ‘national minorities.’ 5. The decisive step was taken when the Heads of State and Government of the Council of Europe’s member States met in Vienna at the summit of 8 and 9 October 1993. There, it was agreed that the national minorities which the upheavals of history have established in Europe had to be protected and respected as a contribution to peace and stability. In particular, the Heads of State and Government decided to enter into legal commitments regarding the protection of national minorities. Appendix II of the Vienna Declaration instructed the Committee of Ministers: – to draft with minimum delay a framework convention specifying the principles which contracting States commit themselves to respect, in order to assure the protection of national minorities. This instrument would also be open for signature by non-member States; – to begin work on drafting a protocol complementing the European Convention on Human Rights in the cultural field by provisions guaranteeing individual rights, in particular for persons belonging to national minorities.

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6. On 4 November 1993, the Committee of Ministers established an ad hoc Committee for the Protection of National Minorities (cahmin). Its terms of reference reflected the decisions taken in Vienna. The committee, made up of experts from the Council of Europe's member states, started work in late January 1994, with the participation of representatives of the cddh, the Council for Cultural Co-operation (cdcc), the Steering Committee on the Mass Media (cdmm) and the European Commission for Democracy through Law. The High Commissioner on National Minorities of the csce and the Commission of the European Communities also took part, as observers. 7. On 15 April 1994, cahmin submitted an interim report to the Committee of Ministers, which was then communicated to the Parliamentary Assembly (Doc. 7109). At its 94th session in May 1994, the Committee of Ministers expressed satisfaction with the progress achieved under the terms of reference flowing from the Vienna Declaration. 8. A certain number of provisions of the framework Convention requiring political arbitration as well as those concerning the monitoring of the implementation were drafted by the Committee of Ministers (517bis meeting of Ministers’ Deputies, 7 October 1994). 9. At its meeting from 10 to 14 October 1994, cahmin decided to submit the draft framework Convention to the Committee of Ministers, which adopted the text at the 95th Ministerial Session on 10 November 1994. The Framework Convention was opened for signature by the Council of Europe's member states on 1 February 1995.”2 As this background information as included in the explanatory report is clear, concise and complete, there is no need to supplement it. The fcnm entered into force on 1 February 1998, subsequent to its ratification by twelve coe member states.3 The last state to have it ratified was Georgia on 22 December 2005.4 With 39 states parties5 the Framework Convention has emerged as a genuinely pan-European instrument.6 2 fcnm, ‘Explanatory Report,’ H(1997)010, available at (accessed on 1 September 2015). 3 These were, in chronological order, Romania, Spain, Slovakia, Hungary, Cyprus, Moldova, San Marino, Estonia, Macedonia, Germany, Denmark and Finland. 4 The last ratifications date back to 2005 (the Netherlands and Latvia) and 2006 (Georgia). Montenegro acceded in 2006. Between 2006 and 2018, there were no changes as to the number of accessions/ratifications. 5 On the fcnm as a pan-European instrument see A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds.), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument?, Antwerp, Oxford, Portland: Intersentia, 2008. 6 The status of the monitoring work and a chart of ratifications can be consulted on the homepage of the fcnm under ‘status of monitoring work’available at (accessed on 1 September 2015).

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2.2 Monitoring Mechanism The fcnm monitoring mechanism, set up in 1998, combines expert evaluations by an acfc of independent experts with the political weight of the Committee of Ministers. The acfc examines state reports and other information and carries out country visits in order to conduct a constructive dialogue with both authorities and civil society. This work results in opinions of the acfc and Resolutions of the Committee of Ministers, the implementation of which is promoted through innovative and inclusive follow-up activities in the state parties. The monitoring mechanism of the fcnm has in many cases been a central catalyst for improved dialogue between governmental agencies and national minorities and for concrete improvements in legislation and practice in diverse subjects. It has also prompted the adoption of new laws devoted to the protection of national minorities and encouraged states to improve their nondiscrimination legislation and practice.7 2.3 Critiques 2.3.1 Program-type Provisions and Claw Back Clauses Despite the importance of the fcnm within the process of the codification and development of legally binding minority rights standards, the bearing of 7 For assessments of the fcnm see F. Benoit-Rohmer, ‘La Convention-cadre du Conseil de l’Europe pour la protection des minorités nationales,’ European Journal of International Law, 1995, vol. 6 , pp. 573–97; A. Chablais, ‘Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities,’ European Yearbook of Minority Issues, 2004/5, vol. 4 , pp. 515–40; A. DiStasi, ‘La convenzione-quadro sulla protezione delle minoranze nazionali tra sistema universale e sistema regionale,’ Rivista internazionale dei diritti dell’uomo, 2000, vol. 13 , pp. 456–82; H. Hartwig, ‘The role of the Council of Europe in the field of protection of national minorities,’ in F. Matscher (ed.), Wiener Begegnungen zu aktuellen Fragen Nationaler Minderheiten, Kehl am Rhein, Straßburg, Arlington: N.P. Engel Verlag, 1997, pp. 267–78; R. Hofmann, ‘Die Rolle des Europarats beim Minderheitenschutz,’ in M. Mohr (ed.), Friedenssichernde Aspekte des Minderheitenschutzes in der Ära des Vökerbundes und der Vereinten Nationen in Europa, Berlin, Heidelberg: Springer, 1996, pp. 111–51; R. Hofmann, ‘The Preventive Mandate of the Control System Created by the Council of Europe Framework Convention for the Protection of National Minorities,’ in L.-A. Sicilianos (ed.), The Prevention of Human Rights Violations, Athens: Ant. N. Sakkoulas, 2001, pp. 39–55; H. Klebes, ‘The Council of Europe Framework Convention for the Protection of National Minorities,’ Human Rights Law Journal, 1995, vol. 16, pp. 92–98; G. Malinverni, ‘La Conventioncadre du Conseil de l’Europe pour la protection des minorités nationales,’ Schweizerische Zeitschrift für internationales und europäisches Recht, 1995, vol. 5, pp. 521–46; G. Pentassuglia, ‘Monitoring minority rights in Europe: The Implementation of the Framework Convention for the Protection of National Minorities – With Special Reference to the Role of the acfc,’ International Journal on Minority and Group Rights, 1999, vol. 6, pp. 417–61; F. Steketee, ‘The Framework Convention: A Piece of Art or a Tool for Action?,’ International Journal on Minority and Group Rights, 2000, vol. 8, pp.1–15.

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its obligations is ‘softened’ by many limitation clauses relating to both the general structure of the provisions as well as their specific content.8 The fcnm contains namely mostly program-type provisions. This means on the one hand that state parties are under the legally binding obligation to ensure the compatibility of their domestic legislation and its practical application with the principles enshrined in the fcnm. On the other hand, this also means that state parties are under no legal obligation to ensure the direct applicability of the substantive provisions of the fcnm before their administrative and judicial authorities. They may, however, opt to do so in order to add to their compliance with their obligations under the fcnm.9 The fact that the fcnm contains a lot of compromise formulations and ­so-called ‘claw-back clauses’10 was highly criticized.11 One the one hand, the general formulation of these so-called ‘claw-back clauses’ might provoke legal uncertainty. On the other hand, the possibility to interpret the fcnm provisions in a flexible way does have a lot of advantages. Rainer Hofmann, president of the acfc, underlines the positive potential of a flexible wording ­noting that the minority situations in the different Council of Europe member states differ considerably and often constitute politically highly sensitive issues. Therefore it is essential that the fcnm allows for a flexible interpretation and application of its provisions taking into account this complex nature of minority situations.12 8

9 10 11

12

G. Pentassuglia, ‘Monitoring Minority Rights in Europe: The Implementation of the Framework Convention for the Protection of National Minorities – With Special Reference to the Role of the acfc,’ International Journal on Minority and Group Rights, vol. 6, 1999, p. 417. R. Hofmann, ‘Protecting the Rights of National Minorities in Europe. First Experiences with the Council of Europe Framework Convention for the Protection of National Minorities,’ German Yearbook of International Law 4, vol. 4, 2001, pp. 237–38. Examples of these claw back clauses are: ‘as far as possible,’ ‘within the framework of their legal systems,’ ‘where appropriate,’ ‘taking into account specific conditions,’ etc. See in particular G. Alfredsson, ‘A Frame with an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures,’ International Journal on Minority and Group Rights, vol. 7, 2000, p. 291. See also D. Wilson, ‘Report: A Critical Evaluation of the First Results of the Monitoring of the Framework Convention on the Issue of Minority Rights in, to and through Education (1998–2003)’ in Council of Europe, Filling the Frame: Five years of monitoring the Framework Convention for the Protection of National Minorities, Strasbourg: Council of Europe Publishing, 2004, p. 167. R. Hofmann, ‘Protecting the Rights of National Minorities in Europe. First Experiences with the Council of Europe Framework Convention for the Protection of National Minorities,’ German Yearbook of International Law 4, vol. 4, 2001, p. 240.

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2.3.2 Article-by-Article Approach v. Thematic Approach Another source of critique was the article-by-article approach adopted by the acfc when monitoring the implementation of the fcnm. This critique was strongly voiced by some participants at the conference on ‘Five years of monitoring the fcnm’ held in Strasbourg in October 2003.13 The acfc was aware of this lacuna but defended its policy by saying that they “first wanted to learn to walk before learning to run.”14 Rianne Letschert notes that the acfc’s Fourth Activity Report already addressed the issue of thematic work and that the acfc had decided to examine in more detail the 3 main themes of the conference on the 5th anniversary of the fcnm (i.e., effective participation, access and participation in the media and educational rights).15 As of May 2004, a first discussion paper—drafted by Professor Athanasia Spiliopoulou Ǻkermark, vice-president of the acfc at that time—on issues of education under the fcnm identified the main questions raised in the fcnm and the work of the acfc under Arts 12–14 fcnm as well as in Art. 6 fcnm. The Spiliopoulou Ǻkermark discussion paper drew primarily on the opinions of the acfc and the discussions at the above mentioned 5th anniversary conference of the fcnm in Strasbourg. The discussion paper suggested three targets for the second monitoring cycle: first, developing checklists of the main issues that should be addressed during country visits and in acfc opinions; second, compiling a list of important sources pertaining to the right to education; third, collecting a ‘guide of good practices’ with regard to different models of ‘minority education’ in order to explore and highlight further the scope and potential

13

14

15

D. Wilson, ‘A critical evaluation of the first results of the monitoring of the Framework Convention on the issue of minority rights in, to and through education (1998–2003),’ and D. Wilson, ‘Conclusions – workshop on education,’ in Council of Europe, Filling the Frame: five years of monitoring the Framework Convention for the Protection of National Minorities, Strasbourg: Council of Europe Publishing, 2004, pp. 161–226 and pp. 264–267 respectively. The Chairman of the acfc compared the development of the fcnm and the acfc with the development of a child. See Council of Europe, Filling the Frame, Strasbourg: Council of Europe Publishing, 2004, p.19. The acfc already agreed to establish thematic working groups at its second meeting in1998, however, this was not followed up. It decided at its 10th meeting that it was too premature to establish thematic working groups. The issue was discussed again at the 16th meeting in 2003. See acfc to the fcnm, 16th meeting report, 17 to 21 February 2003, acfc/MR/ifn (2003) 002, para. 23. R. Letschert, The Impact of Minority Rights Mechanisms, The Hague: T.M.C. Asser Press, 2005, pp. 178–179.

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of the provisions of the fcnm. The first two documents were subsequently developed and are now used by the acfc experts as tools for country visits and when drafting acfc opinions. The ‘guide of good practices’ was elaborated, discussed and re-discussed by both the Secretariat to the fcnm and the acfc and finally took the shape of a ‘Commentary on Education.’ The ‘Commentary on Education’ was adopted by the acfc in March 2006.16 Throughout 2007, the Commission of Experts on Issues Related to the Question of National Minorities (‘DH-min’) had been putting on the agenda the question of the access of national minorities to the new media in the information society.17 As of January 2018, no thematic commentary on the access of ­national minorities to the new media had been adopted. The thematic commentary on the effective participation of persons belonging to national minorities in cultural, social, and economic life and in cultural affairs was adopted on 27 February 2008.18 A third thematic commentary on the language rights of persons belonging to national minorities under the Framework Convention was adopted on 24 May 2012.19 The latter contains several references to the importance of equal access to the learning of the Romani language for the Roma. In the commentary, the acfc invites states parties to extend educational rights for the Roma to non-citizens: 16

17

18

19

coe acfc, ‘Commentary on Education under the Framework Convention for the Protection of National Minorities,’ 2 March 2006, ACFC/25DOC(2006)002, available at (accessed on 1 September 2015). See DH-MIN working documents, available at (accessed on 24  Oc­ tober 2011). On the role of the DH-MIN and its fields of work see (accessed on 24 Oct­ober 2011). coe acfc, ‘Commentary on the effective participation of persons belonging to national minorities in cultural, social, and economic life and in cultural affairs,’ 27 February 2008,  ACFC/31DOC(2008)001, available at (accessed on 1 September 2015). For an in-depth study on the rights of persons belonging to national minorities to effectively participate in public affairs, see A. Verstichel, Participation, Representation and Identity: The Right of Persons Belonging to Minorities to Effective Participation in Public Affairs: Content, Justification and Limits, Antwerp, Oxford, Portland: Intersentia, 2009. coe acfc, ‘Commentary on language rights of persons belonging to national minorities under the Framework Convention,’ 24 May 2012, ACFC/44DOC(2012)001, available at (accessed on 1 September 2015). General information on the 3 thematic commentaries can be found on (accessed on 1 September 2015).

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… [T]he Advisory Committee has condemned racially motivated discrimination and segregation of Roma, and has called for measures that promote equal access to the learning of Romani as well as the majority languages for persons belonging to the Roma minority. The Advisory Committee also invites the authorities to take a more flexible approach with regard to persons belonging to the Roma minority who do not hold the citizenship of the state. They should consider, as relevant, allowing them to benefit from measures taken in respect of persons belonging to the Roma minority who are citizens, especially in the field of education20.21 Furthermore, the acfc also stresses in the Commentary that “schools should also offer education in and of Romani where appropriate.22 Special attention is drawn in this context to the Curriculum Framework for Romani developed by the Council of Europe.23 In addition, the Advisory Committee also welcomes private or community initiatives which are supported by the authorities.”24 At its 46th plenary meeting in March 2013, the Advisory Committee decided to devote a fourth thematic commentary on the scope of application of the Framework Convention. Since the Advisory Committee’s first monitoring cycle, the question of the persons to whom the provisions of the Framework Convention should apply in any given state has been a recurring theme. The Advisory Committee concluded that it is its duty to assess whether the approach taken in individual states parties is not arbitrarily excluding certain groups that wish to be covered by the Framework Convention.25 20

Third Opinion on Germany; Third Opinion on Italy. Such practice was welcomed by the Advisory Committee in its third Opinions on Norway and Austria. 21 coe acfc, ‘Commentary on language rights of persons belonging to national minorities under the Framework Convention,’ 24 May 2012, ACFC/44DOC(2012)001, available at (accessed on 1 September 2015), para. 36. 22 Third Opinion on Hungary; Third Opinion on Cyprus; Third Opinion on Croatia; Second Opinion on Poland. 23 coe, ‘A Curriculum Framework for Romani, prepared in co-operation with the European Roma and Travelers Forum,’ Language Policy Division, Council of Europe: Strasbourg, 2008, available at (accessed on 1 September 2015). 24 coe acfc, ‘Commentary on language rights of persons belonging to national minorities under the Framework Convention,’ 24 May 2012, ACFC/44DOC(2012)001, available at (accessed on 1 September 2015), para. 73. 25 See coe acfc, 9th Activity Report, covering the period 1 June 2012–31 May 2014, September 2014, pp. 27–28, available at (accessed on 1 September 2015). coe acfc, ‘Commentary on the scope of application of the Framework Convention for the Protection of National Minorities,’ 27 May 2016, ACFC/56DOC(2016)001, available at (accessed on 1 January 2018). For more on the scope of application of the fcnm, see below Chapter 5 at 2. Do the Roma Fall into the Personal Scope of Application of the fcnm? coe acfc, ‘Commentary on the scope of application of the Framework Convention for the Protection of National Minorities,’ 27 May 2016, ACFC/56DOC(2016)001, available at (accessed on 1 January 2018), executive summary.

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2.4 New Structure for the Third and Fourth Monitoring Cycle Currently the fourth monitoring cycle is ongoing. As of January 2018, 26 AC opinions have been adopted under the fourth monitoring cycle, of which 21 are public and 14 Committee of Ministers Resolutions.29 At earlier meetings in 2007, the acfc had an initial exchange of views on the arrangements for the third monitoring cycle and approved a new outline for the preparation of state reports.30 The acfc also adopted a new template for third-cycle opinions, reflecting its wish to recognize the overall context in which state parties were taking action. In this way, the acfc wanted to highlight the general impact of domestic measures on the implementation of the Framework Convention. In the light of this review of developments over the past ten years, the acfc decided to focus on the most serious problems still remaining that had been emphasized in successive Committee of Ministers recommendations.31 More precisely, the third and fourth cycle opinions contain a general overview of the implementation of the fcnm after two monitoring cycles under the subtitle ‘Main Findings.’ In the ‘Conclusions,’ the AC opinions refer to positive developments and issues of concern following the two previous cycles of monitoring. The opinions finally distinguish between issues for immediate action on the one hand, and further—less urgent—recommendations on the other hand. This arrangement aims at signalling to the state party where the priority for action should lie. In its monitoring process, the acfc keeps track of measures implemented as a result of its recommendations and adapts its language to express progressive urgency in cases where a recommendation is repeatedly not followed up.32 Country visits have now become a regular practice and form an indispensable part of the monitoring process. They allow the acfc to build on the state report and acquire a better understanding of the situation in the country, by meeting with government officials at central and regional level, representatives of parliament and relevant institutions including ombudsmen, as well as civil society organisations and minority representatives. Visits are not only the occasion to collect additional and updated information on the country situation, but they also offer the possibility to engage with stakeholders in the field 29

See Table of Signatures and Ratifications and Status of the Monitoring Work, available at (accessed on 1 January 2018). 30 See coe acfc, 6th Activity Report, covering the period 1 June 2006–31 May 2008, 28 May 2008, acfc/inf(2008)001, paras 31–34. 31 coe acfc, 7th Activity Report, covering the period 1 June 2008–31 May 2010, 28 May 2010, acfc/inf(2010)001, para. 30. 32 coe acfc, 10th Activity Report, covering the period 1 June 2014–31 May 2016, acfc/ inf(2016)001, p. 16.

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and establish a dialogue which goes beyond the time frame of the visit itself. To this end, the acfc regularly endeavours to visit not only the capital city of the state in question to meet with government and other stakeholders, but also areas populated by minorities to evaluate the situation of national minorities on the ground.33 Regarding the 5th upcoming monitoring cycle, Ms Samardžić-Marković, the Director General for Democracy at the Council of Europe, suggested at a meeting in March 2017 that the new monitoring cycle is an opportunity to start thinking about the shape of the Advisory Committee’s future monitoring. She observed that in recent years, many of the Council of Europe’s monitoring bodies have been through a process of change as regards their working methods, in order to further enhance their relevance. Ms Samardžić-Marković encouraged the Advisory Committee to learn from these monitoring bodies and to open a discussion within the Advisory Committee on possible improvements.34 3 The fcnm as an Integral Part of International Human Rights Instruments The fcnm can be considered as forming an integral part of the existing international human rights instruments, since the protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights.35 The fcnm has been described as a specialized human rights treaty and a lex specialis within the wider normative framework of human rights rules in the Council of Europe.36 The authors of the fcnm appeared less interested in the theoretical aspect of integrating minority rights into the human rights system, choosing instead 33 34 35

36

coe acfc, 10th Activity Report, covering the period 1 June 2014–31 May 2016, acfc/inf(2016)001, p. 15. cpe acfc, Meeting Report of the 58th meeting, Strasbourg, 6–10 March 2017, acfc/ MR(2017)001, para. 22. For a detailed analysis of the protection of national minorities as an integral part of human rights and of the concept of protection, see H.-J. Heintze, ‘Article 1’ in M. Weller (ed.), The rights of minorities in Europe, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, pp. 86–96. S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (i),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, p. 79.

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to focus on the fate of national minorities as an international concern. Art. 1 of the fcnm stresses that: [t]he protection of national minorities and of the rights and freedoms of persons belonging to those minorities forms an integral part of the international protection of human rights, and as such falls within the scope of international co-operation. The importance of this formulation also lies in the fact that minority protection does not fall within the domaine réservé of states.37 Most experts agree that intervention into a sovereign state’s internal affairs is possible when the government is committing serious human rights abuses against its population, including against minorities.38 The exact boundary, however between a state’s right to non-interference in its domestic affairs and the international community’s permissible intervention remains uncertain. It follows from Art. 1 that the education rights for minorities, as guaranteed by the Framework Convention, are an integral part of education rights as entrenched in the international provisions listed up above in Chapter 2, Section 5. A number of different rights are covered in these different international provisions, including: – the principle of a free and compulsory primary education; – equal access to education and equal opportunities within the educational system; – the liberty of parents to choose the kind of education that shall be given to their children according to their own religious, moral or philosophical convictions; – the right of individuals and legal entities to establish and direct their own educational institution; – the right to language education for migrant workers and their families.39 37 38

39

H.-J. Heintze, ‘Article 1’ in M. Weller (ed.), The rights of minorities in Europe, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 81. R. Uerpmann, ‘La primauté des droits de la personne: licéité ou illicéité de l’intervention humanitaire?,’ in C. Tomuschat (ed.), Kosovo and the International Community, The Hague: Kluwer Law International, 2002, pp. 65–86 cited by H.-J. Heintze, ‘Article 1’ in M. Weller (ed.), The rights of minorities in Europe, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 89. coe acfc, ‘Commentary on Education under the Framework Convention for the Protection of National Minorities,’ 2 March 2006, ACFC/25DOC(2006)002, p. 7 available at

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Much guidance in matters concerning the education rights of national ­ inorities can also be found in the osce Hague Recommendations Regardm ing the Education Rights of National Minorities.40 With regard to issues of ­minority languages in education, additional guidance is found in the European ­Charter for Regional or Minority Languages.41 However, the Framework Convention does not only deal with the rights of minorities to education. It is of equal importance for the promotion of awareness and knowledge amongst the majority population concerning the language, culture and traditions of minorities.42 As already mentioned in Chapter 2, the right to education is a right in itself but it is also instrumental as a precondition for the full enjoyment of many other rights, such as the right to participation, expression, association, etc. For that reason the importance of the place of the Framework Convention “in the nexus of human rights provisions is crucial as a guarantee of the full spectrum of human rights of persons belonging to national minorities.”43 Planning and activity in the field of education needs to take into account the work done in various regional and international fora, including the Treaty Monitoring Bodies of the UN, the UN Special Rapporteur on the Right to Education, the European Court of Human Rights and the relevant bodies of the Council of Europe.44 Minority protection and also the fcnm thus form an integral part of the international protection of human rights and the text of Art. 1

40 41 42

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(accessed on 1 September 2015). See above Chapter 2 under 5.2.2 osce. coe, European Charter for Regional or Minority Languages, adopted 5 November 1992, entered into force 1 June 2000, cets No. 148. See the acfc Opinion on Cyprus acfc/op/i(2002)4, para. 30. In other opinions, the need for the education of persons belonging to specific professional groups is highlighted. This is the case in the acfc Opinion on Albania ACFC/OP/I(2003)004, where the acfc stresses the need for education–among professional groups such as law enforcement officers, the judiciary and the media–on the situation and needs of Roma and Egyptian communities in order to encourage tolerance (para. 94), cited in the Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 7. coe afcf, Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 7. Such as (1) the Committee of Experts monitoring the application of the European Charter for Regional or Minority Languages; (2) ecri, which is a human rights body of the Council of Europe, composed of independent experts, which monitors problems of racism, discrimination on grounds of ethnic origin, citizenship, color, religion and language, as well as xenophobia, anti-semitism and intolerance, prepares reports and issues recommendations to member states; and (3) the COE Commissioner for Human Rights.

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fcnm stresses that minority protection falls within the scope of international cooperation. Therefore the fcnm should always be seen in the wider context of the existing international provisions on minority protection. 4

Evaluating ‘Added Value’ as a Criterion for Success

Knowing that the fcnm should always be seen in the wider context of the existing international provisions on minority protection, the question arises on how to distinguish the impact of the fcnm and of the Racial Equality Directive from the impact of other international obligations or of domestic legislation. For instance, it is often difficult to distinguish whether a change in national policy or legalisation on equal access to education for Roma children is due to the publication of an Advisory Committee Opinion under the fcnm, due to infringement proceedings initiated by the European Commission on the basis of the Racial Equality Directive, or due to compliance with other existing international obligations. Therefore it is proposed that the notion of ‘added value’ can be used as a criterion to measure the success of the fcnm and the Racial Equality Directive. In this sense, the contribution of the fcnm and the Racial Equality Directive is measured in terms of what level of protection they ‘add,’ directly or indirectly, compared to already existing international instruments in the field of minority rights education. The concept of ‘added value’ in relation to the evaluation of the fcnm has already been used by Sia Spiliopoulou Ǻkermark and by Kirstin Henrad in their contributions on ‘The Added Value of the Framework Convention for the Protection of National Minorities,’ which were presented at the conference on the fcnm as a useful pan-European instrument in May 2006 in Brussels and published two years later.45 Sia Spiliopoulou Ǻkermark in her contribution notes that the term ‘added value’ is currently often used among lawyers to speak about the added value of specific legislative products, of treaties, of institutional solutions and ­organs, 45

S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (i),’ pp.69–90 in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, and K. Henrard, ‘The Added Value of the fcnm (II). The Two Pillars of an Adequate System of Minority Protection Revisited,’ pp.91–118 in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008.

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and of cooperation between such organs. Thereby for Ǻkermark the word ‘value’ should be understood as entailing pragmatic, commensurable and materialist advantages, rather than moral and normative statements about ideas of a good life.46 As to the question to what the Fcnm was ‘added,’ Ǻkermark stresses that the main added value of the fcnm is that is “was not added as such to anything, because nothing of its kind existed at the time of its adoption or has been produced later on.”47 As to the question of how ‘added value’ can be concretely evaluated in the case of the fcnm, Kristin Henrard notes that this can be done “from several interrelated perspectives, including the added value in relation to other minority-specific instruments, and in relation to instruments that are not minority specific but nevertheless are of special relevance to minorities.”48 Henrard also nuances the statement of Ǻkermark that the fcnm “was not added as such to anything” in two ways. First, she claims that, taking a strictly positivistic view, the fcnm is indeed the first instrument entirely devoted to minorities and their rights, but it has several ‘soft-law’ precursors which have influenced it considerably. The second nuance Henrard makes is related to the two-­pillar structure of an adequate system of minority protection, that is a system consisting of the prohibition of discrimination in combination with general human rights on the one hand (first pillar), and minority specific rights on the other hand (second pillar). She argues that the latter pillar, the one built on minority specific rights, pre-supposes the existence of the first pillar, and can be regarded as ‘adding’ to the not minority-specific provisions. The fcnm would fit under the minority specific rights-pillar, and would thus present an added value compared to instruments focusing on non-discrimination and/ or general human rights.49 So for Henrard, the fcnm is indeed added to the already existing legal framework of non-discrimination rights and general human rights, and presents here some added value. 46

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S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (i),’ p. 69 in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008. S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (i),’ p. 73 in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008. K. Henrard, ‘The Added Value of the fcnm (II). The Two Pillars of an Adequate System of Minority Protection Revisited,’ p.91 in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful PanEuropean Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008. Ibid, pp. 93–95.

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An Introduction to the Racial Equality Directive

5.1 The Racial Equality Directive and Art. 19 tfeu (ex-Art. 13 tec) The EU has shown increasing interest in the plight of the Roma as the Union moved from a strictly economic agenda towards a political agenda encompassing human rights and fundamental freedoms.50 Bruno De Witte noted in 2002 that even though respect for minorities was a fundamental value in the enlargement process, it was absent from the list of fundamental values for internal development. He concluded that “[f]or the EU, concern for minorities is primarily an export product and not one for domestic consumption.”51 This reproach is not valid any more since the entry into force of the Lisbon Treaty, but it nicely illustrates the state of play at the time of the adoption of the Racial Equality Directive in 2000. The EU has played an increasing role in the prevention of discrimination and protection of equality. For many years the focus of EU action in the field of non-discrimination was on preventing discrimination on the grounds of nationality and sex.52 In 1997, however, the member states approved u ­ nanimously the Treaty of Amsterdam.53 Article 13 of this treaty granted the Community new powers to combat discrimination on the grounds of sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.54 Since the Treaty of Amsterdam came into force in 1999, two new Directives have been enacted in the area of anti-discrimination: the Racial Equality Directive 2000/43/EC55 50 51 52 53 54

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H. O’Nions, Minority Rights Protection in International Law, The Roma of Europe, Hampshire: Ashgate, 2007, p. 222. B. De Witte, ‘Politics versus law in the EU’s approach to ethnic minorities,’ in J. Zielonka (ed.), Europe Unbound. Enlarging and Reshaping the Boundaries of the EU, London: Routledge, 2002, p. 139. Please note that the European Commission refers to sex discrimination as ‘gender’ discrimination. Treaty of Amsterdam amending the Treaty on EU, the Treaties Establishing the European Communities and Certain Related Acts, signed 2 October 1997, entered into force 1 May 1999, 1997, OJ C340/308. Apart from discrimination on the basis of sex, racial or ethnic origin, religion or belief, disability, age and sexual orientation, Art. 21 of the Charter of Fundamental Rights also prohibits discrimination on the basis of colour, social origin, genetic features, language, political or any other opinion, membership of a national minority, property and birth. For more on the Racial Equality Directive, see: M. Bell and L. Waddington, ‘Reflecting on inequalities in European Equality law,’ European Law Review, 2003, vol. 28, no. 3, pp. 349– 69; F. Brennan, ‘The Race Directive: Recycling racial inequality,’ The Cambridge Yearbook of European Legal Studies, 2002–2003, vol. 5, pp. 311–31; Ch. Brown, ‘The Race Directive: towards equality for all the peoples of Europe?,’ Yearbook of European Law, 2001–2002, vol. 21, pp. 195–227; E. Guild, ‘The EC Directive on Race Discrimination: surprises, possibilities

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on the one hand, and the Employment Equality Directive 2000/78/EC56 on the other hand. The Racial Equality Directive implements the principle of equal treatment between persons irrespective of racial or ethnic origin, and the Employment Equality Directive establishes a general framework for equal treatment in employment and occupation. For the protection of the Roma in the EU, most relevant are the Racial Equality Directive and its legal basis, Art. 19 tfeu (ex-Art. 13 tec). The article reads as follows: Without prejudice to other provisions of this Treaty and within the limits of the powers conferred by it on the Community, the Council may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation. By way of derogation from paragraph 1, when the Council adopts Community incentive measures, excluding any harmonisation of the laws and regulations of the Member States, to support action taken by the Member States in order to contribute to the achievement of the objectives referred to in paragraph 1, it shall act in accordance with the procedure referred to in Article 251. Gabriel Toggenburg notes that Art. 19 tfeu ‘combats’ discrimination but does not, at least not expressly, aim at the positive establishment of substantial equality.57 As such, it remains unclear whether Art. 19 tfeu provides a legal

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and limitations,’ The Industrial Law Journal, 2000, vol. 29, no.4, pp. 416–23; T. Jones, ‘The Race Directive: Redefining protection from discrimination in EU law,’ European Human Rights Law Review, 2003, vol. 5, pp. 515–26; D. Schiek, ‘A new framework on equal treatment of persons in EC law?,’ European Law Journal, 2002, vol. 8, no. 2, pp. 290–314; O. De Schutter and A. Verstichel, ‘The Role of the Union in Integrating the Roma: Present and Possible Future,’ edap, 2005, vol. 2; G.N. Toggenburg, ‘The Race Directive: a new dimension in the fight against ethnic discrimination in Europe,’ European Yearbook of Minority Issues, 2001/2, vol. 1, pp. 231–44. Council Directive 2000/78/EC of 27 November 2000 Establishing a General Framework for Equal Treatment in Employment and Occupation, 2000, OJ L303/16. G.N. Toggenburg, ‘The Race Directive: a new dimension in the fight against ethnic discrimination in Europe,’ European Yearbook of Minority Issues, vol. 1, 2001/2, p. 234. Toggenburg adds that the European Parliament and ngos have in the past sought inclusion of provisions on positive discrimination in the treaties. Accordingly, the Parliament postulates in its resolution on the functioning of the teu with a view to the 1996 Intergovernmental Conference (igc) that greater substance for the concept of EU citizenship should also be provided by “the preservation of Europe’s diversity through special safeguards for national minorities in terms of human rights, democracy and the rule of law.” See EP, ‘Resolution on the functioning of the Treaty on European Union with a view to the 1996

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basis for the Council to undertake positive action in the field of anti-discrimination.58 Oliver De Schutter and Annelies Verstichel underline that Art. 19 tfeu only provides a legal basis, rather than a self-executing prohibition or a freestanding principle. It was carefully worded so as to ensure that it would not have a direct effect.59 5.2 The Racial Equality Directive and the New Art. 10 tfeu Gabriel Toggenburg argues that the Treaty of Lisbon can be seen as introducing a legal obligation for the EU to develop EU secondary law in a way that it respects and protects persons belonging to national minorities.60 This clearly becomes evident in the context of anti-discrimination. Whereas the former Art. 13 tec stipulates that the Union may take action to combat discrimination, with the new Art. 10 tfeu the EU is set under an obligation to combat discrimination, it shall aim to combat discrimination in defining and implementing its policies and activities.61 This obligation for the Union to combat discrimination in defining and implementing policies and activities goes a lot further than Art. 21 of the Charter of Fundamental Rights, which does not impose an obligation but merely prohibits the Union to discriminate. The new horizontal clause of Art. 10 tfeu thus calls for an active engagement of the Union in the field of anti-discrimination rather than a mere avoidance of discrimination.62

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Intergovernmental Conference – Implementation and development of the Union,’ OJ C151 (19 June 1995), p.56. Please note that the European Parliament has always accorded great importance to respect for fundamental rights in the Union. Since 1993, it has held a debate and adopted a resolution on this issue every year on the basis of a report by its Committee on Civil Liberties, Justice and Home Affairs. For a discussion, see S. Griller (et. al.), The Treaty of Amsterdam: facts, analysis, prospects, Vienna: Springer, 2000, p. 161. O. De Schutter and A. Verstichel, ‘The Role of the Union in Integrating the Roma: Present and Possible Future,’ edap, vol. 2, 2005, p. 8. G.N. Toggenburg, ‘The New Treaty of Lisbon and the Protection of Minorities – Some Introductory Remarks,’ in P. Karpf (ed.), Sind wir alle Europäer oder ist noch Platz für Volksgruppen?, Klafenfurt am Wörthersee: Land Kärnten, Amt der Kärntner Landesregierung, 2010, p. 130. Art. 10 tfeu reads as follows: “In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” According to Gabriel Toggenburg, this is evidenced by the fact that the new horizontal clause is based on the wording of the enabling competence base, as now enshrined in Art. 19 tfeu, and not on the merely prohibititive clause in Art. 21 of the Charter of Fundamental Rights. See G.N. Toggenburg, Sind wir alle Europäer oder ist noch Platz für

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It is too early to tell whether and to what degree the new horizontal clause enshrines a positive duty for the EU to introduce positive measures aiming at substantial equality.63 In any case the new horizontal obligation has a lot of potential regarding the “direction, content and equality driven creativity of Union legislation, and consequently national legislation when implementing Union legislation.”64 As to the question whether this new provision will contribute to a better protection of Roma rights in the EU, one can note that the Spanish, Belgian and Hungarian Trio-Presidency argued for a consequent mainstreaming approach in the field of the protection of Roma rights with this new provision as a clear cut normative backbone.65 However, since the new mainstreaming obligation builds on the enabling provision in Arts 10 tfeu and 19 tfeu, and not on the prohibitive provision of Art. 21 of the Charter, it does not cover discrimination on the grounds of language and membership of a national minority.66 The Treaty of Lisbon thus puts persons belonging to minorities in an ‘unprecedented prominent position.’67 The EU institutions and member states when they are implementing Union law are explicitly precluded from discriminating against persons belonging to national, linguistic, ethnic and religious minorities. The Union is now obliged to actively combat social exclusion68 and discrimination in defining and implementing its policies and activities. ­Volksgruppen?, Klafenfurt am Wörthersee: Land Kärnten, Amt der Kärntner Landesregierung, 2010, p. 131, footnote 9. 63 Ibid. See also J. Shaw, ‘Mainstreaming Equality and Diversity in the EU,’ Current Legal Problems, 2005, vol. 58, pp. 255–312. 64 Ibid. 65 Ibid. 66 Gabriel Toggenburg underscores that this asymmetry is not new but rather inherent from the pre-Lisbon era: linguistic discrimination and discrimination on the grounds of membership of a national minority were supposedly already prohibited by the general principle of equality. Yet, the EU had no explicit competence to actively combat these forms of discrimination via Art. 13 tec. G.N. Toggenburg, Sind wir alle Europäer oder ist noch Platz für Volksgruppen?, Klafenfurt am Wörthersee: Land Kärnten, Amt der Kärntner Landesregierung, 2010, p. 131, footnote 11. 67 G.N. Toggenburg, Sind wir alle Europäer oder ist noch Platz für Volksgruppen?, Klafenfurt am Wörthersee: Land Kärnten, Amt der Kärntner Landesregierung, 2010, p. 133. 68 A reference to combating social exclusion can be found in the new horizontal provision of Article 9 tfeu. This provision obliges the Union to “take into account requirements linked to the promotion of a high level of employment, the guarantee of adequate social protection, the fight against social exclusion, and a high level of education, training and protection of human health [in defining and implementing its policies and activities].”Also in the context of the Union’s overall objectives, Art. 3 teu declares that the Union “shall combat social exclusion and discrimination […].”

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The fact that persons belonging to national minorities are now explicitly referred to in the Charter, which is primary law,69 is according to Toggenburg a timely classification that the Union is concerned with persons belonging to national minorities not only in the context of the Copenhagen ­criteria (thus in the context of its enlargement policy) but also in the framework of the vast variety of its internal policies.70 With the entry into force of the Treaty of Lisbon, concern for minorities has thus become more than only an ‘export product’ for the Union.71 5.3 The Racial Equality Directive in the Context of EU Enlargement In the explanatory memorandum of the Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin,72 the Commission stressed the need for European intervention in the field of racism, while respecting the principles of subsidiarity and proportionality. It also refers to the Directive as being a solid basis for the enlargement of the EU, which must be founded on the full and effective respect of human rights. The process of enlargement will bring into the EU new and different cultures and ethnic minorities. To avoid social strains in both existing and new Member States and to create a common Community of respect and tolerance for racial and ethnic diversity, it is essential to put in place a common European framework for the fight against racism. 73

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The legal value of the Charter of Fundamental Rights is the same as the legal value of the teu and the tfeu (see Art. 1 para. 1 teu) and the Charter consequently forms part of primary Union law, even if it is not an integral part of the treaty texts. See G.N. Toggenburg, Sind wir alle Europäer oder ist noch Platz für Volksgruppen?, Klafenfurt am Wörthersee: Land Kärnten, Amt der Kärntner Landesregierung, 2010, p. 134, footnote 22. G.N. Toggenburg, Sind wir alle Europäer oder ist noch Platz für Volksgruppen?, Klafenfurt am Wörthersee: Land Kärnten, Amt der Kärntner Landesregierung, 2010, p. 134. See above the quote by Bruno De Witte under 4.1 The Racial Equality Directive and Art. 19 tfeu (ex-Art. 13 tec). European Commission, ‘Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin,’ com(1999) 566 final. European Commission, ‘Proposal for a Council Directive implementing the principle of equal treatment between persons irrespective of racial or ethnic origin,’ com(1999) 566 final, p. 4 (emphasis added).

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The Racial Equality Directive had a strong symbolic value when it was adopted in 2000. It made explicit the Union’s and the member state’s rejection of discrimination based on racial and ethnic origin. It should be assessed in the context of the on-going preparations for the enlargement wave towards Eastern Europe which was to take place in May 2004. According to Erica Howard74 and Marc Bell75 the Racial Equality Directive can also be seen as a reaction to the elections in Austria of 200076 and a clear warning against extreme right wing tendencies throughout Europe.77 Enforcement of the Racial Equality Directive: Implementation, Preliminary Rulings, Direct Effect and State Liability Art. 288 tfeu (ex-Art. 249 tec) provides that directives are binding as to the result to be achieved, but leaves the choice as to form and method to the member states. Directives therefore need to be incorporated into national law. By their very nature, however, directives may give rise to problems when they are implemented. Without doing so intentionally, a member state may misinterpret the directive or the amount of discretion it has been given by the directive, or be of the opinion that its existing legislation already covers the provisions of the directive when this may not be the case.78 Persons who feel that they have been discriminated against on one of the grounds mentioned in the Racial Equality Directive thus first have to find out whether the member state in which they reside has correctly implemented the directive and has enacted anti-discrimination legislation that is in conformity with it. If the member state has implemented the directive, the victim of discrimination can bring a case against the perpetrator on the basis of his national law, before the courts of his own member state. When the particular court does not know whether the implementation of the directive was indeed correct, or does not know how to interpret a certain norm or term in this legislation, 5.4

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E. Howard, ‘The EU Race Directive: its symbolic value – its only value?,’ International Journal of Discrimination and the Law, 2004, vol. 6., 148. M. Bell, Anti-Discrimination Law and the European Union, Oxford: oup, 2002, p. 74. In February 2000, the extreme rightwing Freedom Party of Jorg Haider entered government in Austria. E. Howard, ‘The EU Race Directive: its symbolic value – its only value?,’ International Journal of Discrimination and the Law, 2004, vol. 6., 149. M. Horspool and M. Humphreys, EU Law, Oxford: oup, 2008, p. 80.

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it may ask for a preliminary ruling79 from the Court of Justice of the European Union (‘cjeu’).80 In case a provision of the directive is not fully or not correctly implemented into national legislation, the national court also has to decide whether this particular provision does have direct effect in the legal order of the member state. For a provision of a directive, a regulation or a Treaty article to be directly effective it must be clear, precise and unconditional.81 Timothy Jones notes that: “there can be no doubt that the Race Directive is intended to confer rights on individuals and little doubt […] that its key provisions will be held unconditional and sufficiently precise.”82 In order for a provision to have direct effect, the date for implementation of the directive must also have passed. In addition, directives can only be invoked against public bodies. The rationale for this rule is that the directive is addressed to the member state, and that it is the state which has the obligation to implement it into national law. In relation to litigation between private individuals or private entities, directives can have indirect effect. Member States and particularly domestic courts are obliged to do everything possible to achieve the result contained in the directive.83 Another way how individuals can enforce their rights when a member state has not properly implemented a provision of a directive is to rely on the concept of state liability. Three conditions must be met in order to trigger state liability for damages: the result, as required by the directive, must include the conferring of rights on individuals; the breach must be sufficiently serious; and there must be a causal link between the state’s breach of obligation and the damage suffered by the individual. It is very important to distinguish the different concepts of direct effect and state liability. They are separate actions, with different defendants. The remedy in a direct effect case is to benefit from the right you should have had under EU law if it had been properly implemented. In a state liability claim, the remedy 79 80 81 82 83

On the basis of Art. 267 tfeu, ex-Art. 234 tec. It is, however, under no legal obligation to do this unless the court is a supreme jurisdiction. Case 26/62 NV Algemene Transport- en Expeditie Onderneming van Gend & Loos v Netherlands Inland Revenue Administration, 1963, ecr 1. T. Jones, ‘The Race Directive: redefining protection from Discrimination in EU law,’ European Human Rights Law Review, 2003, vol. 5, p. 516. Case C-106/89, Marleasing SA v La Comercial International de Alimentacion SA, 1990, ecr I-4135.

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is monetary compensation. However, a person is not restricted to one type of claim only: if an individual can rely on the direct effect of a directive, he can also pursue a claim for state liability against the state for wrongful implementation of the directive in question. Concerning the interpretation of the Racial Equality Directive, the cjeu has not yet had the opportunity to develop a substantial jurisprudence on ­discrimination based on race or ethnic origin.84 The Court’s case law on the 2000 Directives (Directive 2000/43/EC and Directive 2000/78/EC) has been dominated by age discrimination cases,85 age discrimination being a new and complex area of law.86 However, while a considerable number of age cases have reached the cjeu, it is surprising how few cases have been referred to the Court in respect of discrimination on the grounds of racial and ethnic origin. This may reflect the fact that many national legal systems are still assimilating 84

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As of January 2018, 8 cases on the scope of the provisions of the Racial Equality Directive have been brought to the cjeu by means of a preliminary ruling, of which the most significant ones are Case C-54–07 Centrum voor Gelijkheid van Kansen en Racismebestrijding v Firma Feryn NV [2008] ecr I-5187, Case C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others [2011] ecr I-3787, and Case C-83/14, chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, 2015, ECLI:EU:C:2015:480. For an analysis of the latter, see below Chapter 8. at 3.2.2 Case C-83/14 illustrating the difference between direct v. indirect discrimination. The 5 other cases are Vajnai, Meister, Belov, Kamberaj and Jyske Finans. Case C-328/04 Vajnai, ECLI:EU:C:2005:596; Case C-415/10 Galina Meister v Speech Design Carrier Systems GmbH, ECLI:EU:C:2012:217; Case C-394/11 Valeri Hariev Belov v chez Elektro Balgaria AD and others, ECLI:EU:C:2013:48; Case C-571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della provincial autonoma di Bolzano (ipes) et al., ECLI:EU:C:2012:233; Case C-668/15, Jyske Finans AS v Ligebehandlingsnaevnet, acting on behalf of Ismar Huskic, ECLI:EU:C:2017:278. For an in depth analysis of these age discrimination cases see C. O’Cinneide, for the European Network of Legal Experts in the non-discrimination field, ‘The Evolution and the Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC,’ Brussels: European Commission, DG for Justice, November 2012, and especially Part iii, Section 3.5 Age Discrimination and the Provisions of Directive 2000/78/EC at pp. 42–45, available at (accessed on 1 September 2015). For a description and an analysis of how the cjeu has interpreted the provisions of the 2000 Directives (Directive 2000/43/EC and Directive 2000/78/EC) with an examination of how the interpretative approach adopted by the cjeu has been applied by national courts, with a view to assessing the impact of the Court’s case law and the extent to which national courts have been willing to follow its reasoning when interpreting national antidiscrimination legislation, see also C. O’Cinneide, for the European Network of Legal Experts in the non- discrimination field, ‘The Evolution and the Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC,’ Brussels: European Commission, DG for Justice, November 2012.

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the provisions of the Racial Equality Directive, as the transposition deadline87 has expired relatively recently.88 Rainer Hofmann underlines that the acfc to the fcnm, in its opinions, has consistently urged EU member states to transpose the Racial Equality Directive as an important contribution to the respect of their obligation to guarantee equal treatment and equality before the law as an obligation flowing from Art. 4 fcnm.89 He also stresses that the Directive imposes an obligation on EU Member States to provide for adequate procedures available to victims of prohibited discrimination in order to obtain appropriate compensation.90 Finally, it should be noted that, in order to enhance the effectiveness of the enforcement of the right to equal treatment, Art. 7 (1) Racial Equality Directive requires the member states to establish a judicial review for complaints of discrimination. In addition and providing an alternative to judicial proceedings, they are also expected to create low-threshold and fast-track procedures. Monika Ambrus91 notes in this context that the existence of both these types of procedures guarantee that the victim’s perspective is appropriately considered, which is conducive to minority protection. 5.5 Infringement Procedure If the European Commission believes that a member state has breached EU law, it is entitled to initiate a so-called ‘infringement procedure’ under Art. 258 tfeu (ex-Art. 226 tec). For each directive passed, a deadline is set for the transposition of its objectives into national law, and all member states are legally obliged to meet the deadline, unless an agreed alternative or exception 87

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The Racial Equality Directive had to be transposed into national law by 19 July 2003 by the 15 ‘old’ Member States (Austria, Belgium, Denmark, Finland, France, Germany, Greece, Ireland, Italy, Luxembourg, the Netherlands; Portugal, Spain, Sweden, the United Kingdom), by 1 May 2004 by the 10 ‘new’ Member States (Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, Slovenia), and by 1 January 2007 for Romania and Bulgaria. C. O’Cinneide, for the European Network of Legal Experts in the non-discrimination field, ‘The Evolution and the Impact of the Case-Law of the Court of Justice of the European Union on Directives 2000/43/EC and 2000/78/EC,’ Brussels: European Commission, DG for Justice, November 2012, p. 9, at para. 24. For a general study on the implications of the Racial Equality Directive for minority protection in the EU see M.J. Busstra, The Implications of the Racial Equality Directive for Minority Protection within the EU, The Hague: Eleven International Publishing, 2011. R. Hofmann, ‘The impact of international norms on the protection of national minorities in Europe: the added value and essential role of the fcnm,’ DH-MIN (2006)18, 5 December 2006, p. 7. M. Ambrus, Enforcement Mechanisms of the Racial Equality Directive and Minority Protection, The Hague, Eleven International Publishing, 2011, p. 389.

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is made.92 Once the deadline for meeting the transposition of a directive into national law has lapsed, one of two—or even both—preliminary processes will be launched by the European Commission that aim to resolve the issue as quickly as possible with the member state in question. These two processes are non-communication93 on the one hand and non-conformity94 on the other hand. If the procedure is not settled during the preliminary stages95 of the infringement procedure process, and the European Commission is of the reasoned opinion that a member state is still in breach of EU law, the cjeu will be called on to pronounce on the matter. If the cjeu upholds the case, it may impose a financial penalty on the member state in question under Art. 260 tfeu (ex-Art. 228 tec) if the member state does not comply with the judgment. In September 2014, the European Commission initiated an infringement procedure against the Czech Republic for breaching the Racial Equality Directive due to discrimination of Roma children in education, as they are overrepresented in schools for pupils with mild mental disabilities. In April 2015, Slovakia was the second Member State to be subjected to an infringement procedure for a breach of the Racial Equality Directive, due to discriminatory treatment of Roma pupils in access to education on account of their racial or ethnic origin. And in May 2016, the Commission sent a letter of formal notice to Hungary due to concerns in relation to both Hungarian legislation and administrative practices which lead to the result that Roma children are 92

93

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The deadline for the implementation of the Racial Equality Directive was 19 July 2003 for the EU-15 (the 15 elder EU Member States), 1 May 2004 for the EU-10 (the member states which acceded to the EU on that date) and 1 January 2007 for the EU-2 (the latest new member states namely Romania and Bulgaria). ‘Non-communication’ means that a member state will be notified that it has failed to communicate to the European Commission its national measures implementing the EU legislation by the required deadline for transposition. The Member State will initially be given a 2-month phase to communicate its reasons. ‘Non-conformity’ means that a member state will be notified by the European Commission that its national measures do not conform with the directive(s) in question. The member state will be given a reasonable time by the European Commission to put its legislation into conformity. In June 2007, the Commission has sent formal requests to 14 Member States to fully implement EU rules banning discrimination on the grounds of race or ethnic origin (read: Directive 2000/43/CE). The countries concerned – Spain, Sweden, the Czech Republic, Estonia, France, Ireland, the United Kingdom, Greece, Italy, Latvia, Poland, Portugal, Slovenia and Slovakia – had two months to respond, failing which the Commission could take them to the cjeu. See European Commission, Press Release, ‘Commission Acts to Close Gaps in Race Equality Rules,’ 27 June 2007, IP/07/928.

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disproportionately over-represented in special schools for mentally disabled children and also subject to a considerable degree of segregated education in mainstream schools.96 The aim of the Commission's actions is to ensure for Roma children an equal access to education which is a determining factor for employment opportunities and thus an indispensable component of working towards full Roma inclusion.97 The governments of the Czech Republic, Slovakia and Hungary have submitted their observations to the European Commission. The 3 infringement procedures are still ongoing. The infringement procedures were warmly welcomed by several Roma ngos who had already been advocating the de-segregation of Roma children in education in these countries for over a decade.98 Already in July 2012, Amnesty International has called upon the European Commission to review whether Italy should be the subject of infringement proceedings under the Racial Equality Directive for its discriminatory treatment of the Roma in relation to their right to adequate housing.99 This call was renewed by errc in February 2017.100 Considering the political pressure applied by Italy, it remains to be seen whether the Commission will proceed with a letter of formal notice regarding the violation of housing rights for the Roma in Italy. 96

European Commission, Fact Sheet, ‘May Infringement Package: Key Decisions,’ memo/ 16/1823, Brussels, 26 May 2016. 97 Ibid. 98 errc, “Commission takes tougher stance on Member States discriminating Roma,” 29 April 2015, available at (accessed on 1 September 2015). See also Open Society Foundations, ‘Brussels takes action against Czech Republic over Roma school discrimination,’ 25 September 2014, available at (accessed on 1 September 2015) and Amnesty International, ‘European Commission’s action against Czech Republic for Discrimination in Schools is a Victory for Rights, Justice and Roma,’ 25 September 2014, available at (­accessed on 1 September 2015). 99 Amnesty International, ‘Italy’s Discriminatory Treatment of the Roma Breaches EU Race Directive’ July 2012, available at (accessed on 1 January 2018). 100 B. Rorke, ‘Does the Race Equality Directive Apply to Italy or Not ?,’ 27 February 2017, available at (accessed on 1 January 2018).

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Monitoring and Analysis of the Implementation of the Racial Equality Directive: The Network of Legal Experts in the Nondiscrimination Field A network of legal experts in the non-discrimination field101 was set up by the European Commission in 2004 to support its work by providing independent information and advice on relevant developments in the member states. The network initially brought together 27 country experts—one for each member state—and five coordinators for each ground of discrimination: race and ethnic origin, religion, disability, age and sexual orientation. It replaced the three previous specialized groups of experts which focused on the grounds of racial and ethnic origin, religion, disability, and sexual orientation, and which operated up to June 2004 prior to EU enlargement. The network’s specific tasks are to provide information and independent analysis on: the transposition of the Racial Equality Directive where not yet complete; on practical implementation and application of national laws introducing the Racial Equality Directive; on national initiatives and related political developments in the field; on national case law and its conformity with EC law; on relevant judgments by the cjeu and by the ECtHR.102 The fifth and sixth edition of the comparative analysis of the transposition of the Racial Equality and the Employment Equality directives in the national law of the 27 Member States also contained an additional detailed analysis of 3 candidate member states: Croatia, the Former Yugoslav Republic of Macedonia and Turkey.103 Croatia acceded to the EU on 1 July 2013 and became the 28th EU Member State. In December 2014, a new joint network was created: the European network of legal experts in gender equality and non-discrimination. It combines two previously existing networks: the European Network of Legal Experts in the Non-discrimination Field and the European Network of Legal Experts in the 5.6

101 The network of experts in the non-discrimination field has its own webpage, available at (accessed on 1 September 2015). 102 See (accessed on 4 April 2013). 103 I. Chopin and Th. Uyen Do for the European Network of Legal Experts in the non-discrimination field, ‘Developing Anti-Discrimination Law in Europe: The 27 EU Member States, Croatia, the fyrom and Turkey compared,’ Brussels: European Commission, DG for Justice, November 2010, issued on 18 July 2011, available at (accessed on 4 April 2013); I. Chopin and Th. Uyen Do for the European Network of Legal Experts in the non-discrimination field, ‘Developing Anti-Discrimination Law in Europe: The 27 EU Member States, Croatia, the fyrom and Turkey compared,’ Brussels: European Commission, DG for Justice, November 2011, issued on 15 July 2012, available at (accessed on 4 April 2013).

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field of Gender Equality. The new joint network involves the vast majority of the legal experts whom have been part of the previous separate networks. The overall management of the network rests with Human European Consultancy, Utrecht University and the Migration Policy Group.104 In November 2017, the network published a report about ‘Roma and the enforcement of anti-discrimination law.’ The main findings of this report are that many gaps and challenges remain regarding the enforcement of antidiscrimination law among the countries of the EU. The issues concerned include the lack of adequate and relevant data, persistent practices and policies that (may) have a disproportionate effect on Roma and a general lack of political will at a national and/or local level. Specific challenges arising in many countries include different forms of segregation in education as well as situations of low-quality housing without access to basic living conditions. Finally, case law is scarce or missing in a large number of countries, due to severe underreporting of discrimination in general and more specifically by Roma. This situation is magnified by an oftengeneralised lack of trust in authorities, low awareness of rights and a lack of means to access justice to a higher degree than other sections of the population. (…) It is also crucial to note the existence of deeply rooted structural and institutionalised discrimination against Roma throughout many countries in Europe, which is directly and inextricably linked to political will and general public awareness. (…) Action of a far deeper and more extensive nature would be necessary to achieve real change. Such action could usefully aim to raise awareness and knowledge among different actors in society who have an impact on the lives of Roma, such as teachers, doctors, employers and landlords. Only such long-term action could eventually defy the far-reaching and deep-rooted stereotypes and intolerance against Roma and their (perceived) way of living, which still prevail to a large extent among the general public. For this same reason, profound change is also needed at a political level in many countries, where hate speech against Roma is common and is only rarely met with an adequate response.105 104 More information on the new joint network is available at (accessed on 1 January 2018). 105 Chopin, I., Germaine, C., and Tanczos, J., for the European Network of Legal Experts in gender equality and non-discrimination, ‘Roma and the enforcement of anti-discrimination law,’ Brussels: European Commission, DG for Justice and Consumers, November 2017, p. 26 conclusions, available at (accessed on 1 January 2018).

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The Racial Equality Directive in the Light of International NonDiscrimination Standards

The provisions of the international treaties mentioned in the third recital of the preamble of the Racial Equality Directive may provide guidance as to the meaning and content of different terms and concepts that occur in the directive. The third recital reads as follows: The right to equality before the law and protection against discrimination for all persons constitutes a universal right recognised by the Universal Declaration of Human Rights, the United Nations Convention on the Elimination of all forms of Discrimination Against Women, the International Convention on the Elimination of all forms of Racial Discrimination and the United Nations Covenants on Civil and Political Rights and on Economic, Social and Cultural Rights and by the European Convention for the Protection of Human Rights and Fundamental Freedoms, to which all Member States are signatories. The Racial Equality Directive thus has to be interpreted in the light of the international non-discrimination standards as mentioned in the third recital. A good example of the guidance given by these international standards may be that of the meaning and content of the term ‘education.’ Guidance as to the meaning and content of the concept of ‘education’ for the Racial Equality Directive may be found in Art. 13 (2) icescr,106 which is taken to guarantee the right to receive an education which in all its form and at all levels shall exhibit the four interrelated and essential features of availability, accessibility, acceptability and adaptability.107 106 This article reads as follows: “The States Parties to the present Covenant recognize that, with a view to achieving the full realization of this right: (a) Primary education shall be compulsory and available free to all; (b) Secondary education in its different forms, including technical and vocational secondary education, shall be made generally available and accessible to all by every appropriate means, and in particular by the progressive introduction of free education; (c) Higher education shall be made equally accessible to all, on the basis of capacity, by every appropriate means, and in particular by the progressive introduction of free education; (d) Fundamental education shall be encouraged or intensified as far as possible for those persons who have not received or completed the whole period of their primary education; (e) The development of a system of schools at all levels shall be actively pursued, an adequate fellowship system shall be established, and the material conditions of teaching staff shall be continuously improved.” 107 On the four A scheme, see above, Chapter 2, 5.1.4 The International Covenant on Economic, Social and Cultural Rights of 1966.

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The material scope of the Racial Equality Directive and the different forms of education as covered by the Racial Equality Directive will be discussed in Chapter 7 below. 7

Conclusions under Chapter 4

Both the fcnm and the Racial Equality Directive should always be read in the wider context of the existing international provisions on minority protection and non-discrimination. The fcnm can be considered as forming an integral part of the existing international human rights instruments, since the protection of national minorities and of the rights and freedoms of persons belonging to those minorities form an integral part of the international protection of human rights. This is also explicitly stipulated in Art. 1 fcnm. It follows from the wording of this article that the education rights for minorities, as guaranteed by the Framework Convention, are an integral part of education rights as entrenched in the international provisions listed up above in Chapter 2, Section 5. The Racial Equality Directive in its turn has to be interpreted in the light of the international non-discrimination standards as mentioned in the third recital. Guidance as to the meaning and content of the different concepts used but not defined in the Racial Equality Directive, such as the meaning of ‘education,’ may be found in the international standards as mentioned in the third recital. For the purpose of assessing whether the fcnm and the Racial Equality Directive positively contributed to the protection of educational rights for Roma children, it is proposed to use the concept of ‘added value.’ ‘Added value’ should be understood in the sense that the contribution of the fcnm and the Racial Equality Directive is measured in terms of what level of protection for Roma children in education they ‘add,’ directly or indirectly, compared to already existing international instruments in the field of minority rights and the right to education.

Chapter 5

The Roma as a National Minority in the Light of the Framework Convention for the Protection of National Minorities 1 Introduction This fifth chapter is dedicated to the question as to whether the Roma fall into the scope of application of the fcnm. In other words, it should be examined as to whether the Roma can be considered as a ‘national minority’ for the purpose of the fcnm. As mentioned above in the first chapter, the issue of the definition of the term ‘minority’ has long been debated within scientific and political circles due to a lack of political consensus. In general, the vagueness of minority definitions in international instruments enables both the exclusion and the inclusion of Roma. The fact that the question what constitutes a national minority remained open, caused that several state parties to the fcnm adopted their own interpretation of the term or formulated reservations or declarations upon ratification of the fcnm. The main focus of this chapter is on the question as to whether the Roma are beneficiaries to the fcnm and on the value of reservations and declarations excluding the Roma from the scope of application of the fcnm. 2

Do the Roma Fall into the Personal Scope of Application of the fcnm?

The personal scope of application of the fcnm is not explicitly defined in the fcnm. In various articles, reference is made to ‘persons belonging to national minorities.’ It ought to be examined thus as to whether the Roma can be considered as belonging to a national minority for the purpose of the fcnm. The Roma as a National Minority in the Context of Public International Law An attempt to define the concept of ‘national minority’ was undertaken by the Parliamentary Assembly of the Council of Europe which, in its Recommendation 1201 of 1993 on an additional protocol on the rights of national m ­ inorities 2.1

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to the European Convention of Human Rights,1 formulated the following definition: … the expression “national minority” refers to a group of persons in a state who: a) reside on the territory of that State and are citizens hereof; b) maintain long-standing, firm and lasting ties with that State; c) display distinctive ethnic, cultural, religion or linguistic characteristics; d) are sufficiently representative, although smaller in number than the rest of the population of that State or of a region of that State; e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language. Since the proposal was not accepted by the Committee of Ministers of the Council of Europe, it does not have any binding effect on states.2 Clearly, this definition draws on the definition drafted in 1979 by Professor Capotorti.3 Even if it is not perfect, the proposal for the protocol at least had the advantage of avoiding too theoretical an approach to the problem and ensured that the potential enforcement of the system for the protection of minorities is not too large. It adopts both objective and subjective criteria. The objective factors concern the existence, within the population of a state, of distinct population groups possessing stable ethnic, religious or linguistic characteristics; the numerical size of the group; and the non-dominant position of that group visà-vis the rest of the population. To these criteria has been added a subjective factor, namely the will to preserve the specific identity of the group. It seems logical that only those groups that affirm their differences should benefit from special treatment, unlike those that have voluntarily become assimilated to the national population.4 These criteria raise some important issues. With respect to the quantitative criterion, one may ask how many members a group must have before it 1 coe Recommendation 1201 (1993) of the Parliamentary Assembly on an additional protocol on the rights of national minorities to the European Convention on Human Rights available at (accessed on 4 April 2013). 2 F. Benoit-Rohmer, The Minority Question in Europe: Towards a Coherent System of Protection for National Minorities, Strasburg: Council of Europe Publications, 1998, p. 13. 3 See above Chapter 1, 3.1.1 The Absence of a Minority Definition in International Law. 4 F. Benoit-Rohmer, The Minority Question in Europe: Towards a Coherent System of Protection for National Minorities, Strasburg: Council of Europe Publications, 1998, p. 14.

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c­ onstitutes a minority. This question is important to states in so far as the recognition of too small a minority may place disproportionate demands on the resources of a state. The subjective criterion is similarly difficult to measure. How does one measure the shared will to contribute to the preservation of a cultural, linguistic or religious identity, given that the intensity of those feelings, which are a product of history, must be assessed in the light of each specific situation?5 This implies that one cannot automatically consider all European Roma to be ‘persons belonging to a national minority’ but that one should examine on a case-by-case basis, for every sub-group, whether the quantitative criterion as well as the subjective criterion are fulfilled. As there are regional differences between different sub-groups, this examination should take place on a regional and local level, and not on a national level, in the sense that, even though all Roma sub-groups fall under the umbrella of ‘Roma,’ it is important to examine whether each sub-group per se fulfils the conditions of either the definition of the Parliamentary Assembly in its Recommendation 1201 or of the Capotorti definition. Some scholars use the e contrario way of reasoning. Paivi Gynther6 argues that since there are separate references to Roma in documents dealing with the issues of national minorities, this implies, a contrario, that Roma should not be considered to be a national minority. This kind of reasoning can be criticized, since the reason why Roma are often explicitly mentioned in documents relating to issues of national minorities might just be one of clarity, to avoid doubts or misunderstandings and to explicitly stress that the Roma do fall into the scope of application of the said documents and thus qualify to be considered a national minority. Therefore the only correct approach seems the approach in which, for every different sub-group, the presence of the quantitative criterion and the subjective criterion are tested and evaluated. This might lead to the—at first sight— unsatisfactory result of some numerous Roma-subgroups being considered a national minority whereas other extremely small Roma-subgroups or immigrant Roma sub-groups might not be considered a national minority. However, any other solution considering the Roma to be one homogenous group at the national level of a certain state would deny the existence of different cultural 5 F. Benoit-Rohmer, The Minority Question in Europe: Towards a Coherent System of Protection for National Minorities, Strasburg: Council of Europe Publications, 1996, p. 14. 6 P. Gynther, From Utopia to Quintessence: Education Law from the Viewpoint of Roma and Skills Deficiency, Vaajakoski: Gummerus Printing, 2006, p. 21.

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identities (such as language, religion, and traditions) and thereby the richness of the different sub-groups. The contradictions and ambiguities generated by the acknowledgment of just some Roma-sub groups as a ‘national minority’ condense the complex legal reality of present-day international and national systems.7 The Roma in the Light of Existing Council of Europe Documents: from a Non-territorial Minority to a National Minority Before coming to the applicability of the fcnm to the Roma, it might be interesting to examine whether the Council of Europe categorizes the Roma as constituting a national minority. The first Council of Europe document defining the Roma as a minority was the Parliamentary Assembly Recommendation 1203 on Gypsies in Europe,8 adopted in January 1993. It declared the Roma to be “a true European minority, but one that does not fit into the definitions of national or linguistic minorities.” The same Recommendation also states a bit further, that Gypsies “as one of the very few non-territorial minorities in Europe […] need special protection.” Thus, with the acceptance of Recommendation 1203, the Parliamentary Assembly of the Council of Europe defined the Roma as a non-territorial minority, but explicitly not as a national minority. Nevertheless, this Recommendation was a first call for the official recognition of the Roma as a minority. Several years later, with the report drafted in 2002 by the Hungarian Socialist MP Mr Csaba Tabajdi,9 rapporteur for the Parliamentary Assembly’s Committee on Legal Affairs and Human Rights, a new approach towards the legal status of the Roma at the Council of Europe was adopted. This new approach was based on the significant changes that had taken place in Europe and in the framework of the Council of Europe since the adoption of Recommendation 1203 in 1993. Indeed, by 2002, the Roma were legally recognized as a national or ethnic minority group in Austria, Croatia, the Czech Republic, Hungary, the former Yugoslav Republic of Macedonia, Norway, Poland, Romania, Slovakia, Sweden, Ukraine and the Federal Republic of Yugoslavia; as a traditional national minority in Finland, and as a racial group protected under the Race Relations Act 1976 in the United Kingdom. On the contrary, the Roma had no 2.2

7 Ibid. 8 coe Recommendation 1203 (1993) of the Parliamentary Assembly on Gypsies in Europe. 9 coe, Committee on Legal Affairs and Human Rights, ‘Report on the Legal situation of the Roma in Europe,’ 19 April 2002, Doc. 9397 revised.

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special legal status in Belgium, Denmark, Germany,10 Greece, Italy, the Netherlands, Slovenia11 and Switzerland.12 The report of Mr Csaba Tabajdi was the basis for the adoption by the Parliamentary Assembly of the Council of Europe of Recommendation 1557 on the legal situation of the Roma in Europe.13 Its sixth paragraph reads as follows: from a legal point of view, the Romany community is still not regarded as an ethnic or national minority group in every member state, and thus it does not enjoy the rights pertaining to this status in all of the countries concerned. Roma must be treated as an ethnic or national minority group14 in every member state, and their minority rights must be guaranteed. The Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages exist and must be applied. Nowadays most Council of Europe member states with a Roma minority consider the Roma to be a national minority and by consequence apply their minority legislation to the Roma. There are states though, such as Germany and Slovenia, that designate the Roma as not constituting a national minority but at the same time they declare that international instruments, such as the fcnm, shall be applied to them all the same.15 Indeed, the fcnm leaves it open for member states to declare whether the Convention shall apply to Roma living on their territory. 2.3 The Roma as a National Minority in the Light of the fcnm The Framework Convention for the Protection of National Minorities—notwithstanding its character as an international treaty on the protection of national minorities—does not contain any definition of the concept of ‘national minority.’ During the drafting process of the fcnm, it proved to be impossible to 10 11 12 13 14 15

In spite of the lack of the designation as a national minority, the Roma and Sinti do enjoy the rights conferred to them by the fcnm in Germany. The Slovenian declaration to the fcnm contains a passage according to which the fcnm will be applied to members of the Roma community “in accordance with the Constitution and internal legislation.” coe, Committee on Legal Affairs and Human Rights, Report on the Legal situation of the Roma in Europe, 19 April 2002, Doc. 9397 revised, par. 11–12. coe Recommendation 1557 (2002) of the Parliamentary Assembly on the legal situation of the Roma in Europe. Emphasis added. J.A. Frowein and R. Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention,’ ZaöRV, 1999, vol. 59, no. 3, p. 652.

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agree upon a definition. The fact that the question what constitutes a national minority remained open, led to several state parties adopting their own interpretation of the term for the purpose of the Convention.16 In doing so, state parties do not enjoy full interpretative license over the term ‘national minority,’ but they have to take into account the practice of interpretation that has become established by authoritative international bodies.17 The fourth acfc Thematic Commentary on the scope of application of the fcnm stresses that any definition adopted by states parties should be compliant with Article 26 of the Vienna Convention on the Law of Treaties and the basic principle of pacta sunt servanda. The acfc suggests that the absence of a definition of ‘national minority’ in the fcnm was not only intentional but is also necessary to ensure that the specific societal, including economic and demographic circumstances of states parties are duly taken into account when establishing the applicability of minority rights.18 In the absence of a definition of ‘national minority,’ the question arises as to whether citizenship is one of the criteria to identify beneficiaries. In most cases, sedentary Roma do have citizenship in the states where they reside. In the cases of non-sedentary Roma, who often do not have citizenship of the state where they temporarily reside, the question arises whether they will be considered by their host state as a national minority. In the European context, the criterion of citizenship has been referred to several times in both the European Charter for Regional or Minority Languages and in Recommendation 1201 of the Parliamentary Assembly, for instance. One must also take into consideration the considerable number of declarations by state parties linking the term ‘national minority’ to citizenship. Similarly, the criterion of firm and long-standing ties to the state in which a minority group lives sustains the connection between minority and citizenship.19 16 17

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J.A. Frowein and R. Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention,’ ZaöRV, 1999, vol. 59, no. 3, p. 649. R. Hofmann, ‘The Framework Convention for the Protection of National Minorities: An Introduction,’ in M. Weller (ed.) The Rights of Minorities: A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 16. Rainer Hofmann describes how the drafters of the fcnm failed to provide the monitoring bodies with a clear indication as to the scope of its application. coe acfc, ‘Commentary on the scope of application of the Framework Convention for the Protection of National Minorities,’ 27 May 2016, ACFC/56DOC(2016)001, para. 5, available at (accessed on 1 January 2018). H.-J. Heintze, ‘Article 1’ in M. Weller (ed.), The rights of minorities in Europe, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 87.

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Article 5 (1) fcnm identifies some essential elements of the identity of minorities which can be used as a reference tool in determining the definition of a minority, namely religion, language, traditions and cultural heritage.20 The Preamble of the fcnm also refers to these characteristics.21 When evaluating the practices of the Advisory Committee when it comes to defining the scope of the concept of ‘national minority,’ one can observe that the Advisory Committee has favoured a broad scope of application of the fcnm. The Advisory Committee held that ‘new’ minorities, indigenous people, religious groups, non-citizens and also the Roma may fall under certain provisions of the fcnm. Hereby the Advisory Committee adopts an article-by-article approach, defining the beneficiaries of the minority rights per article, and not for the Convention as a whole. Several states reacted in their ‘State Comments’ with disapproval to the practices of the Advisory Committee.22 This approach has also been criticized by scholars such as Annelies Verstichel, who remarks that “the Advisory Committee should justify such a choice and demarcate the boundaries of these categories by elaborating requirements for falling under the scope of application of the fcnm. The general inclusion of “other groups” on an article-by-article basis is too vague and the ad hoc reference to non-citizens and immigrants is insufficiently systematic. It could undermine the credibility of the Advisory Committee as an expert body.”23 Charles Furtado, commenting on Estonia’s State Comment regarding the Advisory Committee’s suggestion to re-examine the scope of application of the fcnm in Estonia, notes: “[i]n effect, Estonia is arguing that the Advisory Committee is impermissibly smuggling in a definition of “national minority” to

20 21 22

23

R. Letschert, The Impact of Minority Rights Mechanisms, The Hague: T.M.C. Asser Press, 2005, p. 187. The seventh paragraph of the Preamble states that: “a pluralist and genuinely democratic society should […] respect the ethnic, cultural, linguistic and religious identity of each person belonging to a national minority.” See, among others, the comments of Slovakia, in its 1st cycle state comments on the AC opinion on the Slovak Republic in the second paragraph: “ In this respect, the Government of the Slovak Republic notes that it is not clear to what “other groups” the Convention should apply in Slovakia, as there are no other groups which would satisfy the term of a national minority.” coe, fcnm, ‘Comments of the Government of Slovakia on the Opinion of the Advisory Committee on the Implementation of the fcnm in Slovakia,’ 5 June 2001, gvt/com/inf/op/i(2001)001. A. Verstichel, ‘Elaborating a Catalogue of Best Practices of Effective Participation of National Minorities,’ eymi, 2002–2003, vol. 2, p. 171.

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which State Parties never agreed, using post-hoc interpretation to create binding obligations.”24 Rianne Letschert, on the other hand, is less harsh in her critiques and underlines, that the Advisory Committee has adopted a rather consistent approach when commenting upon the restrictive personal scope of application adhered to by several States Parties.25 The article-by-article approach of the Advisory Committee was consolidated in the fourth Thematic Commentary on the scope of application of the Framework Convention26 adopted on 27 May 2016. The Commentary notes that among the broad range of rights contained in the Framework Convention, some explicitly apply to all individuals in the territory of the state, while the application of others may be linked to specific conditions. When examining the implementation of the Framework Convention by states parties, the Advisory Committee has therefore consistently encouraged the authorities to be inclusive and context specific, and to consider, on an article-by-article basis, which rights should be made available to whom in order to ensure the most effective implementation of the Framework Convention based on facts rather than status.27 Parts v–vii of the Commentary present an analysis of the scope of application of the various rights contained in the Framework Convention. They sum up which articles are explicitly addressed to all persons in the territory of a state party (Part v), which articles apply to all national minorities (Part vi) and for which minority rights with a specific scope of application state parties may 24 25

26

27

C.F. Furtado, ‘Guess Who is Coming to Dinner? Protection for National Minorities in Eastern and Central Europe under the Council of Europe,’ Columbia Human Rights Law Review, 2002–2003, vol. 34, p. 407. See the AC Opinions on Denmark (2001), para. 17, Estonia (2002), par. 17, Germany (2002), para. 18, Malta (2001), para. 14, Liechtenstein (2001), para. 13, Macedonia (2005), para. 26, cited by R. Letschert, The Impact of Minority Rights Mechanisms, The Hague: T.M.C. Asser Press, 2005, p. 187. coe acfc, ‘Commentary on the scope of application of the Framework Convention for the Protection of National Minorities,’ 27 May 2016, ACFC/56DOC(2016)001, available at (accessed on 1 January 2018). coe acfc, ‘Commentary on the scope of application of the Framework Convention for the Protection of National Minorities,’ 27 May 2016, ACFC/56DOC(2016)001, executive summary, available at (accessed on 1 January 2018).

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r­ equire specific preconditions (Part vii). This catalogue addresses the previously voiced concerns of vagueness and lack of consistency and creates clarity as to which articles apply to which categories of persons. All in all, the Advisory Committee’s article-by-article approach—defining the beneficiaries of the minority rights per article—should be welcomed, as it allows for some ‘basic’ provisions to have a broader list of beneficiaries than those provisions which put a considerable additional burden on a state party. In the case of a general definition of the scope of application of the fcnm, this definition would be quite restrictive, and thus the article-by-article approach allows for a broader scope of application in politically less sensitive issues. As long as the approach of the Advisory Committee is consistent, which has been the case so far and it may be expected that it will be the case in the future, especially after the adoption of the 4th thematic commentary, the credibility of the Advisory Committee will not be undermined. The article-by-article approach should also be seen in the context of the fcnm as a living instrument. If general acceptance on the scope of the notion of ‘national minority’ evolves at the international level, the Advisory Committee still has the possibility of broadening the scope of beneficiaries of certain articles. Declarations by State Parties to the fcnm Concerning the Definition of ‘National Minority’ and the Roma 2.4.1 Analysis of the Relevant Declarations When examining the declarations made by state parties on the definition of a ‘national minority,’ it stands out that most states have in fact limited the application of the fcnm to specific minority groups. Moreover, only a few states have followed the Advisory Committee’s request to reconsider the personal scope of application of the fcnm on an article-by-article basis.28 2.4

28

See the 1st cycle state comments on the AC Opinion on Germany under Article 3, due on 22 July 2002 and published on 19 July 2002: “As already expressed in its title, the objective of the Framework Convention is to protect national minorities; it is not a general human rights instrument for all groups of the population that differ from the majority population in one or several respects (ancestry, race, language, culture, homeland, origin, nationality, creed, religious or political beliefs, sexual preferences, etc.). Members of these groups are protected by the general human rights and – insofar as they are nationals – by the guaranteed civil rights. In Germany, these rights have been sufficiently established by national law and – as stated by the Committee itself in Number 10 – by the ratification of a wide range of relevant international instruments. The article-by-article approach would not just dilute the specific objective of the Framework Convention, i.e. the protection of national minorities; it would also entail the risk of creating first and second-class national minorities - that is, minorities that would benefit from the protection of all rights, and those who would be only granted selective rights.” coe, acfc, ‘Comments by the Federal

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155

As each state party can adopt its own interpretation of the term ‘national minority’ for the purpose of the personal scope of application of the fcnm, an examination of the different declarations by the state parties29 to the fcnm concerning the definition of ‘national minority’ with a focus on the question whether, according to these declarations, the Roma fall under the personal scope of application of the fcnm is necessary. As of January 2018, 39 state parties have ratified the fcnm. Out of these 39 State Parties, 17 State Parties have made declarations,30 most of them contained in the instrument of ratification.31 Two out of these 17 declarations do not concern the issue of the definition of a national minority—as is the case for the Azerbaijan and the Bulgaria declaration—and three state parties—which are Liechtenstein, Luxemburg and Malta—claim that no minorities exist on their territory.32 All other 12 declarations refer to the personal scope of application of the fcnm. From the 12 state parties formulating declarations on the scope of the beneficiaries of the fcnm, only two exclude Roma from the scope of application of the fcnm. These two state parties are Denmark, on the one hand, applying the fcnm only to the German minority in South Jutland, and the Netherlands on the other hand, applying the fcnm to the Frisians only.33

29 30

31

32

33

Republic of Germany on the Opinion of the Advisory Committee on the Implementation of the fcnm in the Federal Republic of Germany, 19 July 2002, gvt/com/inf/op /i(2002)008. Reservations or declarations upon signature, made by states which did sign but did not ratify the fcnm, were not taken into consideration. These declarations are available on line on the website of the Council of Europe Treaty Office under cets Number 157 (fcnm). The direct link is (accessed on 1 September 2015). Please note that Belgium issued a reservation accompanying the signature of the fcnm, which brings the total number of declarations and reservations to 18. The reservation was not taken into consideration as Belgium is no state party to the fcnm as it has not ratified the fcnm yet. Since there are no Roma minorities living on the territory of the state parties Liechtenstein, Luxemburg or Malta, the validity and admissibility of declarations stating the absence of national minorities here will not be examined. For more on this issue see J.A. Frowein and R. Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention,’ ZaöRV, 1999, vol. 59, no.3 , pp. 660–663. The declarations of Denmark and the Netherlands seem to have an exhaustive character. One could thus consider these declarations to be reservations, since they exclude all minorities other than the Germans in Denmark and the Frisians in the Netherlands from the scope of application of the fcnm. This might be problematic in the light of Art. 19 (c) of the Vienna Convention on the Law of Treaties.

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That leaves 10 state parties which implicitly or explicitly include Roma within the scope of application of the fcnm. First of all, Russia notes that it considers that no state is entitled to include unilaterally in reservations or declarations a definition of the term ‘national minority.’ One can derive from this statement that Russia does not intend to exclude the Roma from the scope of application of the fcnm. Out of these 10 state parties, which implicitly or explicitly include Roma into the scope of application of the fcnm, 6 refer to the criterion of citizenship34 when mentioning the Roma as a beneficiary of the fcnm. This means, that Roma without citizenship residing on their territory, do not fall under the scope of application of the fcnm. The only state parties where the fcnm applies to Roma without them having to fulfil the citizenship criterion are Latvia,35 Slovenia and Sweden. Please note also that Slovenia and Sweden explicitly refer to Roma as beneficiaries of the fcnm, but Slovenia does not consider Roma to be a ‘national minority’ whereas Sweden does. Indeed, the declarations of both Germany and Slovenia deserve some special attention. These two state parties explicitly state that they do not consider the Roma to be a ‘national minority’ but at the same time they stress that Roma (or ‘Sinti and Roma’ in the German declaration) should enjoy the rights prescribed in the fcnm. The difference between the German and the Slovene declaration lies in the fact that Germany refers to ‘Sinti and Roma of German citizenship,’ whereas Slovenia does not formulate a citizenship requirement. The German Land of Schleswig-Holstein on 14 November 2012 inserted a reference to Sinti and Roma into the Landesverfassung. The decision was justified by the fact that the Sinti and Roma have resided for over 6 centuries in the Land Schleswig-Holstein and form an equal part of its population, together

34 35

These 6 countries referring to the criterion of citizenship are Poland, Germany, Estonia, Austria, Switzerland and fyrom. The Republic of Latvia first states in its declaration that the notion of ‘national minority’ applies to citizens, but then foresees an exception when it states that: “Persons who are not citizens of Latvia or another State but who permanently and legally reside in the Republic of Latvia, who do not belong to a national minority within the meaning of the Framework Convention for the Protection of National Minorities as defined in this declaration, but who identify themselves with a national minority that meets the definition contained in this declaration, shall enjoy the rights prescribed in the Framework Convention, unless specific exceptions are prescribed by law.” Since there are no specific legal provisions excluding Roma who are non-citizens from the enjoyment of the rights prescribed in the fcnm, one can presume that Roma who are non-citizens fall under the above mentioned exception and that thus the fcnm applies to them in the Republic of Latvia.

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with the Danish and the Frisians.36 The newly inserted Art. 5 (2) Landesverfassung reads as follows: “Die nationale dänische Minderheit, die Minderheit der deutschen Sinti und Roma und die friesische Volksgruppe haben Anspruch auf Schutz und Förderung.”37 The reference to ‘German’ Sinti and Roma implies that the protection foreseen in the new Article 5 (2) is only granted to Sinti and Roma with German citizenship, and not to non-citizens. Schleswig-Holstein is the first Bundesland to insert such a reference in its Landesverfassung.38 The estimated number of Sinti and Roma in Schleswig-Holstein is about 5,000,39 which is not an outstanding number compared to the estimated total number of 70,00040 (covering the whole German territory of 16 Länder). Reference should be made also to the absence of the concept of ‘national minority’ under Spanish and Portuguese law. The Spanish Constitution does not formally recognize or define national or ethnic minorities.41 The same goes for Portugal: the concept of ‘national minority’ is not known in the Portuguese 36

Landesregierung Schleswig-Holstein, ‘Schutz von Sinti und Roma in der Landesverfassung,’ 14 November 2012, accessible at (accessed on 4 April 2013). Note that the recognition of the Danish and the North Frisian minorities had already been approved in 1990. This has resulted in a number of specific statutes provisioning the protection of the culture, language and educational rights of these minorities. ecmi, ‘Schleswig-Holstein gives constitutional recognition to Roma and Sinti,’ 15 N ­ ovember 2012, available at (accessed on 4 April 2013). 37 The national Danish minority, the minority of German Sinti and Roma, and the Frisians are entitled to protection and support. (translation by the author) For other English ­translations see the website of the European Centre for Minority Issues, ecmi, ‘Schleswig-Holstein gives constitutional recognition to Roma and Sinti,’ 15 November 2012, available at (accessed on 4 April 2013). 38 The Landesverfassungen of Brandenburg, Mecklenburg-Vorpommern and Sachsen do contain articles regarding the protection of minorities, but none of them contains a reference to the Roma. See ecmi, ‘Stellungnahme zur Entwurf eines Gesetzes zur Änderung der Verfassung des Landes Schleswig-Holstein – Drucksache 17/269,’ Flensburg, 28 Mai 2010, available at (accessed on 4 April 2013). 39 Landesregierung Schleswig-Holstein, ‘Schutz von Sinti und Roma in der Landesverfassung,’ 14 November 2012, accessible at (accessed on 4 April 2013). 40 coe, Report submitted by Germany pursuant to Article 25, paragraph 1 of the Framework Convention for the Protection of National Minorities, 24 February 2000, acfc/sr(2000)001, p. 9. 41 coe, Report submitted by Spain pursuant to Article 25, paragraph 1 of the Framework Convention for the Protection of National Minorities, 19 December 2000, acfc/sr(2000)005, p. 4.

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legal system. In spite of the absence of legal recognition of the concept of national minority, “several laws do refer to de facto social minorities such as ethnic ones (…) or religious minorities (…)”42 and it can be said that both in Spain and Portugal there is some kind of minority protection mechanism in place. As to the respective reporting obligations by Spain and Portugal, it should be noted that Spain only reports on the situation of the Roma minority, as in the absence from the Framework Convention of a definition of the term “National Minority”, its scope of application is defined by the Parties. For these purposes, as indicated in the Opinion, Spain limited its State Report, tabled in December 2000, to the Roma community because, although not constituting a “national minority”, it is the only one which may in any way be integrated into the spirit of the Framework Convention.43 Portugal stresses in its comments on the first state report, that it “does not recognize the existence of national minorities in its territory, recognizing only one ethnic community, the Roma community.”44 However, in spite of the absence of a national minority definition in Portuguese law, Portugal, in the frame of its reporting obligation under the fcnm, does provide extensive information on various ethnic and cultural groups living in Portugal and designated in the State Report as “ethnic,” “linguistic” or “cultural minorities,” such as the Roma minority, the Mirandese-speaking community, and groups resulting from immigration in Portugal.45 In its Opinion on Portugal, the Advisory Committee has stressed that the application of the fcnm does not require the formal recognition or use of the term “national minority” in the domestic legal order, as the Framework Convention.

42 43

44 45

coe, Report submitted by Portugal pursuant to Article 25, paragraph 1 of the Framework Convention for the Protection of National Minorities, 23 December 2004, acfc/sr(2004)002, p. 3. coe acfc, ‘Comments of the government of Spain on the Opinion of the Advisory Committee on the implementation of the Framework Convention for the Protection of ­National Minorities in Spain,’ 30 September 2004, gvt/com/inf/op/i(2004)004, p. 1 at para. 1. coe acfc, ‘Comments of the government of Portugal on the Opinion of the Advisory Committee on the implementation of the Framework Convention for the Protection of National Minorities in Portugal,’ 5 September 2007, gvt/com/i(2007)001, p. 1. coe acfc, ‘Opinion on Portugal,’ 5 September 2007, acfc/op/i(2006)002, p. 8.

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was in fact conceived as a pragmatic tool, to be implemented in very diverse legal, political and practical situations. The Advisory Committee therefore believes that the non-recognition of the concept of national minorities should not prevent the Portuguese authorities from considering extending the protection of the Framework Convention to persons belonging to ethnic, linguistic and cultural minorities in Portugal. The Advisory Committee also considers that it is its duty to examine, in the light of the Framework Convention, the existing policies and measures designed to improve the situation of the ethnic, linguistic and cultural minorities living in Portugal.46

46 Ibid.

The Republic of Austria declares that, for itself, the term ‘national minorities’ within the meaning of the Yes if Framework Convention for the Protection of National Minorities is understood to designate those groups citizenship which come within the scope of application of the Law on Ethnic Groups (Volksgruppengesetz, Federal Law Gazette No. 396/1976) and which live and traditionally have had their home in parts of the territory of the Republic of Austria and which are composed of Austrian citizens with non-German mother tongues and with their own ethnic cultures. Par. 1 (2) of the Law on Ethnic Groups stipulates: Volksgruppen im Sinne dieses Bundesgesetzes sind die in Teilen des Bundesgebietes wohnhaften und beheimateten Gruppen österreichischer Staatsbürger mit nichtdeutscher Muttersprache und eigenem Volkstum. (Volksgruppen for the purpose of this Federal Act are those groups of traditionally resident Austrian citizens of non-German mother tongue and their own ethnic cultures. [Translated by the author].) Since 2000, so called ‘Volksgruppenbeiräte’ were created for Croats, Slovenes, Hungarians, Czechs, Slovaks and the Roma. No reference to a definition of “national minority” in the declaration. None

Austria

Azerbaijan Bosnia and Herzegovina

None None

Roma

Albania Armenia

Declarations on the definition of ‘national minority’

Table containing an overview of all declarations on the notion of ‘national minority’ with an indication whether Roma (non-citizens or citizens) fall under the scope of application of the fcnm

(39 ratifications)

State Party

Table 1

160 Chapter 5

Hungary Ireland

Finland Germany

Estonia

Bulgaria Croatia Cyprus Czech Republic Denmark

No reference to a definition of “national minority” in the declaration. None None None In connection with the deposit of the instrument of ratification by Denmark of the Framework Convention for the Protection of National Minorities, it is hereby declared that the Framework Convention shall apply to the German minority in South Jutland of the Kingdom of Denmark. The Republic of Estonia understands the term “national minorities,” which is not defined in the Framework Convention for the Protection of National Minorities, as follows: are considered as “national minority” those citizens of Estonia who: – reside in the territory of Estonia; – maintain longstanding, firm and lasting ties with Estonia; – are distinct from Estonians on the basis of their ethnic, cultural, religious or linguistic characteristics; – are motivated by a concern to preserve together their cultural traditions, their religion or their language, which constitute the basis of their common identity. None The Framework Convention contains no definition of the notion of national minorities. It is therefore up to the individual Contracting Parties to determine the groups to which it shall apply after ratification. National Minorities in the Federal Republic of Germany are the Danes of German citizenship and the members of the Sorbian people with German citizenship. The Framework Convention will also be applied to members of the ethnic groups traditionally resident in Germany, the Frisians of German citizenship and the Sinti and Roma of German citizenship. None None Yes if citizenship

Yes if citizenship

No

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161

Lithuania

Liechtenstein

Italy Latvia

Roma

None The Republic of Latvia […] declares that the notion ‘national minorities’ which has not been defined in the Yes Framework Convention for the Protection of National Minorities, shall, in the meaning of the Framework Convention, apply to citizens of Latvia who differ from Latvians in terms of their culture, religion or language, who have traditionally lived in Latvia for generations and consider themselves to belong to the state and society of Latvia, who wish to preserve and develop their culture, religion or language. Persons who are not citizens of Latvia or another state but who permanently and legally reside in the ­Republic of Latvia, who do not belong to a national minority within the meaning of the Framework Convention for the Protection of National Minorities as defined in this declaration, but who identify themselves with a national minority that meets the definition contained in this declaration, shall enjoy the rights prescribed in the Framework Convention, unless specific exceptions are prescribed by law. The Principality of Liechtenstein declares that Articles 24 and 25, in particular, of the Framework Convention No for the Protection of National Minorities of 1 February 1995 are to be understood having regard to the fact that minorities no national minorities in the sense of the Framework Convention exist in the territory of the Principality of Liechtenstein. The Principality of Liechtenstein considers its ratification of the Framework Convention as an act of ­solidarity in the view of the objectives of the Convention. None

Declarations on the definition of ‘national minority’

Table containing an overview of all declarations on the notion of ‘national minority’ with an indication whether Roma (non-citizens or citizens) fall under the scope of application of the fcnm (cont.)

(39 ratifications)

State Party

Table 1

162 Chapter 5

Portugal Romania

Moldova Montenegro Netherlands Norway Poland

Malta

Luxembourg

The Grand Duchy of Luxembourg understands by ‘national minority’ in the meaning of the Framework ­Convention, a group of people settled for numerous generations on its territory, having the Luxembourg ­nationality and having kept distinctive characteristics in an ethnic and linguistic way. On the basis of this definition, the Grand Duchy of Luxembourg is induced to establish that there is no ‘national minority’ on its territory. The Government of Malta declares that Articles 24 and 25, in particular, of the Framework Convention for the Protection of National Minorities of 1 February 1995 are to be understood having regard to the fact that no national minorities in the sense of the Framework Convention exist in the territory of the Government of Malta. The Government of Malta considers its ratification of the Framework Convention as an act of solidarity in the view of the objectives of the Convention None None The Kingdom of the Netherlands will apply the Framework Convention to the Frisians. None Taking into consideration the fact, that the Framework Convention for the Protection of National Minorities contains no definition of the national minorities notion, the Republic of Poland declares that it understands this term as national minorities residing within the territory of the Republic of Poland at the same time whose members are Polish citizens. None None Yes if citizenship

No

No minorities

No minorities

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The Russian Federation considers that no one is entitled to include unilaterally in reservations or declarations, made while signing or ratifying the Framework Convention for the Protection of National Minorities, a definition of the term ‘national minority’ which is not contained in the Framework Convention. In the opinion of the Russian Federation, attempts to exclude from the scope of the Framework Convention those persons who permanently reside in the territory of states parties to the Framework Convention and who previously had a citizenship but have been arbitrarily deprived of it, contradict the purpose of the Framework Convention for the Protection of National Minorities. San Marino None Serbia None Slovak Republic None Slovenia Considering that the Framework Convention for the Protection of National Minorities does not contain a definition of the notion of national minorities and it is therefore up to the individual Contracting Party to determine the groups which it shall consider as national minorities, the Government of the Republic of Slovenia, in accordance with the Constitution and internal legislation of the Republic of Slovenia, declares that these are the autochthonous Italian and Hungarian national minorities. In accordance with the Constitution and internal legislation of the Republic of Slovenia, the provisions of the Framework Convention shall apply also to the members of the Roma community who live in the Republic of Slovenia. Spain None Sweden The national minorities in Sweden are the Sami, Swedish Finns, Tornedalers, Roma and Jews.

Russian Federation

Declarations on the definition of ‘national minority’

Yes

Yes

Yes

Roma

Table containing an overview of all declarations on the notion of ‘national minority’ with an indication whether Roma (non-citizens or citizens) fall under the scope of application of the fcnm (cont.)

(39 ratifications)

State Party

Table 1

164 Chapter 5

Switzerland declares that in Switzerland national minorities in the sense of the framework Convention are groups of individuals numerically inferior to the rest of the population of the country or of a canton, whose members are Swiss nationals, have long-standing, firm and lasting ties with Switzerland and are guided by the will to safeguard together what constitutes their common identity, in particular their culture, their traditions, their religion or their language. “The former Yu- The term ‘national minorities’ used in the Framework Convention and the provisions of the same Congoslav Republic vention shall be applied to the citizens of the Republic of Macedonia who live within its borders and who of Macedonia” are part of the Albanian people, Turkish people, Vlach people, Serbian people, Roma people and Bosniac people. Ukraine None United Kingdom None

Switzerland

Yes if citizenship

Yes if citizenship

The Roma as a National Minority

165

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2.4.2

Admissibility and Validity of Declarations: On the Competence of the Advisory Committee to Examine the Compatibility of Declarations with the fcnm Scholars such as Jochen Frowein and Roland Bank47 have stressed that the question as to whether the Advisory Committee is bound by declarations given upon signature or ratification by governments depends on the legal nature of the declaration under examination. In the case a declaration can be identified as a valid reservation, the Advisory Committee is bound by it and must respect it,48 whereas it is not bound by a mere declaration. Rainer Hofmann49 underlines that the Advisory Committee has established a clear practice as regards the legal effect of declarations given upon signature or ratification by governments. It does not consider itself bound by such declarations but rather perceives them as the outcome of an examination by the respective government as to the personal scope of application of the fcnm in the state party concerned. The position thus taken by the government is, however, subject to the monitoring of the Advisory Committee applying both principles of international law and the fundamental principles of Art. 3 of the fcnm.50 This means, according to Hofmann, that the domestic application of the Framework Convention must not result in arbitrary or unjustified distinctions.51 47 48

49

50

51

J.A. Frowein and R. Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention,’ ZaöRV, vol. 59, 1999, p. 653. The case of declarations disguised as reservations excluding the Roma from the scope of application of the fcnm will be discussed below under 2.3.4 On the Admissibility and Validity of those Declarations Excluding the Roma from the Scope of Application of the fcnm. R. Hofmann, ‘Declarations to the Council of Europe Framework Convention for the Protection of National Minorities,’ in I. Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Conflict, Harmony or Reconciliation, Leiden/Boston: Martinus Nijhoff Publishers, 2004, p. 141. This Article reads as follows: “Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice. Persons belonging to national minorities may exercise the rights and enjoy the freedoms flowing from the principles enshrined in the present framework Convention individually as well as in community with others.” R. Hofmann, ‘Declarations to the Council of Europe Framework Convention for the Protection of National Minorities,’ in I. Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Conflict, Harmony or Reconciliation, Leiden/Boston: Martinus Nijhoff Publishers, 2004, p. 141. For a concrete example, see the statements made by the acfc in its Opinion on Portugal, coe acfc, ‘Opinion on Portugal,’ 5 September 2007, acfc/op/i(2006)002, p. 7, where the AC considers that “ it is part of its duty to ­examine the personal scope given to the implementation of the Framework Convention

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It must be emphasized that the Advisory Committee considers itself to have the competence to examine declarations on the personal scope of application of the Framework Convention as to their compatibility with the Framework Convention. It is interesting to note here that, so far, no government has challenged the competence of the Advisory Committee to examine the position of a government concerning the personal scope of the application of the Framework Convention as to the compatibility of the principles set out therein. The same position is taken by governments as regards to calls by the Advisory Committee to discuss—through dialogue with those concerned—the application of the Framework Convention, on an article-by-article basis, also to other groups. Hofmann52 underlines that governments did dispute the appropriateness or correctness of this article-by-article approach, but they do not challenge the competence of the Advisory Committee to examine the scope of application given to the Framework Convention by the governments of the state parties.53 Important to underline here is the fact that the Committee of Ministers, when recommending governments to take appropriate note of the various comments contained in the Advisory Committee’s opinions, implicitly recognizes the competence of the Advisory Committee to examine the positions taken by governments on the personal scope of application of the Framework Convention.54 The newly adopted 4th Thematic Commentary on the scope of application of the Framework Convention, which continues and consolidates the approach taken by the Advisory Committee since 1998 brings additional legal clarity on issues surrounding the scope of application of the Framework Convention,

52

53

54

in order to verify that no arbitrary or unjustified distinctions have been made. Furthermore, it considers that it must verify the proper application of the fundamental principles set out in Article 3 of the Framework Convention.” R. Hofmann, ‘Declarations to the Council of Europe Framework Convention for the Protection of National Minorities,’ in I. Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Conflict, Harmony or Reconciliation, Leiden/Boston: Martinus Nijhoff Publishers, 2004, pp. 143–144. See e.g., the comments of the German government of 19 July 2002 which vigorously defend the German position to apply the Framework Convention only to Danes, Sorbs, Frisians and Sinti and Roma of German citizenship, but do not challenge the right of the Advisory Committee to examine this position, as referred to by Rainer Hofmann in R. Hofmann, ‘Declarations to the Council of Europe Framework Convention for the Protection of National Minorities,’ in I. Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Conflict, Harmony or Reconciliation, Leiden/Boston: Martinus Nijhoff Publishers, 2004, p. 144 in footnote 381. Ibid., p. 145.

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which remain for states parties among the least understood in practice and may therefore occasionally be a source of tensions.55 2.4.3

On the Admissibility and Validity of those Declarations Excluding the Roma from the Scope of Application of the fcnm At this point the admissibility and validity of those declarations excluding the Roma from the scope of application of the fcnm is examined. As stated above,56 there are two state parties which exclude the Roma from the scope of application of the fcnm, namely Denmark and the Netherlands. 2.4.3.1 Interpretative Declarations or Reservations? Questions as to the admissibility and validity of the declarations excluding the Roma from the scope of application of the fcnm arise here. As underlined by Frowein and Bank, the regime for admissibility and validity of [these] declarations depends on the question whether they must be interpreted as reservations or interpretative declarations which do not modify the legal effect of a treaty for the State Party. This distinction also seems to be crucial for the work of the [Advisory Committee, since the Advisory Committee] must strictly respect valid reservations declared by a member state whereas ­interpretative declarations may be taken into account when pondering on questions of interpretation without binding the monitoring bodies in any respect.57 Indeed, in case a declaration should be regarded as a disguised reservation, this would call into question its compatibility with the object and purpose of the Framework Convention if it were to exclude from the personal scope of application of the fcnm members of a group which is generally recognized as a national minority.58 55 See coe acfc, 9th Activity Report, covering the period 1 June 2012–31 May 2014, September 2014, pp. 27–28, available at (accessed on 1 September 2015). See above Chapter 4 under 2.3.2 Article-by-Article Approach v. Thematic Approach. 56 See above at 2.4.1 Analysis of the Relevant Declarations. 57 J.A. Frowein and R. Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention,’ ZaöRV, 1999, vol. 59, no. 3, p. 653. 58 R. Hofmann, ‘Declarations to the Council of Europe Framework Convention for the Protection of National Minorities,’ in I. Ziemele (ed.), Reservations to Human Rights Treaties

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The Vienna Convention on the Law of Treaties59 gives guidance on the meaning of a reservation. Article 2 (1) (d) of the Vienna Convention on the Law of Treaties defines a reservation as follows: “reservation” means a unilateral statement, however phrased or named, made by a State, when signing, ratifying, accepting, approving or acceding to a treaty, whereby it purports to exclude or to modify the legal effect of certain provisions of the treaty in their application to that State. From this definition can be deferred that whether a statement is called ‘reservation’ or ‘declaration’ is irrelevant for the legal nature of the statement. A  ­so-called declaration can constitute a reservation when fulfilling the preconditions of Art. 2 (1) (d) of the Vienna Convention on the Law of Treaties.60 For Frowein and Bank, the decisive factor to differentiate between nonbinding declarations and binding reservations is to be found in subjective ­criteria, this being the exclusion or modification of the legal effect of certain provisions to the subjective intention of the state party. This subjective intention can be derived from the wording of Art. 2 (1) (d) of the Vienna Convention on the Law of Treaties in that this article refers to the notion purport.

59 60

and the Vienna Convention Regime, Conflict, Harmony or Reconciliation, Leiden/Boston: Martinus Nijhoff Publishers, 2004, p. 137. Vienna Convention on the Law of Treaties, concluded 23 May 1969, entered into force 27 January 1980, 1155 unts, p. 331. More on reservations in international law see: K. Holloway, Les réserves dans les traités internationaux, Paris: Librairie générale de droit et de jurisprudence, 1958; R. Szafarz, Zastrzeżenia do traktatów wielostronnych, Warszawa: Polska Akademia Nauk, 1974; R. Kühner, Vorbehalte zu multilateralen völkerrechtlichen Verträgen, Berlin/Heidelberg: SpringerVerlag, 1986; F. Horn, Reservations and interpretative declarations to multilateral treaties, Amsterdam/New York/Oxford/Tokyo: North Holland, 1988; L. Lijnzaad, Reservations to UN – human rights treaties: ratify and ruin?, Dordrecht: Martinus Nijhoff Publishers, 1995; R. Riquelme Cortado, Las reservas a los tratados: lagunas y ambigüedades del régimen de Viena, Murcia: Editum 2004; R. Bernhardt, ‘Vorbehalte bei völkerrechtlichen Verpflichtungenserklärungen und die gerichtliche Kontrolle derartiger Vorbehalte,’ in N. Ando, E. McWhinney, R. Wolfrum (eds.), Liber Amicorum Judge Shigeru Oda, The Hague: Kluwer Law International, 2002, pp. 369–382; Th. Giegerich, ‘Vorbehalte zu Menschenrechtsabkommen: Zulässigkeit, Gültigkeit und Prüfungskompetenzen von Vertragsgremien ein konstitutioneller Ansatz,’ ZaöRV, 1955, vol. 55, pp. 713–782; J. A. Frowein, Reservations to the European Convention on Human Rights, in F. Matscher (ed.), Protecting human rights: the European dimension. Studies in honour of Gérard J. Wiarda, Köln: Heymanns, 1988, p. 193; J. A. Frowein, Reservations and the international ordre public, in J. Makarczyk (ed.), Theory of international law at the threshold of the 21st century - essays in honour of Krzysztof Skubiszewski, The Hague: Springer, 1996, pp. 403–412.

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In the cases of the Danish and the Dutch declarations, where only one specific group is mentioned to which the fcnm is declared applicable, it is clear that these two state parties did not only intend to clarify to which groups national efforts for implementing the fcnm shall apply. The nature of the Danish and Dutch declarations is clearly exclusive and therefore they do not constitute ‘interpretive declarations’ but should be considered to be ‘reservations.’ 2.4.3.2 Reservations are Allowed if Permitted by International Law In the Explanatory Report to the fcnm, it is underscored that “reservations are allowed in as far as they are permitted by international law.”61 The most important condition for the admissibility of reservations is stated in Art. 19 (c) of the Vienna Convention on the Law of Treaties, which stipulates the following: Reservations are only admissible in so far as they are compatible with the object and purpose of the respective convention. Frowein and Bank underline the problematic character of the issue how to determine whether a certain minority, such as the Roma, has been arbitrarily excluded, given the absence of criteria in the fcnm for establishing what constitutes a national minority.62 In view of the absence of the term ‘national minority’ in the fcnm, a reservation can said to be inadmissible in cases where the groups excluded are beyond doubt to be considered a national minority. In order to determine whether the excluded group constitutes a national minority, one should rely on Art. 5 fcnm, indicating that a national minority is constituted by members with a common identity based on religion, language or culture and a common will to maintain this identity. Another point of reference can be Art. 1 of the Draft Additional Protocol to the European Convention of Human Rights as adopted by the Parliamentary Assembly of the Council of Europe.63 This article reads as follows:

61 62 63

Explanatory Report to the fcnm, 1995, Council of Europe, Doc. No H (95) 10, para. 98. J.A. Frowein and R. Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention,’ ZaöRV, 1999, vol. 59, no. 3, p. 665. Text of the proposal for an additional protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms, concerning persons belonging to national minorities, Parliamentary Assembly of the Council of Europe, Recommendation 1201 (1993). Please note that one of the reasons why the Additional Protocol on the rights of national minorities has not been adopted, was that there was no agreement on the definition of a national minority as formulated in the article quoted above.

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For the purposes of this Convention, the expression “national minority” refers to a group of persons in a state who: a) reside on the territory of that state and are citizens thereof ; b) maintain longstanding, firm and lasting ties with that state ; c) display distinctive ethnic, cultural, religious or linguistic characteristics ; d) are sufficiently representative, although smaller in number than the rest of the population of that state or of a region of that state ; e) are motivated by a concern to preserve together that which constitutes their common identity, including their culture, their traditions, their religion or their language. This Draft Additional Protocol to the echr was never adopted, and can only be referred to as a point of reference, as it never became legally binding. 2.4.3.3

The Roma, a National Minority ‘beyond doubt’ in Denmark and the Netherlands? Both in the Netherlands and Denmark, the Roma are historically present and maintain longstanding, firm and lasting ties with the state. They clearly display distinctive ethnic characteristics and are sufficiently representative. Moreover, they are motivated to preserve their identity, culture, traditions and language. In the Netherlands, no official data on the size of the Roma population is available. According to José Aarts and Miriam Schwedt,64 two researchers ­working for the ngo Humanity in Action, there are approximately 40,000 caravan dwellers in the Netherlands. Of these people, 5,300 belong to the groups previously classified as ‘zigeuner,’ of which the majority is Sinti. Although many are descendants from families who have been in the Netherlands for generations, about an estimated 1000 people are immigrants from the former Yugoslavia, who arrived during the guest worker initiatives of the 1960s and 1970s. It was also in the 1970s that the ‘zigeuner’ organized themselves into a social movement and began to use the terms ‘Roma’ and ‘Sinti.’ Towards the end of the 1970s, the Foreign Gypsy Integration Project offered permanent residence and Dutch citizenship to Roma and Sinti guest workers, provided they

64

J. Aarts and M. Schwedt, ‘Strangers in a Strange Land: Roma and Sinti in the Netherlands,’ Humanity in Action, s.d., published on-line at (accessed on 1 September 2015).

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agreed to disperse themselves throughout the 12 provinces and agree to live in houses.65 Thus, those Sinti and Roma who have been historically present in the Netherlands—as mentioned in the first chapter, the presence of the Roma in Europe goes back to migrations from India with probable arrivals in the Netherlands towards the 16th century—and who have Dutch citizenship can considered to be a ‘national minority’ as they also fulfil all the other above mentioned criteria. As to the immigrants from the former Yugoslavia who arrived in the 1960s and the 1970s, even though most of their families have in the meantime acquired Dutch citizenship, one could argue that they do not maintain firm and long-lasting ties with the Dutch state and therefore should not be considered a ‘national minority.’ Neither can new Roma immigrants from Romania or Bulgaria be considered a national minority. In the latter case, this is a lot clearer, as they neither have citizenship nor any ties with the Dutch state. In Denmark—as in the Netherlands and in most other European states—no official statistical data on the Roma is available. Various sources state that the official number of Roma living in Denmark is between 1,500 and 2,000, but this figure does not necessarily reflect reality.66 The Ministry of Refugees, Immigration and Integration estimates that the majority of Roma in Denmark immigrated during the last century, largely as a consequence of the conflict in the former Yugoslavia.67 However, not all Roma in Denmark are migrants who have entered Denmark during the last century, but a certain number of them descend from Roma who migrated to Denmark from India during the middle Ages. Danish historians such as Ole Hǿiris mention the year 1554 as a reference year.68 As their exact number is unclear, it is difficult to evaluate whether they are ‘sufficiently representative.’ Moreover, there are no guidelines as to what 65 Ibid. 66 This figure is often cited but without proper reference. It is unclear where it actually derives from, but one possible source is a report made by the Committee on Legal Affairs and Human Rights with the title ‘Legal Situation of Roma in Europe’ of 2002. The report is based on a questionnaire survey to all Danish municipalities and shows the official number of Roma in Denmark to be 1750. Comment cited in the Raxen report of March 2009: European Fundamental Rights Agency, Denmark Raxen National Focal Point, ‘Housing Conditions of Roma and Travellers,’ March 2009, p. 17 footnote 44 available at ­(accessed on 1 September 2015). 67 European Fundamental Rights Agency, Denmark Raxen National Focal Point, ‘Housing Conditions of Roma and Travellers,’ March 2009, p. 17 and footnote 43 available at (accessed 1 September 2015). 68 O. Høiris, Fremmede i Danmark. Horsens: Åløkke, 1983. See also the website of romnet.dk, the Danish website on the Roma in Denmark at (accessed on 27 October 2011).

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­ umber is considered to be ‘sufficiently representative.’ It is thus difficult to n judge whether the Roma, even those historically present since 1554, can be considered a ‘national minority’ as no reliable numbers are available. However, as long as the numbers are unclear and no further research has been done on the matter, the Roma cannot be excluded a priori from the personal scope of application of the Framework Convention. In any case, in the Netherlands, where the number of Roma whose ancestors emigrated from India and arrived in the Netherlands in the course of the 16th century is rather substantial, one can say that these Roma clearly and ‘beyond doubt’ constitute a national minority. If this is so, one can argue that the Roma have been arbitrarily excluded from the personal scope of application of the fcnm in the Netherlands—and possibly also in Denmark, depending on their number. It follows from what has been described above, that the Dutch declaration is arbitrarily excluding Roma from the scope of application of the fcnm, and is incompatible with the object and purpose of the fcnm. 2.4.4

On the Position Adopted by the Advisory Committee to the fcnm and on the Effect of the Incompatibility of Reservations Excluding the Roma from the Personal Scope of Application of the fcnm with the Object and Purpose of the fcnm 2.4.4.1 Inadmissible Reservations are Null and Void It should be consequently examined what the legal consequences are of the incompatibility with the object and purpose of the fcnm of a reservation excluding the Roma from the scope of application of the fcnm. First of all, it should be stressed that the Vienna Convention itself is silent on the legal consequences of an inadmissible reservation. It is therefore not clear whether the inadmissibility of a reservation jeopardizes the ratification of a convention, or whether the ratification remains valid. The Advisory Committee has taken that stance that, in the case of an inadmissible reservation, the ratification of the fcnm remains valid and the ­inadmissible reservation is to be considered null and void.69 To defend this position, it has referred to the standing case law of the European Court of ­Human Rights, notably the case of Belilos v. Switzerland.70 The Court held in Belilos that an interpretative declaration made by Switzerland in its instrument of ratification by which it became bound by the Convention for the Protection of Human 69

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Arguments in favour of this reasoning can be found in J.A. Frowein and R. Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention,’ ZaöRV, 1999, vol. 59, no. 3, p. 672. Belilos v. Switzerland, App. No 10328/83, Judgment 29.04.1988.

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Rights and Fundamental Freedoms was legally equivalent to a reservation. It further held that it was invalid under the rules on reservations of the European Convention. While reservations to treaties had frequently been challenged by individual states, this was the first time ever that an international tribunal had made a decision that a reservation to a treaty was invalid. Further, the Court made that decision notwithstanding the fact that no nation-state party to the European Convention had objected to or otherwise challenged the Swiss declaration. The Court went on to hold that the declaration should be severed from Switzerland’s consent to be bound, resulting in Switzerland being bound by the European Convention as though the statement had never been made. Hereby the question remains who has the authority to determine the validity or invalidity of a reservation. Frowein and Bank argue here that the treaty bodies, composed of independent experts must have the power to express an opinion on the validity of reservations. […] Having regard to its character as an expert committee, [the Advisory Committee] may express its opinion and advise the Committee of Ministers also on questions pertaining to the validity of reservations. […] Otherwise it could not properly fulfil its advisory functions towards the Committee of Ministers.71 Indeed it seems, resulting from among others the remarks of the Advisory Committee in its Opinion on Denmark and the Netherlands that the Advisory Committee considers that it is part of its duty to examine the personal scope given to the implementation of the Framework Convention in order to verify that no arbitrary or unjustified distinctions have been made. Furthermore, it considers that it must verify the proper application of the fundamental principles set out in Art. 3 fcnm.72

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J.A. Frowein and R. Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention,’ ZaöRV, 1999, vol. 59, no. 3, pp. 673–675.See also R. Hofmann, ‘Declarations to the Council of Europe Framework Convention for the Protection of National Minorities,’ in I. Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Conflict, Harmony or Reconciliation, Leiden/Boston: Martinus Nijhoff Publishers, 2004, p. 136 where Hofmann remarks that “the Advisory Committee […] considers itself to be legally entitled to monitor that such declarations do not lead to results which would be incompatible with the Framework Convention.” Advisory Committee to the fcnm, Opinion on Denmark, adopted on 22 September 2000, acfc/opi(2001)005, par. 15.

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2.4.4.2 The Analysis by the Advisory Committee of the Danish Declaration The Advisory Committee noted in its first Opinion on Denmark that whereas the state parties have a margin of appreciation when it comes to defining the personal scope of application of the fcnm in order to take the specific circumstances prevailing in their country into account, this margin of appreciation must be exercised in accordance with general principles of international law and the fundamental principles set out in Art. 3 fcnm. In particular it stressed that the implementation of the Framework Convention should not be a source of arbitrary or unjustified distinctions.73 As stated above, given the historic presence of the Roma in Denmark, persons belonging to the Roma community cannot a priori be excluded from the personal scope of application of the Framework Convention, which makes a reservation excluding the Roma from the personal scope of application null and void because of being not compatible with the object and purpose of the convention, as stated in Art. 19 (c) of the Vienna Convention on the Law of Treaties. In the Executive Summary of the first Opinion on Denmark, the Advisory Committee clearly refers to the incompatibility74 of the Danish reservation with the fcnm. The relevant paragraph reads as follows: […] Despite the historic presence of Roma in Denmark, they appear to have been a priori excluded from the protection of the Convention. This approach is not compatible with the Framework Convention. […] The Advisory Committee therefore considers that the Danish Government should, in consultation with those concerned, examine the application of the Framework Convention.75 The Committee of Ministers in its turn, in its Resolution on the implementation of the fcnm by Denmark adopted on 31 October 2001, limited itself to declaring that “the personal scope of application of the Framework ­Convention 73 74

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Advisory Committee to the fcnm, Opinion on Denmark, adopted on 22 September 2000, acfc/opi(2001)005, par. 14. For another example of an opinion where the Advisory Committee stated that the position taken by the government was not compatible with the fcnm since it excluded a priori certain groups from the application ratione personae of the fcnm, see para. 22 of the opinion on Albania (as concerns the Egyptians). See also Rainer Hofmann, ‘Declarations to the Council of Europe Framework Convention for the Protection of National Minorities,’ in I. Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Conflict, Harmony or Reconciliation, Leiden/Boston: Martinus Nijhoff Publishers, 2004, p. 140. Advisory Committee to the fcnm, First Opinion on the implementation of the fcnm by Denmark, adopted on 22 September 2000, acfc/opi(2001)005, executive summary.

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merits further consideration by the Government of Denmark with those concerned.”76 The Danish Government, in its second State Report, replied that the Roma living in Denmark today have no historical or long-term and unbroken association with Denmark, but consist partly of immigrants and partly of refugees. Thus, in the opinion of the Danish Government, the Roma do not constitute a national minority in Denmark.77 On 30 January 2004, a meeting was held between the Danish Roma association Romano and representatives of the Ministry of the Interior and Health, the Ministry for Refugees, Immigration and Integration Affairs and the Ministry of Foreign Affairs. The object of the meeting was to discuss the possibilities of recognizing (some of the) Roma in Denmark as a national minority within the meaning of the fcnm. At the meeting, Romano had an opportunity to express the opinions of the association. At the same time, the ministerial ­representatives gave an account of the Danish Government’s opinion. Unfortunately, the meeting did not lead to the broadening of the scope of application of the fcnm by the Danish Government. Even though the Danish Government was and still is of the fundamental opinion that the obligations under international law which Denmark has assumed according to the Framework Convention solely relate to the German minority in South Jutland and have no wider application, it did answer in its second State Report to the question of the Advisory Committee to provide ­information on the recent policy and practice concerning schooling for Roma in Denmark. The Advisory Committee took this occasion to make several remarks on the educational situation of Roma in its Second Opinion on Denmark. Even though the Advisory Committee could not convince the Danish Government to broadening the scope of application of the fcnm to include the Roma, it did succeed in having Denmark report on the educational situation of the Roma in certain municipalities in Denmark. The fact that the Danish Government cooperated on this level, might have led the Advisory Committee—instead of questioning the validity of the Danish reservation according to international law —to limit itself to urge the Danish government to continue their dialogue on the possible extension of the scope of application. Paras 15 and 16 of the Second Advisory Committee Opinion on Denmark read as follows: 76 77

Resolution of the Committee of Ministers on the implementation of the fcnm by Denmark, adopted on 31 October 2001, Res cnm(2002)1. coe acfc, Second State Report submitted by Denmark, received on 14 May 2004, acfc/sr/ii(2004)004, p. 11.

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In relation to the Roma, it is noted that according to the Government, Roma in Denmark comprise two main groups, namely those arriving at the end of the 1960s and those fleeing the wars in the former Yugoslavia. According to representatives of the Roma, the Roma have had historical ties with Denmark going back to the 16th Century. The Government considers, however, that those Roma who took up residence in Denmark prior to 1960 have been completely integrated. It can be noted that persons belonging to the Roma community, as in other parts of Europe, face particular problems, including discrimination and social exclusion, and that they wish to express, preserve and develop their identity in line with the Framework Convention. The Advisory Committee, in line with its conclusions of the first monitoring cycle, considers that the Danish authorities should continue their dialogue on the possible extension of the personal scope of application to Roma. Pending further progress on this issue, the authorities are encouraged to take the basic principles of the Framework Convention into account in their legislation, policies and practices in relation to the Roma.78 When examining the Committee of Ministers’ second Resolution on the implementation of the fcnm by Denmark, one can notice that the Committee of Ministers has slightly sharpened79 the language used by stating that “the restrictive personal scope of application of the Framework Convention by the

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coe acfc, Second Opinion on the implementation of the fcnm by Denmark, adopted on 9 December 2004, acfc/opii(2004)005, paras 15 and 16. Cf. also the two Resolutions of the Committee of Ministers on the implementation of the fcnm by Albania. The first Resolution notes that “[t]he personal scope of ­application of the Framework Convention merits further consideration by the Government of Albania with those concerned.” The second Resolution also sharpens the language a bit more by stating that “[t]he distinction between persons belonging to national minorities and persons belonging to “ethno-linguistic minorities” needs to be clarified in order to avoid differentiated treatment concerning access to certain rights of persons belonging to the latter category.” Furthermore the rigid geographical limitations, de facto restricting disproportionately access to minority rights outside certain areas, including in the field of education, are criticized in the second Resolution. It is clear from the Committee of Ministers Resolutions on Denmark, Albania and the Netherlands that the Committee of Ministers tends to avoid the language of confrontation, by not referring to an ‘incompatibility’ of the restrictive practices regarding the personal scope of application of the fcnm in the state parties concerned, but rather adopts its Recommendations in diplomatic wordings, stressing the importance of continuous dialogue with the acfc and the minorities concerned, sharpening the wording of the Recommendations gradually if the situation does not improve.

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Danish authorities continues to be of concern.”80 But at the same time, it issues recommendations concerning Roma in education, hereby making clear that it considers Roma to be beneficiaries of the fcnm in Denmark, without having explicitly questioned the validity of the Danish reservation.81 This common strategy of the Advisory Committee and the Committee of Ministers, to ‘smuggle’ Roma into the scope of application of the fcnm in ­Denmark, instead of insisting on the invalidity of the Danish reservation according to principles of international public law, should be seen in the overall profile of the fcnm as an instrument fostering constructive dialogue. The fcnm should not be seen as a tool to condemn state parties for failing policies and practices towards minorities nor should it be seen as a yardstick for measuring violations of individual rights of persons belonging to national minorities, but rather as a forum, a place of discussion for continuous exchanges of views. By urging the Danish Government to report on the educational situation of the Roma in its second State Report, the Advisory Committee probably achieved more than if it had insisted at the Committee of Ministers on the invalidity of the Danish reservation.82 In the third Advisory Committee Opinion on Denmark, there is no reference any more to the Roma minority which settled in Denmark in the 16th century. It seems that this is related to problems encountered by the secretariat of the acfc to establish contacts with the representatives of this Roma community.83 There is only a reference to the Roma who migrated to Denmark in the 1960s. The Advisory Committee states that it was informed that most of the Roma who had chosen to settle in Denmark in the 1960s and were well integrated into Danish society, did not want to

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Resolution of the Committee of Ministers on the implementation of the fcnm by Denmark, adopted on 14 December 2005, Res cnm(2005)9. 81 Ibid. 82 Rainer Hofmann underlines that the approach of the Advisory Committee well reflects its general position to avoid unnecessary confrontation with governments and rather to seek to engage in a constructive dialogue with a view to settling any disagreements as to the interpretation of the fcnm. Therefore, the Advisory Committee, if met with a situation where it considered that the fcnm could, in addition to the groups identified by the government, also be applicable to other groups, limited itself to call upon the ­competent authorities to examine the issue in consultation with those concerned. See R. Hofmann, ‘Declarations to the Council of Europe Framework Convention for the Protection of National Minorities,’ in I. Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Conflict, Harmony or Reconciliation, Leiden/Boston: Martinus Nijhoff Publishers, 2004, p. 139. 83 It is suggested that either the Roma community has emigrated from Denmark, or is not keen on reporting to the Advisory Committee anymore.

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be identified as a Roma community and expressed no desire to be recognised as a national minority under the Framework Convention.84 This might explain why the Committee of Ministers, in its third Resolution, did not refer any more to the problematic nature of the restrictive scope of application of the fcnm in Denmark.85 In the fourth Advisory Committee Opinion on Denmark, adopted on 20 May 2014, the Advisory Committee notes again the authorities’ claim that the Roma living in Denmark today “have no historical or long-term unbroken association with Denmark,”86 but consists partly of immigrants and partly of refugees. The Advisory Committee reminds the authorities nonetheless of the long-term presence of Roma in Denmark. The Advisory Committee considers further that extending the provisions of the Framework Convention to Roma in areas such as promotion of culture (Article 5), language teaching (Article 14), fostering knowledge of Roma culture and history among the majority population (Article 12), and effective participation in public life (Article 15) would contribute to the successful integration of persons belonging to the Roma community into the majority Danish society. The Advisory Committee considers that it would also contribute to the better understanding of diversity in society, and increase its cohesion.87 In the fourth Committee of Ministers resolution, there is no explicit reference to the Roma, but there is a recommendation “to intensify dialogue with the individuals and groups that express interest in or might benefit from the protection offered by the Framework Convention; and to consider applying provisions of the Framework Convention to interested groups, on an articleby-article basis, without necessarily formally recognising them as belonging to a national minority.”88 It seems thus that the Committee of Ministers suggests that Denmark should adopt a similar approach to the one taken by Germany and Slovenia, that is applying the provisions of the Framework Convention 84 85 86 87 88

coe acfc, ‘Third Opinion on Denmark,’ 1 December 2011, acfc/op/iii(2010)002, p. 9 at para. 26. Resolution of the Committee of Ministers on the implementation of the fcnm by Denmark, adopted on 13 June 2012, Res cnm(2012)8. See, for example, the coe acfc, Second State Report submitted by Denmark, received on 14 May 2004, acfc/sr/ii(2004)004, p. 11. coe acfc, ‘Fourth Opinion on Denmark,’ 20 May 2014, acfc/op/iv(2014)001, pp. 7–8 at para. 19. Resolution of the Committee of Ministers on the implementation of the fcnm by Denmark, adopted on 1 July 2015, Res cnm(2015)7.

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to the Roma, without necessarily formally recognising them as belonging to a national minority.89 2.4.4.3 The Analysis by the Advisory Committee of the Dutch Declaration The same stance as in the Danish case was adopted by the Advisory Committee in reaction to the Dutch declaration restricting the personal scope of application of the fcnm to the Frisians only. The Netherlands ratified the fcnm on 16 February 2005 and the fcnm entered into force in the Netherlands in July 2005. Accordingly, the first state report was due in July 2006, but submitted only on 16 July 2008. In its first Opinion, the Advisory Committee criticized the Netherlands for having adopted a very narrow personal scope of application and found that the personal scope of application of the Framework Convention which is presently limited to the Frisians, has not been satisfactorily addressed by the authorities. The Roma and Sinti, many of whom have long ties with the Netherlands have been excluded from the protection of the Framework Convention. In addition, they have been left out from any institutionalised and direct dialogue with the national authorities and measures to address their socio-economic and educational situation have not been adopted at national level.90 Again, as in the case of Denmark, the focus of the remarks of the Advisory Committee in the executive summary is not on the legality of the Dutch declaration, but on the need to install an institutionalized direct dialogue with the Roma and Sinti minorities, who have been excluded from the personal scope of application of the fcnm. However, in the full text of the opinion under its remarks under Art. 3 fcnm, the Advisory Committee does indeed examine whether the declaration of the Netherlands is valid under international law. First of all, it should be stressed that the declaration as formulated by the Netherlands, due to its restrictive character, should be considered a reservation. Secondly, the condition for the admissibility of reservations, as mentioned above, is stated in Art. 19 (c) of the Vienna Convention on the Law of Treaties, which stipulates that “[r]eservations are only admissible in so far as they 89 90

See below under 2.4.5 On the Validity of Declarations Including the Roma into the Scope of Application of the fcnm, while designating them as not falling into the Category of ‘National Minorities.’ coe acfc, First Opinion on the implementation of the fcnm by the Netherlands, adopted on 25 June 2009, acfc/opi(2009)002, executive summary.

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are compatible with the object and purpose of the respective convention.” It should thus be examined whether definition of a national minority as adopted by the Netherland is compatible with the object and purpose of the fcnm. In the Dutch State Report, the Dutch authorities have indicated that the Government in consultation with the Parliament have agreed a definition of a national minority that includes “groups of citizens who are traditionally resident within the territory of the State and who live in their traditional/ancestral settlement areas, but who differ from the majority population through their own language, culture and history, i.e. have an identity of their own and who wish to preserve that identity.” The Dutch authorities further explain that in the Netherlands, only Frisians fulfil these criteria and are therefore considered to benefit from the protection of the Framework Convention. Problematic is the concept of ‘traditional/ancestral settlement area,’ as it leads to the exclusion of certain groups who would normally be considered a national minority under Recommendation 1201 of 1993 on an additional protocol on the rights of national minorities to the European Convention of Human Rights.91 The Advisory Committee notes in this context that Roma and Sinti groups have been historically present in the Netherlands. In addition, although there is diversity within these groups, Roma and Sinti appear to be motivated by a common aim to preserve together what constitutes their shared identity, including their culture, their traditions and their language and have expressed an interest in benefiting from the protection of the Framework Convention. However, the Advisory ­Committee notes that persons belonging to these groups reside in different areas of the Netherlands and therefore, do not necessarily live in an “ancestral settlement.” The territorial criterion therefore a priori excludes them from the protection provided for by the Framework Convention. In this context, the Advisory Committee is deeply concerned that the fact that some groups are territorially dispersed becomes a reason to entirely deny them the protection of the Framework Convention. It recalls that only some provisions of the Framework Convention contain a territorial dimension. These provisions concern the use of minority languages in relations with local administration, their use on topographical indications and their teaching. These are precisely areas where Roma and Sinti have already been granted a certain level of protection under the European Charter for Regional or Minority Languages since the Netherlands declared that it applies its principles to Romani. However, most 91

See above under 2.1 The Roma as a National Minority in the Context of Public International Law.

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of the provisions of the Framework Convention, such as the prohibition of discrimination, the principles of full and effective equality, the need to promote tolerance as well as the right to participate in public, social and economic life, do not imply that the minorities concerned “live in their traditional or ancestral settlement areas”. The a priori exclusion of Roma and Sinti from the scope of application of the Framework Convention ­results, in fact, in depriving these persons from the protection of those provisions of the Framework Convention which are instrumental to achieving equality. The Advisory Committee considers that such an approach is not compatible with the Framework Convention.92 In other words, the a priori exclusion of the Sinti and Roma from the personal scope of the application of the fcnm by the Netherland due to the presence of the territorial concept of ‘ancestral settlement’ in the definition of a national minority is, according to the analysis of the Advisory Committee, not compatible with the object and purpose of the fcnm and thus in violation of Art. 19 (c) of the Vienna Convention on the Law of Treaties. The consequence of the invalidity of the declaration, which is a de facto reservation, is that it is null and void. However, the Advisory Committee in its Opinion does not refer to the legal consequences of the invalidity of the declaration (read: reservation) nor does it invoke the nullity of it in order to oblige the Netherlands to report on the situation of the Roma and Sinti. Instead, the Advisory Committee recommends93 the Netherlands to establish an institutionalized dialogue with the Sinti and Roma. It finds that there is a need for the authorities to re-examine their position of principle with regard to the scope of application of the Framework Convention and make the relevant provisions of this treaty applicable to those who are in need of them. The Advisory Committee therefore recommends that the authorities establish an institutionalised dialogue, with no further delay, with persons belonging to the Roma and Sinti minorities and possibly other groups who have expressed the wish to benefit from the protection of the Framework Convention in order to examine their needs 92 93

coe afcf, First Opinion on the implementation of the fcnm by the Netherlands, adopted on 25 June 2009, acfc/opi(2009)002, paras 21 and 22. Emphasis added. Please note the ‘soft’ and non-binding character of the term ‘recommend.’ Strictly speaking, as the declaration by the Netherland is null and void, and as an exclusion of the Roma and Sinti from the personal scope of application of the fcnm is arbitrary, the consequence of this reasoning should be that there is a legal obligation for the Netherlands to report on the situation of the Roma and Sinti under the fcnm and to guarantee the respect of the rights as defined in the fcnm for Roma and Sinti.

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and discuss their inclusion in the scope of application of the Framework Convention.94 This request to establish an institutionalized dialogue with persons belonging to the Sinti and Roma minority has also been voiced by the Committee of Ministers in its Resolution,95 which in addition refers to the general scope of application of Article 6 fcnm: Although the authorities do not consider the Roma and Sinti as a national minority under the Framework Convention, this is without prejudice to the benefits from the general protection of Article 6 of the Framework Convention. In addition, since Roma policy in the Netherlands is largely delegated to local authorities, institutionalised and direct dialogue between the Roma and Sinti and the national authorities is limited and could be further developed.96 In its second state report, which was received on 19 September 2012, the Netherlands report on measures taken to increase the consultation of minorities, including the process for reaching an institutional dialogue at national level with the Roma and Sinti, as well as on the participation of Roma and Sinti in public affairs, including at the local level, for the purpose of conducting talks about the socio-economic and educational situation of the Roma and Sinti. In spite of the exclusion of Roma and Sinti from the personal scope of application of the fcnm, the Netherlands do seem to agree to report on the situation of Roma and Sinti, as they have replied to the questions on the situation of the Roma and Sinti asked by the Advisory Committee in their second state report. Under the findings under Article 3 fcnm, the government also notes that it is “working towards a more flexible form of dialogue. This means that all kinds of parties are encouraged to deliver input. For that reason the legal and structural consultation process in which 8 ethnic minority organizations were consulted is coming to an end.”97 The reporting by the Netherlands on such consultations with different minority organizations is to be welcomed, and could allow for a broadening of the personal scope of application, presently limited to the Frisians only, to other minority groups over time. 94 95 96 97

coe acfc, First Opinion on the implementation of the fcnm by the Netherlands, adopted on 25 June 2009, acfc/opi(2009)002, para. 24. Resolution of the Committee of Ministers on the implementation of the fcnm by the Netherlands, adopted on 21 January 2011, Res cnm(2011)3. Ibid., at 1. coe acfc, Second State Report submitted by the Netherlands, received on 19 September 2012, acfc/sr/ii(2012)004, p. 15.

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In the second Advisory Committee Opinion on the Netherlands,98 the Advisory Committee has adopted a comparable position as in its first Opinion, but the language used is more firm. Even though the Advisory Committee does not explicitly declare the Dutch declaration (read: reservation) excluding Roma from the scope of application invalid in the light of public international law, it does note that the limitation of the scope of application of the fcnm by the Netherland to the Frisians only was arbitrary. As a consequence, the Advisory Committee urges that the Dutch authorities establish a dialogue with persons belonging to those groups who might in the future be interested in enjoying the protection of the fcnm. The wording of the findings and recommendations under Article 3 fcnm reads as follows: Findings of the first cycle 26. In its first Opinion, the Advisory Committee found that the position taken by the authorities with regard to the personal scope of application of the Framework Convention led in practice to the exclusion of certain groups, notably Roma and Sinti, and it invited the authorities to establish an institutionalised dialogue with the groups concerned. The Advisory Committee was concerned by the approach adopted by the Dutch ­authorities, which refers to the citizenship criterion and territoriality principle, limiting arbitrarily the possibility for other potential groups to benefit from the provisions of the Framework Convention. Present situation a) Positive developments 27. The Advisory Committee notes that the authorities have established ad hoc consultations with Roma and Sinti communities on the local level in the framework of the activities developed by the Platform for Roma municipalities (see Article 6 below). b) Outstanding issues 28. The Advisory Committee notes that according to the Declaration submitted by the Netherlands when ratifying the Framework Convention, only persons belonging to the Frisian minority are recognised as a national minority. 29. The Advisory Committee has been informed by the authorities that during their consultations with the representatives of the Roma and 98

coe afcf, Second Opinion on the implementation of the fcnm by the Netherlands, adopted on 20 June 2013, acfc/opii(2013)003.

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the Sinti, these groups did not raise the issue of being recognised as a national minority. The authorities maintain that there is a great diversity of opinion within Roma and Sinti communities on this specific issue and that the majority of persons belonging to these groups who chose to settle in the Netherlands in the 1960s, and were integrated into Dutch society, do not wish to be identified as a minority. Moreover, the authorities explained that they face difficulties in engaging in effective dialogue with Roma and Sinti communities due to the lack of organised structures for consultation. They underline that the majority of the existing organisations of Roma and Sinti consist of specific family groups which are not accepted by the community as a whole as representative interlocutors. 30. During its visit, the Advisory Committee met with some representatives of Roma and Sinti communities. The Advisory Committee observed that, although these communities did not consistently express the wish to be protected by the Framework Convention itself, they raise serious concerns about the unsatisfactory and insufficient dialogue between their communities and the authorities. The Advisory Committee takes note of their strong interest in the establishment of an institutionalised dialogue with the authorities in order to discuss important issues for their communities. 31. In light of the above, the Advisory Committee finds it regrettable that the groups who might be interested by the protection of the ­Framework Convention have not been adequately consulted on their possible inclusion. The Advisory Committee expects that due steps will be taken by the authorities to seek means of providing these groups with the opportunity to express their views if they were to request this protection in the future. These steps could include a possible article by article ­application of the Framework Convention to non-citizens or persons living outside their traditional settlement areas. Recommendation 32. The Advisory Committee urges the authorities to adopt a more flexible approach towards the scope of application of the Framework Convention and a dialogue-based approach in their relations with persons belonging to groups who might in the future be interested in the protection provided by the Framework Convention, including through efficient consultation mechanisms.99 99

coe afcf, Second Opinion on the implementation of the fcnm by the Netherlands, adopted on 20 June 2013, acfc/opii(2013)003, pp. 8–9.

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The approach adopted by the Advisory Committee in its first and second Opinion on the Netherlands is consistent with the conciliatory stance of the Advisory Committee, stressing the need for dialogue and for creating a forum of exchange between the majority and the minority, instead of a mere ‘naming and shaming’ or a mere focus on the violation of international obligations. It is true that such as stance generally creates more results and better enhances minority protection in the end, than a condemning approach focusing on the violation of legal obligations. However, in the present case, one could wonder if it would not have been more appropriate if the Advisory Committee would have insisted more on the legal consequences of the invalidity of the declaration, namely its nullity, and the subsequent obligations on the Netherlands towards the Sinti and Roma as a direct consequence of the nullity of the declaration. The Advisory Committee notes with satisfaction in its First Opinion that the Dutch authorities, in spite of their restrictive declaration, do recognize the relevance of Art. 6 of the Framework Convention with regard to other groups: the Dutch authorities have included some information, albeit limited, on the measures taken to address the situation of the Roma in the observation of their State Report under Art. 6 fcnm. The Advisory Committee has explicitly welcomed this ‘more flexible approach.’ However, one could ask if it would not have been better, instead of praising the Netherland for this so-called ‘more flexible approach,’ to insist on the nullity of the Dutch declaration and thus on the legal obligation for the Netherland to report on the Sinti and Roma not only under Art. 6 fcnm, but under all convention articles. A more strict and harsh stance towards the Dutch government insisting on  the fulfilment of the legal obligations of the Netherlands flowing from the ratification of the fcnm might have increased the protection of minority rights for the Sinti and Roma in the Netherland a lot more than a mere recommendation to re-examine the Dutch position. Moreover, the insistence on the ­nullity of the declaration and the examination of the legal consequences flowing from this nullity would not have precluded the Advisory Committee from recommending the establishment of an institutionalized dialogue with the Roma and Sinti minority. If the Advisory Committee goes as far as to examine in detail the legality of a declaration, it should also be courageous enough to attach the according legal consequences for the state party concerned to the illegality of a declaration and to execute these. Therefore it is regrettable that the Advisory Committee did not explicitly stress in its Advisory Opinion that the declaration by the Dutch government is null and void and that it did not examine in more detail in its opinion what the legal consequences of this nullity are for the Netherlands.

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Instead, by urging the Netherlands to ‘establish a dialogue-based approach in their relations with persons belonging to groups who might in the future be interested in the protection provided by the Framework Convention,’ the Advisory Committee might have created a dangerous precedent, notably the precondition for a minority group to explicitly declare their wish to be protected under the fcnm, and the option to waive this protection. 2.4.5

On the Validity of Declarations Including the Roma into the Scope of Application of the fcnm, while Designating them as not Falling into the Category of ‘National Minorities’ It has already been noted that the declarations of Germany and Slovenia differ from the majority of declarations made, in that they do not consider the Roma to constitute a ‘national minority’ but at the same time they do declare the fcnm applicable to the Roma. Frowein and Bank underline that, since the requirements for a unilateral declaration or commitment within the context of a treaty binding under international law are fulfilled,100 a situation is created where Germany and Slovenia would be estopped to argue that with relation to the Roma no protection under the treaty would apply. Another consequence for Germany and Slovenia is that by making this declaration, they are obliged to report on the implementation of the fcnm with regard to the Roma.101 As we can notice from the German and Slovene State Reports, this obligation has been fulfilled and as much attention is paid to the Roma in their State Reports as to other groups who are considered to be national minorities. 2.4.6

Are the Roma Considered to be a National Minority by those State Parties Who did not Make a Declaration on the Personal Scope of Application of the fcnm? As stressed above, it is for the state parties to determine—non-arbitrarily and while taking into account, among others, the text of the Proposal for an Additional Protocol to the Convention for the Protection of Human Rights and Fundamental Freedoms concerning persons belonging to national minorities—to 100 The two criteria for binding effects of a unilateral declaration, which can be derived from the practice of the icj, are the fact that the declaration shows the intention of the state to be bound accordingly and the fact that the undertaking was given publicly. Cf. I. Brownlie, Principles of Public International Law, Oxford: Clarendon Press, 1998, p.  643, cited by J.A. Frowein and R. Bank, ‘The Effect of Member States’ Declarations Defining “National Minorities” upon Signature or Ratification of the Council of Europe’s Framework Convention,’ ZaöRV, 1999, vol. 59, no. 3, p. 663. 101 Ibid.

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what minorities the fcnm applies on their territory. Generally speaking, one could say that the Roma are considered to be a national minority by those state parties who did not make a declaration on the personal scope of application of the fcnm, where Roma are historically present and sufficiently representative. This will be the case in most European states. It should also be noted that, apart from Denmark and the Netherlands, there are no state parties to the fcnm that exclude Roma as beneficiaries of the fcnm. When analysing the different state reports on the implementation of the fcnm in the field of Roma rights, we see that among those state parties who did not issue a declaration concerning the notion of ‘national minority,’ most of the state parties report on the situation of the Roma on their territory and only very few state parties do not mention the Roma in their State Reports. It has been explained above102 that Spain and Portugal, even though they do not recognize the concept of ‘national minority’ in their domestic legal order, both report on the Roma minorities in the framework of their reporting obligations under the fcnm.103 Hereby the initial position of both countries was slightly different: whereas Spain has not explicitly excluded Roma from the scope of application of the fcnm, Portugal did mention in its first State Report that de facto social minorities, including ethnic, linguistic or religious minorities do not come into the scope of application of the fcnm.104 These initial difficulties were overcome in the third monitoring cycle, where Portugal explicitly recognized the Roma as an ethnic minority and extensively reported on measures taken under the fcnm in favour of the Roma.105 State parties not mentioning the Roma in their initial state reports because the number of Roma residing on the territory of these states was considered too small are: Armenia, Azerbaijan, Cyprus, the Russian Federation and San Marino. Due to the small number of Roma residing on their territory, according to these states parties, they do not amount to constituting a national minority. Regarding Armenia, the AC has not referred to Roma in its Opinions. Regarding Azerbaijan, in its third Opinion, the AC mentioned that it is

102 See above at 2.4.1 Analysis of the Relevant Declarations. 103 coe afcf, Opinion on the implementation of the fcnm by Spain, adopted on 27 November 2013, acfc/op/i(2004)004, p. 3, where the AC welcomes that, although the Roma are not officially recognized as a national minority in Spain, they are entitled to the protection afforded by the Framework Convention. 104 coe acfc, State Report submitted by Portugal pursuant to Article 25 para. 1 of the Framework Convention, received on 23 December 2004, acfc/sr/(2004)002, p. 3. 105 coe acfc, Third State Report submitted by Portugal pursuant to Article 25 para. 1 of the Framework Convention, received on 24 September 2013, acfc/sr/iii(2013)002, pp. 1–2.

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unaware of any requests by the small number of persons belonging to Roma communities living among others in the Baku and Khachmaz areas, as well as in the border region with Georgia, to be protected under the Framework Convention. It was, however, informed that numerically small communities have faced difficulties when attempting to register national minority cultural organisations, which effectively limits their ability to benefit from the protection afforded by the Framework ­Convention. While persons belonging to national minorities are thus reportedly free to identify as such, this identification, even if officially recognised, appears not to automatically grant them access to rights under the Framework Convention.106 The AC thus recommended that the Azerbaijan authorities pursue their inclusive approach and to ensure that all persons who may benefit from inclusion into the scope of application of the Framework Convention are made aware of this possibility and are effectively granted access to protection under the Framework Convention in line with its Article 3.107 The fourth AC Opinion, adopted on 8 November 2017, was still restricted at the time of publication of this book. Regarding Cyprus, the Advisory Committee regretted in the second monitoring cycle, that the Roma had not been mentioned in the Cypriote State Report. In the third monitoring cycle, Cyprus has positively altered its position and included the Roma under the protection offered by the Framework Convention, for which it was praised by the Advisory Committee in its third Opinion.108 Regarding San Marino, in its fourth Opinion, the Advisory Committee expressed concern over sporadic episodes of hostilities concerning the Roma population which was depicted pejoratively in the media,109 but it did not explicitly tackle the issue of the scope of application of the fcnm to the Roma under its Article 3. 106 coe afcf, Third Opinion on the implementation of the fcnm by Azerbaijan, adopted on 10 October 2012, acfc/opiii(2012)005, p. 9. 107 Ibid. 108 coe acfc, Third Opinion on the implementation of the fcnm by Cyprus, adopted on 19 March 2010, acfc/op/iii(2010)002 at paras 36–37. 109 coe afcf, Fourth Opinion on the implementation of the fcnm by San Marino, adopted on 20 November 2015, acfc/op/iv(2015)007, p. 6, at para. 7.

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For the Russian Federation, the fact that the Roma are not mentioned in the first State Report is quite surprising since the Roma, together with Chechens and Georgians, belong to Russia’s most threatened minorities. According to reports of ngos such as European Roma Rights Centre (‘errc’),110 segregation of Roma in education constitutes a major problem in Russia which hampers the equal access to quality education by Roma in the Russian Federation. Therefore it is remarkable that the Russian Federation does not even mention Roma in its first State Report. It should be welcomed that the Advisory Committee did refer to the problematic situation of the Roma in education in its first Advisory Opinion on Russia under the Articles 4 and 12 fcnm. In the second Russian State Report, Russia was obliged—by means of a specific question on the situation of the Roma in the questionnaire to the second State Report, drafted by the Advisory Committee—to procure information on the situation of the Roma minority, which it did.111 In the third State Report, only sporadical mentions are made regarding measures taken to improve the minority rights of the Roma, such as advanced professional trainings for teachers on topics related to the culture and history of the Roma inhabiting the Russian Federation.112 This is in sharp contrast with the third AC Opinion, in which the Advisory Committee expresses concern over the minority rights of the Roma in numerous fields, notably regarding separation and isolation of Roma ­children in schools (Article 12), forced evictions of Roma, which are frequently carried out with violence, and without offering alternative housing, and the ethnic profiling of Roma by the police, with Roma being subjected to selective and disproportionally frequent identity checks by the police, accompanied by the ­extortion of bribes, the unlawful and unprovoked use of violence and harassment, as well as unwarranted arrests and detentions (Article 6). It is also 110 See the intervention on ‘Equal Access to Education by National Minorities’ by Claude Cahn, Programme Director of the European Roma Rights Centre during the Seminar ­‘International Legal Guarantees for the Protection of National Minorities and Problems in their Implementation – with Special Focus on Minority Education’ organized by the Russian presidency of the Council of Europe in Strasbourg on 18 October 2006. C. Cahn, ‘Equal Access to Education by National Minorities,’ 18 October 2006, available at (accessed on 4 April 2013). 111 coe acfc, Second State Report submitted by the Russian Federation pursuant to Article 25 para. 1 of the Framework Convention, received on 25 April 2005, acfc/sr/ii(2005)003, p. 61 under 4.8 ‘Information on the Roma minority in Russia.’ 112 coe acfc, Third State Report submitted by the Russian Federation pursuant to Article 25 para. 1 of the Framework Convention, received on 9 April 2010, acfc/sr/iii(2010)005, p. 53.

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mentioned that some politicians have deliberately fuelled hostility against the Roma and that the spreading of prejudices and hate speeches against the Roma is frequently reported in TV programmes as well as on Internet portals.113 Several of these issues are tackled in the fourth State Report by the Russian Federation, where a separate section is dedicated to “the socio-economic and ethnocultural development of the Roma.” The Russian Federation notes that in 2013, in the context of recommendations from the Advisory Committee, the Government of the Russian Federation adopted a Comprehensive Action Plan for Socio-Economic and Ethnocultural Development of the Roma for 2013–2014, which had been developed with the participation of the AllRussian Public Organization “Federal National and Cultural Autonomy of the Russian Roma.”114 It furthermore reports on measures taken to promote equal access to education (Article 12) and alternative housing in the case of evictions ­(Article 4).115 The Advisory Committee delegation visit took place in October 2017 and the fourth AC Opinion is currently under preparation. 3

Declarations are Objectable

At the launching conference of the fourth thematic commentary on the scope of the application of the fcnm in October 2016, Professor Peter Leuprecht,116 former vice-president of the Council of Europe, in his speech, called upon the states parties to review systematically the validity of their own declarations to the fcnm and also to make comments on the validity of the declarations of other state parties. He recalled that, at UN level, it is a current p ­ ractice that members make objections regarding the legality of reservations and

113 coe afcf, Third Opinion on the implementation of the fcnm by the Russian Federation, adopted on 24 November 2011, acfc/opiii(2011)010. 114 coe acfc, Fourth State Report submitted by the Russian Federation pursuant to Article 25 para. 1 of the Framework Convention, received on 20 December 2016, acfc/sr/iv(2016)006, pp. 25–27. 115 Ibid, at p. 37 (regarding housing) and pp. 61–62 (regarding education). 116 Speech by Professor Peter Leuprecht at the launching conference of the Fourth Thematic Commentary on the Scope of Application “The Framework Convention: a key tool to managing diversity through minority rights,” held in Strasbourg on 11 October 2016. The speech is available as a podcast at (accessed on 1 January 2018) and the general conference website is available at (accessed on 1 January 2018).

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d­ eclarations of other members and expressed regret that this practice had not found its way yet to the Committee of Ministers of the Council of Europe. 4

Recent Developments Regarding Albania

The Roma in Albania are now officially recognized as a national minority ­according to law No.96/2017 on the “Protection of National Minorities in the Republic of Albania,” which was adopted on 13 October 2017 by the Albanian parliament. Following several advocacy initiatives, debates, public hearings and senior expert advice provided by the EU/Council of Europe Horizontal Facility Project “Strengthening the Protection of National Minorities in Albania” to the Parliamentary Committee of Legal Issues, Public Administration and Human Rights, Roma are currently entitled to the rights deriving from this recognition as one of the nine national minorities in the country (Article 3; paragraph 2). This new formal recognition marks a very important achievement for the Roma in Albania, granting them rights guaranteed by this law, which raises the level of their protection in comparison to their previous legal status as an ethno-linguistic minority. Several positive rights emanate from this recent legal development directly affecting the lives of the Roma in Albania. Roma shall be entitled to equal and effective participation in public, cultural, social and economic life and to the preservation of their cultural identity; they have the right to education in the minority language and to freedom of expression, thought and information (Articles 11, 12, 13 and 14). Discrimination on cultural, ethnic, or linguistic grounds is prohibited. Roma are now in a better position to continue their efforts for the promotion and protection of Romani culture as an integral part of Albanian society. Roma will henceforth be represented on the Committee for National Minorities, the national body reporting to the Prime Minister, with a specific ­mandate on the promotion of policies targeting national minorities and management responsibilities of the fund for national minorities supported by the state budget. It is expected that the Committee for National Minorities will be fully functional upon entry into force of the law and endorsement of infrastatutory legislation.117

117 Council of Europe, Roma – latest news, ‘Roma recognised as a national minority in Albania,’ Strasbourg, 17 November 2017, avialable at (accessed on 1 January 2018).

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Conclusions under Chapter 5

The fcnm does not contain a definition of ‘national minority’ hence it is up to the state parties to determine whether they consider the Roma on their territory to constitute a national minority. Hereby the state parties should respect the provisions of the Vienna Convention on the Law of Treaties and the basic principle of pacta sunt servanda. Due to the diversity among the different Roma sub-groups, when judging about whether ‘the Roma’ fall into the personal scope of application of the fcnm, one should differentiate between those Roma traditionally present on the territory of the states parties since their migration from India in supposedly the 16th century on the one hand, and those Roma who migrated from Central-Eastern Europe towards Western and Northern Europe from the 1960s onwards for economic purposes on the other hand. Only the former qualify to be called a ‘national minority’ due to their historical and long-lasting ties with the state. The Advisory Committee has an unchallenged competence to examine the position taken by a government, be it by a formal declaration made upon signature or ratification of the Framework Convention or by simply ­identifying the  groups concerned, as regards the personal scope of application of the Framework Convention as to its compatibility with the principles set out therein. It is encouraging to see that, notwithstanding the often highly controversial character of the issue of minority rights protection in Europe, no state party to the Framework Convention has challenged the pertinent competence of the Advisory Committee.118 Taking abstraction from the Danish and Dutch situation, no Roma have been arbitrarily excluded from the personal scope of application of the fcnm. As of January 2018, 39 states have ratified the Framework Convention. Out of these 39, 12 state parties formulated declarations on the personal scope of application of the fcnm. Problematic are the declarations—which are de facto reservations—of Denmark and of the Netherlands, as they arbitrarily exclude the Roma from the personal scope of application of the fcnm. Denmark was asked by the Advisory Committee to report on the situation of the Roma, which it did, even though it stated expressly that it still does not consider Roma to fall into the 118 R. Hofmann, ‘Declarations to the Council of Europe Framework Convention for the Protection of National Minorities,’ in I. Ziemele (ed.), Reservations to Human Rights Treaties and the Vienna Convention Regime, Conflict, Harmony or Reconciliation, Leiden/Boston: Martinus Nijhoff Publishers, 2004, p. 145.

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personal scope of application of the fcnm. The Netherlands also reported in their second state report on measures taken to increase the consultation of minorities, including the process for reaching an institutional dialogue at national level with the Roma and Sinti, as well as on the participation of Roma and Sinti in public affairs, including at the local level, for the purpose of conducting talks about the socio-economic and educational situation of the Roma and Sinti, in spite of the fact that the personal scope of application of the fcnm in the Netherlands is limited to the Frisians only. The acfc has apparently succeeded in extending the reporting obligations for both Denmark and the Netherlands to the Roma as well, in spite of the narrow personal scope of application of the fcnm in both countries. Of a different nature are the declarations of Germany and Slovenia. These two state parties do not consider the Roma to be a ‘national minority’ but at the same time they declare that the Roma should enjoy the rights prescribed in the fcnm. By doing so, Germany and Slovenia obliged themselves to report on the implementation of the fcnm regarding the Roma. This practice is also followed by Spain and Portugal, who have declared in their State Reports that the Roma do not constitute a ‘national minority’ according to their respective Constitutions. However, both countries report on the progress made in respect of the Roma. Regarding the personal scope of application of the fcnm, the Advisory Committee has consistently encouraged state authorities to be inclusive and context specific and to consider, on an article-by-article basis, which rights should be made available to whom in order to ensure the most effective implementation of the Framework Convention based on facts rather than status. In its fourth Thematic Commentary on the scope of application of the fcnm, the Advisory Committee has included an overview of convention rights applying to all persons, convention rights with a broad scope of application, and convention rights with a specific scope of application. Hereby, for instance, the right to protection against discrimination (Article 6) is held to be applicable to all persons, thus including the Roma. Furthermore, the right to equality (Article 4) and equal opportunities for access to education at all levels (Article 12 (3)) are held to be applicable to all national minorities. In those states parties where there are issues with equal opportunities for access to education for the Roma, the acfc has consistently raised these issues and expressed concern, irrespective of whether the state party concerned had excluded the Roma from the scope of application of the fcnm.

Chapter 6

The Roma as a Dual Racial and Ethnic Minority in the Light of the Racial Equality Directive 1 Introduction In this chapter, examined will be whether the Roma fall into the personal scope of application of the Racial Equality Directive, that is whether they can be considered ‘persons of racial or ethnic origin’ for the purpose of the Racial Equality Directive. As the scope of the term ‘persons of racial or ethnic origin’ has not been defined in the directive, it is left to the member states to decide whether or not the Roma fall into the personal scope of application of the national laws transposing the directive. In principle, the Racial Equality Directive applies universally, as it applies to all persons of racial or ethnic origin, and not only to racial or ethnic minorities. In order to trigger the application of the directive, it is thus not necessary to examine whether a victim of discrimination belongs to an ethnic or racial minority, but it suffices to prove that the discrimination which took place occurred on account of the racial or ethnic origin of the victim. However, if the victim belongs to a racial or ethnic minority, such as the Roma, this belonging to a minority can be an indication that the discrimination may have occurred on account of the racial or ethnic origin of the victim. In other words, in a case whereby a victim of discrimination belongs to a racial or ethnic minority, it might be easier to prove that the discrimination occurred exactly on racial or ethnic grounds. Therefore, the acknowledgement of the Roma as belonging to a racial or ethnic minority can contribute to the awareness that discriminatory treatment probably has taken place on account of the Roma’s racial or ethnic origin. Finally, a dual protection status as belonging to both a racial and an ethnic minority for the Roma is proposed. The adoption of a broad definition of the Roma as a racial and ethnic minority and of a broad definition of the concepts of ‘race’ and ‘ethnic origin’ can allow for an increased protection of the Roma under the Racial Equality Directive. This is possible if other social attributes of the Roma community, which constitute a ground for discriminatory treatment and which at first sight might not be related to racial or ethnic origin, are identified as also amounting to the broader concept of ‘race’ or ‘ethnicity.’ © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004354210_008

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Do the Roma Fall into the Personal Scope of Application of the Racial Equality Directive?

The Personal Scope of Application of the Racial Equality Directive: Persons of Racial or Ethnic Origin The Racial Equality Directive prohibits discrimination on grounds of racial or ethnic origin in respect of all persons, not only minorities, so in principle it applies universally. However, certain target groups were in the mind of the legislator at the time the Directive was negotiated,1 such as ethnic minorities, which are mentioned in Recital 8.2 The personal scope of application of the Racial Equality Directive is defined in the first and second paragraph of Art. 2, which reads as follows: 1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin; (b) indirect discrimination shall be taken to occur where an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary.3 The concept of ‘racial or ethnic origin’4 is not defined in the directive. It is thus left up to the member states to define ‘racial or ethnic origin’ in their national laws implementing the directive, if they wish to do so.5 It follows from this that the different EU member states thus might have different understandings of the notion of ‘racial or ethnic origin,’ due to the lack of a definition at EU level. 2.1

1 M. Bell, Racism and Equality in the European Union, Oxford: oup, 2008. 2 Recital 8 reads as follows: “the Employment Guidelines 2000 agreed by the European Council in Helsinki, on 10 and 11 December 1999, stress the need to foster conditions for a socially inclusive labour market by formulating a coherent set of policies aimed at combating discrimination against groups such as ethnic minorities.” 3 Emphasis added. 4 For a critical stance towards the notion of ‘race,’ see below at 2.3 Criticism towards the Notion of ‘Race.’ 5 It has not been examined whether or how the 27 EU member states define the concept of racial or ethnic origin in their national laws implementing the directive, as this goes beyond the scope of this study.

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2.2 All Persons: Natural and Legal Persons? Article 3 of the Racial Equality Directive states that the “[d]irective shall apply to all persons, as regards both the public and private sector, including public bodies.”6 This must be read in conjunction with Recital 16, which mentions the protection of “all natural persons” and of “legal persons where they suffer discrimination on grounds of the racial and ethnic origin of their members.” Therefore the term ‘all persons’ refers both to natural persons and legal persons. 2.3 Criticism towards the Notion of ‘Race’ There is no generally accepted definition of the terms ‘race’ or ‘ethnic origin.’ The 1966 International Convention on the Elimination of all Forms of Racial Discrimination (‘icerd’)7 contains a definition of ‘racial discrimination’ in its Art. 1,8 which includes a reference to colour, descent and national or ethnic origin. Scholars such as Patrick Thornberry underline that this wider notion of ‘race’ is to be considered as a definition for the purpose of the icerd only, as it implies a strong deviation of the usual meaning of ‘race.’9 Some governments have taken the view that including the term ‘race’ or ‘racial origin’ in anti-discrimination legislation reinforces the perception that humans can be distinguished according to their ‘race,’ whereas there is no scientific foundation for such a categorization. In Recital 6 of the Racial Equality Directive, it is clearly stressed that “the European Union rejects theories which attempt to determine the existence of separate human races. The use of the term ‘racial origin’ in this Directive does not imply the acceptance of such theories.” However, in spite of this clear statement, some states remain sceptical and keep opposing the use of the term ‘race’ or ‘racial origin’ in their national legislation. For example, the Finnish Non-Discrimination Act refers to ‘ethnic or national origin’ in its Section 6 (1), whilst the Swedish 1999 Ethnic Discrimination Act refers to ‘ethnic affiliation’ (Section 3) and defines it as follows: “Ethnic ­affiliation means that someone belongs to a group of people who have the 6 Article 3 Racial Equality Directive, emphasis added. 7 International Convention on the Elimination of all Forms of Racial Discrimination (‘icerd’), opened for signature 7 March 1966, entered into force 4 January 1969, 660 unts, p. 195. 8 Article 1 (1) icerd reads as follows: “In this Convention, the term ‘racial discrimination’ shall mean any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.” 9 P. Thornberry, International Law and the Rights of Minorities, Oxford: Clarendon Press, 1991, p. 160.

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same race, colour, national or ethnic background, or religious belief.” Austria also rejects the idea of separate races and therefore the notion of ‘race’ has been removed from all legal documents and has been replaced by the notion of ‘ethnic affiliation.’ In Germany, the vivid criticism and opposition that has arisen, as equally among sociologists10 as among legal scholars,11 is probably related to the abuse of the term during the Nazi regime.12 2.4 Other Areas of Ambiguity Isabelle Chopin points at different areas of ambiguity in the Racial Equality Directive notably the extent to which characteristics such as colour, national origin, membership of a national minority, language or social origin fall within the scope of ‘racial and ethnic origin.’ Many national laws include, as a minimum, colour and national origin within legislation implementing the Racial Equality Directive. Some States, such as Hungary, Poland and Slovenia, have specific and detailed laws on the protection of national minorities. It is often unclear whether the concept of ethnic/national minority found within these laws will be relied upon when national courts interpret anti-discrimination legislation.13 The only thing that is completely clear is the fact that nationality is not an automatic part of racial or ethnic origin, as the difference of treatment based on nationality is specifically excluded from the directive’s scope of application in Article 3 (2) of the directive.14 10

See, among others, M. Bös, ‘Rasse und Ethnizität,’ pp. 37–60 in M. Müller and D. Zifonun (eds.), Ethnowissen: Soziologische Beiträge zu ethnischer Differenzierung und Migration, Wiesbaden: VS-Verlag, 2010. See the conference on ‘Das Konzept der Rasse in der Geschichte der deutschen Soziologie,’ 6 July 2012, Frankfurt am Main. The conference website is available at (­accessed on 12 July 2012). 11 See, among others, R. Wolfrum, Das Verbot der Diskriminierung aufgrund von Rasse, Herkunft, Sprache oder Hautfarbe im Völkerrecht, pp. 215–34 in R. Wolfrum (ed)., Gleichheit und Nichtdiskriminierung im nationalen und internationalen Menschenrechtsschutz, Berlin and Heidelberg: Springer, 2003. 12 I. Chopin and Th. Uyen Do, European Network of Legal Experts in the non-discrimination field, ‘Developing Anti-Discrimination Law in Europe: The 27 EU Member States, Croatia, the fyrom and Turkey compared,’ Brussels: European Commission, DG Justice, November 2010, p. 22, available at (accessed on 4 April 2013). 13 Ibid. 14 L. Farkas, ‘Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive,’ Brussels: European Commission,

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Discrimination Based on Racial and Ethnic Origin: ‘Race’ and ‘Ethnic Origin’ as Separate Grounds of Prohibited Discrimination The two concepts of ‘race’ and ‘ethnic origin’ tend to be blurred to a certain extent, due to the recognition that both race and ethnic origin are social or cultural constructs that do not correspond to an objective reality independent from either self-identification by the individual concerned or labelling by external observers.15 For scholars such as Olivier de Schutter, the fact that both ‘race’ and ‘ethnic origin’ are used alongside one another in Art. 19 tfeu (ex-Art. 13 tec) and in the Racial Equality Directive suggests that the concepts should not be treated as synonyms.16 Apparently it was the intent of the drafters of the 1997 Amsterdam Treaty to distinguish ‘race’ from ‘ethnic origin’ as separate grounds of prohibited discrimination,17 making it clear that discrimination is not only prohibited when it is based on physical characteristics but also when it is based on cultural traits.18 Guidance on the distinction between ‘race’ and ‘ethnic origin’ can be found in the jurisprudence of the ECtHR, and especially in the judgment of Timishev v. ­Russia19 of 13 December 2005. The ECtHR addressed the issue in the following terms: 2.5

DG E ­ mployment, Social Affairs and Equal Opportunities, July 2007, p. 16 available at (accessed on 1 September 2015). 15 O. De Schutter, ‘Links between migration and discrimination,’ Brussels: European Commission, DG Employment, Social Affairs and Equal Opportunities, July 2009, p. 17, ­available at (accessed on 4 April 2013). 16 Ibid., p. 18. 17 On the relation between the concepts of ‘race’ and ‘ethnicity’ see A. Morning, ‘Ethnic Classification in Global Perspective: A Cross-National Survey of the 2000 Census Round,’ Population Research and Policy Review, April 2008, vol. 27, no. 2, pp. 239–72. 18 O. De Schutter, ‘Links between migration and discrimination,’ Brussels: European Commission, DG Employment, Social Affairs and Equal Opportunities, July 2009, p. 18, available at (accessed on 4 April 2013). Because prohibition of discrimination on grounds of membership of an ‘ethnic group’ coexists with the prohibition on ground of ‘race,’ this results in a dual form of protection, as has been recognized explicitly by certain jurisdictions, such as the New Zealand Court of Appeal in King-Ansell v. Police ([1979] 2 nzlr 531) or the United Kingdom’s House of Lords in the 1983 case of Mandla v. Dowell Lee ([1983] irlr 209), see O. De Schutter, ‘Links between migration and discrimination,’ Brussels: European Commission, DG Employment, Social Affairs and Equal Opportunities, July 2009, p. 18, footnotes 41 and 42, available at (accessed on 4 April 2013). 19 ECtHR, Timishev v. Russia, App. Nos. 55762/00 and 55974/00, Judgment 13.12.2005, Reports 2005-xii 169.

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[e]thnicity and race are related and overlapping concepts. Whereas the notion of race is rooted in the idea of biological classification of human beings into subspecies according to morphological features such as skin colour or facial characteristics, ethnicity has its origin in the idea of societal groups marked by common nationality, tribal affiliation, religious faith, shared language, or cultural and traditional origins and backgrounds.20 For a better understanding of the meaning of both concepts it is helpful to analyse the notions of race and ethnicity when used as qualifying terms together with the concept ‘minority.’ The UN Sub-Commission on Prevention of Discrimination and Protection of Minorities decided in 1950 to systematically replace the term ‘racial’ by ‘ethnic’ in all references to minority groups.21 The reason behind this, according to certain member of the UN Sub-Commission, is that the term ‘racial’ would not be a scientifically justified criterion of distinction. ‘Ethnic’ seemed more appropriate as it is broader and encompasses all biological, cultural and historical characteristics, whereas ‘racial’ would only refer to innate physical features.22 Kristin Henrard23 notes in this context that it would be better to combine both concepts to prevent potentially undesirable gaps regarding the field of application.24 A combination of both concepts seems to be especially desirable in the case of the Roma, as it allows for a maximal level of protection against discrimination. Another scholar who advocates the combination of both concepts is Lilla Farkas. In February 2017, she published a report25 on the meaning of racial or 20 Ibid.. 21 K. Henrard, Devising an Adequate System of Minority Protection, The Hague: Martinus ­Nijhoff Publishers, 2000, p. 49. 22 Ibid. 23 Ibid. 24 Ibid. See also M.N. Shaw, ‘The Definition of Minorities in International Law,’ in Y. Dinstein and M. Tabory (eds.), The Protection of Minorities and Human Rights, Dordrecht: Martinus Nijhoff Publishers, 1992, p. 17. Henrard also notes that certain authors connect ‘racial’ exclusively with certain physical features while ethnic communities would rather refer to broader groups determined by cultural, religious or linguistic ties. That differentiation apparently refers to the distinction between immutable identity features on the one hand and those identity features that become apparent through signal behavior on the other hand. K. Henrard, Devising an Adequate System of Minority Protection, The Hague: Martinus Nijhoff Publishers, 2000, p. 49, footnote 184. 25 L. Farkas, for the European Network of Legal Experts in gender equality and non-discrimination, ‘The meaning of racial or ethnic origin in EU law: between stereotypes and

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ethnic origin in EU law, on behalf of the European network of legal experts in gender equality and non-discrimination. The report conceives of ‘racial and ethnic origin’ as a single, composite and transversal conceptual category for the purposes of implementing European law. Composite means that, as a rule, racial or ethnic origin is comprised of constitutive characteristics that are at times protected separately ‘in their own right.’ Transversal speaks to temporal and geographic contingency, thus focusing on the changes in the terms’ meaning over time and space. While historical sources bring to the fore the unstable meaning of the word race, they depict racism as a global phenomenon motivated by deliberate political projects and resulting in discriminatory action fuelled by ethnic prejudice. The report concludes that in Europe the term racial or ethnic origin shall be applied as a ‘supercategory,’ rather than race or ethnicity alone. It purports to show that the quest for identifying differences between racial and ethnic origin has been futile and urges the legal profession to refrain from further pursuing such endeavours.26 Roma and the Personal Scope of Application of the Racial Equality Directive 2.6.1 No Express Reference to Roma There is no express reference to the Roma in the Racial Equality Directive, neither in the recitals nor in the text of the directive itself. Whereas there are controversies as to the question whether the Roma constitute a national minority on the territory of certain EU member states,27 there seems to be a broad consensus on the fact that the Roma constitute a racial and/or an ethnic minority. Accordingly, when they face discrimination, this discrimination is most probably related to their racial or ethnic origin. 2.6

26 27

identities,’ Brussels: European Commission, DG for Justice and Consumers, February 2017, available at (accessed on 1 January 2018). The report provides an in-depth analysis of the conceptual background of the ground of racial or ethnic origin as well as its practical interpretation by international as well as national courts. The report conceives of racial or ethnic origin as a single, composite and transversal conceptual category for the purposes of implementing anti-discrimination law, rather than considering them as separate grounds. It provides a highly relevant theoretical framework and a useful basis for practical legal interpretation in the void created by the lack of universally accepted definitions. Ibid., pp. 124–125. See above Chapter 5.

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2.6.2

Reference to the Roma in Commission Documents related to the Racial Equality Directive That it was the clear intention of the drafters of the directive that the directive would apply to the Roma as well becomes apparent from several European Commission Documents related to the application of the Racial Equality Directive. For instance, in its 2006 Communication to the Council and the European Parliament on the application of the Racial Equality Directive28 an explicit reference to the Roma was included. Among others, the European Commission underscored that in the majority of the EU 10—the group of ten countries which have joined the EU in 2004— statistics showed the Roma as the group most represented in complaints. The number of cases taken up by the Roma indicates that the directive is being successfully used as a reference before national courts and equality bodies to challenge discrimination.29 Another example is the action programme which accompanied the Racial Equality Directive and which provided EU funding for research projects, awareness raising and capacity building serving to combat discrimination.30 The action programme was strongly focused on the situation of the Roma, and the EU policy to remedy the discrimination and exclusion of the Roma is “fast becoming the best formulated and most active part of an otherwise rather unstructured minority policy.”31 There is also a clear link established between the Racial Equality Directive and the EU Framework for National Roma Integration Strategies, which is an EU policy framework.32 In the Communication from the Commission ‘Moving forward in the EU framework: establishing the structures for efficient implementation – Progress in the implementation of the National Roma Integration Strategies,’33 the European Commission identifies 5 structural pre-conditions 28

European Commission, ‘The application of Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin,’ com (2006) 643, p. 4. 29 Ibid. 30 Council Decision 200/750/EC of 27 November 2000 establishing a Community action programme to combat discrimination (2001–2006), OJ 2000 L 300/23. 31 B. De Witte and E. Horvath, ‘The many faces of minority policy in the European Union,’ in K. Henrard and R. Dunbar, Synergies in Minority Protection: European and International Law Perspectives, Cambridge: Cambridge University Press, 2008, p. 373. 32 On the Framework for National Roma Integration Strategies, see below, Chapter 11, 2.2 The EU Framework for National Roma Integration Strategies. 33 Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of Regions, ‘Moving forward in the EU framework: establishing the structures for efficient implementation – Progress

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of efficient implementation, one of them being ‘fighting discrimination convincingly.’ The document notes that to speed up progress on Roma integration, among others in education, the Commission is offering additional support to the Member States by “monitoring the implementation of the Race Equality Directive in administrative practices.”34 The Communication was followed by a Council Recommendation on effective Roma integration measures in the Member States.35 In this document, the Council recommends the Member States to continue their efforts to ensure the effective practical enforcement of Directive 2000/43/EC, in particular by ensuring that their national, regional and local administrative regulations are not discriminatory and do not result in segregation practices. The relevant case-law of the European Court of Human Rights should serve as a point of reference for the human rights compatibility of provisions and practices in this context.36 The Commission’s increased efforts in ensuring the respect of the Racial Equality Directive by Member States towards the Roma concretized in an infringement procedure against the Czech Republic in September 2014, against Slovakia in April 2015, and against Hungary in May 2016 on account of the segregation of Roma children in education, which was held not to be in line with the provisions of the Racial Equality Directive.37 These 3 Member States have thus received a letter of formal notice. Depending on the content of the reply by the Member States, which is not published, the Commission can take the case before the cjeu. The Commission is also currently investigating whether it has sufficient evidence to open infringement proceedings against other Member States for discrimination against Roma in the field of housing and

34 35

36 37

in the implementation of the National Roma Integration Strategies,’ Brussels, 26.6.2013, com(2013) 454 final. Ibid, p. 12. Hereby it should be noted that monitoring the implementation of a directive, which is presented as ‘additional support’ to the Member States, is actually a consequence of the role of the Commission as ‘guardian of the Treaties.’ Council of the European Union, ‘Council Recommendation on effective Roma integration measures in the member states,’ Employment, Social Policy, Health and Consumer Affairs Council Meeting, Brussels, 9 and 10 December 2013, available at (accessed on 1 August 2015). See below Chapter 11 under 5. More than a Policy Document: the December 2013 Council Recommendation on Effective Roma Integration Measures in the Member States. Ibid., p. 8 under 2.1. See above Chapter 4 under 5.5 Infringement Procedure.

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continues monitoring the respect of the Racial Equality Directive regarding equal access to education for the Roma in other Member States. 2.6.3 The Roma as a Dual Racial and Ethnic Minority? It has been mentioned above that the Racial Equality Directive applies to all persons, and not only to those persons belonging to a racial or ethnic minority, as soon as discrimination has taken place on the ground of race or ethnic origin. It also has been pointed out that in some cases it is unclear on what exact ground discrimination has taken place. Sometimes governments argue that the separation of Roma children into separate classes or schools has taken place on the basis of language criteria, or other criteria which are not related to race or ethnicity.38 However, these arguments are mostly invoked to disguise the real ground for discrimination, which often indeed is related to the ethnic origin of the victims. A broad definition of the concepts of ‘race’ and ‘ethnic origin’ covering all the social attributes of the Roma leaves no possibility for perpetrators to argue that the discrimination has not taken place on account of race or ethnic origin, as all other grounds related in a certain way to the ethnicity of the victim are subsumed under the concepts of ‘race’ and ‘ethnicity.’ Many scholars therefore advocate the combined adoption of both concepts of ethic and racial origin in order to prevent potentially undesirable gaps regarding the field of application and in order to increase the level of protection under the Racial Equality Directive. One of the scholars advocating the adoption of a broader definition of Roma as a dual racial and ethnic minority is Lilla

38

See for instance ECtHR case of Oršuš v Croatia, Judgment of 17 July 2008, Application No 15766/03 in which the Croatian government argued that the separation of Roma children into separate classes had taken place on account of language criteria and not ethnicity or race. The chamber accepted the arguments of the Croatian government and held that there was no violation of the convention. The case was referred to the Grand Chamber, which, after unveiling the real grounds for the separation of the Roma children, held that the case was one of racial discrimination and held with nine votes to eight that there had been a violation of Art. 14 echr read in conjunction with Art. 2 Protocol No. 1 on the right to education. It is regrettable that as many as 8 of the judges did not succeed in identifying the real grounds for the separation of the Roma children, which was their racial and ethnic origin. This is clear from the facts of the case and the ngo research done on the spot, which has shown that (1) no non-Roma children with language problems attended the Roma only classes (2) the Roma children, after acquiring a certain degree of proficiency in the Croatian language, did not return to the mainstream classes again (3) there were no special language courses offered to the Roma children in the Roma only classes and (4) pressure had been exerted by the parents of the non-Roma children in order not to have their children attending the same class as the Roma children. See Oršuš v Croatia, Grand Chamber Judgment of 16 March 2010, Application No 15766/03.

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Farkas.39 She also stresses that, as described above, in the case of the Roma, it is sometimes argued that a less favourable treatment has occurred not because of their racial or ethnic origin, but for other reasons unrelated to their race or ethnicity, such as their social class, their language, their tribal affiliation, their religion or their area of residence.40 If this way of reasoning is accepted, there is no protection under the Racial Equality Directive and mostly also no protection under the national legislation transposing the Racial Equality Directive as the latter often only covers discrimination on the ground of racial and ethnic origin and not on other grounds. This can be avoided by adopting a broad definition of the concepts of ‘race’ and ‘ethnic origin’ so as to cover other related grounds as well. Such a broad definition should capture all the Roma’s relevant social attributes in order to avoid that discrimination on the ground of race or ethnic origin is not categorized as such. Moreover, in the case of the Roma, the close interaction between ethnic origin and race must be recognized, as the Roma are both an ethnic and a racial minority. Treating the Roma simply as a racial minority on account of their outer appearance41 would deny their historical presence in and ties to Member States, and with this, their protection as an ethnic minority. Conversely, treating them only as an ethnic minority would deny protection on account of their facial characteristics, which distinguish them from the majority of ethnic minorities in Member States, who often physically do not look different from the members of the majority population. The different outer appearance of the Roma (a darker skin colour) combined with a completely different lifestyle and different traditions are characteristics that may intensify the discrimination they suffer. 39

40

41

L. Farkas, ‘Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive,’ Brussels: European Commission, DG Employment, Social Affairs and Equal Opportunities, July 2007, pp. 19–22 available at (accessed on 1 September 2015). L Farkas, ‘Discussion Paper: Discrimination against Roma: Legal Developments,’ legal seminar on the implementation of EU law on equal opportunities and anti-discrimination,’ 6 October 2009, available at (accessed on 4 April 2013). Dagmar Schiek defines ‘racism’ as being “about categorizing individuals according to their outer appearance, skin colour being an important, but not the only distinguishing feature.” D. Schiek, ‘A New Framework on Equal Treatment of Persons in EC Law?,’ European Law Journal, June 2002, vol. 8, no. 2, p. 309. In differentiating ‘race’ and ‘ethnicity,’ she proposes to define ‘ethnicity’ as “an entity to which a person defines herself or himself as belonging, taking into account to geographic origin, culture, language and religion” (at footnote 89).

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Also the ECtHR seems to have adopted an all-encompassing definition of Roma in mentioning several particularities and characteristics of Romani children: their extreme vulnerability, their different lifestyle, their being members of a disadvantaged community, the fact that they are often poorly educated, are making decisions under constraint and are exposed to a risk of isolation and ostracism in majority settings.42 An all-encompassing definition of the Roma is especially relevant in the field of educational rights. Policies and programmes tackling the segregation of the Roma in education will only prove successful if they incorporate as well a social element as methodologies including interculturalism and elements of the Roma culture. Farkas stresses in this context that a broad definition of ‘race’ and ‘ethnic origin’ encompassing all the social attributes of the Roma is paramount in education, where without respect for minority language and culture, as well as for the social situation of Roma children, their segregation will not end.43 3

Conclusions under Chapter 6

The Racial Equality Directive prohibits discrimination on grounds of racial or ethnic origin in respect of all persons, not only minorities, so in principle it applies universally. The concept of ‘racial or ethnic origin’ is not defined in the directive. It is thus left up to the member states to define ‘racial or ethnic origin’ in their national laws implementing the directive. The ‘multi-facetted definition’ of the concepts of race and ethnic origin as proposed by Lilla Farkas is to be welcomed as it has the potential to increase the level of protection under the Racial Equality Directive in the sense that it leaves no room for perpetrators to come up with the argument that the discrimination did not take place on account of race or ethnic origin but on account of other social attributes, as all these social attributes would be subsumed under the concepts of ‘race’ and ‘ethnic origin.’ Another reason why a ‘multi-facetted definition’ should be adopted is because it leaves room for the use of both concepts of ‘race’ and ‘ethnic origin.’ Some scholars argue that, due to its negative connotation and due to the fact that scientific evidence has shown that there are no different ‘human races,’ 42 ECtHR, D.H. and others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 181, paras 201–203 and para. 205. See also Chapman v. the United Kingdom [GC], A ­ pplication No. 27238/95, echr 2001-I, para. 96 and Connors v. the United Kingdom, ­Application No. 66746/01, 27 May 2004, para. 84. 43 Ibid.

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the concept of ‘race’ should be abandoned. Instead, those scholars suggest to use the term ‘ethnic origin’ and to subsume all discriminatory treatment based on different outer appearances under the concept of ‘ethnicity.’ Even though it is true that the difference between ‘race’ and ‘ethnicity’ tends to become more blurred, there are certain grounds for maintaining the two different concepts. First of all, differences in physical appearances are apparent and cannot be overlooked, whereas the ethnic background of a person is often not apparent. Persons belonging to ethnic minorities with different physical appearances than those of the majority population are thus more vulnerable than ethnic minorities who at first sight cannot be identified as such. Secondly, from a sociological point of view, a definition based on ethnicity might more easily justify inferior treatment than a definition based on race. Whereas it will be more difficult to attach the concept of race exclusively to minorities—due to the fact that race is related to physical appearance and all human beings necessarily have a certain physical appearance—it is easier to use the concept of ethnicity as exclusively attached to minorities. In the case of a definition based on ethnicity, the majority group might not see itself as an ethnic group, but as the embodiment of universal values. All other groups can therefore be described as different, where different means deviant and therefore justifies inferior treatment.44 It remains to be seen, though, in how far judges in the different EU Member States will adopt a similar reading. So far few attempts have been made to encompass the multi-facetted nature of Roma identity, and only little cjeu ­jurisprudence on the scope of the concepts used in the Racial Equality ­Directive is available.45 44 45

S. Fredman, ‘Combating racism with Human Rights,’ in S. Fredman (ed.) Discrimination and Human Rights: The Case of Racism, Oxford: Oxford University Press, 2001, p. 11. As of January 2018, 8 cases on the scope of the provisions of the Racial Equality Directive have been brought to the cjeu by means of a preliminary ruling, of which the most significant ones are Case C-54-07 Centrum voor Gelijkheid van Kansen en Racismebestrijding v Firma Feryn NV [2008] ecr I-5187, Case C-391/09, Malgožata Runevič-Vardyn and Łukasz Paweł Wardyn v Vilniaus miesto savivaldybės administracija and Others [2011] ecr I-3787, and Case C-83/14, chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, 2015, ecli:EU:C:2015:480 . For an analysis of the latter, see below Chapter 8. at 3.2.2 Case C-83/14 illustrating the difference between direct v. indirect discrimination. The 5 other cases areVajnai, Meister, Belov, Kamberaj and Jyske Finans. Case C-328/04 Vajnai, ecli:EU:C:2005:596; Case C-415/10 Galina Meister v Speech Design Carrier Systems GmbH, ecli:EU:C:2012:217; Case C-394/11 Valeri Hariev Belov v chez Elektro Balgaria AD and others, ecli:EU:C:2013:48; Case C-571/10 Servet Kamberaj v Istituto per l’Edilizia sociale della provincial autonoma di Bolzano (ipes) et al., ecli:EU:C:2012:233; Case C-668/15, Jyske Finans AS v Ligebehandlingsnaevnet, acting on behalf of Ismar Huskic, ecli:EU:C:2017:278.

Chapter 7

The Right to Education under the Framework Convention for the Protection of National Minorities: Theoretical Framework 1 Introduction This chapter is devoted to the right to education under the fcnm. The first part deals with the understanding of the notion of education on the basis of State Reports, acfc Opinions and Resolutions of the Committee of Ministers. The second part contains a detailed analysis of the provisions on education under the fcnm, which are the Articles 12, 13 and 14 fcnm on the one hand, as well as an overall analysis of the Articles 4, 5 and 6 fcnm, a set of core obligations of states on the other hand. The focus is not on the history and background of these articles or the travaux preparatoires,1 but rather on the manner in which the acfc has interpreted these articles in the monitoring procedure under the Framework Convention. The third and last part is dedicated to the acfc Thematic Commentary on Education, its drafting process, the key issues highlighted by the acfc in the Commentary, its legal value and role. 2

A Wide Understanding of the Notion of Education under the fcnm

States report under the fcnm on the basis of a wide understanding of education. This has also been the approach pursued by the acfc. The scope of the notion of education covers not only the basic compulsory school system, but also pre-schools, higher education, research, vocational education, adult education, education of professional groups (including the legal profession, police, journalists, government officials and politicians) and educational 1

For the background (issues, history and context) of the Articles 4, 5,6, 12, 13 and 14 see the different contributions in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford ­University Press, 2005.

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a­ ctivities outside regular school hours (such as so-called Sunday schools and summer camps).2 With regard to the importance of pre-school education, the acfc noted, in its first Opinion on Slovakia, that […] experiences gained by minorities at pre-school level are often of central importance. Considering that the proportion of Roma children attending kindergartens has dropped drastically in recent years in Slovakia, the acfc welcomes the initiatives aimed at improving opportunities for Roma in kindergartens and expresses the hope that they will have a positive impact on the relevant practice at local level.3 The issue of pre-school education is also explicitly addressed in the Explanatory Report to the Framework Convention in respect of Art. 14 (2) fcnm.4 The acfc notes in its Commentary on Education that, while there is relatively rich information with regard to primary education in the Reports of most state parties (including also pre-school education), there is much less detail as regards access of minorities to higher education and of the availability of higher education in minority languages, history, culture etc.5 States report on various institutions conducting minority related research, but give few accounts of the level of involvement of minorities themselves in such research and education. While primary education must be free-of-charge and compulsory, the exact extent of the obligations of state parties with regard to higher education have not been spelled out in international legal documents beyond the principle of equal access as found in Art. 12 (3) fcnm.6 2 acfc, Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 13 available at (accessed on 1 August 2015). 3 See the acfc Opinion on Slovakia, ACFC/OP/I(2001)001, para. 40. 4 acfc, Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 13 available at (accessed on 1 September 2015). 5 See for instance the State Reports of Croatia ACFC/SR(2003)001 and Lithuania ACFC/SR(2001)7 and the acfc Opinions on Albania ACFC/OP/I(2003)004, Estonia ACFC/OP/I(2002)005, and the United Kingdom ACFC/OP/I(2002)006, cited in footnote 18 of the acfc, Commentary on Education under the Framework Convention for the ­Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 14. 6 acfc, Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 14.

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The importance of adult education is highlighted in many state Reports and states seem to be aware of its role.7 The role of modern technology, such as Internet-based instruction, in education and its specific advantages and potential disadvantages for persons belonging to national minorities have not been fully assessed in many state parties. 3

An Analysis of the Relevant Provisions of the fcnm

Patrick Thornberry in his comment under Art. 12 fcnm notes that the provisions of the fcnm on education represent a fresh chapter in a complex history of instruments and principles, some of which reach back into the era before the advent of universal human rights.8 For instance at the time of the League of Nations, the minority treaties and declarations were typically concerned with education and the use of languages in education.9 Evidence from that period also indicates that the education provisions of the League of Nations instruments were a matter of primary concern to all parties to the system, including petitioners to the League of Nations authorities.10 As underscored above in Chapter 2 on education, education appears to many members of minority groups as a vital safeguard for their continued existence as distinct communities. Key Provisions on the Right to Education: the Articles 12, 13 and 14 fcnm The educational provisions of the fcnm address key questions in a form that manifests elements of the League of Nations approach within a human rights 3.1

7

See, for instance, the State Report of Estonia ACFC/SR(99)16 reporting on the budget of language training of adults and children and on legislation for adult education. A rich source of information on adult education can be found in the State Reports of Germany ACFC/SR(2000)1, Italy ACFC/SR(1999)007 and Sweden ACFC/SR(2001)3. It is to be noted that already during the preparatory work for the Framework Convention, the issue of adult education was emphasized, CDCC-BU(94) Rev. 7 (1994), cited in footnote 20 of the Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 14. 8 P. Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 365. 9 P. Thornberry, International Law and the Rights of Minorities, Oxford: Clarendon Press, 1991, Chapter 2 Historical Background: International Law Moves from Protection of Particular Groups to Norms of a Universal Character, pp. 25–37. 10 Ibid.

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framework. In essence, Art. 12 fcnm addresses questions of cultural knowledge in the area of minority rights, the ‘human capital’ necessary to deliver this curriculum, and the right of equal access to education at all levels. In addition, Art. 13 fcnm addresses the specific issue and implications of the right of minorities to establish their own educational and training establishments, and Art. 14 fcnm partially deals with the issue of minority languages in education. 3.1.1 Article 12 fcnm Article 12 1. The Parties shall, where appropriate, take measures in the fields of education and research to foster knowledge of the culture, history, language and religion of their national minorities and of the majority. 2. In this context the Parties shall inter alia provide adequate opportunities for teacher training and access to textbooks, and facilitate contacts among students and teachers of different communities. 3. The Parties undertake to promote equal opportunities for access to education at all levels for persons belonging to national minorities. 3.1.1.1

Structure: Multicultural and Intercultural Education as Important Elements throughout Article 12 The key terms in debates on educating mixed populations are ‘multiculturalism’ and ‘interculturalism.’ The differences between multicultural and intercultural education have already been addressed in the second chapter:11 whereas ‘multiculturalism’ reflects the coexistence of cultures in the same society and is usually understood as a programme or policy to recognize cultural differences expressed through the education system and elsewhere, in order that individuals may ‘know’ their own culture, ‘interculturalism’ or intercultural dialogue in essence denotes reciprocity of learning among cultural groups. Interculturalism is referred to in Art. 6 fcnm12 and for example, in the Council of Europe’s Charter for Regional or Minority Languages.13 11 12

13

See Chapter 2, 3.2.1 On the Differences between Multi- and Intercultural Education. See also the comments on interculturalism in the Explanatory Report on the Framework Convention for the Protection of National Minorities: Ad Hoc Committee for the Protection of National Minorities (cahmin), Explanatory Report on the Framework Convention for the Protection of National Minorities, H(1995)010, 1995, para. 48. coe ‘European Charter for Regional or Minority Languages,’ adopted 5 November 1992, entered into force 1 June 2000, cets No. 148. The European Charter on Regional or Minority Languages does not define the term ‘interculturalism’ but provides some clarification in its observation that the approach ‘corresponds fully to the values traditionally upheld by the Council of Europe and its efforts to promote closer relations between peoples,

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Thornberry notes that Art. 12 fcnm appears to have elements of both approaches, the multicultural and the intercultural approach.14 Art. 12 (1) suggests a benign social reciprocity associated with general society’s knowledge of their minorities and their cultural differences reflecting both the multi- and inter-cultural idea, whereas Art. 12 (2) is explicitly intercultural in its references to ‘contacts among students and leaders of different communities.’ Finally, Art. 12 (3) emphasizes the importance of access to education for minorities without specifying its exact content. The point on education ‘at all levels’ illustrates, according to Thornberry, not only the importance of education for individuals to succeed in society, but also the need of the group as a whole to increase its survival capacity through the education of its members.15 The Framework Convention’s account of intercultural education implies that the general population should be aware of minority presence, history and culture, and equally that minorities should not retreat into psychological ghettoes where they take no interest in fellow citizens. As segregation in education prevents social reciprocity and increases the danger of ghettoization and the polarization of the two communities, it is clear that all forms of segregation are not in conformity with the spirit of Art. 12 fcnm. 3.1.1.2

Context: the Importance of the Right to Education for the Realization of Other Human Rights The importance of the fulfilment of the right to education for the realization of other human rights has already been stressed in Chapter 2.16 In the particular context of minority rights, the possibilities to enjoy education rights are severely reduced in the absence of a coherent education strategy.17 The different elements of the Framework Convention ‘hang together,’ so that minority empowerment in education leads to empowerment in other areas. Conversely, educational disempowerment leads to disadvantage. The chances of political and social participation; effective equality; success in economic and cultural ­increased European co-operation and a better understanding between different population groups within the State on an intercultural basis.’ See the European Charter on Regional or Minority Languages Explanatory Report, 1993, para. 14. 14 P. Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 373. 15 Ibid. 16 Chapter 2, 3.4 Education as a Human Right and an Indispensable Means of Realizing other Human Rights. 17 P. Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 372.

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life; and the realization of freedom of expression through minority media are reduced if minorities do not have full and equal access to quality education. The negative consequences for the realization of other human rights of a lack of full and equal access to quality education are manifest notably in the case of the Roma, for whom educational deprivation connects with cumulative, systemic discrimination against them. 3.1.1.3

Article 12 (1): Promotion of a Multicultural and Intercultural Perspective of Education As mentioned above, there is no explicit reference to the concepts of ‘multiculturalism’ or ‘interculturalism’ in the first paragraph of Art. 12 fcnm. It is implicit in the text that the necessary ‘knowledge’ to be fostered should be critical and fair-minded, avoiding ideological manipulation or propaganda and racist and xenophobic ideas, and presented with full respect for human rights.18 The acfc has been frequently engaged with Art. 12, though its interpretations of the article’s requirements have not produced a great deal of contestation on the part of reporting states.19 With regard to the ‘multicultural’ element of education, state parties make occasionally critical self-assessments of their implementation of Art. 12, which may strengthen the norm in question.20 In its first State Report,21 the Czech Republic identified some of the school disciplines needing specific attention: ‘Education of the majority population about the culture, history, language and religion of national minorities has traditionally been neglected. In spite of a certain progress made during the last ten years, Czech instruction books remain largely textbooks of the Czech ethnic nation, its history, its culture, its fight for ethnic autonomy and later state sovereignty, always in contrary to the German element. It is as though the 18 19 20

21

See the language used in the Committee of Ministers, Recommendation (2001)15 on History Teaching in Twenty-first-Century Europe, 771st meeting, 2001. P. Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 376. State Report of Germany, ACFC/SR(2000)1, under Article 12. In cases where states have reported that they provide multicultural education in minority areas, but not elsewhere, the acfc has recommended that the authorities extend the content of such curricula to areas other than those inhabited by national minorities. See acfc, Opinion on Germany, ACFC/OP/I (2002)008, para. 55. See also the Opinion on Austria, ACFC/OP/I (2002)009, para. 56. State Report of the Czech Republic, ACFC/SR(99)6, under Article 12.

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Czech Lands have not traditionally been the home of various ethnic, cultural and religious communities, especially the German and Jewish national minorities, and also the perpetually disregarded Romanies [sic].’ In order to guarantee the ‘intercultural’ element in education, which includes intercultural dialogue (Articles 6 and 12), dissemination of knowledge of minority cultures (Art. 12) and the learning of the majority language by persons belonging to minorities (Art. 14), state parties must make assessments of different possibilities for the structuring of teaching.22 The core task of the state is to organize the education system in a way which allows for interaction between persons from various groups in order to encourage mutual understanding and tolerance, while at the same time ensuring the successful maintenance and development of the elements of the identities of members belonging to various groups. A crucial question to be asked by the state parties when implementing the first paragraph of Art. 12 fcnm is the question how the structures and content of education can ensure the balance between the two aims outlined above in order to achieve ‘integration in diversity.’23 In the case of minority groups which—for various reasons—are not accommodated in the ordinary educational system, but instead visit supportive, additional or remedial classes, it is difficult to judge in abstracto whether the kind of education which is offered is in accordance with the provisions of the fcnm. Some of these structures are legitimate,24 while others are ­unacceptable,25 22

acfc, Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, pp. 15–16. 23 Ibid. 24 Such as ‘supportive’ or ‘additional’ or ‘remedial’ classes in order to permit the integration of minority pupils (often Roma) to other ‘integrated’ classes later on, or such as Sunday schools, which in a few states, such as Moldova, are seen as an integral part of the public educational system, while in other countries they fall completely outside this framework. The acfc has expressed its appreciation of supportive pre-school classes if they are aimed at enabling Roma pupils or others concerned to follow the regular curriculum. However, at the same time, the acfc has indicated that there is a dangerous grey zone between the different patterns of segregation on the one hand and supportive or remedial classes on the other hand. For instance, in the Opinion on Sweden, the acfc said that it had received reports according to which in some Swedish municipalities the measures taken with respect to Roma pupils had led to the establishment of specific classes for Roma, often with support from a number of Roma parents. The acfc considered that “even when such initiatives are designed as a way to provide additional support for the pupils concerned, specific classes devoted to one national minority as such (rather than, for example, to the teaching in/of their language and of their culture) risk placing the children

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e­ specially if they impose segregated education and have discriminatory effects, as is often the case for the Roma.26 The acfc, in its Commentary on Education, underlines that the choice of school structures, teaching methods and educational content should be guided by a broad assessment taking into consideration, inter alia: – The aims of education in a specific region and cultural and political context. In particular in countries that have experienced conflict or are experiencing interethnic tension or aggressive nationalism, the need to ensure contact, dialogue and integration is a compelling priority; – The collection and availability of gender sensitive data concerning the number, needs, demands and expectations and preferences of minority pupils and teachers; – The level of language proficiency of children in the minority language as well as in the majority language. In some cases the language proficiency of minority students in their native language is not sufficiently high to enable them to follow education solely in the minority languages. It was noted in some State Reports that the role of the educational system in preserving and developing minority cultures has increased in recent years because parents are unable to pass over to their children the language and traditions of the minority; – The demographic profile of a certain location or region. Is it possible to have shared schools or classes or streams of study while accommodating specific needs e.g. in teaching of languages? Is it possible to have bilingual schools? Are separate schools the only available method? – The availability of appropriate textbooks produced in the country concerned or, if appropriate, in kin-states; – Financial and other resources.27

25

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 concerned at a disadvantage and harming the implementation of Article 12 and the principle of intercultural dialogue contained in Article 6 of the Framework Convention.” Finally, the acfc urged the authorities to analyse the local situations and take measures, in consultation with the persons concerned, “with a view to enabling and encouraging Roma children to stay in the regular classes.” See also the Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 17. Such as the ‘special classes’ and ‘special schools’ for children with learning disabilities which do not allow Roma children to re-enter mainstream schools, described under Chapter 2, 2.3 Different Patterns of Segregation of Roma Children in Central and Eastern Europe. Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 17. Ibid., p. 18.

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Concerning the latter, among the persistent questions addressed by the acfc are those of resources and minority input into curriculum processes. Dissemination of educational material requires the allocation of adequate resources. The importance of adequate resources for the achievement of educational objectives is stressed in a number of observations by the acfc.28 Kin-state support should ideally be seen as a supplement to state resources and not as a substitute for adequate provision. Thornberry underlines that otherwise, issues of discrimination could well arise, with some minorities— on account of the ‘accident’ of possessing a kin-state—being placed in a more favourable position than others.29 As the Roma do not have a kinstate, they would lose out in such a constellation, as would other vulnerable groups. Thornberry concludes that practice overall suggests a widespread awareness of the importance of multicultural and intercultural education, as the self-critical stance of some governments indicates. There is also the awareness that, in a complex society, the complexity of history, culture, and traditions should be appropriately reflected in educational syllabuses. To fulfil the requirements of Art. 12 (1), the mere removal of offensive stereotypes from textbooks is not enough. What is required is a more active policy of presenting minority culture in a fair and balanced fashion, highlighting the contribution of the group to the cultural richness of the nation as a whole.30 Charlotte Altenhöner-Dion31 also notes in this context that the Advisory Committee has called on state authorities to ensure that school curricula and textbooks reflect adequately the presence of national minorities, including their positive contributions to the traditions, culture and development of society. It has furthermore stressed that multiple perspectives must be introduced in history teaching and appropriately reflected in the textbooks used in both minority and majority-language schools.32

28 29 30 31 32

See, among other, the Opinion on Finland, ACFC/OP/I (2001) 002 and proposals for conclusions and recommendations by the Committee of Ministers in respect of Article 12 and the Opinion on Hungary, ACFC/OP/I (2001)004, para. 39. P. Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 380. Ibid., p. 381. C. Altenhöner-Dion, ‘Artikel 12’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum  Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 373. See, among others, the Third AC Opinion on Estonia, ACFC/OP/III(2011) 004, adopted on 1 April 2011, at para. 132.

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3.1.1.4

Article 12 (2): Teacher Training, Access to Textbooks and Multicultural Contacts The second paragraph of Art. 12 begins with the phrase ‘in this context,’ which refers to the preceding paragraph and suggests that its provisions on teacher training and inter-communal student and teacher contacts are ‘tied’ to the objectives of intercultural education in Art. 12 (1). The acfc does not intend to individuate comments on the second paragraph of Art. 12; the implications of Art. 12 (2) are generally considered in the light of Art. 12 as a whole. Consequently, various shortcomings have been identified: the lack of training officers and qualified teachers;33 the shortage of textbooks;34 and the limited contacts between pupils attending minority language schools and those attending schools where the state language or the official language is the medium of instruction; the difficulty of ensuring continuity of minority education through different levels; and a general lack of financial resources.35 The term ‘adequate’ in Art. 12 (2)—as well as in other similar clauses of the Framework Convention—when talking about ‘adequate opportunities’ accentuates once more the need for state parties to collect baseline data and make needs’ assessments. It should also be noted that bilingual and multilingual societies and schools require teachers with appropriate bilingual, multilingual and intercultural training. Teachers must therefore be recruited actively from both majority and minority groups and be given training, equipping them to work in multilingual and intercultural environments.36 Special attention is paid by the Advisory Committee to the quality of history books. The Advisory Committee has stressed that relevant textbooks must be developed in close consultation with community representatives to ensure that they do not contain stereotypes or other harmful images of minority communities.37 33 34

35 36 37

Opinion on Armenia, ACFC/OP/I (2003) 001, para. 65; Opinion on Finland, ACFC/OP/I (2001) 002, para. 40; Opinion on Romania, ACFC/OP/I (2002) 001, para. 53. Opinion on Austria, ACFC/OP/I (2002) 009, para. 51 and 91; Opinion on Croatia, ACFC/OP/I (2002) 003, para. 48 and ‘proposals for the Committee of Ministers,’ Opinion on Hungary, ACFC/OP/I (2001) 004, para. 39 and ‘proposals for the Committee of Ministers’: in reply, Hungary stressed the ‘substantial support’ for teacher training and the role of support from kin states; Opinion on Romania, ACFC/OP/I (2002) 001, para. 53. Opinion on Estonia, ACFC/OP/I (2002) 005, para. 46, and. Opinion on Moldova, ACFC/OP/I (2003) 002, para. 74. Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 19. C. Altenhöner-Dion, ‘Artikel 12’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015,

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The Advisory Committee has also stressed on several occasions that textbooks should be available free of charge, or at least be no more expensive than textbooks at general state schools. This makes the learning of the minority language at a minority school more attractive and less expensive for parents.38 The Advisory Committee has also stressed the importance of the quality of teacher training as the lack of qualified teachers of minority languages can hamper the possibility to study these languages. Especially education not only of the minority language but also in the minority language is under pressure, if the sole focus is on training language teachers, instead of also training teachers who can teach e.g., maths or biology in the minority language. The Advisory Committee has welcomed the introduction of modern bi- and multilingual teaching methodologies.39 It has also welcomed the use of bilateral co-­operation with other countries to strengthen measures to protect minorities in the field of education, such as through teacher training or the preparation or provision of teaching material.40 Thornberry underlines that the second paragraph of Art. 12 also suggests the need for positive proactive measures to achieve its objectives. The provisions on contacts, especially for the young, supply an essential basis for positive intercommunal relations. The provision encourages the growth of personal relationships between members of minority and majority.41 Even if in some cases separate minority schools are unavoidable due to geographical constraints, or due to the need to promote the minority language, state parties must nevertheless ensure that the educational system does not isolate minority schools or contributes to the development of parallel societies. Therefore the Advisory Committee has welcomed the organization of ­common extracurricular activities and excursions and exchange programmes.

38 39 40 41 42

p. 373. See, for instance, the Third AC Opinion on Kosovo, ACFC/OP/III(2013) 002, adopted on 6 March 2013, at para. 115. C. Altenhöner-Dion, ‘Artikel 12’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum  Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 374. See, for instance, the Third AC Opinion on Ukraine, ACFC/OP/III(2012)002, adopted on 22 March 2012, at para. 117. See, for instance, the Third AC Opinion on Italy, ACFC/OP/III(2010)008, adopted on 15 October 2010, at para. 190. P. Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 383. C. Altenhöner-Dion, ‘Artikel 12’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 375.

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It has suggested that these exchange programmes should work both ways, that is to allow pupils from minority schools to get in contact with schools and families in the majority population, but also to allow pupils from majority schools to become acquainted with pupils from minority schools and their families.42 3.1.1.5 Article 12 (3): Equality and Access Questions of access to education are a central issue in many comments of the acfc. In the case of the Roma, their segregation into ‘special schools’ is a key Art. 12 (3) issue.43 The acfc interprets the access requirement to mean that governments should engage in a policy of supporting access for all national minorities according to their different requirements and demands. In this respect, the ­responsibility of governments is to implement equality as a genuine right requiring an active governmental contribution and strategy.44 ‘Access’ includes the question of absenteeism among members of national minorities, pre-­ eminently among Roma children and pupils of other vulnerable minorities.45 ‘Access’ also implicates the question of school exclusion, which can have a ­differential impact on members of minority groups.46 The acfc appears to consider that any under-representation of minorities in institutions of secondary and higher education is contrary to the right to equal opportunities in access to education at all levels as set out in Art. 12 (3). Cost and transportation47 issues also figure among the impediments recognized by the acfc in relation to access to secondary education.48 Reserving places for Roma students at institutions of higher education, for example, has been noted and welcomed by the acfc as a method of ­securing 43

44 45

46 47 48

Other problems encountered are the bullying of Roma children by other children or teachers, inappropriate and culturally biased tests used in the educational systems, the lack of recognition of the Roma language in schools, low income and lack of school meals for Roma, etc. There problems are discussed in detail under Chapter 2, 2. Problems Faced by the Roma in Education. See, for example, the Opinion on Armenia, ACFC/OP/I (2003) 001, para. 63–69. The differential position of minorities receiving support from kin states and of those without kin state support comes up in this connection. See, for example, the Opinion on Armenia, /INF/OP/I (2003) 001, para. 63–69, in connection with the Assyrians and the Yezidis. P.Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, pp. 384–385. See, for instance the Third AC Opinion on Germany, ACFC/OP/III(2010)003, adopted on 27 May 2010, at para. 152. Opinion on Italy, ACFC/OP/I (2002) 007, para. 55.

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national minority access.49 In the case of Romania, the acfc added that, in addition to reserving places, ‘it is important that the authorities launch information campaigns to help ensure that they are filled.’50 The reservation of university places for particular communities is therefore an approach which can be justified, not only by calling on the notion of ‘special measures’ but also by the broad minority rights commitment to provide means for cultures to survive and flourish.51 Also the use of school mediators, who are to contribute to more mutual trust and a better relation between Roma parents and schools, has achieved positive results in several state parties and has been very much welcomed by the Advisory Committee.52 3.1.1.6 Conclusion The acfc visualizes the rights encompassed in Art. 12 as requiring sustained and consistent attention by state authorities, including attention to all manifestations of exclusion from and lack of access to schools. In the latter respect, the situation of many Roma communities is dire. The lack of attention to Roma language and culture in educational processes leads to the situation where many Roma communities are deprived of means to develop cultural self-­confidence through cultural and linguistic self-knowledge, as well as of the basic skills and knowledge needed to succeed in the general society. The emergence of so-called special schools is a symptom of a wider failure to address problem related to equal access of the Roma to education.53 In minority affairs, educational issues are often delicately balanced between integration and separation. If integration is pushed too far, the result is assimilation and the disappearance of the minority as a distinct culture. A policy of separation, on the other hand, can lead to a ghetto culture of withdrawal

49 50 51 52

53

Opinion on Moldova, ACFC/OP/I (2003) 002, para. 72; Opinion on Romania, ACFC/OP/I (2002) 001, para. 57. Opinion on Romania, ACFC/OP/I (2002) 001, para. 57. P. Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 386. See, among others, the AC Opinions on Latvia, Spain, Lithuania, Ukraine and unmik/ Kosovo, C. Altenhöner-Dion, ‘Artikel 12’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 377. P. Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 392.

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from society. The Framework Convention suggests ways and means through which a balance is to be achieved between the separate domain reserved for the flourishing of a minority culture, and the common domain of shared rights and responsibilities.54 3.1.2 Article 13 fcnm Article 13 1. Within the framework of their education systems, the Parties shall recognise that persons belonging to a national minority have the right to set up and to manage their own private educational and training establishments. 2. The exercise of this right shall not entail any financial obligation for the Parties. 3.1.2.1 Structure of Article 13 There is a clear presentation of two issues in Art. 13: the freedom of establishment, followed by the consequences of such freedom for the resources of the state.55 3.1.2.2 Context The provisions of Art. 13 complement the education principles in Articles 12 and 14, and the ‘identity’ and freedom from the forced assimilation provisions of Articles 5 and 6, as well as the ‘association’ principles of Articles 7 and 8. The provision on financial obligations in the second paragraph of the article brings into play the equality and non-discrimination principles of Art. 4.56 3.1.2.3 The Right to Set Up Private Minority Schools Article 13 does not contain a definition of the concept of ‘educational and training establishments,’ which is understandable, considering the different structure and different competences (national, regional and local) of the 54

55 56

Cf.A. Eide, ‘Possible Ways and Means of Facilitating the Peaceful and Constructive Solution of Problems involving Minorities,’ UN Doc. E/CN.4/Sub.2/1993/34, 1993, Section ii, cited by P. Thornberry, ‘Article 12’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 392. P. Thornberry, ‘Article 13’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 401. P. Thornberry, ‘Article 13’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 400.

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e­ ducational systems in Europe. In case of doubt as to whether an establishment is covered by the protection of Article 13, it can be helpful to look at the wording of Article 8 of the Language Charter.57 This article refers to education in the following terms: – pre-school education58 – primary education59 – secondary education60 – technical and vocational education61 – university and other higher education62 – adult and continuing education63 To this catalogue, one should add Sunday schools64 where the minority language and/or culture is taught. According to the Explanatory Report to the fcnm, the establishments covered by Article 13 may be subject to the same forms of supervision as other 57 On the Language Charter, see above Chapter 2 at 5.2.1 Council of Europe. 58 See afcf Second Opinion on Italy, ACFC/OP/II(2005), para. 120 (welcoming ­pre-school education); Opinion on Austria, ACFC/OP/I(2002) at para. 58 (welcoming pre-school education, but reference to financial problems) ; Second Opinion on Cyprus, ACFC/ OP/II(2007) at para. 125 (positive mention and request to better support the establishment), as mentioned by D. Rein, ‘Article 13’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 399 at footnote 2. 59 See acfc Opinion on Serbia and Montenegro, ACFC/OP/I(2004) at para. 93 (requesting the state to extend the right to set up primate minority schools also to primary education) ; Opinion on the The former Yugoslav Republic of Macedonia, ACFC/OP/I(2004) at para. 86 (critisizing the ban on private primary schools), as mentioned by D. Rein, ‘Article 13’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 399 at footnote 3. 60 See acfc Opinion on Estonia, ACFC/OP/I(2001) at para. 49 (welcoming the existence of private secondary schools), as mentioned by D. Rein, ‘Article 13’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 399 at footnote 4. 61 See State Report submitted by Denmark, received on 6 May 1999, ACFC/SR/I(99)009, p. 36. 62 See acfc Opinion on Georgia, ACFC/OP/I(2009) at para. 141 (requesting Georgia to approve the establishing of a private university) ; acfc Opinion on Serbia and Montenegro, ACFC/OP/I(2003) at para. 93 (welcoming the possibility to establish private universities), as mentioned by D. Rein, ‘Article 13’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 400 at footnote 6. 63 See State Report submitted by Denmark, received on 6 May 1999, ACFC/SR/I(99)009, p. 35. 64 See acfc Second Opinion on Estonia, ACFC/OP/II(2005) at paras 20, 60 and 133–136. The example of Estonia shows that Sunday schools can serve not only religious education, but also minority language education.

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establishments, particularly with regard to teaching standards.65 The Advisory Committee has accepted, that the requirement to teach also the official majority language at these private establishments is justified, provided that enough space is left for the education of and in the minority language.66 Once the required standards are met, it is important that any qualifications awarded are officially recognised. The relevant national legislation must be based on objective criteria and conform to the principle of non-discrimination.67 In most of its opinions, the Advisory Committee has considered that the implementation of Art. 13 does not give rise to any specific observations. In many cases this results from the fact that the national minorities concerned do not have the financial means to establish their own educational institutions.68 In most cases, the right to set up private minority schools is stated as one granted to members of national minorities to the same extent as to other citizens.69 Issues of the quality and supervision of private minority education have not been raised in any opinions of the Advisory Committee.70 3.1.2.4 Financial Support Despite the wording of Art. 13 (2) that there is no financial obligation for state parties in respect of private minority schools, most state parties do provide 65

Teaching standards can be understood as, for instance, the volume of education, the content of education, the rules on examination, and the requirements for teachers. See D. Rein, ‘Article 13’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, pp. 400–401. 66 See acfc, Opinion on Latvia, ACFC/OP/I(2008) at para. 147–150 and acfc, Second Opinion on Switzerland, ACFC/OP/II(2008), at para. 65, as mentioned by D. Rein, ‘Article 13’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 401 at footnote 16. 67 Explanatory Report to the fcnm under Article 13. 68 Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 22. 69 Patrick Thornberry notes that a smaller number of states appear to have supplemented general provisions with specific minority rights provisions, facilitating the establishment of private institutions for members of national minorities. These are: Austria (Treaty of St Germain, Article 67), Estonia (National Minorities Cultural Autonomy Act), Hungary (the Minorities Act), the Russian Federation (Law on National and Cultural Autonomy), Serbia and Montenegro (Law on the Protection of the Rights and Freedoms of National Minorities), Ukraine (draft laws). See P. Thornberry, ‘Article 13’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 403, footnote 30. 70 Commentary on Education under the Framework Convention for the Protection of ­National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 23.

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subsidies to such schools.71 In case subsidy schemes exist, these may not be discriminatory.72 The non-discrimination principle does not of course oblige states to treat all groups uniformly; the underlying principle of equality is more nuanced. Much depends on issues such as group demand, the amount and feasibility of funding, and perhaps curriculum issues, before moving to any determination that the principle of non-discrimination has been breached. The acfc appears to have sensed this principle in recommending or encouraging governments to provide subsidies for other minorities as well, if subsidies are provided for a certain minority.73 Furthermore, if a subsidy is granted, it may not be considerably diminished during the school year.74 3.1.2.5 Conclusion The importance of the basic freedom of the establishment principle in Art. 13 should not be underestimated. For some minority groups the best guarantee of maintaining their distinct identities resides in the development of their own educational institutions. In general terms, this freedom goes some way toward facilitating the expression of cultural and religious pluralism.75

71

The position is made clearer in some reports than in others. See in particular Austria State Report, ACFC/SR (2000)003, 2000; Cyprus State Report, ACFC/SR (1999)002 Rev., 1999; the Czech Republic State Report, ACFC/SR (1999)009, 1999; Denmark State Report, ACFC/SR (1999)009, 1999; Germany State Report, ACFC/SR (2000)001, 2000; Hungary State Report, ACFC/SR (1999)010, 1999; Italy State Report, ACFC/SR (1999)007, 1999; Norway State Report, ACFC/SR (2002)001, 2001; Slovakia State Report, ACFC/SR (1999)008, 1999; Sweden State Report, ACFC/SR (2001)003, 2001; the United Kingdom State Report, ACFC/SR (1999) 013, 1999, cited by P. Thornberry, ‘Article 13’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 404, footnote 33. 72 See acfc, Second Opinion on Poland, ACFC/OP/II(2009) at para 166. 73 P. Thornberry, ‘Article 13’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005., p. 406. See also the case submitted to the Cypriot equality body in October 2005, which held that the claim of a minority for increasing the school fees subsidy for their private secular schools should be favourably considered, as the low state subsidies paid to minorities schools amounted to unlawful discrimination. A flash report on the case is available at (accessed on 1 September 2015). 74 D. Rein, ‘Article 13’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 401 at footnote 20. 75 P. Thornberry, ‘Article 13’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, pp. 404–405.

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However, the borderline between ‘own institutions’ and a separatist76 policy is a fine one.77 The proliferation of private establishments makes state control of educational systems difficult to maintain, and may go against the interculturalism reflected in the Framework Convention.78 Therefore it is important, that the minority organizations founding and leading such private establishments open them up towards the majority and offer the opportunity also to pupils from the majority population to become acquainted with the minority language and culture.79 3.1.3 Article 14 fcnm Article 14 1. The Parties undertake to recognise that every person belonging to a national minority has the right to learn his or her minority language. 2. In areas inhabited by persons belonging to national minorities traditionally or in substantial numbers, if there is sufficient demand, the Parties shall endeavour to ensure, as far as possible and within the framework of their education systems, that persons belonging to those minorities have adequate opportunities for being taught the minority language or for receiving instruction in this language. 3. Paragraph 2 of this article shall be implemented without prejudice to the learning of the official language or the teaching in this language. 3.1.3.1 Structure of Article 14 Ferdinand de Varennes and Patrick Thornberry80 note that the structure of Art. 14 is complex due to the disagreements and controversies surrounding the extent to which state parties should be involved in and support linguistic rights 76 77

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On the difference between separation and segregation, see above Chapter 2 at 4.3 On the Difference between Separation and Segregation. On the negative consequences and the dangers of a parallel education system run by (religious or other) minorities, see Th. Langer, ‘Parallelgesellschaften: Allgemeine Schulpflicht als Heilmittel?,’ KritV , 2007, no. 3, pp. 277–292; Belwe, K., (ed.), ‘Parallelgesellschaften?,’ Aus Politik und Zeitgeschichte, Bonn: Bundeszentrale für politische Bildung, Januar 2006, vol. 1–2. P. Thornberry, ‘Article 13’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, pp. 404–405. D. Rein, ‘Article 13’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 403 at para. 12. F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 413.

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in education. Its three-paragraph structure once again points to the divergent influences that led to their incorporation into the Framework Convention. Art. 14 (1) refers to the right of persons belonging to national minorities to learn their own language and is straightforward in its wording. Art. 14 (2) is the exact opposite: it imposes on states an obligation to take measures for the teaching of, or instruction in, a national minority language. It is, however, full of limitations which could be seen as escape clauses81 or the watering down of state obligations. The right under Art. 14 (2) consists of two elements—instruction of or in the minority language—which have been seen by the acfc as alternatives which are not mutually exclusive.82 The third section of the article deals with the recognition that individuals must not be prevented from learning the official language in the exercise of these rights. 3.1.3.2 Context The education provisions of Art. 14 link naturally with those of Articles 6, 12 and 13. The overall identity-enhancing philosophy and purpose of the Framework Convention as expressed in the Preamble, and particularly in Articles 4 and 5, should also be borne in mind.83 3.1.3.3 Article 14 (1): The Right to Learn a National Minority Language Art. 14 (1) recognizes the right to learn a national minority language,84 without explicitly stating that state parties have an obligation to enshrine this recognition in legislation or in the constitution. The acfc has initially not suggested that the absence of any provision to this effect involves a breach of a state’s

81 82 83 84

Such as “in areas inhabited […] traditionally or in substantial numbers,” “if there is sufficient demand,” “as far as possible,” “within the framework of their education systems,” “adequate opportunities.” Opinion on Sweden, ACFC/OP/I (2003)006 and Opinion on Norway ACFC/OP/I (2003)003. F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 413. The notion of ‘minority language’ is not as clear as it appears at first sight. It may mean: a) the language which is considered as the traditional and historical language of a minority group; b) the language which is used in practice by a minority group (e.g., Russian among persons belonging to the Roma minority in several countries of the former Soviet Union); c) the language which is used by a majority within a minority group or which is used most of the time by a minority (or a combination of both); d) the language which simply differs from the language of the majority.

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obligations under Art. 14 (1). Instead it has looked at whether or not national minorities were able to learn their own language, and if there were obstacles to the exercise of this right in practice.85 However, in subsequent monitoring cycles, the acfc has urged the authorities to establish rules for implementing the right to receive instruction in and of minority languages provided in federal legislation.86 One difficulty occurred in Slovakia where legislation seemed to limit the constitutional right to learn one’s language to a specific number of national minority languages, while excluding the Roma language. The acfc concluded that: […] the role of the Roma language is recognised only in a very limited fashion. Despite the fact that the above-mentioned constitutional provision on education in minority languages extends to all national minorities, the scope of the School Act is limited to the languages enumerated in the above paragraph and, consequently, no school in Slovakia offers instruction in the Roma language. The acfc is therefore of the opinion that it needs to be examined to what extent the current legal and practical status of the Roma language in the education system of Slovakia meets the demands of the said population. Such an examination would help to establish whether further measures are needed to ensure adequate opportunities for being taught the Roma language or for receiving instruction in this language.87 De Varennes and Thornberry88 note that while the Explanatory Report clearly does not imply any positive state obligation to provide resources to learn a national minority language under Art. 14 (1), some ambiguity remains in the way the acfc has dealt with the issue. It has, for instance, often recommended greater financial assistance for the teaching of national minority languages in 85

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See the acfc Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 25. Opinion on Armenia, ACFC/OP/I (2003)001, 2002, para. 72, cited by F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 416, footnote 37. Third Opinion on the Russian Federation, ACFC/OP/III(2011)010, para. 195. Opinion on Slovakia, ACFC/OP/I (2001)001, para. 44. F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National ­Minorities, Oxford: Oxford University Press, 2005, p. 417. Such as Armenia, Estonia, Germany, Moldova, Norway, the Slovak Republic, etc.

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its reports to a number of states89 but has more often than not anchored these concerns using Art. 14 (1). Nonetheless, it has occasionally linked the right to learn a national minority language with effective equality.90 According to de Varennes and Thornberry91 this linkage is problematic.92 Moreover, instead of specifically identifying the positive legal obligations of public authorities under this article, the acfc made vague references to the need for public authorities to be supportive and consultative.93 The Advisory Committee has also mentioned that, in cases where national minorities do not receive education in minority languages and there is a sufficient demand, minority groups should have the opportunity to challenge the refusal through an effective legal remedy.94 It has also invited authorities to raise awareness of existing possibilities of teaching in and of minority languages among children and parents.95 3.1.3.4

Article 14 (2): The Right to be Taught a National Minority Language or to Receive Instruction in that Language Art. 14 (2) contains a linguistic education provision: persons belonging to national minorities have the right to be taught the national minority language or to receive instruction in their national minority language. However, the second paragraph of Art. 14 is replete with qualifying phrases, which, if interpreted restrictively, reduce its effectiveness. Accordingly, this has led the acfc to give attention to the restrictive phrases in the course of its examination of ­country reports. In terms of ‘traditional’ inhabitation, or inhabitation in substantial

90 91 92

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See for instance the Opinion on Armenia, ACFC/OP/I (2003)001, para. 76. F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 417. Indeed, the European Court of Human Rights indicated in the Belgian Linguistics Case, that equality and non-discrimination did not guarantee education in one’s language of choice. See ECtHR, Certain Aspects of the Laws on the Use of Languages in Education in Belgium (Merits), Series A No. 6. The UN Human Rights Committee too, was of the view that the lack of funding or financial support for a minority school could constitute a breach of equality and be discriminatory, but only where other minority schools were supported in ways that were unreasonable and unjustified. See UN Human Rights Committee, Waldman v. Canada, (1999) Comm. No. 694/1996, UN Doc. CCPR/C/67/D/694/1996, 1999. See, for example, the treatment of the right of Roma to learn their language in Italy in the acfc Opinion on Italy, ACFC/OP/I (2002)007, para. 60. The acfc never explained from which provision of the Framework Convention this obligation for the Italian state emanates, nor under what conditions, if any. Third Opinion on Ukraine, ACFC/OP/III(2012)002, para. 128. Third Opinion on the Russian Federation, ACFC/OP/III(2011) 010, para. 195.

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numbers, the acfc has cited the need for accurate statistical information in order to ‘demarcate’ the relevant areas and target national policy effectively.96 De Varennes and Thornberry97 note that in this respect, the ‘areas’ for the application of the provision may be found in both rural and urban areas, and that the minority in question may be a ‘dispersed’ minority.98 The linguistic education provision in Art. 14 (2) is also prefaced by the qualification ‘if there is sufficient demand.’ In its Opinions, the acfc has encouraged governments to take a ‘proactive approach’ even when the expressed demand appears low.99 In Spain, the Advisory Committee invited the authorities to identify the needs and demands of the Roma with regard to studying the Romani and caló languages.100 It has praised Sweden for removing the condition that at least five pupils request tuition in the minority language, which previously still applied to mother tongue instruction in Finnish and Yiddish.101 The acfc has also taken a stance on appropriate and inappropriate numbers of pupils to justify classes.102 On several occasions, it has expressed satisfaction at low numerical thresholds for the creation of classes.103 It should be noted that the approach of the acfc is broadly contextual and is conditioned by circumstances such as the historical significance of schools for the i­ dentity

96

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100 101 102 103

Opinion on Albania, ACFC/OP/I (2003)004, 2002, para. 65, cited by F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 419, footnote 56. F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A  Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 419. Opinion on the Russian Federation, ACFC/OP/I (2002)007, paras 96–98 and 115. In states like the United Kingdom, one could claim that there is an ex facie demand from the large immigrant population. This is why the acfc encouraged a more proactive approach to minority language education, particularly in areas ‘where there are substantial numbers of ethnic minorities.’ Opinion on the United Kingdom, ACFC/OP/I (2002) 006, para. 91. Third Opinion on Spain, ACFC/OP/III(2012)003, at para. 128. Third Opinion on Sweden, ACFC/OP/III(2012)004 at para. 126. In one case, the acfc considered that a minimum requirement of twenty pupils to run a class offering minority language teaching was very high. Opinion on Germany, ACFC/OP/I (2002) 008, para. 59–60. For instance the AC has expressed satisfaction at the low numerical thresholds for the creation of classes in Ukraine, which was at 5 pupils in rural areas and 8–10 pupils in non-rural areas: Opinion on Ukraine, ACFC/OP/I (2002) 010. Cf. the threshold in Sweden was 1 pupil for some languages and 5 pupils for others but conditioned upon the availability of teachers, something which was criticized by the acfc: Opinion on Sweden, ACFC/OP/I (2003) 006. Austria reported a minimum of 7 pupils for a class (accompanied with detailed provisions) and a maximum number of 20 pupils per class: Opinion

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of the minority in question.104 In this respect, the acfc has encouraged governments to take a less rigid approach to minimum numbers of pupils for minority classes than for the ‘regular’ or ‘mainstream’ classes.105 As mentioned above in the introductory paragraph on the structure of Art. 14, the wording of the minority language learning provision in Art. 14 (2) covers both the right to be taught the national minority language (as a curriculum subject) and to receive instruction in the national minority language, that is through the medium of the minority language. Art. 14 (2) imposes no obligation upon states to implement both alternatives, but the Explanatory Report106 observes that there is nothing to prevent a state from implementing the teaching of the minority language as well as instruction in the minority language. Bilingual instruction may be one of the means of achieving the objective of this provision.107 These measures should be taken in all educational phases, also in pre-school education.108 Pre-school education109 should also be offered in the minority language, entirely or partially. This contributes to equal chances of minority 104

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on Austria, ACFC/OP/I (2002) 009. See the acfc Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 26. In the case of the network of Sorbian schools in Germany, the acfc’s solicitude for the fate of the schools and the numerical criteria for the continuation of classes was strongly conditioned by circumstances such as the the historical significance of the schools for the Sorbian identity and that the schools had not only an educational function but were also an expression of Sorbian identity. Opinion on Germany, ACFC/OP/I (2002) 008, para. 59–60. F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 421. Opinion on Austria, ACFC/OP/I (2003)001, para. 96. F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 421. Ad Hoc Committee for the Protection of National Minorities, cahmin, Explanatory ­Report on the Framework Convention for the Protection of National Minorities, H(1995) 010, 1995, Art. 14 para. 2 (77). Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 24; F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 423. C. Brohy, ‘Artikel 14’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 418 at para. 14. See the Explanatory Report to the fcnm under Article 14 (2). On the importance of early childhood education, see also below Chapter 15 at 2.1.2 Art. 12 fcnm: Equal Opportunities for Access to Education at All Levels: Increased Attention to Early Childhood Education.

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children and assists in preparing them for school. The Advisory Committee has for instance welcomed the creation of bilingual Kindergartens in Carinthia, but criticized that no progress had been made in terms of the adoption of adequate legislation on bilingual kindergartens and that, in the majority of cases, bilingual nursery education was still offered through private initiatives. While these private kindergartens received support in accordance with the Nursery School Fund Act, subsidies were still limited to existing schools only and are not sufficient to make parental fees superfluous.110 Apart from pre-school, primary and secondary education, one should not forget the importance of universities and other establishments of higher education for the sustainable education of and in minority languages. This allows for minority languages to create and use more technical terminology and also stimulates the economic, societal, political and cultural responsibility of minority language speakers after having enjoyed higher education.111 The importance of teaching of and through the medium of the Roma language is increasingly discussed in State Reports and in the Opinions of the acfc as a necessary element of the efforts to ensure access to education for the Roma. For instance, in the Opinion on Romania the acfc mentioned that there was in practice no instruction in the Roma language in spite of the considerable size of the Roma community living in Romania. The acfc called for measures to ensure adequate opportunities to be taught the Roma language.112 By the end of 2005, at the time the second Opinion on Romania was adopted, the acfc noted with satisfaction that significant resources had been allocated to the production of textbooks for the teaching of the Roma language, culture and history, and to train an adequate number of qualified teachers from among the Roma community to teach these subjects. However, the teaching of the Roma language covers only a limited proportion of the Roma population who could potentially be interested. In order to develop and consolidate the system, constant efforts alongside appropriate financial resources are required, and this should include placing a greater emphasis on informing families about the opportunities that exist. The acfc therefore recommended the Romanian authorities in its second Opinion to pursue their efforts to develop further the opportunities for teaching the Roma language, in co-operation with Roma representatives, and to ensure that there are ongoing assessments of actual needs.113 110 Third Opinion on Austria, ACFC/OP/III(2011)005, para. 116. 111 C. Brohy, ‘Artikel 14’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 418 at para. 17. 112 Opinion on Romania, ACFC/OP/I (2001)001. 113 Second Opinion on Romania adopted on 24 November 2005, ACFC/OP/II (2005)007, paras 174–175.

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The acfc has also criticized the lack of teaching materials in the Roma l­anguage, the lack of adequate teacher training, or the lack of teachers altogether.114 In some cases, the teaching of Romani was done by volunteers, or teachers did not get paid.115 In its third Opinion on Kosovo, the acfc reminded the authorities of the essential role played by mother tongue education for subsequent language learning and the overall academic achievement of children116 and urged them to overcome the challenges identified during the ­Romani language pilot project. 3.1.3.5 Article 14 (3): The Right to Learn the Official Language As the content of Art. 14 (3) on the right to learn the official language is uncontroversial, it is to be expected that it will be hardly ever considered explicitly.117 The acfc did not find any case where it could be said that a state denied the members of a national minority the right to learn the official language under Art. 14 (3). There were, however, a number of reports, such as on Estonia and Ukraine, where the acfc had concerns that an emphasis on the teaching of the official language seemed to exclude the use of minority languages in education, in a way that was inconsistent with the other rights under Articles 13 and 14 fcnm. It found that such a practice could lead to assimilation rather than integration.118 In the cases of Moldova and Serbia and Montenegro the acfc expressed concern over the teaching of a state’s official language. In the case of Moldova, this was to ensure that whatever measures were taken in the teaching of minority languages, especially in relation to the use of Russian, they would be “taken without prejudice to the learning of or the teaching in the state language”119 especially since acquisition of the official language was a slow process for many. In the case of Serbia and Montenegro, there were instances where Serbian was taught in schools, where the language of instruction was a national 114 See for instance acfc Second Opinion on Finland, ACFC/OP/II(2006) at para. 119. 115 See for instance acfc Third Opinin on unmik/Kosovo, ACFC/OP/III(2013)002 at para. 129. 116 Ibid. 117 F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, p. 424. 118 Opinion on Estonia, ACFC/OP/I (2002)005, para. 50 and Opinion on Ukraine, ACFC/OP/I (2002)010, para. 65. F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, pp. 424–425. 119 Opinion on Moldova, ACFC/OP/I (2003)002, para. 83.

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­ inority language, but outside normal teaching hours. Here, the acfc was m concerned that Serbian language instruction was offered and made available in an ‘either/or’ way: if students were to choose to be educated in their national minority language or in the official language. If they would choose the first option, they would forfeit their chances to acquire any degree of fluency in the official language. This kind of choice was unacceptable in the view of the acfc. It recommended that a balance be achieved so that education in a national minority language and the teaching of the Serbian language were offered as part of the regular educational programme, and not as an addition to the regular schoolwork of the pupils receiving instruction in a minority language.120 In Kosovo, which has both Albanian and Serbian as official languages, the Law on Education in the Municipalities transfers important competences related to language instruction to the municipalities. They may provide education services in Serbian, by using the curriculum developed by the Republic of Serbia. The Advisory Committee has criticized that, in the absence of Serbian or Romani language instruction within the Kosovo Curriculum, children ­belonging to the Serbian community as well as a high number of children belonging to the Roma communities continue to attend Serbian-administered schools in order to have access to instruction in their mother tongue. The decentralisation of education competencies and recent reforms also provide municipalities and schools with the competency to introduce other languages as of third grade. The Advisory Committee, while welcoming the facilitation of language learning at an early stage and in line with modern methodology, strongly regretted in its third Opinion on Kosovo that there appears to be no effort to prioritise the learning of official languages.121 3.1.3.6 Conclusion Authors have been critical of the acfc’s approach to Art. 14, suggesting that its recommendations are weak, even where there are clear violations of rights. Art. 14 (2) does not provide a strong basis for action, at least when taken alone. Nonetheless, the overall normative structure of the fcnm does permit some ‘firming up’ of the provisions in Art. 14 (2), despite the proliferation of qualifying phrases. Thus, de Varennes and Thornberry argue in favour of a better ­integration of the positive culture-promoting aspects of the text of the Framework Conven120 F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National ­Minorities, Oxford: Oxford University Press, 2005, pp. 425–426. 121 Third Opinion on unmik/Kosovo, ACFC/OP/III(2013), at para. 127.

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tion with the specific and narrow language of Art. 14 (2).122 The relevance of Articles 4, 5 and 6 fcnm for the interpretation of Articles 12, 13 and 14 fcnm related to educational issues will be discussed below in the next section.123 Overall, and given the centrality of education in preserving a national minority’s language and cultural heritage, one can conclude, together with de Varennes and Thornberry,124 that the acfc has been both practical and forceful in ensuring compliance with the Framework Convention’s objectives. There nevertheless remains the criticism of inconsistencies, lack of clarity or specific explanations in its treatment of states reports under Art. 14 fcnm which still need to be dealt with more effectively in the future in order for state parties to have a better grasp of the nature and extent of their legal obligations under the Framework Convention.125 3.2

The Relevance of Articles 4, 5 and 6 fcnm as a ‘Continuum of Core Obligations’ of States

Article 4 1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited. 2. The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities. 3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination. Article 5 1. The Parties undertake to promote the conditions necessary for persons belonging to national minorities to maintain and develop their culture, 122 F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, pp. 427–428. 123 See below at 3.2 The Relevance of Articles 4, 5 and 6 fcnm as a ‘Continuum of Core Obligations’ of States. 124 F. de Varennes and P. Thornberry, ‘Article 14’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, pp. 427–428. 125 Ibid.

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and to preserve the essential elements of their identity, namely their religion, language, traditions and cultural heritage. Without prejudice to measures taken in pursuance of their general integration policy, the Parties shall refrain from policies or practices aimed at assimilation of persons belonging to national minorities against their will and shall protect these persons from any action aimed at such assimilation.

Article 6 1. The Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media. 2. The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity. The relevance of Articles 4, 5 and 6 fcnm in the field of minority education is highlighted at several occasions in the acfc Commentary on Education.126 Indeed, the acfc considers Articles 4, 5 and 6 fcnm, which articulate the importance of states proactively devising ways and means to make the survival and flourishing of minority cultures and languages a realistic proposition, as a ‘continuum of core obligations of States’ in the context of which the provisions on education of the fcnm should be read. 3.2.1 Article 6 fcnm Art. 6 fcnm, which identifies education as an area of specific importance with regard to the necessity of a spirit of tolerance and intercultural dialogue, is the only one of the three above mentioned articles containing an explicit reference to education.127 Art. 6 fcnm requires that state parties encourage tolerance, dialogue and mutual understanding among different groups living within the state. In the 126 Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 4 and pp. 9–12. See also the Appendix to the Commentary on Education which contains an inventory of educational issues addressed by the acfc in its first cycle opinions, where cross-references are indicated of the Articles 4, 5 and 6 with the Articles 12, 13 and 14 fcnm. 127 This section focuses mainly on the aspects of Article 6 which relate to education. For a more detailed analysis of Article 6, see D. Angst, ‘Artikel 6,’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, pp. 238–261.

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field of education, this relates as well to the content of education as to the choice of form, educators, structures and institutions of education. The link between Art. 6 and Art. 12 fcnm is strong in that both provisions support the core ethos of the Framework Convention as one of intercultural dialogue, integration of minorities in the wider society, and social cohesion. State parties need to review regularly the curricula and textbooks of subjects such as history, religion and literature, and such reviews should also cover the entire curriculum in order to ensure that the diversity of cultures and identities is reflected and that tolerance and intercultural communication are promoted.128 With regard to the teaching of history, the acfc recalls the long lasting efforts of the Council of Europe in this field. These efforts focus on eliminating stereotypes and prejudices in history textbooks and on the potentials of critical thinking through history. The introduction of elements of intercultural knowledge and dialogue in curricula, as well as the need to review curricula, especially in the field of history and religion, have often been included in the Opinions of the acfc.129 In the third monitoring cycle, under Article 6, the acfc has expressed its concern over racially motivated crime, among others against the Roma, in its Opinions on Hungary, Cyprus, Kosovo, the Russian Federation, and Sweden130 128 Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 11. 129 In the State Report of Bulgaria ACFC/SR(2003)001, there is not only a self-critical evaluation on the lack of sufficient inclusion of intercultural elements in Bulgarian curricula, but also information of the efforts of an non-governmental organization (The Interethnic Initiative on Human Rights Foundation) to address this need in the field of education. The State Report of Switzerland ACFC/SR(2001)2 accounts for efforts of the Swiss Broadcasting Company ssr through a series of broadcasts on different religions in order to ­encourage intercultural understanding. This shows as well the role of the media, and in particular television, as educational tools. The acfc Opinion on Armenia ACFC/OP/I(2003)001 notes (under Article 12) that culture, history, religion and the traditions of persons belonging to national minorities are only taught in special Sunday classes and ‘not as part of the general teaching curriculum.’ There examples are cited in footnote 14 of the Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 11. 130 Third Opinion on Hungary, ACFC/OP/III(2010) at para. 74, Third Opinion on ­Cyprus, ACFC/OP/III(2010) at para. 82, Third Opinion on Kosovo, ACFC/OP/III(2013) at pp. ­75–78, Third Opinion on the Russian Federation, ACFC/OP/III(2011) at para. 90, Third Opinion on Sweden, ACFC/OP/III(2012) at para. 66, as mentioned by D. Angst, ‘Artikel 6,’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 245 at footnote 44.

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and the ethnic profiling of the Roma in Austria, the Russian Federation and Spain.131 Another Roma-related issue tackled under Article 6 is the trafficking in ­human beings. Roma children are extremely vulnerable to trafficking due to poverty, discrimination and school drop-out. The acfc has called for more measures to prevent the trafficking of Roma children in relation five countries,132 of which Albania133 and Serbia134 are of most concern. Doris Angst135 stresses that the issue of the discrimination of the Roma is tackled by the acfc in almost all of its opinions concerning nearly all states parties. Just to name one example: in its third opinion on Spain,136 the acfc noted with deep concern that foreign Roma are particularly affected by prejudices and racism. They are sometimes victims of assault by extreme-right movements and face, reportedly, very high levels of discrimination in all areas of daily life. They mostly live in isolated settlements, in very poor conditions and have limited access to health care, schools and adequate housing. 3.2.2 Article 4 fcnm In the field of education, Art. 4 fcnm137 guarantees equal access to education and prohibits discrimination. It also suggests that state parties should adopt, where necessary, positive measures to promote full and effective equality for persons belonging to national minorities. The Framework Convention ­presupposes that states actively pursue the goals embodied in the 131 Third Opinion on Austria, ACFC/OP/III(2011)005, para. 61 ; Third Opinion on the Russian Federation, ACFC/OP/III(2011), paras 108–116 ;Third Opinion on Spain, ACFC/OP/III(2012)003, paras 96–104. 132 D. Angst, ‘Artikel 6,’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 247 at para. 31. 133 Second Opinon on Albania, ACFC/OP/II(2008), para. 117–119 and Third Opinion on Albania, ACFC/OP/III(2011), para. 106–109. 134 Second Opinion on Serbia, ACFC/OP/II(2009), para. 132. 135 D. Angst, ‘Artikel 6,’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 248 at para. 33. 136 Third Opinion on Spain, ACFC/OP/III(2012)003, para. 74. 137 For a more detailed analysis of Article 4, see A. Schmidt, ‘Artikel 4,’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, pp. 187–195.

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Convention. A passive attitude may amount to a violation of the obligations provided for under the Convention. Examples of this are the absence of legislation guaranteeing rights to and in education for persons belonging to national minorities, or minority policies that are of an ad hoc and unsystematic character.138 The Committee of Ministers, in its second Resolution on Slovakia, expressed its concern over a decision of the Constitutional Court of October 2005, which held that an important provision of the Anti-discrimination Act in 2004 allowing the introduction of positive measures to address disadvantages linked to racial or ethnic origin was unconstitutional. The Committee of Ministers noted that it is of utmost importance to secure that this decision will not have a negative impact on special measures in favour of the Roma.139 A similar problem occurred in Cyprus. The Advisory Committee noted in its third Opinion on Cyprus that, before July 2006, measures taken in favour of groups more exposed to discrimination were interpreted by Cypriot courts as contrary to the antidiscrimination provisions of Article 28 of the Constitution, and thus as discriminatory and contrary to the equality principle as guaranteed by the Constitution. The Advisory Committee in its third Opinion regretted that certain representatives of the authorities continue to make reference to this earlier court interpretation when the adoption of positive measures in respect of certain groups is envisaged. The Advisory Committee explicitly pointed out that, in accordance with Art. 4.3 of the Framework Convention as well as under international and EU law, positive measures which are put in place temporarily to counter past or present discriminatory effects, shall not be considered to be an act of discrimination.140 Regarding the necessity of positive measures, their importance is stressed by the acfc in particular for the Roma, in order to gain equal access to q­ uality 138 See, for instance, the Opinion on Italy ACFC/OP/I(2002)007, para. 58, where the acfc notes that the teaching of minority languages should be part of coordinated programmes rather than only experimental isolated efforts. In the Opinion on Sweden ACFC/OP/I(2003)006, para. 60, the acfc criticized the absence of legislative guarantees for bilingual education for others than the Sami, in spite of the existence of a clear demand in this regard, cited in footnote 11 of the Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 9. 139 coe Committee of Ministers, Resolution ResCMN(2006)8 on the implementation of the Framework Convention for the Protection of National Minorities by the Slovak Republic, Adopted by the Committee of Ministers on 21 June 2006. 140 Third Opinion on Cyprus, ACFC/OP/III(2010)002, para. 54.

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education. The acfc call on authorities to develop and implement in close consultation with Roma representatives, comprehensive and long-term ­policies and programmes to promote equal opportunities for persons belonging to the Roma community.141 In single cases, there is a disagreement between the acfc and the state party regarding the appropriateness of such positive measures for the Roma. For instance, in is third State Report, Germany notes that promoting a specific group [via positive measures] would convey the message that this group is dependent on such promotion, which would create a basis for social prejudices against the Sinti and Roma.142 3.2.3 Article 5 fcnm Art. 5 fcnm143 elaborates on the necessity of promoting adequate conditions for maintaining and developing the culture and the essential elements of the identity of persons belonging to national minorities.144 The formative role of the education system in the maintenance of identity is widely understood, as is its role as an agency of socialization for democratic citizenship. International law favours the notion that education should contribute to the integration of minorities into general society, while disapproving of policies of forced assimilation. This is reflected in Art. 5 (2) fcnm. A recurrent Roma-related issue discussed under Article 5 is the lack of adequate camping sites for Travellers,145 or also forced evictions and the consequences of those for Roma identity and culture.146 141 See, for instance, Thrid Opinion on Austria, ACFC/OP/III(2011) at para. 42. 142 coe acfc, Third State Report submitted by Germany, received on 9 April 2009, ACFC/SR/III(2009)003, p. 61 at para. 04030. On the paradox of identity politics, that is adopting positive measures targeted at a specific group, and how to mitigate the negative consequences of identity politics, see above Chapter 3 at 5. The Minority Rights Discourse and the Paradox of Identity Politics. 143 For a more detailed analysis of Article 5, see J. Pirker, ‘Artikel 5,’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, pp. 211–223. 144 Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 10. 145 Opinion on Germany, ACFC/OP/(2002) at para. 29 ; Opinion on Ireland, ACFC/OP/ (2003) at para. 48 ; Second Opinion on Italy, ACFC/OP/II(2005) at para. 58 ; Opinion on Spain, ACFC/OP/(2003) at para. 47 ; Opinion on Switzerland, ACFC/OP/(2003) at para. 34; Opinion on the United Kingdom, ACFC/OP/(2001) at para. 40. 146 J. Pirker, ‘Artikel 5,’ in R. Hofmann, et al., (eds.), Rahmenübereinkommen zum Schutz ­nationaler Minderheiten: Handkommentar, Baden Baden: Nomos, 2015, p. 214 at para. 8.

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The importance of Articles 4 and 5 fcnm lies in that they make clear that an active and coherent educational policy is necessary in order to implement the provisions of the Framework Convention.147 The Importance of Data Collection for a Good Implementation of Articles 5, 12 and 14 fcnm In its Commentary on Education under the fcnm, the acfc draws attention to the fact that, in addition to the requirement of clear and coherent legislative and institutional guarantees, the existence of basic data in the field of education148 is a precondition for any active educational policy. In order to implement the provisions of the fcnm, and especially its Articles 5, 12 and 14 fcnm, all state parties need to have adequate data on the different groups living within their countries as well as their needs and aspirations in the field of education. The acfc has been sensitive to the differing needs of different individuals and groups within a single minority group. Concentrated groups and individuals living in urban environments may have different needs and expectations than dispersed minorities or rural populations. For this reason, Art. 15 guaranteeing the right of the effective participation of persons belonging to minorities needs to be kept in mind, when designing and implementing educational policies, in order to ensure the expression of the multiplicity of needs and wishes of different segments of minority groups. The acfc has consistently underlined the need to respect the principle of free self-identification of persons belonging to national minorities and the existence of adequate guarantees in the treatment of demographic, ethnic and other personal data in accordance with Art. 3 fcnm. At the same time it is important that, through a combination of quantitative and qualitative tools, states make needs assessments in the field of education in consultation with those concerned.149 The importance of national baseline data increases as the field of education becomes more and more decentralized. The absence of such 3.3

147 Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 10. 148 On the need for states to collect ethnically disaggregated data, see below Chapter 11 at 2.4.2 Disaggregated Data Collection and Chapter 14 at 4.4.1 Collecting Data. 149 Also academics and ngos may be able to assist in the collection and evaluation of such data. See, for instance, the report ‘The Right to Education of Persons Belonging to National Minorities in Voivodina,’ Novi Sad: Voivodina Center for Human Rights, 2005, cited in the Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 10.

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basic data cannot be used as an excuse for not acting e.g., in the field of minority education.150 The acfc has often noted the absence of gender disaggregated data in the State Reports. In some cases this is the result of the absence of basic data on education and on minorities as a whole. In other countries such data exist but do not reflect the positions and achievements of girls and boys or of men and women in the educational system. Differences between men and women in the educational sphere often result consequently in differences in the access to and status in employment and should therefore be monitored vigorously.151 4

Thematic Commentary on Education

4.1 Drafting Process and Sources The thematic commentary on education, which was adopted by the acfc in March 2006, is largely based on the drafts drawn up by Ms Athanasia Spiliopoulou Ǻkermark, the AC Vice-President from 2002 to 2006. Both regarding format and content, the commentary is quite different from the ‘comments’ issues by other human rights treaty bodies, such as the Human Rights Committee under the iccpr.152 The AC commentary is more extensive and it is indeed more a commentary than an attempt to put forth a list of more normative recommendations. It aims to provide “practical guidance to State parties to the Framework Convention and to other actors involved in education-related activities.”153 The commentary is mainly based on the findings of the acfc in its Opinions. However, the acfc has not exclusively addressed its own work, but has

150 Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 10. 151 See also Article 10 of the Convention on the Elimination of All Forms of Discrimination against Women, which deals specifically with equal rights in the field of education, including access to the same curricula, the same examinations, teaching staff with qualifications of the same standard and school premises and equipment of the same quality, cited in footnote 13 the Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 11. 152 A. Korkeakivi, ‘Frameworking: Review of the Monitoring Procedure of the Council of Europe Framework Convention or [sic] the protection of national minorities,’ eymi, vol. 5, 2005/6, p. 264. 153 Commentary on Education under the Framework Convention for the Protection of National Minorities, 2 March 2006, ACFC/25DOC(2006)002, p. 5.

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explicitly considered the Framework Convention in the context of other relevant human rights treaties and related texts. The commentary draws inspiration not only from the related Council of Europe texts, such as the European Charter for Regional or Minority Languages and the European Social Charter, but also from such texts as the Hague Recommendations Regarding the Education Rights of National Minorities, endorsed by the osce High Commissioner on National Minorities.154 Relevant UN treaties are also drawn upon. For example, in its section on the aims of education, the commentary refers directly to the pertinent provisions of the UN Convention on the Rights of the Child. In doing so, the acfc clearly interprets the Framework Convention as a part of a larger system of human rights protection155 and makes an effort to situate its work and views within a broader international discourse.156 As regards the content of the commentary, the acfc covers a wide range of questions, ranging from the pertinence of non-discrimination guarantees in education to the content of history teaching. The key issue which is dealt with in the commentary is the issue of the balance between the need to guarantee minority language education and the need to avoid unnecessary separation. This issue will be discussed in the next section. Key Issue: Balance between the Need to Guarantee Minority Language Education and the Need to Avoid Unnecessary Separation One key issue highlighted by the acfc in its commentary on education is the question of how to find a balance between the need to guarantee minority language education and the need to ensure that there is no unnecessary separation along ethnic lines within the educational system. The acfc identified 3 different categories of educational structures in which minority groups are not accommodated in the mainstream educational system but attend separate classes instead. These three structures are: so-called ‘special classes’ (which are sometimes meant for mentally disabled pupils but have often been used disproportionally for Roma children due to an erroneously generalized perception of their inability to follow instruction in the ‘regular’ school system); 4.2

154 A. Korkeakivi, ‘Frameworking: Review of the Monitoring Procedure of the Council of Europe Framework Convention or [sic] the protection of national minorities,’ eymi, vol. 5, 2005/6, p. 265. 155 On The fcnm as an Integral Part of International Human Rights Instruments, see above  Chapter 4, at 3. The fcnm as an Integral Part of International Human Rights Instruments. 156 A. Korkeakivi, ‘Frameworking: Review of the Monitoring Procedure of the Council of Europe Framework Convention or [sic] the protection of national minorities,’ eymi, vol. 5, 2005/6, pp. 265–266.

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‘supportive’ or ‘additional’ or ‘remedial’ classes in order to permit the integration of minority pupils (often Roma) to other ‘integrated’ classes later on; and Sunday-schools (which in a few states, such as Moldova, are seen as an integral part of the state educational system, while in other countries they fall completely outside this framework). As long as the Sunday-classes and the supportive, remedial or additional classes are intended to facilitate an integration of the minority pupils into the mainstream system, they are not to be considered as contrary to the spirit of the fcnm, which is in favour of inclusive education and in favour of avoiding unnecessary separation. However, as soon as the separate education is organized in a permanent way (e.g., in the form of separate Roma-only classes) and the re-integration into mainstream education is hampered, the educational structures lose their legitimacy as they are not aiming at inclusive education any more but rather at the separation of different population groups.157 In this context the acfc points at the grey zone158 between segregating special classes and supportive remedial classes. Whereas the former are always illegitimate, the latter are contrary to the provisions of the Framework Convention if they are not intended at a re-integration or at the stimulation of the integration of the pupils concerned, but rather at their separation from the majority pupils. 4.3 Legal Value and Role The work of the acfc on thematic commentaries and the potential impact of these commentaries will not be discussed here, as they have been extensively discussed elsewhere, among others by Asbjorn Eide, former president of the acfc, in his comprehensive report prepared for the conference ‘Enhancing the Impact of the Framework Convention’ in October 2008 in Strasbourg.159 157 See also the comments above under 3.1.1.3 Article 12 (1): Promotion of a Multicultural and Intercultural Perspective of Education. 158 For a nice example of this grey zone, see the case of Oršuš and Others v. Croatia, Chamber Judgment of 17 July 2008, Application No 15766/03. As the separate classes for the Roma children, apparently organized to support the Roma children in gaining proficiency in the Croat language, did not allow the Roma children to re-integrate into mainstream education, but rather separated them from their peer pupils, they are to be considered as illegitimate. On this issue see also below Chapter 9 at 4.3.1.3 Critical Appraisal. 159 A. Eide, ‘The work of the Advisory Committee on the Framework Convention for the Protection of National Minorities on thematic commentaries, and the potential impact of these commentaries,’ Report prepared for the Conference ‘Enhancing the Impact of the Framework Convention,’ 8–9 October 2008, Strasbourg, available at (accessed on 1 August 2013).

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Another scholar who has examined the value and impact of the different thematic commentaries is Emma Lantschner. She draws a parallel with the General Comments of the UN Treaty Bodies and argues that these General Comments are a prominent source of interpretation of the underlying treaty obligations and that the same should be accepted with regard to the thematic commentaries of the acfc, “as they could build already on a consolidated jurisprudence.”160 Scholars define the commentaries as ‘instruments of soft law.’161 As such, they have the purpose to “give substance to the provisions in international law and to facilitate at the national level the practical implementation of the international commitments.”162 For Lantschner, the commentaries should therefore be seen as “a means to help all actors involved to better understand their rights and obligations under the fcnm as they further specify its provisions.”163 Lantschner also suggests that it would be useful to have the commentaries endorsed by the Committee of Ministers in a resolution, as is the case with the acfc Opinions.164 This would increase the acceptance of the commentaries by the state parties and might enhance the feeling of ownership amongst the states and consequently improve the reception of and respect for the contents of the commentaries.165 An indirect endorsement by means of references to the commentaries in the work of the Committee of Ministers so far has not taken place either, as the Committee of Ministers does not make reference to the commentaries in its resolutions.

160 E. Lantschner, ‘Evolution and Value of the Thematic Commentaries of the acfc of the Framework Convention for the Protection of National Minorities,’ eyhr, 2010, p. 280. 161 F. Palermo, ‘The Dual Meaning of Participation: The acfc’s Commentary on Participation,’ Contribution prepared for Workshop 3 The Thematic Work of the acfc of the Conference Enhancing the Impact of the Framework Convention, 9–10 October 2008, Strasbourg, available at (accessed on 1 August 2013); E. Lantschner, ‘Evolution and Value of the Thematic Commentaries of the acfc of the Framework Convention for the Protection of National Minorities,’ eyhr, 2010, p. 282. 162 A. Eide, ‘The Oslo Recommendations Regarding the Linguistic Rights of National Minorities: An Overview,’ ijmgr 3, vol. 6, 1999, p. 325. 163 E. Lantschner, ‘Evolution and Value of the Thematic Commentaries of the acfc of the Framework Convention for the Protection of National Minorities,’ eyhr, 2010, p. 283. 164 Ibid, p. 281. 165 Ibid.

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As to the future role of the commentaries, this will largely depend on the successful dissemination of the commentaries to all stakeholders: governments, civil society, minority organizations, ngos, national meps, etc. Lantschner stresses that the responsibility for the awareness raising on and dissemination of the commentaries should not only be placed on the shoulders of the secretariat of the fcnm or on civil society, but also on the states, who should make funds available to have the commentaries translated into national or ­minority languages.166 Lidija Basta-Fleiner, former vice-president of the acfc, also noted that the commentaries are under-used by states. She has launched the idea of incorporating more information from State Reports in the thematic commentaries and pleads for an involvement of state parties in the drafting of the thematic commentaries. She suggests that “government responses should play a much more important role in thematic commentaries. They provide a differentiated context for both setting the standard and monitoring the fcnm in a given case.”167 Indeed an involvement of states in the drafting of the thematic commentaries, either by means of including information from State Reports or by means of a more active involvement by giving them the possibility to give feedback on the commentaries, might increase the acceptance of the commentaries among states parties, and consequently their dissemination by states. 5

Conclusions under Chapter 7

The acfc promotes a wide understanding of the notion of ‘education’ under the fcnm. Key provisions on the right to education for persons belonging to national minorities are Articles 12, 13 and 14 fcnm. The relevance of Articles 4, 5 and 6 fcnm as a ‘continuum of core obligations’ of states should also be stressed. Guidance as to the interpretation of the above mentioned articles can be found in the acfc Thematic Commentary on Education, which is an extremely valuable source of information for all questions related to educational rights 166 Ibid, pp. 283–284. 167 L.R. Basta Fleiner, ‘What Role for Future Thematic Commentaries? A Comment on the Report by Asbjorn Eide on Thematic Commentaries of the Advisory Committee,’ ­Discussant Paper for the Conference ‘Enhancing the Impact of the Framework Convention,’  8–9  ­October 2008, Strasbourg, p. 4 available at (accessed on 1 August 2013).

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for minorities under the fcnm. This Commentary does not constitute an authoritative interpretation of the text of the fcnm nor does it unfold any legally binding force upon member states or future members to the fcnm. It should rather be seen as prominent source of interpretation for the states parties to the fcnm. One of the key issues addressed in the Thematic Commentary on Education is the question of the balance between the need to guarantee minority language education and the need to avoid unnecessary segregation.

Chapter 8

The Material Scope of the Racial Equality Directive in the Field of Education and the Concept of Discrimination under the Racial Equality Directive 1 Introduction This chapter is dedicated to the material scope of the Racial Equality Directive. In a first section, discussed is what types of education are covered by the Racial Equality Directive and examined is whether the definition of education under the Racial Equality Directive is as broad as it is under the Framework Convention. In the second section, the scope of the concept of discrimination under the Racial Equality Directive is analysed. The Racial Equality Directive conceptualizes discrimination as either direct or indirect discrimination. The differences between the two concepts of direct and indirect discrimination are examined and the relevance of the qualification of a case as amounting to direct or indirect discrimination is highlighted. In the third and final section, the provisions of the Racial Equality Directive on the encouragement of social dialogue and dialogue with non-governmental organizations (ngos) will be briefly analysed. 2

The Material Scope of the Racial Equality Directive: The Forms of Education Covered by the Racial Equality Directive

The material scope of the Racial Equality Directive is defined in its Art. 3, which reads as follows: Article 3 Scope 1. Within the limits of the powers conferred upon the Community, this Directive shall apply to all persons, as regards both the public and private sectors, including public bodies, in relation to: (a) conditions for access to employment, to self-employment and to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion;

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(b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals and pay; (d) membership of and involvement in an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations; (e) social protection, including social security and healthcare; (f) social advantages; (g) education;1 (h) access to and supply of goods and services which are available to the public, including housing. This Directive does not cover difference of treatment based on nationality and is without prejudice to provisions and conditions relating to the entry into and residence of third-country nationals and stateless persons on the territory of Member States, and to any treatment which arises from the legal status of the third-country nationals and stateless persons concerned.

In this article the level of education to which the Racial Equality Directive applies is neither specified, nor limited. Scholars2 argue that all types of education are covered, from pre-school to higher education, technical and vocational,3 formal or informal, state or private education. The latter is particularly borne out by the reference in Art. 3 to “both the public [state] as well as the private sector”. The fact that the private sector is covered might be significant for new EU Member States, where the protection system of human rights established after the political changeover heavily focuses on public [state] institutions.4

1 Emphasis added. 2 L. Farkas, Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 23 available at (accessed on 1 September 2015). 3 Vocational guidance and training is explicitly mentioned in Art. 3 (1) b Racial Equality Directive. 4 L. Farkas, Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 23 available at (accessed on 1 September 2015).

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The Meaning of Discrimination under the Racial Equality Directive

The Racial Equality Directive conceptualizes discrimination as direct or indirect discrimination in its Art. 2, which reads as follows: Article 2 Concept of discrimination 1. For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. 2. For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin; (b) indirect discrimination shall be taken to occur where an apparently neutral provision,5 criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. 3. Harassment shall be deemed to be discrimination within the meaning of paragraph 1, when an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment. In this context, the concept of harassment may be defined in accordance with the national laws and practice of the Member States. 4. An instruction to discriminate against persons on grounds of racial or ethnic origin shall be deemed to be discrimination within the meaning of paragraph 1. The article regulates some specific forms, such as harassment, instruction to discriminate and victimization, but does not specifically address structural discrimination (segregation and institutional discrimination) on the basis of racial or ethnic origin. 3.1 Direct and Indirect Discrimination The Racial Equality Directive addresses both direct and indirect discrimination, defined in Art. 2. Direct discrimination shall be taken to occur, when one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin, and indirect discrimination shall be taken to occur where an apparently neutral provision, 5 Emphasis added.

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criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons. Thus, in order to establish the existence of either form, a comparator is needed. While in cases of direct discrimination one person is compared to another person, in cases of indirect discrimination it is the treatment of a group of persons which is compared to the treatment of another group of persons.6 The differences between direct and indirect discrimination have been summarized by Kristin Henrard in a very concise manner. She distinguishes four common elements of discrimination when comparing these two definitions of direct and indirect discrimination: a question of (1) a harm or disadvantage, (2) a causal relationship between the less favourable treatment and the disadvantage, (3) a protected ground (in the Racial Equality Directive obviously racial or ethnic origin), and (4) a comparison with comparable cases.7 Then Henrard goes on to identify the main differences between direct and indirect discrimination. One main difference lies in the causal relationship between the harm and the protected ground.8 For direct discrimination, the harm or disadvantage consists in less favourable treatment, and there is a direct causal link with the protected ground. Direct discrimination is defined by reference to the comparator concept. It shall be taken to occur where one person is treated less favourably than another is, has been or would be treated in a comparable situation. Unfortunately, this definition leaves the question as to how a comparison shall be established unresolved.9 6 Cf. the wording of Art. 2 (2) where in (a) is referred to “one person” and in (b) is referred to “persons.” See also E. Dubout, ‘L’interdiction des discriminations indirectes par la Cour européenne des droits de l’homme: rénovation ou révolution ?,’ Rev. Trim. dr. H., vol. 75, 2008, p. 828 and V. Martenet who notes that indirect discrimination “ne repose, de toute façon, pas sur la comparaison de deux situations individuelles, mais sur les effets d’une norme ou d’une mesure individuelle sur deux groupes d’individus.,” V. Martinet, Géométrie de l’égalité, Brussels/Paris/Zurich : Bruylant/L.G.D.J./Schulthess, 2003, p. 152. 7 K. Henrard, ‘The First Substantive ecj Judgment on the Racial Equality Directive: A Strong Message in a Conceptually Flawed and Responsively Weak Bottle,’ Jean Monnet Working Paper 09/09, p. 11. 8 In this context Henrard notes the following: “[t]o be precise, there are actually two kinds of causal relationships that need to be present, not only one between the protected ground and the challenged treatment (the one which is the most well known), but there should also be one between the harm suffered and the challenged treatment (provision, criterion or practice). In this respect an interesting elaboration can be made in relation to direct versus indirect discrimination: while the first causal link is essential in relation to direct discrimination, it is often the second one which plays in cases of indirect discrimination.” K. Henrard, ‘The First Substantive ecj Judgment on the Racial Equality Directive: A Strong Message in a Conceptually Flawed and Responsively Weak Bottle,’ Jean Monnet Working Paper 09/09, p. 11, footnote 31. 9 D. Schiek, ‘A New Framework on Equal Treatment of Persons in EC Law?,’ European Law Journal 2, vol. 8, June 2002, pp. 295−96.

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For indirect discrimination, according to Henrard, the harm is rather identified at group level, namely anything that would put persons of a racial or ethnic group at a particular disadvantage,’ whereas the causal link between the harm and the protected ground is more indirect. This causal link is established by the actual or potential negative (disadvantageous) and disproportionate impact of a (seemingly) neutral measure on a group of ‘persons of a racial or ethnic origin.’ Typical for indirect discrimination is thus that it focuses on the effects of a neutral measure on a particular group of persons.10 Another main difference between direct and indirect discrimination lies in the possibility for the person or institution responsible for the disparate impact to objectively justify the difference in treatment. In cases of direct discrimination under the Racial Equality Directive, there is no room for the objective justification test. Only indirect discrimination can be objectively justified, except in the very rare case of genuine and determining occupational requirements, as stipulated in Art. 4 Racial Equality Directive.11 The modalities of the objective justification test are defined in Art. 2 para. 2 (b) in fine: “a less favourable treatment can be objectively justified by a legitimate aim and the means of achieving that aim should be appropriate and necessary.” Dagmar Schiek stresses that national legal orders and doctrine differ as to whether this is a ‘justification proper’ or whether the objective justification test rebuts the assumption that there is indeed discrimination, i.e., is an ­element

10 11

K. Henrard, ‘The First Substantive ecj Judgment on the Racial Equality Directive: A Strong Message in a Conceptually Flawed and Responsively Weak Bottle,’ Jean Monnet Working Paper 09/09, pp. 11–12. The exception of ‘genuine and determining occupational requirements’ is defined in Art. 4 Racial Equality Directive. This article reads as follows: Notwithstanding Article 2 (1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to racial or ethnic origin shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate.  This means that there is room for an objective justification in cases of direct discrimination where the characteristic on which the differential treatment is based consists in a genuine and determining occupational requirement. As this exception to Art. 2 Racial Equality Directive is not relevant for the protection of Roma educational rights, there is no need to elaborate on it.

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of proof of causation.12 According to the latter theory, objective justification is used to establish a causal link between discriminatory effects and the criterion, rule or practice which led to the discriminatory effect. In cases of indirect discrimination, disparate impact or factual disadvantage establishes a prima facie case, a presumption of discrimination, which can be rebutted by the person or institution responsible for the disparate impact. The jurisprudence of the cjeu in cases of gender discrimination shows that the distinction between direct and indirect discrimination is not always a clear one. Henrard notes that this is “probably related to the fact that the conceptualization of direct and indirect discrimination by the ecj has happened on a case by case basis, and did not depart from a clear theoretical paradigm.”13 This lack of a clear theoretical paradigm might explain the uncertainty of national courts14 in applying national law into which the Directive was transposed. Finally, it should also be stressed that discriminatory intent is not necessary in order to establish indirect discrimination, whereas direct discrimination automatically implies the presence of an intention to discriminate. Segregation of Roma Children in Education: Direct or Indirect Discrimination? This section is dedicated to the question whether segregation of Roma children in education amounts to direct or indirect discrimination according to Art. 2 (2) Racial Equality Directive. 3.2

3.2.1

The Relevance of the Distinction: the Preclusion of Justification Defenses The relevance of the distinction between the categorization of the segregation of Roma children in education as direct discrimination on the one hand or indirect discrimination on the other hand lies in the fact that only the latter can be objectively justified under the Racial Equality Directive.15 12 13 14 15

D. Schiek, L. Weddington and M. Bell (eds.), Non-Discrimination Law, Oxford and Portland, Oregon: Hart Publishing, 2007, p. 435. K. Henrard, ‘The First Substantive ecj Judgment on the Racial Equality Directive: A Strong Message in a Conceptually Flawed and Responsively Weak Bottle,’ Jean Monnet Working Paper 09/09, p. 12. See, for instance, the preliminary question asked to the cjeu by the Brussels Labor Court of Appeal in the Case C-54–07 Centrum voor Gelijkheid van Kansen en Racismebestrijding v Firma Feryn NV [2008] ecr I-5187. On the segregation of Roma children in education as amounting to direct or indirect discrimination, see S. Van den Bogaert, “Roma Segregation in Education: direct or indirect discrimination?,” ZaöRV 4, vol. 71, (2011), pp. 719–753.

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As there is no ‘unless’ included under a) in the second paragraph of Art. 2 Racial Equality Directive, direct discrimination cannot be justified under the Racial Equality Directive. However, indirect discrimination can be objectively justified when the provision, criterion or practice which is at the basis of the differential treatment is objectively justified by a legitimate aim, and the means of achieving that aim are appropriate and necessary. Some forms of ‘justification defenses’ in cases of the segregation of Roma children in education are the alleged lower educational ability of the Roma children, the use of an apparently neutral psychological test, or the zoning of schools for locally resident children. For example, in relation to the zoning of schools for locally resident children, it may be possible to argue that exclusion of the Roma from majority schools has not taken place on grounds of race, but is based on the application of a condition, such as residential proximity, which has the effect of disproportionately excluding the Roma because they live in segregated residential areas.16 This is prima facie indirectly discriminatory, unless it can be justified. But it may be plausible to argue that it is indeed justified, on the grounds that zoning of schools for locally resident children is a widely accepted practice and is desirable for many reasons. In the case of the Roma, however, it skates over the fact that residential segregation is itself a result of structural discrimination.17 Thus, the justification is itself based on racial grounds.18

16

L. Farkas, Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 28 available at (accessed on 1 September 2015). 17 An illustration of this can be found in the European Roma Rights Center’s report ‘Stigmata: Segregated Schooling of Roma in Central and Eastern Europe, a survey of patterns of segregated education of Roma in Bulgaria, the Czech Republic, Hungary, Romania, and Slovakia,’ at p. 67. The report notes that “[t]he emergence of segregated schools based on residential segregation dates back to the years of the Communist regime in Central and Eastern Europe. In Bulgaria, for example, alongside the formation of the Romani urban ghettos in the 1950s, a system of segregated schools was developed as a result of the schooldistricting system which made the free choice of school impossible.,” cited by L. Farkas, Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 28 available at (accessed on 1 September 2015). 18 Ibid.

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3.2.2

Case C-83/14 illustrating the difference between direct v. indirect discrimination An illustration of the difference between direct and indirect discrimination and the consequences of this categorization on justification defenses can be found in the recent case C-83/14 chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia of 16 July 2015.19 The cjeu held in this case that the installation of electricity meters at an inaccessible height in a district densely populated by Roma is liable to constitute discrimination on the grounds of ethnic origin when such meters are installed in other districts at a normal height. The person who claims to be discriminated in the case at hand is Ms Nicolova, who runs a grocer’s shop in the ‘Gizdova mahala’ district of the town of Dupnitsa (Bulgaria). That district is inhabited mainly by persons of Roma origin. In 1999 and 2000, chez rb, an electricity distribution undertaking, installed the electricity meters for all the consumers of that district on the concrete pylons of the overhead electricity supply network, at a height of between six and seven metres. In the other districts of the town (where Roma are not present in such great numbers), the meters installed by chez rb are placed at a height of 1.70 metres, usually inside the consumer’s property or on the façade or the wall around the property. According to chez rb, that difference in treatment is justified by the increased frequency of tampering with and damage to meters and by the numerous unlawful connections to the network in the district concerned. In December 2008, Ms Nikolova lodged a complaint with the Komisia za zashtita ot dikriminatsia (Commission for Protection against Discrimination; ‘the kzd’), contending that the installation of the meters in an inaccessible location was due to the fact that most of the inhabitants of the district were of Roma origin. Although Ms Nikolova was not of Roma origin herself, she considered that she too was suffering discrimination because of this practice. The kzd found that Ms Nikolova had indeed been discriminated against compared with the customers whose meters were in accessible locations, as she was prevented from monitoring her electricity consumption. chez rb then brought an appeal against that decision before the Administrative Court in Sofia. That court has asked the cjeu by means of a request for a preliminary 19

For a more in-depth analysis of the case, see L. Farkas, ‘ngo and equality body enforcement of EU anti-discrimination law: Bulgarian Roma and the electricity sector,’ in E. Muir, C. Kilpatrick, J. Miller and B. de Witte (eds.), ‘How EU law shapes opportunities for preliminary references on fundamental rights: discrimination, data protection and asylum,’ eui Working Papers, Law 2017/17, available at (accessed on 1 January 2018). See also Á. Oliveira and S.-J. King, ‘A Good Chess Opening: Luxembourg’s First Roma Case Consolidates its Role as a Fundamental Rights Court,’ European Law Review, 2016, vol. 41, no. 6, pp. 865–899.

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ruling whether the contested practice amounts to prohibited discrimination on the grounds of ethnic origin. In its judgment, the cjeu held that the principle of equal treatment applies not only to persons who have a certain ethnic origin, but also to those who, although not themselves a member of the ethnic group concerned, suffer, together with the former, less favourable treatment or a particular disadvantage on account of a discriminatory measure. On the issue whether the contested practice amounted to direct discrimination on account of the Roma ethnic origin of the inhabitants, the cjeu held that the presence in the district of non-Roma does not in itself rule out that the contested practice was imposed on account of the ethnic origin shared by most of the district’s inhabitants. However, the cjeu left it to the national judge to take account of all the circumstances surrounding that practice in order to determine whether the practice had been imposed for such a reason of ethnic nature, and thus constitutes direct discrimination under the directive. The cjeu suggested that the evidence which may be taken into consideration by the national judge in this connection includes, in particular, the fact that the practice at issue has been established only in districts which have Bulgarian nationals of Roma origin as the majority of their population. Also, the fact that chez rb has asserted before the kzd that the damage and unlawful connections are mainly due to persons of Roma origin raises the suggestion that the contested practice is based on ethnic stereotypes or prejudices. The cjeu noted that the Bulgarian court will also have to take account of the compulsory, widespread and lasting nature of the practice complained about. That practice affects without distinction all the inhabitants of the district concerned, irrespective of whether their individual meters have been the subject of abuse and, as the case may be, who has committed that abuse. Thus, the practice at issue may be perceived as suggesting that the inhabitants of that district are, as a whole, considered to be potential perpetrators of unlawful conduct. In this context, the cjeu states that the practice amounts to unfavourable treatment to the detriment of the inhabitants concerned on account of both its offensive and stigmatising nature and the fact that it is extremely difficult or even impossible for them to check their electricity meters for the purpose of monitoring their consumption. The cjeu recalls in clear wording the difference between direct and indirect discrimination: (…) if it is apparent that a measure which gives rise to a difference in treatment has been introduced for reasons relating to racial or ethnic origin, that measure must be classified as ‘direct discrimination’ within the meaning of Article 2(2)(a) of Directive 2000/43.

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 By contrast, indirect discrimination on the grounds of racial or ethnic origin does not require the measure at issue to be based on reasons of that type. As is apparent from the case-law recalled in paragraph 94 of the present judgment, in order for a measure to be capable of falling within Article 2(2)(b) of Directive 2000/43, it is sufficient that, although using neutral criteria not based on the protected characteristic, it has the effect of placing particularly persons possessing that characteristic at a disadvantage.20 However, if the Bulgarian court were not to hold that the practice amounts to direct discrimination on the grounds of ethnic origin, the cjeu observes that that practice could, in principle, constitute indirect discrimination. Assuming that the practice has been carried out exclusively in order to respond to abuse committed in the district concerned, it would be based on apparently neutral criteria while affecting persons of Roma origin in considerably greater proportions. Thus, it would give rise to a disadvantage in particular for those persons compared with other persons not possessing such an ethnic origin. It is obvious from this case that a classification of the case as amounting to direct discrimination on account of the Roma origin of the inhabitants of the district provides a wider protection for the Roma, as in such case the electricity distribution undertaking would not be allowed to justify the differential treatment and the requesting court would not even have to do a proportionality test. If the Bulgarian court would hold that the case is a case of indirect discrimination, the electricity distribution undertaking can still try to prove that the differential treatment had a legitimate aim, that the practice was appropriate for the purpose of achieving this aim, and that no other appropriate and less restrictive measures existed for achieving this aim. In this connection, the cjeu notes that the protection of the security of the electricity transmission network and the due recording of electricity consumption constitute legitimate aims which may justify a difference in treatment. Even though the cjeu leaves it up to the national judge to assess whether the case amounts to a case of direct or indirect discrimination, and whether, in the case of indirect discrimination, the practice complained of is proportionate to the legitimate aim of the due recording of electricity consumption, it does clearly suggest that the practice seems to be disproportionate, knowing that other electricity distribution companies have given up the practice at issue, giving preference to other techniques for the purpose of combating 20

At paras 95–96.

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damage and tampering, and have restored the electricity meters in the districts concerned to a normal height: Although it seems that it necessarily follows from the taking into account of all the foregoing criteria that the practice at issue cannot be justified within the meaning of Article 2(2)(b) of Directive 2000/43 since the disadvantages caused by the practice appear disproportionate to the objectives pursued, in the context of proceedings concerning a preliminary reference made on the basis of Article 267 tfeu it is for the referring court to carry out the final assessments which are necessary in that regard.21 The fact that the electricity distribution undertaking has explicitly asserted ­before the kzd that the damage and unlawful connections are mainly due to persons of Roma origin should per se be sufficient to hold that the contested practice is based on the Roma origin of the inhabitants of the district, which can only lead to holding that the case is one of direct discrimination. The fact that the cjeu conducts an in-depth proportionality test with a clear suggestion for the national judge that the disadvantage faced is disproportionate might even be confusing for the national judge, as he should not even resort to a proportionality test in a case of direct discrimination. It is understandable, however, that, for the sake of clarity and completeness, the cjeu goes as far as to give guidance also on how to conduct the proportionality test, as the ultimate assessment whether the case amounts to a case of direct or direct discrimination is left to the national judge and the cjeu cannot impose this categorization on the national judge. Finally, for the concrete outcome of the case, it will probably be irrelevant whether the Bulgarian court categorizes the case as one of direct or indirect discrimination, as it is clear from the facts of the case that less far-going measures are available to achieve the same aim. However, for the sake of making good case law, it would be desirable that the Bulgarian court correctly identifies this case as a case of direct discrimination on account of the Roma origin of the inhabitants of the district, notwithstanding the fact that the person who brought the complaint to the kzd is not Roma herself, on the basis of direct discrimination by association.22 21 22

At para. 127. Note that the concept of direct discrimination by association is not new. Since C-303/06 Coleman v Attridge Law (17 July 2008), a person may bring a claim for direct discrimination if this person is treated less favourably because he/she is associated with a protected characteristic, such as disability or race, even if they do not share that protected characteristic. The facts of Coleman provide a classic example of permissible associative direct

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3.2.3 Examination on a Case-by-Case-Basis Required Does educational segregation of Roma children always amount to direct discrimination, or does this need to be assessed on a case-by-case basis? Lilla Farkas, a scholar with a background in human rights advocacy and litigation, argues that it is preferable to conceptualize educational segregation as direct discrimination, since direct discrimination precludes the possibility of justificatory defenses, which are—according to Farkas—themselves a part of discriminatory structures.23 A conceptualization of cases of segregation of Roma children in education as amounting to cases of direct discrimination would increase the level of protection of Roma rights under the Racial Equality Directive as the perpetrator is not given the opportunity to objectively justify his behaviour.24 This approach is criticized by other legal scholars, such as Helen O’Nions, as they believe that this may be stretching the definition of direct discrimination too far.25 In her comments on the ECtHR case of d.h. and Others v. Czech Republic, which is analysed in detail in Chapter 9 below,26 O’Nions notes that “it is clear that race was not a determinative factor in the establishment of intelligence tests, rather the consequence of the tests discriminated against members of certain groups—particularly those that did not speak the majority language. Thus the tests were apparently neutral but once operated, resulted in discrimination that should have then been remedied by substantial revisions or abolition of the said tests.”27 Those instances of segregation whereby the differential treatment was based on apparently neutral tests, thus amount to cases of indirect discrimination, not direct discrimination. It is therefore not correct to state as a general rule, as Farkas does, that all cases of educational segregation amount to direct discrimination. Whether a case of segregation of Roma children in education amounts to a case of direct or indirect discrimination can be decided only on a case-by-case discrimination in that Ms Coleman was subjected to less favourable treatment because of her disabled son, for whom she was the primary carer, and that role directly and negatively impacted on her employment relationship. 23 Ibid. 24 See below Chapter 9 and especially 4.2 Sampanis and Others v. Greece, Chamber Judgment of 5 June 2008. 25 H. O’Nions, ‘Divide and teach: educational inequality and the Roma,’ The International Journal of Human Rights 3, vol. 14, May 2010, p. 478. 26 See below Chapter 9 at 4.1 The case of d.h. and Others v. Czech Republic: Chamber Judgment of 7 February 2006 and Grand Chamber Judgment of 13 November 2007. 27 H. O’Nions, ‘Divide and teach: educational inequality and the Roma,’ The International Journal of Human Rights 3, vol. 14, May 2010, p. 478.

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basis, while taking into account all the relevant facts of the case. This exercise is fraught with difficulties, even for the European Court of Human Rights (‘ECtHR’). This is demonstrated in the next chapter, where the jurisprudence of the ECtHR on the segregation of Roma children in education is analysed and where it is shown that the qualification of direct or indirect discrimination as adopted by the ECtHR can be criticized. 3.3 Harassment and Victimization 3.3.1 Harassment When the conditions as defined in Art. 2 (3) of the Racial Equality Directive are fulfilled, some instances of harassment amount to discrimination. As severe forms of harassment of Roma children evoke and strengthen memories of past Roma persecution, it is essential that national laws transposing the Racial Equality Directive provide adequate sanctions, not only at the level of institutions but also against individual perpetrators, be they teachers or fellow students. Scholars such as Lilla Farkas28 underline that verbal or physical abuse does not have to be explicitly racist to amount to harassment from teachers and students alike; it suffices when the unwanted conduct is somehow related to the ethnic or racial origin of the victim. If harassment is inflicted upon Roma children by underage students, the failure of the school to stop the harassment and—if necessary—discipline the perpetrators, may also amount to discrimination. Non-Roma parents may also partake in the harassment of Roma pupils inside and outside school. 3.3.2 Victimization Victimization is defined in Art. 9 of the Racial Equality Directive. It amounts to “adverse treatment or adverse consequence as a reaction to a complaint or to proceedings aimed at enforcing compliance with the principle of equal treatment.”29 Thus, giving lower marks or extra homework to a student because he or his parents instituted proceedings for any kind of discrimination the student had suffered, is victimization. Similarly, if a disciplinary action is taken against a teacher because, following his advice, Roma students or parents 28

29

L. Farkas, Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 32 available at (accessed on 1 September 2015). Art. 9 Racial Equality Directive.

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make a complaint, he suffers victimization. In countries where local governments maintain schools, the Roma may be victimized in the provision of e.g., social services for their actions relating to the segregation of their children in school. It should be noted that neither harassment, nor victimization requires a comparator.30 The General Applicability of the Racial Equality Directive to Instances of Segregation of Roma Children in Education As segregation of Roma children in education mostly amounts to direct or indirect discrimination, and as all forms of education fall into the field of application of the Racial Equality Directive, one could state that the Racial Equality Directive (or more correctly: the transposed provisions of the Racial Equality Directive under national law) generally speaking is applicable to cases of segregation of Roma children in education. This is also apparent from, among others, the reference to the right to access high-quality education for Roma children in the European Parliament Resolution of 20 May 2008 on progress made in equal opportunities and non-discrimination in the EU (the transposition of Directives 2000/43/EC and 2000/78/ EC).31 Paras 43 and 44 of this Resolution read as follows: 3.4

43. [The European Parliament] [c]onsiders that minority communities, and in particular the Roma community, need specific social protection, since their problems of exploitation, discrimination and exclusion have become even more acute in the areas of education, health, housing, employment and women’s rights following recent enlargements of the European Union; 44. [The European Parliament] recommends that, as regards access to high-quality education for disadvantaged and Roma children and their unjustified classification as disabled, special attention be paid to fighting all forms of discrimination encountered in the field of education;

30

31

L. Farkas, Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive, Brussels: European Commission, DG for Employment, Social Affairs and Equal Opportunities, July 2007, p. 32 available at (accessed on 1 September 2015). European Parliament, Resolution on progress made in equal opportunities and non-­ discrimination in the EU (the transposition of Directives 2000/43/EC and 2000/78/EC), OJ 2009 C 279E, 20 May 2008.

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The European Parliament, in the same resolution, calls for a commitment by the Commission to carry out substantial review of the implementation of the Racial Equality Directive, thereby recommending the Commission to pay special attention to the discrimination encountered by Roma children in the field of education, and more specifically their ‘unjustified classification as disabled,’32 which is a clear reference to the segregation of Roma children into substandard schools for the mentally disabled. Moreover, the Commission has recently initiated infringement procedures against the Czech Republic in September 2014, against Slovakia in April 2015, and against Hungary in May 2016 on account of segregation of Roma children in education, which was held not to be in line with the provisions of the Racial Equality Directive.33 4

Conclusions under Chapter 8

The level of education to which the Racial Equality Directive applies is neither specified, nor limited in Art. 3 of the Racial Equality Directive. It is generally accepted that ‘education’ under the Racial Equality Directive should be interpreted in a broad manner as to cover all types of education, as is the case under Articles 12–14 fcnm. The Racial Equality Directive conceptualizes discrimination as direct or indirect discrimination in its Art. 2. Harassment and instruction to discriminate can also amount to discrimination. Whether segregation of Roma children in education amounts to direct or indirect discrimination depends on the facts of the case and should be decided on a case-by-case basis. A correct qualification is important as it has consequences for the justification defenses: in cases of direct discrimination, the perpetrator cannot objectively justify the differential treatment, whereas in cases of indirect discrimination, it is possible to justify the differential treatment. In a report on the transposition of Directives 2000/43/EC and 2000/78/EC, the European Parliament has recommended that, as regards access to highquality education for the disadvantaged and Roma children and their unjustified classification as disabled, special attention should be paid to fighting all forms of discrimination encountered in the field of education. It is generally accepted that the fighting of segregation of Roma children in education falls 32 33

At para. 44. See above Chapter 4 under 5.5 Infringement Procedure.

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into the scope of application of the Racial Equality Directive. Moreover, the Commission has recently initiated infringement procedures against the Czech Republic (in September 2014) against Slovakia (in April 2015), and against ­Hungary (in May 2016) on account of the segregation of Roma children in ­education, which was held not to be in line with the provisions of the Racial Equality Directive.

Chapter 9

The Framework Convention for the Protection of National Minorities and the Racial Equality Directive as a Point of Reference for the ECtHR: the Cases d.h. and Others v. Czech Republic, Sampanis and Others v. Greece, Oršuš and Others v. Croatia, Horvath and Kiss v. Hungary and Lavida and Others v. Greece 1 Introduction This chapter is dedicated to an analysis of the jurisprudence of the ECtHR on the segregation of Roma children in education. So far no cases on Roma segregation in education have been brought to the cjeu by means of a preliminary ruling.1 But as cjeu jurisprudence on the Racial Equality Directive is still developing, it is likely that the cjeu will have to deal with such cases in the future. Furthermore, the Commission has initiated infringement procedures against the Czech Republic, Slovakia and Hungary over the segregation of Roma children in education on the basis of the Racial Equality Directive, which might be brought to the cjeu.2 The first section of this chapter casts light upon the relation between the fcnm and the echr and focuses on the question as to whether the acfc is bound by the case law of the ECtHR. The second section is on the relation between the Racial Equality Directive and the echr, and more specifically on the influence of Articles 2 and 8 Racial Equality Directive on recent ECtHR case law. 1 The cjeu has recently ruled on a case of discrimination on the ground of Roma origin, not in the context of segregation of education but in the context of the access to and the supply of goods and services. In C-83/14 chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, 2015, ECLI:EU:C:2015:480, it held that the installation of electricity meters at an inaccessible height in a district densely populated by Roma is liable to constitute discrimination on the grounds of ethnic origin when such meters are installed in other districts at a normal height. See above Chapter 8 at 3.2.2 Case C-83/14 illustrating the difference between direct v. indirect discrimination. 2 See above Chapter 4 at 4.5 Infringement Procedure.

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The third section is an analysis of the jurisprudence of the ECtHR on the segregation of Roma children in education with special attention to references to the fcnm and the Racial Equality Directive in this jurisprudence and to the added value of the fcnm and the Racial Equality Directive for the development of ECtHR case law in the field of Roma segregation. The fourth section stresses the differences in the cjeu case law compared to the ECtHR jurisprudence related to the objective justification in discrimination cases. The last section examines where the potential of both ECtHR case law and of future cjeu jurisprudence lies in the fight against the structural discrimination of the Roma in education. It makes four suggestions on how the quality of the jurisprudence of both courts can be improved when dealing with cases of Roma segregation in education. 2

On the Relation between the fcnm and the echr

In her analysis on the added value of the fcnm, Sia Spiliopoulou Ǻkermark raises a number of questions on the relationship between the Framework Convention and the echr. She examines – to what extent the ECtHR makes reference to and uses the provisions of the fcnm and of the Opinions adopted by the acfc in the interpretation and implementation of the echr – the meaning and the legal consequences of Article 19 and 23 fcnm, which make explicit reference to the echr – to what extent the acfc makes reference to and uses the provisions of the echr and its protocols in the interpretation and implementation of the fcnm – to what extent the acfc is bound by the judgments of the echr.3 As the outcome of the research conducted by Spiliopoulou Ǻkermark is of great relevance for the question of the added value of the fcnm in the field of Roma segregation, it might be appropriate to summarize her main findings before coming to a more detailed analysis of the case law of the ECtHR.

3 S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (I),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, pp. 77–87.

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2.1 Is the Advisory Committee Bound by the Judgments of the ECtHR? The answer to the question whether the acfc is bound by the judgments of the ECtHR can be found in the content of Art. 46 echr on the binding force and execution of judgments, which stipulates in its first paragraph that “the High Contracting Parties undertake to abide by the final judgment of the Court in any case to which they are parties.” In other words, only states, and not the organs of the Council of Europe, are formally bound by the judgments of the ECtHR, and only by those judgments under cases to which they were parties. Even though the acfc is thus not formally bound by the judgments of the ECtHR, one can observe that it makes all possible efforts to formulate the acfc Opinions in such a way that they are consistent with the established jurisprudence of the ECtHR. However, in cases where the outcome of the judgment might not be completely in line with the spirit of the fcnm (see the outcome of the case of d.h. and Others v. Czech Republic before the case was treated by the Grand Chamber) the acfc is not bound by this outcome and will continue to sail its own course. The position of the ECtHR is described by Spiliopoulou Ǻkermark as a legally binding supervising mechanism […] at the centre of a web of legal normative commitments encompassing a number of other human rights treaties of the Council of Europe including the (revised) European Social Charter and the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment of Punishment. To these treaty based mechanisms one may add the non-treaty based mechanisms, mainly the European Commission against Racism and Intolerance (ecri) and the Commissioner on Human Rights.4 As the fcnm and the echr are part of the same ‘web of legal normative commitments’ and in order to make this web a strong and solid one, a unified ­approach to minority and human rights issues is desirable. Moreover, the conformity of provisions in the fcnm which correspond to provisions of the echr is guaranteed by Art. 23 fcnm. This article is discussed below.

4 S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (I),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, p. 79.

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2.2 References to the echr in the fcnm Because of the lack of political readiness to create an additional protocol to the echr on minority rights, the fcnm was proposed an alternative solution, which would be less far-going than an additional protocol, but which would also fit into the human rights machinery of the Council of Europe.5 Two references to the echr were included in the fcnm, in its Articles 19 and 23. They respectively read as follows: Article 19 The Parties undertake to respect and implement the principles enshrined in the present framework Convention making, where necessary, only those limitations, restrictions or derogations which are provided for in international legal instruments, in particular the Convention for the Protection of Human Rights and Fundamental Freedoms, in so far as they are relevant to the rights and freedoms flowing from the said principles.6 Article 23 The rights and freedoms flowing from the principles enshrined in the present framework Convention, in so far as they are the subject of a corresponding provision in the Convention for the Protection of Human Rights and Fundamental Freedoms or in the Protocols thereto, shall be understood so as to conform to the latter provisions.7 2.2.1 Article 19 fcnm The limitations, restrictions and derogations mentioned in Art. 19 fcnm8 refer to the requirements of legality, justifiability, necessity, appropriateness and proportionality, in accordance with similar legal provisions in other human rights treaties and with general principles of human rights law.9 5 6 7 8

See above Chapter 4 and also the Explanatory Report to the fcnm paras 1–4. Emphasis added. Emphasis added. On the interpretation of Article 19 fcnm see L. Hannikainen, ‘Article 19,’ in M. Weller (ed.), The Rights of Minorities, A Commentary on the European Framework Convention for the Protection of National Minorities, Oxford: Oxford University Press, 2005, pp. 519−34. 9 For instance, with regard to the freedom of assembly and association, protected by Article 7 fcnm with regard to persons belonging to national minorities, the limitations allowed for are only those which would be in accordance with Article 11 para. 2 echr. In the latter article there is a reference to the following justificatory grounds: necessity in a democratic society, national security, public safety, prevention of disorder and crime, protection of health and morals, protection of rights and freedoms of others. This comprehensive list could allow for extensive limitations to Article 7 fcnm. See S. Spiliopoulou Ǻkermark, ‘The Added Value of

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It is stipulated in Art. 19 of the fcnm what position is to be adopted in cases where there is no perfectly equivalent provision in another international legal instrument. This is relevant in relation to the detailed provisions of the fcnm in the field of education (Arts 12, 13 and 14) which have no equivalent in the echr. Art. 2 of Protocol No 1 merely stipulates that “no person shall be denied the right to education” and that “the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.” Spiliopoulou Ǻkermark notes that case law in this field is rather limited and does not cover the multiple aspects dealt with in the provisions of the fcnm, as for instance intercultural content and method of training, tolerance and dialogue in the sphere of education, teacher training, access to textbooks, the teaching of and in the minority language.10 It is unclear whether in these cases no limitations, restrictions or derogations are allowed, or if the limitations, restrictions and derogations which are allowed under other articles can be applied by analogy.11 2.2.2 Article 23 fcnm Art. 23 fcnm is especially relevant for those corresponding provisions of the echr under which the ECtHR has developed an extensive case law, such as the provisions on the freedom of expression, assembly, association or religion. Those provision which have no real correspondence with a parallel provision in the echr—or for which the correspondent provision is much more limited, such as the areas of education, participation (Art. 15 fcnm) and access to the media (Art. 9 fcnm)—have been the subject of thematic work by the acfc.12 This is probably not a coincidence, but a means of compensating for the non-existing or limited input by ECtHR jurisprudence in these areas.13

the fcnm (I),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, p. 80. 10 Ibid. 11 Ibid. 12 Hereby it should be noted that the thematic commentary on access to the media has not been adopted yet. As of January 2018, four thematic commentaries have been adopted, notably on participation, education, language rights and the scope of application of the fcnm. For a more detailed analysis of the thematic commentary on education of the acfc, see Chapter 7 at 4. Thematic Commentary on Education. 13 S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (I),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, p. 83.

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In sum, the meaning of Art. 23 fcnm is that, at a minimum, the acfc should regularly assess the relevance of the case law of the ECtHR for its own work,14 if necessary reflect upon it in its Opinions15 and use the case law as a further platform for the dialogue it has developed with the States Parties.16 3

On the Relation between the Racial Equality Directive and ECtHR Jurisprudence

The Influence of Articles 2 and 8 Racial Equality Directive on Recent ECtHR Jurisprudence in Cases of Indirect Discrimination After having discussed the relation between the fcnm and the jurisprudence of the ECtHR as defined in Articles 19 and 23 fcnm, the relation of the Racial Equality Directive vis-à-vis Art. 14 echr (and Protocol No 12 to the echr) and vis-à-vis the jurisprudence of the ECtHR under this article is examined. It seems that the provisions of the Racial Equality Directive have strongly influenced recent jurisprudence of the ECtHR in cases of indirect discrimination. The first case in which the concept of indirect discrimination, as it is defined in the Racial Equality Directive, was introduced by the ECtHR was the case of d.h. and Others v. Czech Republic, a landmark case on the segregation of Roma children in education. Extensive references17 to the Racial Equality 3.1

14 15 16

17

The secretariat of the fcnm is closely following up on all ECtHR case law relevant for minority protection and for the implementation of the fcnm. How far the acfc refers to ECtHR case law in its Opinions was not examined in this study. S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (I),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, p. 87. See the Grand Chamber case of d.h. and Others v Czech Republic, where extensive references to the Racial Equality Directive can be found in paras 61, 81, 83, 84, 136, 184, 187. These paragraphs of the judgment read as follows: Para. 61: “In the explanatory memorandum to [ecri general policy recommendation No. 7 on national legislation to combat racism and racial discrimination (adopted by ecri on 13 December 2002)], it is noted (point 8) that the definitions of direct and indirect racial discrimination contained in paragraph 1 b) and c) of the Recommendation draw inspiration from those contained in Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (…).” Paras 81, 83, 84: “81. The principle prohibiting discrimination or requiring equality of treatment is well established in a large body of Community law instruments based on Article 13 of the Treaty instituting the European Community. This provision enables the Council, through a unanimous decision following a proposal/recommendation by the Commission and consultation of the European Parliament, to take the measures

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Directive have been included in the d.h. Grand Chamber Judgment. Moreover, for the outcome of this Grand Chamber Judgment, the definitions of direct and indirect discrimination of Art. 2 of the Racial Equality Directive, the provisions on the burden of proof of Art. 8 of the Racial Equality Directive, and the remarks on the admissibility of statistical evidence18 from the preamble of the Racial Equality Directive were of paramount importance, and it is clear that

18

­ ecessary to combat discrimination based on sex, race or ethnic origin, religion or belief, n disability, age or sexual orientation. 83. Similarly, the aim of Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin (…) is to prohibit in their respective spheres all direct or indirect discrimination based on race, ethnic origin, religion or belief, disability, age or sexual orientation. The preambles to these Directives state as follows: “The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide, in particular, for indirect discrimination to be established by any means including on the basis of statistical evidence” and “The rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought.” Para. 84 contains a reference to the working of the Articles 2 (Concept of discrimination) and 8 (Burden of proof) of the Racial Equality Directive. Para. 136: “Council Directive 2000/43/EC expressly provided that indirect discrimination could be established by any means “including on the basis of statistical evidence.”” Para. 184: “The Court has already accepted in previous cases that a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group (Hugh Jordan, cited above, § 154; and Hoogendijk, cited above). In accordance with, for instance, Council Directives 97/80/EC and 2000/43/EC (see paragraphs 82 and 84 above) and the definition provided by ecri (see paragraph 60 above), such a situation may amount to “indirect discrimination,” which does not necessarily require a discriminatory intent.” Para. 187: “On this point [whether a presumption of indirect discrimination arises], the Court observes that Council Directives 97/80/EC and 2000/43/EC stipulate that persons who consider themselves wronged because the principle of equal treatment has not been applied to them may establish, before a domestic authority, by any means, including on the basis of statistical evidence, facts from which it may be presumed that there has been discrimination (see paragraphs 82 and 83 above). The recent case-law of the Court of Justice of the European Communities (see paragraphs 88–89 above) shows that it permits claimants to rely on statistical evidence and the national courts to take such evidence into account where it is valid and significant.” See Recital 15 of the Preamble of the Racial Equality Directive, which reads as follows: “The appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide in particular for indirect discrimination to be established by any means including on the basis of statistical evidence.” (emphasis added)

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the Grand Chamber of the ECtHR was inspired by the way these issues are dealt with in the non-discrimination directives.19 Scholars and human rights advocates have welcomed the judgment because it “brought the European Court of Human Right’s Art. 14 jurisprudence in line with principles of anti-discrimination law that prevail within the European Union.”20 The judgment is discussed in more detail below.21 3.2 Is there a European non-discrimination law? The title of the ‘Handbook on European non-discrimination law,’ a handbook edited by the ECtHR and the EU Fundamental Rights Agency (‘fra’), suggests that there is such a thing as ‘European non-discrimination law,’ a single Europe-wide system of rules relating to non-discrimination.22 This is not the case, as the system is made up of a variety of contexts: mainly the echr on the one hand and EU law on the other hand. These two systems have separate origins both in terms of when they were created and why23 but they are complementary and mutually reinforcing: the cjeu is inspired by the echr when determining the scope of human rights protection under EU law; the Charter of Fundamental Rights reflects the range of rights in the echr; and the jurisprudence of the ECtHR in cases brought under Art. 14 echr is recently inspired by the EU non-discrimination directives. With the entry into force of the Lisbon Treaty, the Charter of Fundamental Rights of the EU became legally binding. Furthermore, the Lisbon Treaty provides for EU accession to the echr.24 In this context, increased knowledge of 19 Council Directives 2000/78/EC (on equal treatment in employment and occupation) and 2000/43/EC (racial equality directive) are commonly referred to as the “non-­ discrimination directives.” 20 Open Society Justice Initiative and errc, ‘d.h. and Others v. Czech Republic Major Conclusions of the Judgment,’ Strasbourg, 14 November 2007, available at http://www.errc .org/cms/upload/media/02/85/m00000285.pdf (accessed on 30 November 2011). 21 See below at 4.1 The case of d.h. and Others v. Czech Republic: Chamber Judgment of 07.02.2006 and Grand Chamber Judgment of 13.11.2007. 22 See also EU fra and ECtHR, Handbook on European non-discrimination law, Strasbourg/ Brussels: EU Publications and Council of Europe Publications, 2011, p. 12. 23 For an overview of the context and background to European non-discrimination law, see EU fra and ECtHR, Handbook on European non-discrimination law, Strasbourg/Brussels: EU Publications and Council of Europe Publications, 2011, pp. 12–14. 24 On 18 December 2014, the cjeu delivered Opinion 2/13 on the draft agreement on the accession of the European Union to the echr, in which it identified problems with regard to the compatibility of the draft accession agreement with EU law. This Opinion has put the accession process on hold. The European Commission is currently examining what the consequences are of this Opinion and whether and how the draft accession agreement can be re-negotiated.

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common principles on non-discrimination as developed by the cjeu and the echr is essential. In spite of several parallels and complementarities between the two systems, there is one major difference, which is related to objective justification defenses. Direct discrimination, if framed under the echr, is subject to a general objective justification defense. However, under EU law, defenses against direct discrimination are extremely limited. All forms of indirect discrimination are subject to a defense based on objective justification, irrespective of whether the claim is based on the echr or on EU law. Therefore whether a case is qualified as direct or indirect discrimination does not have any consequences for the system of objective justification under the echr, but is does have far-going consequences for the system of objective justification under EU law.25 A correct and meticulous legal reasoning in cases where is it is not very clear whether the case prima facie amounts to a case of direct or direct discrimination is therefore indispensable. As the jurisprudence of the ECtHR in the field of direct versus indirect discrimination is relatively new and the Court is still becoming acquainted with its ‘import’ from EU law, the distinction between direct and indirect discrimination in recent ECtHR jurisprudence on Roma segregation in education is not always a clear one. The following section is dedicated to an in-depth analysis of recent ECtHR case-law on Roma segregation in education. 4

An Analysis of the ECtHR Jurisprudence on the Segregation of Roma Children in Education: the Ostrava case, the Sampanis case, the Oršuš case, the Horvath and Kiss case, and the Lavida case

The ECtHR has so far delivered judgments in six ‘Roma education cases,’26 which concern the Czech Republic, Hungary, Croatia and Greece – all related to different forms of segregation – and is dealing with one application against Romania.27 25

26 27

For a more detailed analysis of this issue see Sina Van den Bogaert, ‘Roma Segregation in Education: Direct or Indirect Discrimination? An analysis of the parallels and differences between Council Directive 2000/43/EC and recent ECtHR case law on Roma educational matters,’ ZaöRV 4, vol. 71, 2011, pp. 719−53. For an recent analysis of this case-law, see O’Nions, H., ‘Warehouses and Window-­ Dressing: A Legal Perspective on Educational Segregation in Europe,’ zep 1, 2015, vol. 38, 4–10. Cazacliu v. Romania. According to information provided for by Interights, the case was brought by 75 Romanian nationals of Roma origin living in the town of Tulcea in ­Romania.

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Besides finding (indirect) discrimination, the ECtHR has also found that the level of education provided to Roma children is inferior. The cases illustrate the different patterns of segregation Roma children suffer in education, as described above in Chapter 2.28 The ECtHR has dealt with two cases that relate to the segregation of Romani children in special schools (the misdiagnosis cases: d.h. concerning the Czech Republic and Horvath and Kiss concerning Hungary), two cases that indicate class level segregation – one within the same school building (Oršuš concerning Croatia) and one in different buildings (Sampanis concerning Greece), and two more cases where segregation occurred at school level, i.e., between Roma only and integrated schools (Sampani and Lavida concerning Greece).29 While examining these cases, the Court has reflected on white flight/ spontaneous segregation (Sampani), resistance from non-Romani parents to ­integrated education (all except for the misdiagnosis cases), and an array of measures needed to bring about integration (Oršuš, Horvath and Kiss, Sampani and Lavida). Whereas d.h. and Oršuš went up to the Grand Chamber, where the latter concluded the case with a divided vote, all subsequent cases were decided by unanimous vote and became final without appeal.30

In October 2006, the applicants, including around 30 children and young people, were evicted from a building in which they had been living for many years. The majority of the applicants were relocated by local authorities to a former army barracks building, disused since the 1970s, located approximately four kilometres outside Tulcea in a heavily industrialised area. Between 2007 and 2008, the bus routes connecting the relocation site to the town were cancelled, which prevented the children and young people from attending school. This led to them being either expelled or abandoning school. In 2009 the applicants complained to the European Court of Human Rights arguing that: the circumstances of their eviction and subsequent relocation amounted to a violation of their rights under Articles 3 and 8; that failures in the domestic proceedings constituted a breach of their rights under Article 6 and 13; that Article 2 of Protocol No.1 had been breached in that the children were unable to go to school and were expelled or had to abandon school; and that these articles, taken in conjunction with Article 14, had been violated by the discriminatory attitude and decisions of the local authorities. See (accessed on 1 September 2015). 28 See above Chapter 2 at 2.3 Different Patterns of Segregation of Roma Children in Central and Eastern Europe. 29 L. Farkas, ‘Report on Discrimination of Roma Children in Education,’ Brussels: European Commission, DG Justice, April 2014, p. 27, available at (accessed on 1 September 2015). 30 Ibid.

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The recent ‘Report on Discrimination of Roma Children in Education,’ compiled by Lilla Farkas for the European Network of Legal Experts in the NonDiscrimination Field, is dedicated to an in-depth analysis of these six cases.31 The below analysis pays particular attention to the qualification of the facts of the case as amounting to direct or indirect discrimination and the reasoning of the Court in this context, as well as to references to the fcnm and the Racial Equality Directive in this case-law. d.h. and Others v. Czech Republic, Chamber Judgment of 7 February 2006 and Grand Chamber Judgment of 13 November 2007 The Case of d.h. and Others v. the Czech Republic is considered to be a landmark case involving the racial segregation of Roma children in Czech schools. It was the first significant challenge to systemic discriminatory education of Roma children to come before the ECtHR. 4.1

4.1.1

d.h. and Others v. Czech Republic: Chamber Judgment of 7 February 2006 4.1.1.1 Facts of the Case The case concerns eighteen children represented by the errc and local counsel.32 The applicants alleged that their assignment to special schools for the mentally disabled contravened human rights law and was tainted by racial animus. Tests used to assess the children’s mental ability were culturally biased against Czech Roma, and placement procedures allowed for the influence of racial prejudice on the part of educational authorities. Evidence before the Court based on data submitted by errc which was obtained through questionnaires sent in 1999 to the head teachers of the 8 special schools and 69 primary schools in the town of Ostrava33 demonstrated that school selection processes frequently discriminated on the basis of Roma ethnic origin:

31 Ibid. 32 For some very interesting remarks on the case see J. Goldston, ‘The role of European anti-discrimination law in combating school segregation: the path forward after Ostrava,’ speech held in Brussels on 28 April 2006 at the enar conference ‘Roma and equal access to education: from segregation to integrated schooling,’ available at (accessed on 1 September 2015). 33 For more information on the data gathered by errc, see the errc application to the echr, available at (accessed on 1 September 2015).

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– Over half of the Romani child population was schooled in remedial special schools; – Over half of the population of remedial special schools was Romani; – Any randomly chosen Romani child was more than 27 times more likely to be placed in schools for the mentally disabled than a similarly situated nonRomani child. – Even where Romani children managed to avoid the trap of placement in remedial special schooling, they were most often schooled in substandard and predominantly Romani urban ghetto schools.34 Once these children have been streamed into substandard education, they have little chance of accessing higher education35 or steady employment opportunities. Evidence for the practice of the segregation of Roma children in education in, among others, the Czech Republic, could also be found in other Council of Europe documents. For instance, in his final report on the Human Rights Situation of the Roma, Sinti and Travellers in Europe of 15 February 2006, the Council of Europe Commissioner for Human Rights noted: Being subjected to special schools or classes often means that these children follow a curriculum inferior to those of mainstream classes, which diminishes their opportunities for further education and for finding employment in the future. The automatic placement of Roma children in classes for children with special needs is likely to increase the stigma by labelling the Roma children as less intelligent and less capable. At the same time, segregated education denies both the Roma and non-Roma children the chance to know each other and to learn to live as equal citizens. It excludes Roma children from mainstream society at the very beginning of their lives, increasing the risk of their being caught in the vicious circle of marginalization.36

34 35 36

Open Society Justice Initiative and errc, ‘d.h. and Others v. Czech Republic Major Conclusions of the Judgment,’ Strasbourg, 14 November 2007, available at http://www.errc .org/cms/upload/media/02/85/m00000285.pdf (accessed on 1 September 2015). As the curriculum followed in special schools is inferior, and pupils in special schools are unable to return to primary school/mainstream education or to obtain a secondary education other than in a vocational training centre. coe, Office of the Commissioner for Human Rights Alvaro Gil-Robles, ‘Final Report by Mr Alvaro Gil-Robles On the Human Rights Situation of the Roma, Sinti and Travellers in Europe,’ CommDH(2006)1, Strasbourg, 15 February 2006, p. 20, para. 46.

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4.1.1.2 Reasoning of the Court The applicants raised several arguments based on different provisions of the echr. They argued that the assignment to special schools constituted ‘degrading treatment’ in violation of Art. 3, that the absence of adequate judicial review denied them due process in breach of Art. 6, that they were denied the right to education in breach of Art. 2 of Protocol No 1, and, finally, that they suffered racial discrimination in the enjoyment of their right to education, in violation of Art. 14 echr read in conjunction with Art. 2 of Protocol No 1. In a 6-1 decision issued in February 2006, the Second Section of the echr found no evidence of discrimination against the applicants. Although the judges agreed that the applicants’ complaint was based on a number of serious arguments, the echr ruled against them for three main reasons. First, the Court found it significant that the system of special schooling was not established solely for Roma children, but was established with the legitimate aim of assisting children with learning disabilities to obtain a basic education. Second, the tests were administered by professional psychologists, and the Court argued it was not the role of the Court to go beyond the facts of the case and require the government to show that individual psychologists had not adopted a discriminatory approach to these particular children. Third, the Court placed considerable weight on the failure of the applicants’ parents to lodge appeals to the decisions to place their children in special schools, and on the fact that in a number of the cases the parents had requested that their children be transferred to a special school. 4.1.1.3 Critical Appraisal In May 2006, the Justice Initiative and its co-counsel successfully petitioned for referral to the Grand Chamber, arguing that the case raises serious questions affecting the interpretation and application of the echr, in that the Chamber’s ruling on differential treatment and the ‘objective and reasonable justification’ criterion was inconsistent; that the Chamber applied a confusing test of discrimination under Art. 14 echr which contradicts its previous jurisprudence; that the Chamber’s deference to the special school system under the concept of ‘margin of appreciation’ was misplaced; and that the Court misinterpreted certain key facts. Some scholars, such as Morag Goodwin,37 argue that the case as judged by the Second Section of the Court represented not only a setback for those 37

M. Goodwin, ‘d.h. and Others v. Czech Republic: A Major Set-Back for the Development of Non-Discrimination Norms in Europe,’ German Law Journal 4, vol. 7, 1 April 2006,

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­ orking for the improvement of the situation of the Roma, but also for the w crystallization of non-discrimination norms in Europe. The Court namely dismissed the concept of indirect discrimination entirely, by stating that the Czech government did not have the intention to discriminate against the applicants and that therefore there was no violation of Art. 2 of Protocol No 1 in conjunction with Art. 14 echr. Goodwin noted that the ECtHR was “failing to keep pace with a crystallizing European consensus”38 and was creating an “alternative, much restricted, European vision of non-discrimination norms.”39 Even though the case raises several important issues, the focus will be only on those that are directly relevant for the purpose of this study and the analysis of the educational provisions of the fcnm. According to Sia Spiliopoulou Ǻkermark,40 two issues in this case are of importance for the interpretation and application of the fcnm: one is the issue of statistics as evidence of indirect discrimination under the echr and the other is the question of the consent and responsibilities of the Roma parents. The Court’s refusal to allow statistical evidence to demonstrate systematic segregation of the Roma in education disregarded one of the most important purposes of prohibiting direct discrimination, that of exposing the entrenchment of discrimination within the structures and institutions of our society.41 The fact that the concern expressed by several international organizations, including Council of Europe bodies such as the European Commission against Racism and Intolerance (‘ecri’) and the acfc about the use of special schools for the Roma in the Czech Republic was taken into consideration by the Court, but still it concluded on this point that its role is not to assess the overall social context but only to examine the individual application before it.42 pp. 421–432, available at (accessed on 1 August 2013). 38 Ibid, p. 430. 39 Ibid. 40 S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (I),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, pp. 85–86. 41 M. Goodwin, ‘d.h. and Others v. Czech Republic: A Major Set-Back for the Development of Non-Discrimination Norms in Europe,’ German Law Journal 4, vol. 7, 1 April 2006, p. 426 available at (accessed on 1 December 2011). 42 S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (I),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, p. 85.

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Furthermore, in failing to recognize the systemic discrimination at play in the Ostrava case, the Court chose to place the burden of fighting the system’s prejudice on the shoulders of the Romani parents. The Court came to the conclusion that: it was the parents’ responsibility, as part of their natural duty to ensure that their children receive an education, to find out about education opportunities offered by the State, to make sure they knew the date they gave their consent to their children’s placement in a particular school and, if necessary, to make an appropriate challenge to the decision ordering the placement of it was issued without their consent.43 This argument clearly indicates that the Strasbourg judges of the Second Section were not fully aware of the difficult situation Roma parents are in. The individual capacity of parents and pupils to adopt an informed position, to give an informed consent, and to handle the requirements of state bureaucracy was not even considered.44 Spiliopoulou Ǻkermark notes that there is also another, more legal argument to indicate that this statement is problematic: while not accepting group thinking and a statistical approach in the field of (indirect) discrimination in education, the Court accepts such collective thinking in the field of consent in education. Since some parents had consented and since some pupils had been transferred, there is no case of discrimination under Article 2 of Protocol No. 1 for any of the applicants, said the Court. Here, the Court is departing from the theory it endorsed in the Buckley case where it emphasized that the special circumstances of every individual applicant – and presumably also of every concerned group – and the importance of the right for him or her specifically has to be taken into consideration when assessing each particular case.45 Moreover, the Court did not consider the argument of the applicants that the right of a child not to suffer racial discrimination cannot be overridden by parental consent. Indeed the fact that a person—or her legal r­ epresentative 43 ECtHR, d.h. and Others v. Czech Republic, Judgment of 7 February 2006, para. 51. 44 S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (I),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: a Useful Pan-European Instrument?, Antwerp/Oxford/Portland: Intersentia, 2008, p. 85. 45 Ibid.

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in the case of minors—who is discriminated against does not object or even consents to the discriminatory behaviour of the person or institution discriminating, does not change the nature of the discriminatory act: it still is discriminatory. It is questionable whether parents can waive the right not to be ­discriminated for their children, as they are to act in the best interest of the child. Also schools and other administrative authorities are always to act in the best interest of the child.46 4.1.1.4

4.1.1.4.1

References to the fcnm and the Racial Equality Directive References to the fcnm

In the judgment of the Second Section of the Court, under Section III “Council of Europe Sources”47 there is a concise reference to the State Reports submitted by the Czech Republic under the fcnm on 1 April 1999 and 2 July 2004. However, in the full text of the judgment there is no further reference to the fcnm. This is probably related to the fact that the Second Section Court only examined the concrete circumstances of the case and did not allow statistical evidence, neither the evidence as presented by the applicants, nor the evidence from the State Report of the Czech Republic. In his dissenting opinion judge Cabral Barreto refers to and quotes from the State Report of the Czech Republic under the fcnm of 1 April 1999. He argues that the information provided for in the report amounts to an “express acknowledgement by the Czech State of the discriminatory practices complained of by the applicants.”48 Therefore, in his opinion, in the present case there was a breach of Art. 14 echr, taken together with Art. 2 of Protocol No 1. 4.1.1.4.2

References to the Racial Equality Directive

In the judgment there is only a very concise reference to the Racial Equality Directive, which is made in the context of the examination of the second State Report submitted by the Czech Republic under the fcnm of 2 July 2004, as the Czech Republic mentioned in that report that it will adopt new legislation to transpose the Racial Equality Directive.49

46

See Art. 3 UN Convention on the Rights of the Child, of which the first para. reads as follows: “In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.” 47 ECtHR, d.h. and Others v. Czech Republic, Judgment of 7 February 2006, paras 26–27. 48 ECtHR, d.h. and Others v. Czech Republic, Judgment of 7 February 2006, Dissenting ­Opinion of Judge Cabral Barreto. 49 ECtHR, d.h. and Others v. Czech Republic, Judgment of 7 February 2006, para. 27.

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4.1.2

d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007 4.1.2.1 Reasoning of the Grand Chamber On 13 November 2007, the Grand Chamber, by a vote of 13 to four, overruled the judgment of the Second Section from February 2006 and ruled that the practice of sending Roma children to specials schools for children with learning disabilities amounted to unlawful discrimination in breach of Art. 14 echr, taken together with Art. 2 of Protocol No 1. The Grand Chamber’s assessment consisted first of a recapitulation of some main principles on discrimination, on the burden of proof and on the question as to whether statistics can constitute evidence. The Court then applied these principles to the case. 4.1.2.1.1

Recapitulation of the Main Principles at Stake in the Case

The definition of discrimination referred to by the Court in this and previous judgments is that of a “different treatment without an objective and reasonable justification of persons in relevantly similar situations.”50 The Court underscored that a general policy or measure that has disproportionately prejudicial effects on a particular group may be considered discriminatory notwithstanding that it is not specifically aimed at that group51 and that discrimination potentially contrary to the Convention may result from a de facto situation.52 As to the burden of proof in this sphere, the Court had already established in previous judgments53 that once the applicant has shown the existence of a difference in treatment, it is for the government to show that it was justified. As regards the question of what constitutes prima facie evidence capable of shifting the burden of proof on to the respondent state, the Court stated in Nachova and Others v. Bulgaria54 that in proceedings before it, there are no 50 ECtHR, Willis v. the United Kingdom, no. 36042/97, Judgment of 11 June 2002, para. 48, Reports 2002-IV; ECtHR, Okpisz v. Germany, no. 59140/00, Judgment of 25 October 2005, para. 33. 51 ECtHR, Hugh Jordan v. the United Kingdom, no. 24746/94, Judgment of 4 May 2001, para. 154; ECtHR Hoogendijk v. the Netherlands, no. 58461/00, Decision of 6 January 2005. 52 ECtHR, Zarb Adami v. Malta, no. 17209/02, Judgment of 20 June 2006, para. 76, Reports 2006-VIII. 53 See, among others, ECtHR, Chassagnou and Others v. France, nos. 25088/94, 28331/95 and 28443/95, Judgment of 29 April 1999, paras 91–92, Reports 1999-III and ECtHR, Timishev v. Russia, nos. 55762/00 and 55974/00, Judgment of 13 December 2005, para 56, echr 2005-XII. 54 ECtHR, Nachova and Others v. Bulgaria, nos 43577/98 and 43579/98, Grand Chamber Judgment of 6 July 2005, para. 147, echr 2005-VII. In the case of Nachova and Others the Court did not rule out requiring a respondent government to disprove an arguable allegation

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procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment. According to the established case-law of the Court, proof may follow from the coexistence of sufficiently strong, clear and concordant inferences or of similar unrebutted presumptions of fact. Moreover, the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof is intrinsically linked to the specificity of the facts, the nature of the allegations made and the Convention rights at stake.55 As to whether statistics can constitute evidence, the Court has in the past stated that statistics could not in themselves disclose a practice which could be classified as discriminatory.56 However, in more recent cases on the question of discrimination, in which the applicants alleged a difference in the effect of a general measure or de facto situation,57 the Court relied extensively on statistics produced by the parties to establish a difference in treatment between two groups (men and women) in similar situations. Lastly, the Grand Chamber of the Court underlined that the vulnerable position of Roma/Gypsies means that special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases.58 of discrimination in certain cases, even though it considered that it would be difficult to do so in that particular case in which the allegation was that an act of violence had been motivated by racial prejudice. It noted in that connection that in the legal systems of many countries proof of the discriminatory effect of a policy, decision or practice would dispense with the need to prove intent in respect of alleged discrimination in employment or in the provision of services. 55 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 178. 56 ECtHR, Hugh Jordan v. the United Kingdom, no. 24746/94, Judgment of 4 May 2001, para. 154. 57 ECtHR Hoogendijk v. the Netherlands, no. 58461/00, Decision of 6 January 2005; ECtHR, Zarb Adami v. Malta, no 17209/02, Judgment of 20 June 2006, para. 77–78, Reports 2006-VIII. In the Hoogendijk decision the Court stated: “[W]here an applicant is able to show, on the basis of undisputed official statistics, the existence of a prima facie indication that a specific rule – although formulated in a neutral manner – in fact affects a clearly higher percentage of women than men, it is for the respondent Government to show that this is the result of objective factors unrelated to any discrimination on grounds of sex. If the onus of demonstrating that a difference in impact for men and women is not in practice discriminatory does not shift to the respondent Government, it will be in practice extremely difficult for applicants to prove indirect discrimination.” ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 180. 58 ECtHR, Chapman v. the United Kingdom, no. 27238/95, Grand Chamber Judgment of 18 January 2001, para 96, Reports 2001-I and ECtHR, Connors v. the United Kingdom,

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Application of the Aforementioned Principles to the Case

Then, in a second instance, the Court applied the above mentioned principles to the case. It reiterated that what has to be established in this case is that, without objective and reasonable justification, the applicants were treated less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect discrimination. As to the question as to whether a presumption of indirect discrimination arises in the case at stake, the Court underlined that: “when it comes to assessing the impact of a measure or practice on an individual or group, statistics which appear on critical examination to be reliable and significant will be sufficient to constitute the prima facie evidence the applicant is required to produce.”59 In the present case, the Court accepted that the statistics submitted by the applicants may not be entirely reliable. It nevertheless considered that these figures reveal a dominant trend that has been confirmed both by the respondent State and the independent supervisory bodies which have looked into the question.60 At this point, the Court also referred among others to the State Reports of the Czech Republic and the acfc Opinion of 26 October 2005 on the Czech Republic under the fcnm.61 The Grand Chamber, contrary to the Second Section of the Court, thus accepted that the statistical evidence adduced was substantial and could not be refuted by the Government, especially because the statistics were ­corroborated no. 66746/01, Judgment of 27 May 2004, para. 84. In Chapman the Court also observed that there could be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, not only for the purpose of safeguarding the interests of the minorities themselves but to preserve a cultural diversity of value to the whole community. ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 181. 59 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 188. 60 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 191. 61 The Court states in para. 192 of the judgment that: “in their reports submitted in accordance with Article 25 § 1 of the Framework Convention for the Protection of National Minorities, the Czech authorities accepted that in 1999 Roma pupils made up between 80% and 90% of the total number of pupils in some special schools (see para. 66 above) and that in 2004 “large numbers” of Roma children were still being placed in special schools (see para. 67 above). The Advisory Committee on the Framework Convention observed in its report of 26 October 2005 that according to unofficial estimates Roma accounted for up to 70% of pupils enrolled in special schools.” ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 192.

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by other regional and international agencies. Therefore, according to the Grand Chamber, a case of indirect discrimination was established and it was for the Government to objectively justify this discrimination. The Court reiterated that a difference in treatment is discriminatory if “it has no objective and reasonable justification,” that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised.62 Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible.63 Although the Grand Chamber recognised that it is not its role to “judge the validity of the tests [used to assess the children’s learning abilities or difficulties]”64 there were a number of reasons why it was found that reliance on the tests could not constitute an objective and reasonable justification for the difference in treatment. These were: the design of the tests (1), the concerns about the tests raised by other organisations (2), and finally a danger of bias (3).65 First, in relation to the design of the tests, the Grand Chamber found that they were designed in a manner which did not take Roma characteristics into account, as they were of general application to the population as a whole. Second, the Grand Chamber reiterated the concerns raised by the acfc, ecri and the Council of Europe Commissioner for Human Rights, which had reported that Roma children were placed in special schools “without an adequate psychological or pedagogical assessment, the real criteria clearly being their ethnic origin.”66 Finally, in relation to the danger of bias, in the sense that placements following the results of the psychological tests might have reflected the racial prejudices of the society concerned, the Court noted that the tests in question could

62

See, among many other authorities, ECtHR, Larkos v. Cyprus, no 29515/95, Grand Chamber Judgment of 18 February 1988, para. 29, Reports 1999-I and ECtHR, Stec and Others v. the United Kingdom, no. 65731/01, Grand Chamber Judgment of 12 April 2006, para. 51, Reports 2006-VI. 63 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 196. 64 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 199. 65 G. Hobcraft, ‘Case Analysis: Roma Children and Education in the Czech Republic: d.h. v. Czech Republic: Opening the Door to Indirect Discrimination Findings in Strasbourg?,’ ehrir 2, 2008, p. 256. 66 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 200.

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not serve as justification for the impugned difference in treatment due to the fact that there was at least a danger that the tests were biased. As to the question of parental consent as a means for objective justification of the difference in treatment, the Court was very clear that: “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.”67 In its concluding remarks, the Court underlined that it does recognise the efforts made by the Czech authorities to ensure that Roma children receive schooling. Nevertheless, the Court was not satisfied that the difference in treatment between Roma children and non-Roma children was objectively and ­reasonably justified and that there existed a reasonable relationship of proportionality between the means used and the aim pursued. Therefore the Court held that there had been a violation of Art. 14 echr, read in conjunction with Art. 2 of Protocol No. 1, as regards each of the applicants. It should be noted that the Court did not examine the individual cases of the applicants, since it considered that the applicants as members of the Roma community in the Ostrava region necessarily suffered the same discriminatory treatment as the entire community did. 4.1.2.2 Critical Appraisal Several authors68 have underlined that the case has assisted in bringing the jurisprudence of the ECtHR in line with existing EU standards on indirect discrimination. The case highlights that where a measure is apparently neutral, in some cases statistics can be the sole means of identifying the differential impact that a measure has on different groups of persons. Statistics can also be used to show how differential impact disproportionally affects one group more than another. It is then for the Court, judging on the credibility, strength and reliability of the evidence, to decide whether a prima facie case of indirect discrimination has been established which allows a shift of the burden of proof towards the respondent state.69 67 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 204. See, mutatis mutandis, Hermi v. Italy, no.18114/02, Grand Chamber Judgment of 18 October 2006, para. 73, Reports 2006-XII. 68 G. Hobcraft, ‘Case Analysis: Roma Children and Education in the Czech Republic: d.h. v. Czech Republic: Opening the Door to Indirect Discrimination Findings in Strasbourg?,’ ehrir 2, 2008, p. 259; Open Society Justice Initiative and errc, ‘d.h. and Others v. Czech Republic Major Conclusions of the Judgment,’ Strasbourg, 14 November 2007, available at http://www.errc.org/cms/upload/media/02/85/m00000285.pdf (accessed on 1 August 2013). 69 G. Hobcraft, ‘Case Analysis: Roma Children and Education in the Czech Republic: d.h. v. Czech Republic: Opening the Door to Indirect Discrimination Findings in Strasbourg?,’ ehrir 2, 2008, pp. 259−60.

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What at first sight might seem problematic in this case, is the formulation that the tests in question could not serve as justification for the impugned difference in treatment, since there was a danger that the tests were biased and that the results were not analysed in the light of the particularities and special characteristics of the Roma children who sat them. It is questionable whether the ECtHR could reject the test as a ground for justification on the mere b­ asis that there was a danger that the tests were biased. It is understandable that the Court expresses itself in a very cautious manner since one could claim that the organisation and evaluation of the tests used falls within the margin of appreciation of the state, and it is not up to the Court to decide upon the quality of the said tests.70 Probably the Court was right in not admitting the tests as amounting to an objective and reasonable justification for the difference in treatment of Roma and non-Roma children, as indeed the tests used to assess the children’s learning abilities or difficulties have given rise to controversy and were the subject of scientific debate and research. Even though it is clear from the circumstances of the case that there was no intention in the head of the Czech government to discriminate against the Roma children on the basis of their racial/ethnic origin, one cannot ignore the fact that there is statistical evidence, gathered by international organisations and other organs of the Council of Europe, that Roma children are over-represented in educational facilities for the mentally handicapped and that the reason for this over-representation was the fact that the placement tests did not measure the real intellectual capacities of the Roma children, given the inferior social position they find themselves in and given the language difficulties they might encounter due to the fact that they do not master the Czech language fluently. The case should be welcomed since it has considerably strengthened the doctrine of indirect discrimination in the jurisprudence of the ECtHR. In her case analysis, Gemma Hobcraft71 correctly stresses that the effect of the case will be that governments, when formulating social, economic and administrative policies and laws, will have to be aware of the fact that, even if they are not deliberately setting out to discriminate through a policy or approach, they may still face challenges on the basis of indirect discrimination if their policies do discriminate in practice against certain minorities or population groups. 70 71

The Court itself remarks at para. 199 that “it is not its role to judge the validity of such tests.” G. Hobcraft, ‘Case Analysis: Roma Children and Education in the Czech Republic: d.h. v. Czech Republic: Opening the Door to Indirect Discrimination Findings in Strasbourg?,’ ehrir 2, 2008, p. 260.

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Another important feature of the case is that the Grand Chamber stated explicitly that the right not to be subject to racial discrimination cannot be waived by consent. Thus the Court recognised the dilemma the parents were facing: either to send their children to normal schools that were ill-equipped to cater for their children’s social and cultural differences and where they would be in an ostracised minority position facing exclusion and negative stereotyping, or to send them to special schools where they would be in the majority. The majority in the Grand Chamber judgment was severely criticised in four separate strongly dissenting judgments. Judges Zupancic and Jungwiert72 both noted that the Czech government was the only state to have attempted to tackle the special educational needs of Roma children. To find a violation of Art. 14 echr implied, in their view, that the “benign neglect” practised by other states would have been a better course. Judge Jungwiert acknowledged that: “the situation regarding the education of Roma children in the Czech Republic is far from ideal and leaves room for improvement.”73 But at the same time, he asked “which country in Europe has done more, indeed as much, in this sphere?” and noted that “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 few years after the fall of the Communist regime, is considered.”74 Indeed, not only in the Czech Republic, but in a large number of European States, the Roma face difficulties in education and it might seem unjust to see precisely the Czech Republic—a state which has already made some effort in the last decade to improve the situation of the Roma in education—judged by the ECtHR for its practices dating from the late 1990s. On the other hand, to deny that there have been and still are practices of segregation in the field of Roma education,75 which can and do amount to 72

Note the nationality of both judges: Judge Jungwiert is serving as a judge for the Czech Republic and Judge Zupancic as a judge for Slovenia. 73 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, Dissenting Opinion of Judge Jungwiert, at 12. 74 Ibid. 75 On the follow up of the judgment, see below at Chapter 10, 2.2.4 Committee of Ministers Review of the Case of d.h. and Others v. Czech Republic. See also the Open Society Justice Initiative, ‘Four Years after Court Ruling, Romani Children Still Face Czech Segregation,’ 14 November 2011, available at (accessed on 1 August 2013); the Open Society Justice Initiative, ‘Failing Another Generation: The Travesty of Roma Education in the Czech Republic,’ June 2012, available at (accessed on 1 August 2013); Amnesty International and errc, ‘Five More Years of Injustice: Segregated Education for Roma in the Czech

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d­ iscrimination, would have been a major mistake. The Court did note that the Czech Republic is not alone and that discriminatory barriers to education for Roma children are present in a number of European states.76 Nevertheless, the fact that the Roma are discriminated against in several other European States should not and cannot amount to a justification of the difference in treatment between Roma and non-Roma children in the Czech Republic. 4.1.2.3 References to the fcnm and the Racial Equality Directive Compared to the Second Section judgment, the Grand Chamber referred more extensively to both the fcnm and the Racial Equality Directive 4.1.2.3.1

References to the fcnm

First, under the ‘Facts of the Case,’ the Second Section Court only referred to the State Reports of the Czech Republic under the fcnm, whereas the Grand Chamber also refers to the acfc Opinion on the Czech Republic.77 Second, under ‘Relevant Domestic Law and Practice’ again a reference to the acfc Opinion on the Czech Republic is inserted, stating that: [t]he Advisory Committee on the Framework Convention noted in its first report on the Czech Republic, which was published on 25 January 2002, that while these schools were designed for mentally handicapped children, it appeared that many Roma children who were not mentally handicapped were placed in them owing to real or perceived language and cultural differences between Roma and the majority. The Committee stressed that ‘placing children in such special schools should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests.’78 Third, on the consequences for the children of placement in a school for the mentally disabled, the Grand Chamber again refers to the acfc Opinion on the Czech Republic where it is stressed that placement in a special school Republic,’ November 2012, available at  (accessed on 1 August 2013). 76 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 205. 77 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 18. 78 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 41.

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makes it more difficult for Roma children to gain access to other levels of education, thus reducing their chances of integrating in the society. Although legislation no longer prevents children from advancing from ‘special’ to regular secondary schools, the level of education offered by ‘special’ schools generally does not make it possible to cope with the requirements of secondary schools, with the result that most drop out of the system.79 This argument taken from the acfc Opinion clearly supported the Grand Chamber in arguing that the differential treatment of the Roma children entailed negative consequences for them in that their possibilities of accessing other levels of education were severely reduced. Fourth, under ‘Council of Europe Sources’ an entire section is devoted to the Framework Convention, with a summary of the relevant information not only from the State Reports of the Czech Republic but also from the acfc Opinions on the Czech Republic from January 2002 and October 2005.80 Fifth, in the judgment itself, statistics from the acfc Opinion were included, in which is stated that according to unofficial estimates Roma accounted for up to 70% of pupils enrolled in special schools. These figures allowed the Court to establish that, even if the exact percentage of Roma children in special schools at the material time remained difficult to establish, their number was disproportionately high. The figures from the acfc Opinion thus corroborated the evidence submitted by the applicants, which could therefore be regarded as sufficiently reliable and significant to give rise to a strong presumption of indirect discrimination.81 If the Second Section Court would have paid more attention to the content of the acfc Opinions on the Czech Republic, and not only to the State Reports, the outcome of the case might have been different, as the content of the acfc Opinions clearly indicates that the practice of putting Roma children in facilities for the mentally handicapped on the basis of real or perceived language and cultural differences is neither compatible with the provisions of the Framework Convention nor with the echr.

79 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 51. 80 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, paras 66–76. 81 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, paras 192–195.

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4.1.2.3.2

References to the Racial Equality Directive

First, under ‘Council of Europe Sources’ the connection between ecri general policy Recommendation No. 7 on national legislation to combat racism and racial discrimination, adopted by ecri on 13 December 2002, and the Racial Equality Directive is stressed. In the explanatory memorandum to ecri general policy Recommendation No. 7, it is noted82 that the definitions of direct and indirect racial discrimination contained in para. 1 (b) and (c) of the Recommendation draw inspiration from those contained in the Racial Equality Directive.83 Second, the ECtHR also refers to ‘Relevant Community Law and Practice’ and in this context to the preamble of the Racial Equality Directive, which states that [t]he appreciation of the facts from which it may be inferred that there has been direct or indirect discrimination is a matter for national judicial or other competent bodies, in accordance with rules of national law or practice. Such rules may provide, in particular, for indirect discrimination to be established by any means including on the basis of statistical evidence. It also stresses that [t]he rules on the burden of proof must be adapted when there is a prima facie case of discrimination and, for the principle of equal treatment to be applied effectively, the burden of proof must shift back to the respondent when evidence of such discrimination is brought.84 Then the Court goes on to cite from Articles 2 (on the concept of discrimination) and 8 (on the burden of proof) of the Racial Equality Directive.85 Third, as to the question whether a presumption of indirect discrimination arises in the instant case, the Court observes that

82 In point 8. 83 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para 61. 84 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 83. 85 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 84.

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Council Directives 97/80/EC and 2000/43/EC stipulate that persons who consider themselves wronged because the principle of equal treatment has not been applied to them may establish, before a domestic authority, by any means, including on the basis of statistical evidence, facts from which it may be presumed that there has been discrimination.86 The Court also refers to recent case-law of the cjeu, which shows that it permits claimants to rely on statistical evidence and the national courts to take such evidence into account where it is valid and significant.87 It is clear from the above mentioned references to the wording of the Racial Equality Directive and to the case-law of the cjeu that the ECtHR was inspired by EU non-discrimination law and especially by the Racial Equality Directive for its definition of indirect discrimination and for the establishing of a prima facie case which allows for a reversal of the burden of proof on the basis of statistical evidence submitted by the applicants. 4.2 Sampanis and Others v. Greece, Chamber Judgment of 5 June 2008 In the case of Sampanis and Others v. Greece,88 the ECtHR held unanimously that there had been a violation of Art. 14 echr on the prohibition of discrimination in conjunction with Art. 2 of Protocol No. 1 on the right to education and of Art. 13 echr on the right to an effective remedy. The case was brought by 11 Greek nationals of Roma origin in respect of the treatment of their children by the educational authorities in Aspropyrgos, Greece. 4.2.1 Facts of the Case According to the facts of the case, the applicants were refused permission to enrol their children in local primary schools in September 2004, which meant that their children missed the school year 2004–2005. Subsequently, from the first day of school for the year 2005–2006, the applicants’ children when arriving at school faced protests from parents of the non-Roma children who blockaded the school. During these protests, even police intervention was required. From October 2005 on, the local educational authorities placed the Roma children in an annexed building, located five kilometres from the primary school. 86 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 82. 87 ECtHR, d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 187. 88 ECtHR, Sampanis v. Greece, App. No. 32526/05, Judgment of 5 June 2008.

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4.2.2 Reasoning of the Court The ECtHR applied the jurisprudence established in the d.h. case at a number of points in the judgment, for example, regarding the principle that a prima facie case of discrimination is capable of triggering a shift of the burden of proof. In judging whether a violation of Art. 14 echr had taken place, the ECtHR first referred to the definition of discrimination from the case of Willis v. United Kingdom, in which the Court stated that discrimination is “treating differently, without an objective and reasonable justification, persons in relevantly similar situations.”89 The Court then went on to define discrimination on account of a person’s ethnic origin as a form of racial discrimination, as it did in the d.h. case. It acknowledged the existence of a prima facie case of discrimination, which triggers a shift of the burden of proof. Finally, it examined whether an objective and reasonable justification existed in the present case. The Court underlined in this context that in cases of differential treatment on the basis of race, colour or ethnic origin, the notion of objective justification should be interpreted as strictly as possible.90 It found a violation of Art. 14 echr, since the government had not been able to prove that the differential treatment did not amount to discrimination: it had not put forward any examples of children who were subsequently admitted into the ordinary class system after having attended the separate classes. 4.2.3 4.2.3.1

Critical Appraisal Do Special Measures Encompass Positive Measures on the Part of the State? The first question arising here is whether the Court is only consolidating the principles set out in the d.h. case or whether it even goes a bit further when it comes to the question of positive measures. The Court in Sampanis underlines that the Roma, being a vulnerable minority, need ‘special protection,’ which is also to be granted in the field of education.91 It also refers to the value of 89 90

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Willis v. the United Kingdom, App. No. 36042/97, Judgment of 11 June 2002, Reports 2002-IV, para. 48. The Court notes in para. 84 of the judgment that: « [e]n cas de différence de traitement fondée sur la race, la couleur ou l’origine ethnique, la notion de justification objective et raisonnable doit être interprétée de manière aussi stricte que possible (d.h. et autres c. République tchèque, précité, § 196) » [in case of a difference in treatment based on race, colour or ethnic origin, the notion of objective and reasonable justification needs to be interpreted as strictly as possible; translation by the author]. The Court notes in para. 72 of the judgment that: « [Les Roms] ont dès lors besoin d’une protection spéciale. Comme en témoignent les activités de nombreux organismes grecs et

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cultural diversity92 and repeats that States should pay ‘special attention’ to the needs of the Roma.93 The Court is not very clear on the point whether this ‘special protection’ encompasses also concrete positive measures in the field of education.94 From this perspective, the Court in Sampanis does not really clarify as to whether and under which circumstances affirmative action and positive measures are to be expected on the part of the state.95 It does go one step further in the Grand Chamber judgment in the case of Oršuš and Others v. Croatia, where it explicitly refers to the term ‘positive measures’ in the judgment.96 It seems the Court’s jurisprudence on positive measures in the context of Roma educational rights is further developed with every new judgment on Roma segregation in education: in the recent judgment of Horvath and Kiss v. Hungary,97 the Court refers to the obligation on the state to

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européens, dont les recommandations des organes du Conseil de l’Europe (paragraphes 34–48 ci-dessus), cette protection s’étend également au domaine de l’éducation. » The Court notes in para. 72 of the judgment that: « [d]e surcroît, la Cour a déjà observé qu’un consensus international se faisait jour au sein des États contractants du Conseil de l’Europe pour reconnaître les besoins particuliers des minorités et l’obligation de protéger leur sécurité, leur identité et leur mode de vie, et ce non seulement dans le but de protéger les intérêts des minorités elles-mêmes mais aussi pour préserver la diversité culturelle, bénéfique à la société dans son ensemble (Chapman c. Royaume-Uni, précité, §§ 93–94). » The Court notes in para. 86 of the judgment that: « Étant donné la vulnérabilité des Roms, qui implique la nécessité d’accorder une attention spéciale à leurs besoins (paragraphes 42 et 72 ci-dessus) …» The author disagrees with Leto Cariolou who reads the d.h. case in such a way that “the Court’s final pronouncement entailed that, in the circumstances of this case, affirmative action was indeed required under the terms of Article 14 of the Convention” since as well in the d.h. case as in the Sampanis case, there are only references to the vague term of ‘special protection’ and not to the term of ‘positive measures.’ See L. Cariolou, ‘Recent Case Law of the European Court of Human Rights Concerning the Protection of Minorities (August 2006–December 2007),’ eymi 6, 2006/2007, p. 415. In his concurring opinion to the Chamber’s ruling in the d.h. case, Judge Costa noted that: “as for positive discrimination – which, in the present case, would have entailed increased resources for special schools […] up till now, the Court has refused to consider it a State obligation” (para. 7). See also R. Medda-Windischer, ‘Dismantling Segregating Education and the European Court of Human Rights. d.h. and Others vs. Czech Republic: Towards an Inclusive Education?,’ eymi 7, 2007/2008, pp. 46–48, and especially footnote 142. For an analysis on formal and substantive equality in the Oršuš case, see A. Grgić, ‘Recognizing formal and substantive equality in the Oršuš case,’ eymi 9, 2012, pp. 327−66. For an in depth analysis on positive obligations under the echr, see A. Mowbray, The Development of Positive Obligations under the European Convention on Human Rights by the European Court of Human Rights, Oxford, Portland: Hart Publishing, 2004. Horvath and Kiss v. Hungary, App. No. 11146/11, Judgment of 29 January 2013.

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adopt positive measures both in relation to the intelligence tests and in relation to the history of racial segregation in special schools the Roma have faced: the Court considers that the State has specific positive obligations to avoid the perpetuation of past discrimination or discriminative practices disguised in allegedly neutral tests (at para. 116) and (…) various factors in the instant case lead the Court to conclude that the results of the tests carried out in regard to applicants did not provide the necessary safeguards against misdiagnosis that would follow from the positive obligations incumbent on the State in a situation where there is a history of discrimination against ethnic minority children (at para. 119). As a consequence, [the Roma children] received an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special schools (at para 127).98 4.2.3.2 No Comprehensive Statement Condemning Segregation Another status quo is that the ECtHR again avoided making a comprehensive statement condemning segregation. Morag Goodwin notes in this context that the Court could and should have established as a principle that it is not only the quality of the alternative curriculum but also—and even the more—the impact of separation itself on the minds of the children—both of the children belonging to the minority and the majority—that makes segregation so condemnable.99 4.2.3.3 Direct or Indirect Discrimination? The question arises whether the Court identified the discriminatory treatment of the Greek Roma children in the present case as amounting to direct or indirect discrimination. Unfortunately, the Court’s position is ambiguous.

98 99

Emphasis added. M. Goodwin, ‘Taking on racial segregation: the European Court of Human Rights at a Brown v. Board of Education moment?,’ Rechtsgeleerd Magazijn Themis 3, 2009, p. 103. See also above Chapter 2 at 4. Challenging the ‘Separate but Equal’ Doctrine by Challenging Segregation in Education: Education as a Backbone for Integration in the United States. In this section the US Supreme Court case of Brown v. Board of Education is discussed. In the Brown case, the doctrine of ‘separate but equal’ was challenged and it was argued that separate educational facilities for children belonging to a racial/ethnic minority, even if they are of equal quality as the educational facilities for the majority children, are discriminatory because of the negative effect they have on the self-confidence and the selfimage of the separated children and because of the feeling of inferiority the separation causes.

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In its reiteration of general principles, the Court recalls in para. 69 of the judgment its important statement from the case of Timishev v. Russia (at para. 58), which it also referred to in d.h. and Others v. Czech Republic, that “no difference in treatment which is based exclusively or to a decisive extend on a person’s ethnic origin is capable of being objectively justified in a contemporary democratic society …” (at para. 176).100 Cases where difference in treatment is based exclusively on a person’s ethnic origin amount to cases of direct discrimination, as the discrimination occurs on the basis of the person’s ethnic origin, and is not the consequence of an apparently neutral measure. The Court then proceeds in two steps: in the first step, it examines whether elements of the case justify a presumption of discrimination and a reversal of the burden of proof; in the second step, it examines whether the presumed discrimination can be objectively and reasonably justified. In the first step, the Court notes in paras 78 and 79 of the judgment that in cases where the allegation is one of indirect discrimination, less strict evidential rules apply since it would be extremely difficult for the applicant to prove the existence of indirect discrimination without a reversal of the burden of proof.101 This implicates that, according to the Court, the present case is one of indirect discrimination. It concludes its first line of reasoning with the statement that the burden of proof should be on the government, which will have to prove that the difference in treatment was the result of objective factors and was not related to the ethnic origin of the pupils involved. In the second step, the Court examines whether the government can objectively and reasonably justify the difference in treatment, i.e., whether the aim the government was pursuing was a legitimate aim and whether the means used to reach this aim were proportionate. In para. 89 of the judgment, the Court holds that: “les autorités scolaires n’équivoquaient que des critères se rapportant directement à l’ origine ethnique des intéressés.”102 If it is so that the school board only came up with arguments for the differential treatment which were directly related to the ethnic origin of the applicants, should one not consider this case rather to be a case of direct discrimination?103 100 The original French version of para. 69 of the judgment reads as follows: “La Cour a par ailleurs considéré que, dans la société démocratique actuelle basée sur les principes du pluralisme et du respect pour les différentes cultures, aucune différence de traitement fondée exclusivement ou dans une mesure déterminante sur l’origine ethnique d’une personne ne saurait être objectivement justifiée (Timichev, précité, § 58 ; d.h. et autres c. République tchèque, précité, § 176).” 101 Sampanis and Others v. Greece, para. 78–79. The notion of ‘indirect discrimination’ occurs twice in the judgment. 102 Sampanis and Others v. Greece, para. 89, emphasis added. 103 See also M. Davidovic and P.R. Rodrigues, ‘Roma maken school in Straatsburg,’ njcmBulletin 2, vol. 34, 2009, p. 155.

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In this sense, the findings in paras 78 and 79 (indirect discrimination) are at odds with the ones in paras 69 and 89 (direct discrimination) of the judgment. The school board came up with arguments for the differential treatment which directly related to the ethnic origin of the applicants and thus discriminated directly against the applicants. It did not adopt an apparently neutral provision, criterion or practice which put the Roma children at a particular disadvantage compared with other persons. It is of course an advantage for the applicant to see the burden of proof reversed. In cases of indirect discrimination it would otherwise be difficult for the applicant to prove that apparently neutral provisions, criteria or practices do have a discriminatory character. In the present case, however, the mere fact that the school administration treated the Roma children differently because of criteria directly related to their ethnic origin, should have been enough to establish the existence of a discriminatory differential treatment, without the excursus on the reversal of the burden of proof, which makes it unclear whether the Court is dealing with a case of direct or indirect discrimination. 4.2.4 References to the fcnm and the Racial Equality Directive In the judgment there is no reference to the Framework Convention for the Protection of National Minorities. This is related to the fact that Greece has signed but not yet ratified the Framework Convention. There is only an indirect reference to the Racial Equality Directive, in the context of a reference to ecri general policy Recommendation No. 7 on national legislation to combat racism and racial discrimination. In the explanatory memorandum to ecri general policy Recommendation No. 7, it is noted104 that the definitions of direct and indirect racial discrimination contained in paragraph 1 (b) and (c) of the Recommendation draw inspiration from those contained in the Racial Equality Directive. The relevant paragraph in the Sampanis judgment105 is identical to the corresponding paragraph in the d.h. Grand Chamber judgment.106 4.2.5

A New Case with the Same Allegations: Sampani and Others v. Greece, Chamber Judgment of 11 December 2012 4.2.5.1 Facts of the Case Despite the judgment of Sampanis and Others v. Greece, the conditions at what has become known as the ‘Aspropyrgos Roma ghetto school’ continued to 104 In point 8. 105 Para. 44. 106 Para. 61.

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deteriorate. The annex that had originally housed the Roma children burned down in 2007 and was replaced by a new building, which was declared to be the 12th Elementary School of Aspropyrgos. Rather than use this opportunity to integrate the schools in the village, the authorities continued the practice of using the new 12th school for Roma students only. The school building was severely damaged during the summer holidays of 2008, and by the beginning of the school year 2008–2009 it was considered dangerous for teachers and students. The school fence was broken, the playground destroyed, the toilets did not function, the furniture had been stolen, and there was no cooling or heating system.107 The Greek Helsinki Monitor assisted 98 Roma children (and 42 parents) of the Aspropyrgos Roma ghetto school in bringing the case to the ECtHR. The case was introduced in October 2009, only 16 months after the judgment in the case of Sampanis was rendered, which was in June 2008. The case again relates to the continuing racist educational segregation of Roma children in the 12th Elementary School of Aspropyrgos. Whereas the facts of the Sampanis case cover the period until October 2007, the facts of the Sampani case cover the period immediately after October 2007.108 Worth noting also is that, whereas in the Sampanis case there were 11 applicants, in the Sampani case there were not less than 140 applicants, some of whom were the same as in the Sampanis case. The success of the Sampanis case, and the dismay about the non-compliance by Greece with the judgment, probably prompted more Roma families to agree on being represented in front of the ECtHR. As the facts of the Sampani case, the reasoning of the Court and the outcome of the case are almost identical to those under the Sampanis case, the case will not be analysed in detail. 4.2.5.2 Reasoning of the Court In its reasoning, the Court stresses that for the school years 2008–2009 and 2009–2010 the situation in Aspropyrgos has not really evolved in a positive way. First, the facts of the case show that the 12th Elementary School was clearly set up to be a Roma only school.

107 S. Montgomery, ‘Open Society Blog: Case Watch: Take Two on Greek Roma School,’ 29 April 2011, available at (accessed on 1August 2013). 108 A. Theodoridis for the European Network of Legal Experts in the Non-discrimination Field, ‘Greece brought again before European Court of Human Rights for Roma ghetto school in Aspropyrgos,’ 14 April 2011, available at (accessed on 1 August 2013).

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Second, during the school year 2008–2009, after the school was severely damaged during the summer of 2008, the Roma children had to visit a school infrastructure which was not fit for the purpose any more: “pendant l’année scolaire 2008–2009, les élèves de la 12e école ont été maintenus dans des conditions matérielles telles qu’elles rendaient sinon impossible, du moins très difficile la poursuite de leur scolarité.”109 Third, even though the ministry of education has elaborated a plan to fuse the 11th and 12th Elementary Schools in order to make them mixed schools, this was blocked by the mayor of Aspropyrgos out of a fear of negative reactions by non-Roma parents. Finally, the Court also stresses that 3 Roma pupils who had very good school results were not allowed to enrol in the 10th Elementary School. Considering the fact that the 12th Elementary School in the Aspropyrgos area functioned well, the Court held that there was a violation of Art. 14 echr read in conjunction with Art. 2 of Protocol No 1. 4.2.5.3 Concurring Opinion by Judge Kovler Worth noting is the concurring opinion of Judge Kovler, who criticizes that the Roma children received the very modest sum of 1.000 Euros per family (and not per pupil) for moral damages, compared to the higher sums which were accorded in previous cases regarding segregation of Roma children in education.110 4.2.5.4 Short Appraisal It is unusual for the Court to take up a case involving a defendant state while the implementation—or lack of it—of a nearly identical case is still being considered by the Committee of Ministers. Sarah Montgomery of Open S­ ociety

109 Sampani v. Greece, App. No. 59608/09, Judgment of 11 December 2012, para. 97. 110 The concurring opinion of Judge Kovler reads as follows: “Je prends note de la décision de la Cour d’allouer une somme assez modeste, à savoir 1 000 euros (eur), à chacune des familles requérantes pour dommage moral. Je trouve cette approche objective et rationnelle, compte tenu de l’accent mis par la Cour sur les mesures générales nécessaires pour intégrer des enfants roms dans le système éducatif national. Cette approche contraste avec celle de la Cour adoptée dans les affaires précédentes : 4 000 eur à chacun des requérants dans d.h. et autres c. République tchèque [GC], no 57325/00, cedh 2007-IV ; 4 500 eur à chacun dans Oršuš et autres c. Croatie [GC], no 15766/03, cedh 2010 ; 6 000 eur à chacun dans Sampanis et autres c. Grèce, no 32526/05, 5 juin 2008 ; et 6 000 eur à chacun (enfants âgés de six ans au moment des faits et parents confondus) dans le récent arrêt Catan et autres c. République de Moldova et Russie [GC], nos 43370/04, 8252/05 et 18454/06. Il n’est jamais trop tard pour bien faire.”

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Justice Initiative, who was monitoring the implementation111 of the case, suggests that the Court might have done so in order to highlight the systemic nature of the problem, including the apparent failure of Greece to implement the prior case.112 Surprisingly, the Committee of Ministers in its Resolution ResDH(2011)119113 of September 2011 decided to close the examination of the Sampanis case, even though it must have known that the same Roma children had resubmitted their case to the ECtHR with a follow up on this case in October 2009. Oršuš and Others v. Croatia, Chamber Judgment of 17 July 2008 and Grand Chamber Judgment of 16 March 2010 One month after judgment in the Sampanis case was rendered, the ECtHR had to decide on another case of alleged segregation of Roma children in education, this time against the state of Croatia. The case could have built on the principles of the d.h. case and the Sampanis case as the facts of the case were very similar, but the First Section of the Court did not draw enough parallels with the two previous cases on segregation of Roma children in education and was deceived by the argument of the Croatian government that the Roma children were separated on the basis of language criteria. The outcome of the case was severely criticized114 and the case was referred to the Grand Chamber, which reached a different outcome than the First Section Court. 4.3

111 Implementation is an issue that the Open Society Justice Initiative has explored in detail in its report From Judgment to Justice. The Report ‘From Judgment to Justice: Implementing International and Regional Human Rights Decisions’ of November 2010 is available at (accessed on 1 August 2013). The failure, so far, by state authorities to implement d.h. and Others v. the Czech Republic and Sampanis and Others v. Greece illustrates the challenges of executing a judgment of discrimination against Roma schoolchildren. 112 S. Montgomery, ‘Open Society Blog: Case Watch: Take Two on Greek Roma School,’ 29 April 2011, available at (accessed on 1 August 2013). 113 Resolution CM/ResDH(2011)119 Execution of the Judgment of the ECtHR Sampanis and Others v Greece, 13–14 September 2011. 114 Speaking on the occasion of the judgment, Viktoria Mohacsi, Member of the European Parliament and errc Board Member, stated: “I feel sorry as a member of the Romani community witnessing the political sphere in Europe. This judgment reveals that, even in the European Court of Human Rights, evidence presented by Roma regarding antiRomani motivations is not taken seriously. Nowhere in this judgment did the court deal with clear evidence of anti-Romani protests by non-Romani parents as well as the continuous victimization of persons involved in this case. I question the level of proof required of Roma to establish discrimination cases before officials.” errc, ‘European Court

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4.3.1 Oršuš and Others v. Croatia, Chamber Judgment of 17 July 2008 4.3.1.1 Facts of the Case The applicants in the Oršuš case were Croatian nationals of Roma origin. During their elementary schooling, the first nine applicants had attended both Roma-only and mixed classes before leaving school at the age of 15. The remaining five applicants were still at school and had so far attended Roma-only classes. Relying upon Art. 2 of Protocol No. 1, taken alone and in conjunction with Art. 14 echr, the applicants claimed that they had been denied their right to education and had been discriminated against in this respect. They claimed that their placement in the Roma-only classes stemmed from a blatant practice of discrimination based on their ethnic origin by the schools concerned, reinforced by pervasive anti-Romani sentiments of the majority population. The applicants further claimed that the school curriculum in the Roma-only classes was significantly reduced in scope and volume as compared to the officially prescribed teaching plan, which resulted in lower quality education. As a result of their segregation, the applicants alleged to have suffered severe educational, psychological and emotional harm, damage to their future educational and employment opportunities, as well as stigmatization. They also claimed a violation of Art. 3 and Art. 6 echr, which are less relevant for the purpose of this study and therefore will not be discussed. The Croatian government defended the practice of putting the Roma children in separate classes by stating that the Roma pupils needed extra tuition in the Croatian language and that these classes were designed for them on account of their language deficiencies in the Croatian language. 4.3.1.2 Reasoning of the Court The Court upheld the argument of the Croatian Government and underlined that differences in treatment based on race require strictest scrutiny where differences in treatment based on adequacy of language skills allow for a wider margin of appreciation.115 Applying this wider margin of appreciation in the of Human Rights fails to find discrimination in education against Roma in Croatia,’ Press Release, 18 July 2008, available at (accessed on 1 August 2013). 115 It is not the first time that the Court applies a different margin of appreciation in cases where the applicant alleges a violation of Art. 14 echr. The stricter or larger margin of appreciation is related to the discrimination ground as defined in Art. 14 echr. Other grounds, apart from race, allowing for a stricter scrutiny are e.g., discrimination on the ground of sex (see the case of Van Raalte v. The Netherlands, Application No. 20060/92) and discrimination on the grounds of nationality (see the case of Gaygusuz v. Austria,

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present case, it found no violation of Art. 14 and Art. 2 of Protocol No 1. The Court reiterated that with regard to states’ margin of appreciation in the sphere of education, states cannot be prohibited from setting up separate classes or different types of schools for children with difficulties, or from implementing special educational programmes to respond to special needs.116 4.3.1.3 Critical Appraisal The line of reasoning of the First Section Court in the Oršuš case is problematic. First of all, the Court committed a factual error by identifying the ground for the difference in treatment as being not based on race and ethnic origin but on adequacy of language skills. Should the difference in treatment be based on adequacy of language skills, it would rather be very probable to find non-Roma children with language difficulties in the so-called ‘remedial classes.’ The fact that no non-Roma children with language problems were attending the Roma classes rather indicates that the reason for putting the Roma children in these separate classes was not one of language deficiencies. In its description of the facts of the case in the judgment, the Court did not reflect on evidence about key facts pointing at the racist motives underlying the segregation of the Roma children: the fact that the applicants had no knowledge of their Croatian language ability being tested upon enrolment as there was no formal decision or other documentation communicated to them in this regard at that time; the fact that the claim that the separation was necessary due to the applicants’ poor command of the Croatian language was introduced by the Government only when the case had been filed before the domestic courts; the fact that all of the applicants received good grades in Croatian language in the course of their studies. Moreover, investigations by the errc show that the classes were conceived after pressure exercised by non-Roma parents because they did not want their children to be in the same class as Roma children.117 This rather shows that the classes were conceived for Roma children because of them being Roma, thus on the basis of their race and their ethnic origin, and not because of their language difficulties. Application No. 17371/90). Apparently, this wider or narrower margin of appreciation has mostly been decisive for the outcome of the case. See also M. Davidovic and P.R. Rodrigues, ‘Roma maken school in Straatsburg,’ njcm-Bulletin 2, vol. 34, 2009, p. 168 and footnote 25. 116 Oršuš and Others v. Croatia, Chamber Judgment of 17 July 2008, para. 68. 117 errc, ‘European Court of Human Rights fails to find discrimination in education against Roma in Croatia,’ Press Release, 18 July 2008, available at (accessed on 1 August 2013). See also M. Davidovic and P.R. Rodrigues, ‘Roma maken school in Straatsburg,’ njcm-Bulletin 2, vol. 34, 2009, p. 168.

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Secondly, even if such an argument is not upheld and it is still considered that the differential treatment occurred on the ground of the lack of certain language skills, it is regrettable that the Court did not see that segregation can never be an appropriate response to language deficiency.118 What is even more regrettable is that the placement of the applicants in separate classes was presented by the ECtHR as “a positive measure designed to assist the Roma children in acquiring knowledge necessary for them to follow the school curriculum”119 whereas it is quite obvious from the facts of the case that this argument, which was brought up by the Croatian government, was just a pretext for justifying the segregation of the Roma children. The acfc has warned on several occasions about the “dangerous grey zone”120 between segregating special classes on the one hand, and supportive/ remedial classes on the other hand.121 In the present case, the classes were not designed as either supportive or remedial classes but clearly designed to separate the Roma pupils from their non-Roma peers. It is regrettable that the First Section of the ECtHR did not identify the right grounds for the differential treatment in this case and that it remained apparently unconvinced that segregation of Roma children into Roma-only classes causes psychological harm per se. One cannot expect future generations to develop a greater tolerance and respect towards the Roma minority if children grow up in an educational system where it is generally accepted that Roma can be put in separate classes.

118 The applicants also submitted a report of a psychological study of children in Roma-only classes from a county in Croatia that stated conclusively that the placement of children in segregated classes, whatever the purpose for doing so, produced emotional and psychological harm in terms of lower self-esteem and self-respect and problems in the development of the children’s identity. In addition, the report found that the children themselves stated that they did not wish to be separated from non-Romani children, that they did not have any non-Romani friends, even though they would like to have some, and that they felt unaccepted in the school environment. See Oršuš and Others v. Croatia, Chamber Judgment of 17 July 2008, para. 22. 119 Oršuš and Others v. Croatia, Chamber Judgment of 17 July 2008, para. 68. 120 On this ‘dangerous grey zone’ see also above Chapter 7 at 4.2 Key Issue: Balance between the Need to Guarantee Minority Language Education and the Need to Avoid Unnecessary Separation. 121 Advisory Committee on the Framework Convention for the Protection of National Minorities, ‘Commentary on Education for the Framework Convention of the Protection of National Minorities,’ 2 March 2006, ACFC/25DOC(2006)002, p. 17, available at (accessed on 1 August 2013).

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4.3.1.4 References to the fcnm and the Racial Equality Directive No references to the Framework Convention or to the Racial Equality Directive were included in the judgment. 4.3.2

Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010 4.3.2.1 Reasoning of the Court In March 2010 the Grand Chamber reversed the unanimous judgment of the First Section Court, and found a violation of the prohibition of discrimination (Art. 14 echr) taken together with the right to education (Art. 2 of Protocol No 1). The Court was divided on the issue of the application and consequences of the notion of indirect discrimination and the voting was extremely close, with only nine out of seventeen judges voting for a violation.122 Even though the applicants argued in this case that the practice of putting Roma children into separate classes on the basis of language criteria, which were used as a pretext for racial criteria, amounted to a violation of Art. 2 ­Protocol No. 1 taken alone and in conjunction with Art. 14, the Grand Chamber saw the case as raising primarily a discrimination issue and did not investigate whether the right to education standing alone was violated. As in many previous cases which dealt with Roma issues, the Court started its ruling with a preliminary remark on the specific position of the Roma population and underscored that the Roma are a type of disadvantaged and vulnerable minority. The assessment of the Court was then twofold: firstly, it examined whether there was a difference in treatment and secondly, it examined whether the difference in treatment had an objective and reasonable justification. As mentioned above, according to the Court’s well-established case-law, discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations. This definition was also referred to in the present case. The Court then went on to examine whether there was prima facie evidence which allowed for a reversal of the burden of proof. It noted that the statistics submitted in this case, unlike in the d.h. case, did not suffice to establish that the effect of the practice was discriminatory. However, it accepted that the fact that the measure of placing children in separate classes on the basis of an insufficient command of the Croatian language was only applied to Roma children, who are member of an ethnic group, constituted enough prima facie evidence in order to put the burden of proof on 122 The eight dissenting judges were judges Jungwiert, Vajić, Kovler, Gyulumyan, Jaeger, Myjer, Berro-Levèvre and Vučinić.

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the government. It was then up to the government to prove that there was no difference in treatment. Even though the government brought up several—rather not-well founded— arguments that the Roma children did not suffer from differential treatment since they allegedly did not experience any disadvantages from the fact that they were put in separate classes, the Court did not examine this issue in detail. At a national level, the Croatian Constitution Court, to which the case was brought before it was filed in Strasbourg, found that there was no evidence that the curriculum of the Roma children was reduced in scope and volume, rejected the argument of stigmatization brought up by the applicants, dismissed this assertion as arbitrary, and concluded that the Roma children were not treated differently.123 Therefore it would have been appropriate for the Grand Chamber to clearly refute the arguments brought up by the Croatian government— supported by the outcome of the judgment of the Croatian Constitutional Court—that there was no difference in treatment entailing a disadvantage for the Roma children, and to underscore why the government did not succeed in convincing the Grand Chamber that the Roma children were not put at a particular disadvantage. This important step is missing in the reasoning of the Court. In a second part of its reasoning, the Court examined whether the difference in treatment had an objective and reasonable justification. Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible. In the Chamber Judgment, the judges allowed for a large margin of appreciation since they assumed that the difference in treatment was based on language criteria. The Grand Chamber, on the contrary, found that the strange coincidence that only Roma children were placed in separate classes gave rise to a reasonable suspicion that language was used as a pretext for race, and thus interpreted the notion of objective and reasonable justification in a strict way. When judging whether the State remained within its margin of appreciation in setting up the curriculum, the Grand Chamber examined the existence of what it called ‘safeguards.’ It identified four safeguards which should be put in place by the government when organizing temporary placement in special schools, namely: (1) a clear legal basis for selection; (2) an adapted curriculum remedying the supposed lack of proficiency in the Croatian language; (3) a transfer and monitoring procedure allowing for pupils who gained enough proficiency in the Croatian language to transfer again to ‘normal’ mixed ­classes; 123 Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, para. 60.

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(4) an active and structural involvement on the part of the relevant social services due to large dropout rates. Since none of these four safeguards were put in place, the state did not remain within its margin of appreciation and the difference in treatment had no objective and reasonable justification, according to the Court. The last safeguard, notably the remark on an active and structural involvement on the part of the relevant social services, is very far-going: the Grand Chamber clearly mentions the necessity of positive obligations for the Croatian state in the field of education. The relevant paragraph reads as follows: While the Croatian authorities cannot be held to be the only ones responsible for the fact that so many pupils failed to complete primary education or to attain an adequate level of language proficiency, such a high drop-out rate of Roma pupils in Međimurje County called for the implementation of positive measures in order, inter alia, to raise awareness of the importance of education among the Roma population and to assist the applicants with any difficulties they encountered in following the school curriculum. Therefore, some additional steps were needed in order to address these problems, such as active and structured involvement on the part of the relevant social services. However, according to the Government, the social services had been informed of the pupil’s poor attendance only in the case of the fifth applicant. No precise information was provided on any follow-up.124 Unlike in the d.h. case and the Sampanis case, where the Court refers to the more general and vaguer term of ‘special measures,’ the Court here established a clear obligation for the Croatian state on the part of the social services to implement positive measures in order to assist the applicants with their difficulties in following the school curriculum.125 This positive evolution in the jurisprudence of the ECtHR should be welcomed. Before reaching its conclusion, the Court also paid attention to the involvement of the applicants’ parents. The issue of parental consent was a major ­issue in the d.h. case, since it was one of the main reasons why the Second Section Court held that there was no violation of Convention rights, because of the fact that the Roma parents agreed to put their children in schools for children with learning disabilities. The waiver of the right not to be d­ iscriminated 124 Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, para. 177. 125 See also above at 4.2.3.1 Do Special Measures Encompass Positive Measures on the Part of the State?

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against because of parental consent was firmly rejected by the Grand Chamber in the d.h. case. The Croatian government, as did the Czech government, also brought up the argument that the parents of the Roma pupils never objected and did not seek a transfer of their children to mixed classes. The Grand Chamber in the Oršuš case cited the relevant paragraphs from the d.h. case and underlined that, first of all, a waiver of a convention right must be established in an unequivocal manner and on the basis of informed consent. Secondly, in view of the fundamental importance of the prohibition of racial discrimination, 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.126 Unfortunately, the Grand Chamber reached its decision by only nine votes to eight, an outcome from which the divide within the Court is apparent. It is important to briefly discuss the joint partly dissenting opinion, as it was issued by not less than eight judges. 4.3.2.2 Joint Partly Dissenting Opinion In their joint partly dissenting opinion, the eight dissenting judges agreed with the majority on the definition of indirect discrimination, but did not agree on four further important points. First of all, they underscored that, in their opinion, the Roma children were not put at a particular disadvantage. Secondly, they stressed that the case is not a case about the situation of a minority in general but about a concrete question of education practice in two schools. They reproached the majority for viewing this case “in the first place as a means of further developing the notion of indirect discrimination in the Court’s jurisprudence.”127 In a third part of their opinion, they referred to the judgment of the Croatian Constitutional Court, for which they expressed their support, and they stated that, in their opinion, the difference in treatment of the Roma pupils was not based on ethnic grounds but on pedagogical grounds, that is the insufficient command of the Croatian language. And in the last paragraph, the majority judges are criticized for not having offered more practical guidance on how to develop and apply the notion of indirect discrimination, for not having respected the margin of appreciation of the Croatian state and thus for having overstepped their role and for having taken up the tasks of the national courts.

126 Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, para. 178. 127 Joint Partly Dissenting Opinion, para. 15.

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Critical Appraisal of the Grand Chamber Judgment

It should be noted that, apart from a small step missing in its reasoning,128 the judgment of the Grand Chamber is very well-reasoned and convincing. ngo reports on the case document that the Croatian government did use the language criterion as a pretext for racial discrimination. When having a ­closer look at the figures, which are perhaps presented in an unclear way in the ­judgment—and this should have been done differently by the Court since the figures are important for a better understanding of the case—one sees that in the lower grades, the first and second grades for the school year 2000/2001 do have several mixed classes with Roma and non-Roma children, but the third grade in Podturen primary school has one Roma-only class with 19 pupils and one non-Roma class with again 19 pupils. Another good example is the fourth grade for the same school year in Macinec primary school: 21 out of 44 pupils are Roma and all are assigned to Roma only classes, the remaining 23 students attending a non-Roma class. It is very hard to believe that not a single Roma pupil in the third grade of Podturen school spoke Croatian well enough to attend the other class and that not a single Roma pupil in the fourth grade of Macinec primary school spoke Croatian well enough to attend the non-Roma class. Moreover, as is mentioned in the Grand Chamber judgment, the fact that the Roma children were not given extra language classes and that there was no evaluation of their language progress, which could have allowed them to transfer into the ‘normal’ classes, proves that language deficiency was probably not the reason why the Roma were separated from their peer pupils. The reasoning and the outcome of the Grand Chamber judgment should be welcomed as they unveil the disguised practices in the said schools as discriminatory and further develop the Court’s jurisprudence in the field of indirect discrimination. Perhaps two minor points of critique could be raised, though. First of all, again no explicit statement that segregation is condemnable per se was made by the Grand Chamber. Especially in the light of the unnuanced statement of the dissenting judges on separation not being harmful per se, this would have clearly set things straight and would have significantly contributed to the promotion of minority rights under the echr. Secondly, it could have been interesting not only to examine the non-­ discrimination aspect of the case but also the right to education aspect and 128 See above on the question whether the differential treatment had put the Roma children at a particular disadvantage, which was not discussed by the Court.

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to elaborate on the fact that the segregation of Roma children in education constitutes a violation of the right to education taken alone, as stipulated in Art. 2 of Protocol No. 1. It is not clear why the Court only examined the case under Art. 14 taken together with Art. 2 of Protocol No. 1, and not under Art. 2 of Protocol No. 1 standing alone as well. 4.3.2.3.2

Critical Appraisal of the Joint Partly Dissenting Opinion

The joint partly dissenting opinion should be criticized for its considerations on segregation. It is regrettable that eight judges of the ECtHR stated in their opinion that “separation is not always considered to be harmful.” This statement should have been more differentiated—giving guidance on when separation is harmful and when it is not—and it is regrettable that it is made in the context of a case of racial segregation. Separation imposed by the majority population on the basis of ethnicity is always considered to be harmful, and is certainly not in line with the spirit and the wording of the International Convention for the Elimination of all Forms of Racial Discrimination, which condemns all forms of racial segregation in its Art. 3.129 One could come up with examples of separation on the ground of gender (in boys only or girls only schools) or religion (for the purpose of religion classes), which might not always be discriminatory, but one cannot think of any situation in which separation which is imposed by the majority population on the basis of ethnicity or racial segregation is not considered to be harmful. This needs to be differentiated from those cases in which the separation is explicitly desired by the minority in question. There are examples130 where minorities expressed the wish to set up a separate school system for their children. In such cases a balance need to be struck between the wishes expressed by the minority on the one hand and what is pedagogically meaningful and useful on the other hand. If the separate education system which is organized by the minority is pedagogically meaningful/useful and supports the idea of 129 Article 3 icerd reads as follows: “States Parties particularly condemn racial segregation and apartheid and undertake to prevent, prohibit and eradicate all practices of this nature in territories under their jurisdiction.” 130 See, for instance, the rare example of South Tirol. South Tyrol, the northernmost province of Italy, is inhabited by the German and Ladin communities, and is considered to be one of the most successful examples in the accommodation of minorities. One of the peculiarities of this province is its segregated educational system, with separated establishments for the Italian speaking, the German speaking and the Ladin speaking population. South Tyrol seems to be one of the few examples where strict linguistic separation in the school system seems to work well, as it is perceived as a means for the different communities to preserve their linguistic and cultural identity.

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integration, such instances of separation indeed do not need to be harmful. However, in the case of the Roma, who face negative stereotyping, and in most cases socio-economic hardship, there are no examples so far of success stories of educational separation. There is still a long way to go before a statement can be made that separation in the case of the Roma is not harmful. It should also be underscored that sometimes the grey zone between racial segregation and segregating special classes on the one hand and supportive or remedial classes on the other hand is small, as the acfc clearly stressed in its thematic commentary on education.131 The ACFC has expressed its appreciation of supportive pre-school classes if they are aimed at enabling Roma pupils or others concerned to follow the regular curriculum, but at the same time has identified structures imposing segregated education as unacceptable. Special classes are compatible with the spirit of the fcnm if they aim at the integration of the Roma into the mainstream educational system. Therefore in cases of supportive or remedial classes, the term ‘separation’ is rather not used, since it has a clear negative connotation. The overall aim of these classes should not be to ‘separate’ the children, but rather to enable them to integrate successfully in the mainstream/majority educational system. A criterion for the assessment of the compatibility of supportive or remedial classes with the FCNM is the question whether, in the long run, these classes aim towards a quicker and better integration of the pupils concerned into the ‘normal’ educational system. It is regrettable that neither the Grand Chamber nor the dissenting judges referred to the acfc Commentary on Education, which in its comments under Art. 12 fcnm contains a lot of guidance on how to identify positive supportive measures for Roma children in education and how to reveal practices of segregation. Another major point, on which one might disagree with the dissenting judges, is their appreciation of the judgment of the Croatian Constitutional Court.132 This judgment should be criticized, since for the Constitutional Court, the lack of the intent to discriminate in the head of the Croatian government was one of the main reasons why it found that the Roma pupils were not discriminated against. It should be stressed here, that neither according to the wording of the Racial Equality Directive, nor according to the jurisprudence of the ECtHR, the intent to discriminate should be taken into account when 131 Advisory Committee to the Framework Convention for the Protection of National Minorities, “Commentary on Education under the Framework Convention for the Protection of National Minorities,” ACFC/25DOC(2006)002, p. 17. 132 Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, Joint Partly Dissenting Opinion, para. 19, where the dissenting judges criticized the Grand Chamber for “overruling a well-reasoned judgment by a Constitutional Court” (emphasis added).

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j­udging on cases of indirect discrimination. The ECtHR clearly stated in the d.h. case that it was not necessary “to prove any discriminatory intent on the part of the relevant authorities.”133 In sum, it can be argued that the critiques uttered by the dissenting judges are not well-founded and that the statement on separation is even potentially dangerous as it is done in the context of a case on racial segregation of an extremely vulnerable minority. It would have been more appropriate to differentiate clearly between supportive and remedial classes, as a preparation to an entry or re-entry in mainstream education on the one hand, and long-term separation on the grounds of race or ethnic origin on the other hand. 4.3.2.4

4.3.2.4.1

References to the fcnm and the Racial Equality Directive References to the fcnm

In the Grand Chamber judgment, extensive references can be found to the Framework Convention. First of all, the Court refers to the relevant paragraphs of the acfc Opinion on Croatia of 6 April 2001. It focuses on the comments of the acfc under Articles 4 and 12 fcnm where the acfc stresses that it is “highly concerned about reports that in certain schools, Roma children are placed in separate classes and school facilities are organised and operated in a manner that appears to stigmatise Roma pupils”134 and that “that placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests.”135 These findings clearly corroborate the evidence brought forward by the applicants and might have worked as an additional argument for the establishment of a prima facie case of discrimination, which then put the burden of proof on the Croatian government and not on the applicants. Second, in the part of the judgment where the Grand Chamber examines whether the difference in treatment could be objectively and reasonably justified, the Court explicitly refers to the statement of the acfc that “placing children in separate classes should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests.”136

133 d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 194. 134 Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, Joint Partly ­Dissenting Opinion, para. 68. 135 Ibid. 136 Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, Joint Partly Dissenting Opinion, para. 159.

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Third, the Court even examined not only the Croatian State Report and the acfc Opinion on Croatia, but also the State Comments submitted on 26 September 2001 by the Croatian Government in response to the Opinion of the acfc. In these comments, it found a reference to the fact that the Roma children followed an ‘adapted curriculum,’ that is a reduced curriculum. As the Croatian government had not shown how the mere fact of a reduction of the curriculum could be considered an appropriate way to address the applicants’ alleged lack of proficiency in Croatian, the Court held that the Croatian government did not reasonably and objectively justify the differential treatment of the Roma children. Fourth, another reference to the State Comments submitted in response to the acfc opinion can be found in the part of the judgment related to evaluation of the transfer and monitoring procedure. The Croatian government stressed in its State Comments that the “practice [of placing Roma children in separate classes] is implemented only in the first and second grade of primary school, after which children attend classes together with children of other nationalities.”137 This argument was used by the Court against the Croatian government as the applicants in the present case each spent a substantial period of their education in Roma-only classes, without their progress or results being monitored and without a re-integration into the mainstream educational system. The fact that information provided for by states under the monitoring procedure of the Framework Convention is used against the states by the ECtHR in its judgments is to be welcomed. First of all, it shows that the ECtHR considers the State Reports, the acfc Opinions and the State Comments to be serious and reliable sources of information. Moreover, the ECtHR is using these documents not only as a source of information to corroborate evidence, but even finds guidance in the acfc Opinions on how to assess when the placing of children in separate classes is legitimate, notably only when this measure is absolutely necessary, on the basis of consistent, objective and comprehensive tests, and temporary. Secondly, the fact that the information provided for by states under the monitoring procedure of the FCNM is used by the Court might prompt states to take their reporting obligations seriously and provide comprehensive and correct information.

137 acfc, Comments by the Republic of Croatia on the Opinion of the Advisory Committee on the Implementation of the Framework Convention for the Protection of National ­Minorities in Croatia, 26 September 2001, GVT/COM/INF/OPI(2002)003, p. 5.

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Chapter 9 References to the Racial Equality Directive

The indirect reference to the Racial Equality Directive,138 which figures in the explanatory memorandum to ecri General Policy Recommendation No. 7 is identical to the one in para. 61 of the d.h. Grand Chamber judgment and in para. 44 of the Sampanis judgment. Apart from this, no other references to the Racial Equality Directive were included in the judgment. 4.4 Horvath and Kiss v. Hungary, Chamber Judgment of 29 January 2013 4.4.1 Facts of the Case The facts of the case in Horvath and Kiss v Hungary are very similar to the facts of the d.h. case. The applicants are two young Roma men, who were diagnosed as having mild mental disabilities when they were children. As a result of this diagnosis, they were placed in a remedial school. Noteworthy is that the diagnosis and the IQ tests used in Hungary for determining which type of school children should attend deviated from who standards: as opposed to the who value of IQ 70, expert panels in Hungary applied IQ 86 as a border value between sound intellectual ability and mild mental disability.139 The consequences of being relegated to a remedial school for the applicants were disadvantageous: the curriculum was underdeveloped, their schooling did not give them access to the type of job they wanted (to become a dance teacher or a car mechanic), and they ended up de facto segregated from the majority population. The applicants claim that their education in the remedial school constituted ethnic discrimination in their enjoyment of their right to education (Article 14 echr in conjunction with Article 2 of Protocol No. 1). The applicants were represented by Lilla Farkas (the author of the report ‘Segregation of Roma Children in Education, Addressing Structural Discrimination through the Race Equality Directive’ of July 2007 and the follow-up report ‘Report on Discrimination of Roma Children in Education’ of April 2014) and errc. The case grew out of a strategic litigation effort initiated by then mep Viktória Mohácsi. The applicants were hand-picked by experts out of 60 children. In 2005, five sets of cases were taken to civil courts in Hungary and the only one that succeeded at least at one domestic instance was Horváth and Kiss. After domestic remedies where exhausted, the case was brought to the ECtHR. 138 Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, Joint Partly Dissenting Opinion, para. 86. 139 Horvath and Kiss v. Hungary, Judgment of 29 January 2013, paras 10, 18, 93, 99, and especially 118, where the Court observes that the Hungarian authorities set the borderline value of mental disability at IQ 86, significantly higher than the who guideline of IQ 70.

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4.4.2 Reasoning of the Court The reasoning of the Court in the present case is very similar to the reasoning in all previous ECtHR cases on Roma segregation in education. The general principles in the Court’s assessments are the same as the ones in the previous cases; therefore they will not be repeated. Applying these general principles to the present case, the Court found that, because of the limited curriculum, the applicants were treated less favourably than non-Roma children in a comparable situation. As the government did not produce any alternative statistical evidence and did not dispute the statistics submitted by the applicants, the figures as submitted by the applicants were considered sufficient to establish a prima facie case of indirect discrimination, which reversed the burden of proof on the government. It was then up to the government to prove that either the difference in treatment did not entail any negative consequences for the applicant, or that the difference in treatment could be reasonably and objectively justified. Regarding the validity of the IQ tests, the Court, as in the d.h. case, underscored that it is not its role to judge the validity of such tests, or to identify the stateof-the-art, least culturally biased test of educational aptitude. It is only called on to ascertain whether good faith efforts were made to achieve non-discriminatory testing. Nevertheless, various factors in the instant case lead the Court to conclude that the results of the tests carried out in regard to applicants did not provide the necessary safeguards against misdiagnosis that would follow from the positive obligations incumbent on the State in a situation where there is a history of discrimination against ethnic minority children.140 The Court then went on to examine whether the conditions necessary for the functioning of the Expert Panel responsible for the diagnosis of the applicants as having mild mental disabilities had been proved by the state. It held in this context that this is not the case, and that the tests in question cannot be considered to serve as a sufficient justification for the impugned treatment. As the state failed to prove that it had provided the guarantees needed to avoid the misdiagnosis and misplacement of the Roma applicants, the Court considered that the applicants necessarily suffered from the discriminatory treatment141

140 Horvath and Kiss v. Hungary, Judgment of 29 January 2013, para 119, emphasis added. 141 Horvath and Kiss v. Hungary, Judgment of 29 January 2013, para 128.

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and that, consequently, there had been a violation of Article 14 taken in conjunction with Article 2 of Protocol No. 1 in respect to each of the applicants. 4.4.3 Critical Appraisal 4.4.3.1 Focus on Safeguards against Misdiagnosis In the present as well as in the previous cases on Roma segregation in education, the main element which led the Court to hold that the government could not justify the differential treatment of the segregated Roma children was the fact that their placement into special education was not accompanied by the necessary procedural safeguards. In this regard, in the Oršuš case, the Court in its conclusions especially condemned the lack of transparency and clear criteria as regards the transfer to mixed classes.142 Whereas in the Oršuš case the focus of the Court regarding these procedural safeguards seemed to be on the permanent character of the segregation and the lack of subsequent testing of progress (and accordingly the impossibility to enter the mainstream educational system), in the Horvath and Kiss case the focus of the Court regarding procedural safeguards was rather on safeguards against misdiagnosis, that is the fact of considering Roma children to be disabled, where they are not. Indeed a main part of the judgment is dedicated to an analysis of the different methods of testing, the danger that the tests were culturally biased, and the question as to whether these tests could serve as a justification for the impugned treatment. A direct link was established by the Court between the question whether good faith efforts were made to achieve non-discriminatory testing on the one hand, and the positive obligations incumbent on the state in a situation where there is a history of discrimination. The Court held that it follows directly from these positive obligations, that the state should have put additional safeguards against misdiagnosis in place.143 The increased attention for the need to adopt positive measures on behalf of the state is discussed in the subsequent paragraph. 4.4.3.2 Increased Attention for the Need for Positive Measures The novelty of this judgment, compared to the previous ones, lies certainly in the Court’s reasoning about positive obligations. In Horvath and Kiss, the Court further develops its jurisprudence on positive obligations. In Oršuš the Court refers to an obligation to take positive measures at two instances: firstly, regarding the acquiring of the necessary language skills in 142 Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, para. 182. 143 Horvath and Kiss v. Hungary, Judgment of 29 January 2013, para 119, cited above under 4.4.2 Reasoning of the Court.

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the shortest time possible,144 and secondly regarding general safeguards that would ensure that the state has sufficient regard to the Roma children’s special needs as members of a disadvantaged group.145 In Horvath and Kiss, the Court includes no less than 4 references (at paras 104, 116, 119 and 127) to positive obligations for the State. All 4 references relate to the fact that, due to the history of discrimination and segregation the Roma face, the state has a positive obligation if it wants to establish substantive equality for the Roma. This is the most apparent from the formulation in para. 127, where the Court uses the term ‘undo’: As a consequence, [the Roma children] received an education which did not offer the necessary guarantees stemming from the positive obligations of the State to undo a history of racial segregation in special schools.146 So far, even if the Court had already at several instances established a link between the history of discrimination faced by the Roma and their extreme vulnerability, the kind of positive obligation that the Court recognized in Roma school segregation cases had previously not been linked to their history of racial segregation. In the present case, the Court goes a step further by making a general statement and insisting on a substantive positive obligation, namely to “undo a history of racial segregation in special schools.” 4.4.3.3 Direct or Indirect Discrimination? The case was argued on the basis of EU anti-discrimination law (namely the Racial Equality Directive) transposed into domestic law. In their submission, the applicants had construed their misdiagnosis as a form of direct race discrimination. They argued that under the Racial Equality Directive and Hungarian law misdiagnosis amounts to direct discrimination, because they could prevail themselves of a protected ground (race, ethnicity), they suffered less 144 “The State in addition had the obligation to take appropriate positive measures to assist the applicants in acquiring the necessary language skills in the shortest time possible, notably by means of special language lessons, so that they could be quickly integrated into mixed classes.” Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, para. 165. 145 “The facts of the instant case indicate that the schooling arrangements for Roma children were not sufficiently attended by safeguards that would ensure that, in the exercise of its margin of appreciation in the education sphere, the State had sufficient regard to their special needs as members of a disadvantaged group.” Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, para. 182. 146 Oršuš and Others v. Croatia, Grand Chamber Judgment of 16 March 2010, para. 127, emphasis added.

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f­avourable treatment because of them being Roma (on the ground of their Roma ethnic origin they were treated as mentally disabled), and their comparators were treated more favourably (children belonging to the majority population were not misdiagnosed).147 This allegation that the case at stake amounts to one of direct discrimination is unfortunately not reflected in the judgment. Whereas in para. 3 of the judgment, it is stated that the applicants alleged that their education in a remedial school had amounted to direct and/ or indirect discrimination, in para. 90 of the judgment where the parties’ arguments are brought forward, mention is made of indirect discrimination only. The Court thus construed the case as a case of indirect discrimination, and did not take up the arguments brought up by the applicants that this case might amount to a case of direct discrimination. Whereas in the Sampanis case, the reasoning of the Court in this respect was inconsistent,148 bringing up arguments both in favour of a case of direct as well as indirect discrimination, the reasoning in the Horvath and Kiss case is more consistent: the latter case is unequivocally construed as one of indirect discrimination. For Lilla Farkas, the legal counsel of the applicants, the ECtHR construction of indirect discrimination in this case – as well as in the other Roma education cases – blurs the difference between direct and indirect discrimination as understood under Article 2 of the Racial Equality Directive. For Farkas, once the Court suggests that the apparently neutral criterion or practice (meaning: IQ tests or diagnosis) runs at least the risk of being culturally biased, then it essentially admits that the impugned practice is biased against the Roma. In other words, it is not neutral towards the Roma. Farkas stresses that ‘apparently neutral’ means that the impugned practice shall be apparently neutral vis-à-vis the protected ground: “If tests run the risk of being culturally biased, misdiagnosis cannot in fact be construed as indirect race discrimination.”149 How the phrase ‘apparently neutral’ figuring in the definition of indirect discrimination in Art. 2 of the Racial Equality needs to be interpreted is unclear. Most legal scholars however seem to agree on the fact that the tests used in the Czech Republic and in Hungary indeed constitute an apparently neutral 147 L. Farkas, ‘Horvath and Kiss v. Hungary: a strong new Roma school segregation case,’ 8 February 2013, available at (accessed on 1 August 2013). 148 See above at 4.2.3.3 Direct or Indirect Discrimination? 149 L. Farkas, ‘Horvath and Kiss v. Hungary: a strong new Roma school segregation case,’ 8 February 2013, available at (accessed on 1 August 2013).

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­ ractice, in spite of their cultural bias, as they were not conceived to discrimip nate, but discriminatory treatment was a consequence of the use of these tests, as they disproportionately impacted on the Roma. Therefore the d.h. case and the Horvath and Kiss case were rightly construed as cases of indirect discrimination. For the Sampanis and the Oršuš case, the situation needs to be more nuanced. Whereas in the d.h. case and in the Horvath and Kiss case, it seems that the Roma children were ‘victims’ of the apparently neutral but culturally biased testing methods used by the school authorities, in the Sampanis and in the Oršuš case, there was proof that one of the reasons why the Roma children were not admitted to the mainstream classes was the protest by parents of non-Roma children who did not want their children to sit in the same class as Roma children.150 In the Sampanis case, the Court admitted that the placement of the children in a separate building was directly linked to their ethnic origin and to the pressure exercised by the non-Roma parents. This pressure was clearly exercised because of the Roma ethnicity of the applicants, so for Sampanis, it is clear that the case amounts to a case of direct discrimination. An assessment of the Oršuš case is more complicated, as the facts of the case are unclear. The applicants argue that they were never aware of their language abilities being tested and that the argument of language deficiency only came up during the proceedings as an excuse for having put the children in separate classes on account of their ethnicity. Depending on whether one accepts these facts as proven or not, the construction of the case as a case of direct or indirect discrimination will differ. 4.4.4 References to the fcnm and the Racial Equality Directive In para. 73 of the judgment, there is a quote from the Advisory Committee Opinion on Hungary, adopted on 22 September 2000, where the AC considers that the relegation of Roma children to special schools for mentally disabled children is not compatible with Article 12 (3) of the Framework Convention. This reference, together with a reference to the follow-up report on Hungary of the coe Commissioner for Human Rights, and the ecri Report on Hungary, has certainly contributed in establishing a prima facie case of discrimination and has confirmed the Court in its conviction that there is a “history of segregation” of Roma children in education in Hungary. 150 In the Sampanis case, the cultural bias of the tests used was not really an issue, and in the Oršuš case, the argument that the Roma children were put in separate classes on account of language difficulties only came up at a later stage in the proceedings. It seems thus that both in the Greek as in the Croat case, the children were relegated to separate classes, not on account of systematically administered intelligence tests, but on account of protests by parents belonging to the majority population.

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There was no reference to the Racial Equality Directive in the judgment, as for the section “other international texts,” instead of reproducing these texts, a reference was made to the relevant section in the d.h. case and in the Oršuš case.151 4.5 Lavida and Others v. Greece, Chamber Judgment of 30 May 2013 In its Chamber judgment in the case of Lavida and Others v. Greece,152 the ECtHR held, unanimously, that Greece had violated Article 14 (prohibition of discrimination) of the echr in conjunction with Article 2 of Protocol No 1 to the Convention (right to education). The facts of the case are comparable to the Sampanis case discussed above under 4.2., which the applicants invoked in their correspondence with the Greek government, before bringing the case to the ECtHR. 4.5.1 Facts of the Case The case concerned the education of Roma children who were restricted to attending a primary school in which the only pupils were other Roma children. The applicants are 23 Greek nationals, who are represented by the Greek Helsinki Monitor (‘ghm’), a non-governmental organisation. Half of the population of Sofades, a town located in Thessaly, in the western part of central Greece, is made up of persons of Roma origin, who live in a district known as the new Roma housing estate. According to the applicants, 84 families live in the new housing estate, and 300 families continue to live on an older estate. At the relevant time, 4 primary schools existed in Sofades. One of them, primary school No. 4, had been built on the old estate occupied by the Roma community and near the new estate, which was accordingly attached to that school’s catchment area as defined in the official zoning maps. Fifteen of the applicants are children who were of compulsory school age in 2009–2010. Twelve of them were educated at school No. 4. On 21 May 2009 a delegation from the ghm visited the new Roma estate and school No. 4. The delegation sent a letter to the Ministry of Education, pointing out that the children from the new Sofades estate were attending primary school No. 4 on the old Roma estate, which had only Roma pupils, rather than primary school No. 1, the closest to their homes. The delegation criticised “a clear ethnic segregation, which violates both Greek law and international human rights norms and, in particular, the European Convention on Human Rights as interpreted in the case of Sampanis v. Greece”. No reply was received to the letter. 151 Horvath and Kiss v. Hungary, Judgment of 29 January 2013, para 76. 152 Lavida and Others v. Greece, App. No. 7973/10, Judgment of 30 May 2013.

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In September 2009 the applicant parents allegedly asked the headmaster of primary school No. 1 to agree to enrol their children. He refused, stating that the authorities considered that those children ought to continue to attend school No. 4. On 29 September 2009 the Regional Education Department sent a report to the Ministry of Education on the functioning of the Sofades schools and the education of Roma children. On 25 November 2009 the ghm sent another letter to the Special Secretary for Inter-Cultural Education, to which no reply was received. On 15 December 2009 the Ombudsman informed the ghm that he too had written to the Special Secretary in order to inform himself of the Minister of Education’s position on this matter, and in January 2010 the applicants lodged their application with the ECtHR. 4.5.2 Reasoning of the Court The Court observed that primary school No. 4 in Sofades was a school attended solely by Roma children. In spite of the rule that pupils were to be educated in schools situated near their homes, no non-Roma child who lived in the district attached to school No. 4 was educated in that school. The Court further noted that school No. 4 had not been set up as a school intended exclusively for Roma children and did not include preparatory or support classes for Roma children who wished to move to an ordinary state school after having reached a sufficient educational level. School No. 4 was an ordinary school which offered a similar programme to that in other state primary schools. The Court noted that the relevant authorities, in particular the Ministry of Education, had been informed about the existence of ethnic segregation in the education of Roma children in Sofades. This situation had been described in two letters sent to that Ministry, and in a report by the Regional Education Department. The report had drawn attention to the existing situation and recommended that the authorities avoid placing Roma children in schools attended exclusively by children belonging to the Roma community, in order to end social exclusion and promote Roma integration. It suggested building new schools and re-drawing the school catchment map. It noted that the education of Roma children in the existing schools in Sofades was impractical, given the large number of pupils and the lack of infrastructure. The report also noted the municipal council’s refusal to close down school No. 4 and the hostile reactions of the parents of non-Roma pupils when Roma children were enrolled in the other schools in Sofades. The Court observed that the relevant authorities had officially recognised the existence of segregation in the school in question, and the need to correct it. It could not subscribe to the government’s argument that for the 2009–2010

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academic year it would have sufficed for the applicant parents to request the transfer of their children to another ordinary school in order to end the feeling of discrimination. Even in the absence of any discriminatory intention on the state’s part, the Court held that a position which consisted in continuing the education of Roma children in a state school attended exclusively by children belonging to the Roma community and deciding against effective anti-­ segregation measures could not be considered as objectively justified by a ­legitimate aim. The situation complained of by the applicants for the 2009–2010 academic year had lasted until the 2012–2013 academic year. There had therefore been a violation of Article 14 taken together with Article 2 of Protocol No. 1. 4.5.3 Critical Appraisal The reasoning of the Court in the Lavida case is similar to its reasoning in the Sampanis case and in the Oršuš case. It is very concise and contains now new elements vis-à-vis its already established case-law in this field. The lack of an explicit reference to positive measures or to the positive obligations of the state to undo a history of racial segregation, as mentioned in Horvath and Kiss, is a missed opportunity, even though this idea is implicitly present in the judgment. Lilla Farkas argues that, by stating that “(…) deciding against effective anti-segregation measures (…) cannot be considered as objectively justified by a legitimate aim,”153 the Court established a “duty to desegregate inherent in the right to education without racial or ethnic origin based discrimination, subject to certain conditions.”154 Whereas it is clear from the judgment that the passive attitude of the Greek authorities led the Court to finding a violation of the right to education, it would probably go too far to read a ‘duty to desegregate’ into the judgment, as there is always the (theoretical) option for the defending state to argue that the differential treatment was objectively justified by a legitimate aim. 4.5.4 References to the fcnm and the Racial Equality Directive As in the Sampanis case, there is no reference to the Framework Convention for the Protection of National Minorities, which is probably due to the fact that Greece has signed but not yet ratified the Framework Convention.

153 Lavida and Others v. Greece, Judgment of 30 May 2013, at para. 73. 154 L. Farkas, ‘Report on Discrimination of Roma Children in Education,’ Brussels: European Commission, DG Justice, April 2014, p. 38, available at (accessed on 1 September 2015).

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There is no explicit reference to the Racial Equality Directive either. There is however an implicit reference to the EU anti-discrimination acquis, in the sense that, when describing the facts of the case,155 the ECtHR refers to the reply by Commissioner Reding, responsible for Justice, to an mep question on the matter, in which Commissioner Reding had stated that the measures taken in this case do not go far enough towards effective desegregation, and that it is up to the national courts, in the light of all the facts of a case, to determine whether a concrete situation constitutes discrimination under the transposed Racial Equality Directive.156 4.6 Kósa v Hungary, Inadmissibility Decision of 21 November 2017 In the case of Kósa v Hungary,157 the applicant, a Roma girl, attended a nearby segregating faith school, following the discontinuance of the school bus service connecting her neighbourhood with the city centre. Even though the case was held to be inadmissible by the European Court of Human Rights, the case does deserve a mention here, as it contains an interesting reference on whether public interest litigation at national level may exhaust domestic remedies. 4.6.1 Facts of the Case The applicant, of Roma origin, was born in 2004 and lives in a neighbourhood of Nyíregyháza, the so-called Huszár township, which is characterised by the unfavourable social circumstances and poverty of its inhabitants, the 155 “Le 13 février 2012, répondant à une question posée par un député grec au Parlement européen concernant les mesures adoptées le 26 janvier 2012, la commissaire Viviane Reding souligna que la Commission européenne considérait que ces mesures n’étaient pas suffisantes pour mettre un terme à la ségrégation raciale, même si elles reflétaient la volonté d’aborder le problème.” Lavida and Others v. Greece, Judgment of 30 May 2013, para. 24. 156 The answer given by Ms Reding on behalf of the Commission reads as follows: “1. The Racial Equality Directive(1) prohibits direct and indirect discrimination based on racial or ethnic origin, inter alia in education. Greece has transposed this directive into national legislation. It is therefore for the national courts, in the light of all the facts of a case, to determine whether a concrete situation constitutes discrimination. (…) 2. The Commission shares the analysis of the honourable Member that measures taken in this case do not go far enough towards effective desegregation although they reflect some will to address the issue. In its April 2011 Communication, the Commission asked Member States to eliminate discrimination and segregation in education, provide access to quality education in non-segregated settings and ensure, as a minimum, primary school completion for all Roma children. In this context, the Commission recalls that Member States are responsible for the organisation and content of their education systems. (…),” Parliamentary Questions, Answer given by Ms Reding on behalf of the Commission, 2 April 2012, E-001731/2012, OJ C 105 E, 11.04.2013. 157 Kósa v. Hungary, App. No. 53461/15, Decision 21.11.2017.

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o­ verwhelming majority of whom belong to the Roma minority. This township, situated approximately 2 km from the town centre, is rather isolated, the access roads and pedestrian walkways being intersected by the Nyíregyháza Railway Station complex and the railway tracks running to and from the station. In accordance with the relevant Hungarian legislation, each residential district has a designated state-funded primary school which is obliged to admit the children who reside in its catchment area (a school of compulsory admission). That admission obligation does not prejudice parents’ right to a free choice of school; they are free to request that their children be admitted to another state or private school of their choice. Between 1958 and 2007 the primary education of those living in the applicant’s township was provided by a school located in that neighbourhood. In 2007, relying on expert reports on the segregation of children with severe ­social handicaps, the Municipality of Nyíregyháza (hereafter “the Municipality”) – against which related public interest litigation was being conducted, but was eventually discontinued – decided to close the school, distribute the pupils among six other primary schools, and provide a free and supervised school bus service between the Roma neighbourhood and those schools. However, the desegregation process was classified by the domestic courts as “rigid”: it lacked sufficient preparation, and the special educational needs of the children who were transferred were not adequately addressed. As a result, they often complained of exclusion and an unfriendly atmosphere in their new schools. Upon medical advice, the applicant, who suffered from asthma, did not begin school in September 2011, but spent another year in kindergarten. In May 2011 the Greek Catholic Diocese, which had jurisdiction in the local area and which had maintained a school in central Nyíregyháza since 1998, expressed its willingness to open another primary school in the Huszár township, with a view to providing pastoral care to Roma pupils and their families. The Roma minority self-governing body of Nyíregyháza welcomed the initiative. In September 2011 a primary school maintained by the Greek Catholic Church was opened in the township, the Sója Miklós Greek Catholic Kindergarten and Primary School (“the Sója Miklós School”). This school was not assigned to any residential district, and its establishment did not affect the existing scheme of catchment areas and schools of compulsory admission in Nyíregyháza. The school undertook not to refuse children with severe social handicaps who requested admission. It is located approximately 300 metres from the applicant’s home. The school provides primary education in accordance with the official syllabus. Its funding is partly derived from the state budget, disbursed according to the number of pupils catered for.

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In November 2011 the Municipality discontinued the school bus service between the Huszár township and the schools in the town centre. At that time, seventy to eighty children used the service. Instead, the Municipality decided to provide subsidies by paying 30% of the price of public transport passes for pupils living in the township. In January 2012 the applicant’s mother and stepfather requested that the applicant be admitted to the Sója Miklós School. On the registration form they wrote that they had chosen the school because of its proximity, so as not to expose the applicant, who was asthmatic, to a lot of travelling. The registration form which they signed also contained a pre-printed statement by which parents who signed it requested their child’s Catholic education. The applicant spent slightly more than two school years in the Sója Miklós School, that is from September 2012 to December 2014. In October 2014 her mother and stepfather decided to transfer her to a school in the town centre, the Bem József Primary School. The Chance for Children Foundation (Esélyt a Hátrányos Helyzetű Gyerekeknek Alapítvány, hereafter “the cfcf”) assisted them in that process. In December 2014 the applicant was admitted to the school assigned to her neighbourhood, and she has been attending that school ever since. The applicant uses public transport for her daily commute to the new school, and she is accompanied by her stepfather. The distance between their home and the Bem József School appears to be approximately 3 km, and the journey requires a commute of some forty minutes. On 3 January 2012, the cfcf lodged a public interest action with the Nyíregyháza High Court, under Act no. CXXV of 2003 on Equal Treatment and the Promotion of Equal Opportunities (“the Equal Treatment Act”). In essence, it invited the court to find that the opening of the Sója Miklós School and the discontinuance of the school bus service had resulted in unlawful segregation on the basis of ethnic origin, and to prohibit the school from operating. Initially, the cfcf lodged the action against the Municipality. Subsequently, it extended the claim to include the Greek Catholic Church and its two schools in Nyíregyháza. After the establishment of the Klebelsberg Institution Management Centre (Klebelsberg Intézményfenntartó Központ, hereafter “the klik”), a state authority responsible for managing state public education and maintaining state public schools as of 1 January 2013, the cfcf extended the claim to include that authority. The cfcf requested that the klik, as a successor to the municipalities in the field of state public education, be ordered to reinstate the original desegregation programme in place prior to May 2011 and resume the school bus service.

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On 28 February 2014 the Nyíregyháza High Court found in favour of the cfcf as regards the main issue of the public interest litigation: in essence, it held that the first four respondents (the Municipality, the Greek Catholic Church and its two schools) had created unlawful segregation by maintaining the Sója Miklós School in the township and discontinuing the school bus service. As regards the claim against the klik, the Nyíregyháza High Court explained that Section 76(7) of Act no. CXC of 2011 on National Public Education (“the Public Education Act”) was to be interpreted as obliging the klik to ensure students’ transport to the school to which had been officially designated for them according to their address, even if the school was located within the municipality in which they resided. However, the Nyíregyháza High Court rejected the cfcf’s claim against the klik, considering that the manner in which the cfcf intended to have the desegregation programme restored was too general, and that such a compulsory reinstatement could infringe parents’ right to a free choice of school. The cfcf did not appeal against the dismissal of the claim concerning the klik; nor did the klik appeal against the judgment. Accordingly, that part of the judgment became final at first instance. On 6 November 2014 the Debrecen Court of Appeal upheld the judgment and on 22 April 2015 the Kúria (the Supreme Court) reversed the final judgment in review proceedings and dismissed the cfcf’s action in full. The applicant complained before the ECtHR that she had been discriminated against in the enjoyment of her right to education on account of her ethnic origin, since, following the discontinuance of the school bus service, she had spent more than two school years in a segregated school, in breach of Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1. As a separate grievance, she further complained of the discontinuance of the school bus service connecting her neighbourhood with the city centre. Allegedly, the discontinuance of that service, combined with the opening of the segregating faith school in her neighbourhood, as approved by the Municipality, had prevented her from having access to integrated education. In this respect, she relied on Article 2 of Protocol No. 1 alone. The Hungarian government objected that the applicant failed to exhaust domestic remedies, since the applicant had not been a party to the proceedings before the Kúria, and since the subject matter of the public interest claim before the Kúria was different from the individual claim of the applicant. The Hungarian government therefore requested that the application must be rejected as inadmissible, pursuant to Article 35 §§ 1 and 4 of the Convention. The ECtHR indeed declared the application inadmissible, but slightly departed from the reasoning of the Hungarian government while doing so, notably on

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the question as to whether public interest litigation may exhaust domestic remedies for the purposes of Article 35 § 1 of the Convention. 4.6.2 Reasoning of the Court In a first step, the Court recalled its standing case-law that the Convention does not provide for the institution of an actio popularis, and that its task is not normally to review the relevant law and practice in abstracto, but to determine whether the manner in which they have been applied to an applicant or have affected the applicant gives rise to a violation of the Convention. Therefore, the Court could not examine the situation of the Roma students at the Huszár township, the allegedly segregated education provided by the Sója Miklós School, or the compatibility of the Kúria’s judgment with the requirements of the Convention in purely general terms or in the abstract. In relation to the individual application lodged by the applicant under Article 34 of the Convention, the Court’s competence is thus limited to the examination of her individual situation. Secondly, the Court reiterated that the rationale behind the exhaustion rule is to afford the Contracting States the opportunity to prevent or put right the violations alleged against them before those allegations are submitted to the Convention institutions. It is based on the assumption, reflected in Article 13 echr, that the domestic legal order will provide an effective remedy for violations of Convention rights. At the same time, the Court also stressed that there is a need to apply the rule with some degree of flexibility and without excessive formalism, given the context of protecting human rights Thirdly, in the present case, the Court observed that the domestic legislation explicitly allowed certain civil society organisations, such as the cfcf, to bring legal proceedings in defence of a larger group of people affected by a violation, or risk of a violation, of the requirements of equal treatment (see Section 20 of the Equal Treatment Act). Since the national law specifically envisaged that legal avenue as a means of defending interests at stake, the Court considered that, in principle, it would be conceivable to accept the public interest litigation as a form of exhausting domestic remedies, for the purposes of Article 35 § 1 of the Convention.158 Such a proposition would be especially justified in relation to alleged discrimination against a vulnerable group requiring special protection, such as Roma children. According to the Court, access to justice for members of such groups should be facilitated so as to provide effective protection of rights: the 158 Kósa v. Hungary, App. No. 53461/15, Decision 21.11.2017, at para. 56.

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Convention is intended to guarantee rights which are “practical and effective” rather than theoretical and illusory. That being so, the Court observed in a next step that an important element of the applicant’s submissions was that her mother and stepfather had not requested her enrolment at the Sója Miklós School as a deliberate expression of their freedom of conscience and religion; they submitted that they had been compelled to do so by the circumstances, including in particular the discontinuance of the school bus service and the applicant’s medical condition. The applicant also complained regarding the allegedly substandard quality of the education she had received in the Sója Miklós School. Therefore, although the Kúria’s judgment rendered in the public interest case concerned a subject matter which is closely related to the grievances brought before the Court, it did not correspond exactly to the applicant’s individual situation. Indeed, an essential element of the Kúria’s finding – that no segregation could be established on account of the operation of the Sója Miklós School – was the premise that the choice of the school had been based on parents’ voluntary and informed decisions, and that the students had not been prejudiced with regard to the quality of education given to them. The applicant firmly contested the fulfilment of these preconditions in relation to her particular situation. Thus the present application is based on facts which are different from what has been established by the domestic authorities. Therefore, the cfcf’s public interest litigation did not provide the national courts with the opportunity which is, in principle, intended to be afforded to a Contracting State by virtue of Article 35 of the Convention, namely the opportunity to address and thereby prevent or put right the particular Convention violation alleged against it. Nor did the public interest litigation provide the Court with the views of the national courts concerning the applicant’s grievances. Accordingly, the Court upheld the government’s objection of failure to exhaust domestic remedies and consequently declared the application inadmissible. 4.6.3 Critical Appraisal Even though this particular case was declared inadmissible, and rightly so, the Court’s general statement that “it would be conceivable to accept the public interest litigation as a form of exhausting domestic remedies, for the purposes of Article 35 § 1 of the Convention” can be welcomed as a novelty in the admissibility jurisprudence of the Court. In this context, the Court referred again, as in the d.h. and in the Oršuš case, to the Roma children as “a vulnerable group requiring special protection”159 to justify why access to justice for members 159 Kósa v. Hungary, App. No. 53461/15, Decision 21.11.2017, at para. 57.

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of such groups should be facilitated. It seems that the particular vulnerability of the Roma children would therefore justify the acceptance of the public interest litigation as a form of exhausting domestic remedies, provided that domestic legislation explicitly allows for this and that the subject matter of the grievances of the public interest litigation corresponds to the applicant’s individual situation. 4.6.4 References to the fcnm and the Racial Equality Directive The inadmissibility decision contains an explicit reference to the Racial Equality Directive in its paragraph 25, and more precisely to the issuing on 26 May 2016 by the European Commission of a letter of formal notice, requesting that Hungary ensure that Roma children enjoy access to quality education on the same terms as all other children, and urging the government to bring national laws on equal treatment, education and the practical implementation of their educational policies into line with the Racial Equality Directive. This reference can be welcomed and shows again that the ECtHR closely follows the decisions taken by the European Commission regarding the compliance by EU Member States with the Racial Equality Directive in the field of segregation of Roma children in education.160 5

Differences in the cjeu Case Law Compared to the ECtHR Jurisprudence related to Objective Justification in Discrimination Cases

So far, only one case on discrimination on account of Roma ethnic origin has been brought to the cjeu under the Racial Equality Directive, which was a case on discrimination in relation to access to and supply of goods and services, and not a case on educational segregation.161 In the meantime, the cjeu has developed a considerable amount of case law under the Equality Directives,

160 On the infringement proceedings initated against the Czech Republic, Slovakia and Hungary for lack of compliance with the Racial Equality Directive in the field of segregated education for Roma children, see above above Chapter 4 under 5.5 Infringement Procedure. 161 Case C-83/14, chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, 2015, ECLI:EU:C:2015:480, in which the cjeu held that the installation of electricity meters at an inaccessible height in a disctrict densely populated by Roma is liable to constitue discrimination on the grounds of ethnic origin when such meters are installed in other districts at normal height. For an analysis of the latter, see above Chapter 8. at 3.2.2 Case C-83/14 illustrating the difference between direct v. indirect discrimination.

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by which it has enhanced the protection against discrimination in Europe.162 The cjeu reasons pragmatically and teleologically in its case law and several scholars163 believe that it is likely to broaden the scope of European non-discrimination law in the future. Without doubt the existing cjeu case law under the Equality Directives is of inspiration for the jurisprudence of the ECtHR. Vice versa, there are several examples of cases where the cjeu refers to the case law of the ECtHR in the interpretation of the Equality Directives, such as the Case of k.b. v. National Health Service Pensions Agency, Secretary of State for Health of 7 January 2004164 and the Richards Case of 27 April 2006.165 A study on ‘Gender Discrimination under EU and echr Law’ by Samantha Besson166 shows that recently, the ECtHR and the cjeu have started a dialogue and mutual borrowing habits when it comes to their non-discrimination regimes. These concrete borrowings have had no impact on the regimes themselves and have triggered no fundamental reorganization of the respective regimes of non-discrimination.167 However, these mutual borrowings present the risk of producing incoherent decisions since the two systems are not sufficiently close in their aims and structures.168 This is the more the case when it comes to the objective justification in discrimination cases, since the ECtHR has started to distinguish the two concepts of direct and indirect discrimination without clearly differentiating between them. 162 For an overview of the most important cjeu case law under the Equality Directives, see A. Eriksson, ‘European Court of Justice: Broadening the scope of European nondiscrimination law,’ International Journal of Constitutional Law 4, vol. 7, 2009, pp. 731–753 and also L. Farkas, for the European Network of Legal Experts in gender equality and nondiscrimination, ‘The meaning of racial or ethnic origin in EU law: between stereotypes and identities,’ Brussels: European Commission, DG for Justice and Consumers, February 2017, available at (accessed on 1 January 2018). 163 A. Eriksson, ‘European Court of Justice: Broadening the scope of European nondiscrimination law,’ International Journal of Constitutional Law 4, vol. 7, 2009, p. 753 and footnote 134. 164 Case C-117/01, k.b. v. National Health Service Pensions Agency, Secretary of State for Health, 2004, ecr I-541. C-117/01 is on the interpretation of Art. 141 of Directive 75/117. 165 Case C-424/04, Sarah Margaret Richards v Secretary of State for Work and Pensions, 2006, ecr I-3585. C-423/04 is on the interpretation of Art. 4 (1) of Directive 79/7. 166 S. Besson, ‘Gender Discrimination under EU and echr Law: Never Shall the Twain Meet?,’ Human Rights Law Review, vol. 4, 2008, pp. 647−682. 167 S. Besson, ‘Gender Discrimination under EU and echr Law: Never Shall the Twain Meet?,’ Human Rights Law Review, vol. 4, 2008, p. 677. 168 Ibid.

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It has been mentioned earlier that under the Racial Equality Directive, different rules apply to the justification of direct and indirect discrimination: only indirect discrimination can be objectively justified.169 This is not the case for the jurisprudence of the ECtHR under Art. 14 echr.170 Art. 14 echr reads as follows: The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. When comparing the jurisprudence of the cjeu under the Racial Equality Directive and the jurisprudence of the ECtHR under Art. 14 echr,171 it should be noted that it is difficult to compare Art. 2 Racial Equality Directive with Art. 14 echr since they defer substantially as to their content and legal nature.172 The Racial Equality Directive is a directive which was designed to be transposed into the national legal orders of the EU Member States and the Convention articles contain human rights provisions of which the respect is to be ensured by the ECtHR. It should also be noted that, whereas Art. 2 Racial Equality Directive stands alone, a violation of Art. 14 echr can only occur when read together with another Convention Article.173 169 See above Chapter 8 at 3.2.1 The Relevance of the Distinction: the Preclusion of Justification Defenses. 170 For a comment on Article 14 echr see W. Peukeurt, ‘Artikel 14 (Diskriminierungsverbot),’ in J.A. Frowein and W. Peukert (eds.), Europäische MenschenRechtsKonvention: emrkKommentar, Kehl am Rhein: Engel Verlag, 2009, pp. 401–18. 171 Art. 14 echr has been complemented by Protocol 12, which entered into force in 2005. This optional protocol establishes, for those 17 Contracting Parties which have ratified it to date, a principle of equality before and in the law. For more on Protocol 12 see R. Wintemute, ‘Filling the Article 14 “gap”: government ratification and judicial control of Protocol No. 12 echr,’ European Human Rights Law Review, vol. 5, 2004, pp. 484–99. 172 For a comparison of the role and scope, as well as the various material and procedural constitutive elements of the EU and echr regimes of non-discrimination, and especially the different approaches of the echr and EU law when it comes to gender discrimination, see S. Besson, ‘Gender Discrimination under EU and echr Law: Never Shall the Twain Meet?,’ Human Rights Law Review, vol. 4, 2008, pp. 647–682. 173 Samantha Besson notes that the explanation for the divergence between echr and EC law with respect to the principle of equality and non-discrimination may be found “in the fundamental difference in nature between both legal orders. The EU legal order is autonomous and has already been constitutionalized in many aspects, thus calling for the entrenchment of a strong equality protection clause (Article 20 EU Charter) besides its many non-discrimination principles. In contrast, the echr remains a minimal catalogue

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The ECtHR has defined discrimination as: treating differently, without an objective and reasonable justification,174 persons in relevantly similar situations.175 It follows from this definition, that all forms of differential treatment, as well those possibly amounting to direct as those possibly amounting to indirect discrimination, can be objectively justified. It should be noted, however, that the ECtHR does distinguish between direct and indirect discrimination, even though this does not have any consequences for the objective justification test under the echr. For a long time, the distinction between direct and indirect discrimination was absent from the ECtHR’s case law.176 It has become clear from the ECtHR’s recent case law, however, that both direct and indirect discrimination are prohibited. According to the ECtHR in the case of Hoogendijk v. the Netherlands, “where a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be regarded as discriminatory notwithstanding that it is not specifically aimed or directed at that group.”177 It was in the case of d.h. and Others, which has already been analysed above, that the ECtHR for the first time explicitly accepted that “a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a

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of fundamental rights whose exercise should be guaranteed in a non-discriminatory way; in those circumstances, Article 14 is thought as minimal and subsidiary to national constitutional equal protection clauses (see Article 53 echr).” S. Besson, ‘Gender Discrimination under EU and echr Law: Never Shall the Twain Meet?,’ Human Rights Law Review, vol. 4, 2008, p. 654. The objective and reasonable justification test consists in a test whether there is a legitimate aim for the differential treatment and a proportionality test. See case relating to certain aspects of the laws on the use of languages in education in Belgium, also know as the Belgian Linguistics Case, Application Nos. 1474/62; 1677/62; 1691/62; 1769/63; 1994/63; 2126/64 where the Court states in Section 1 B Para. 10 that it “holds that the principle of equality of treatment is violated if the distinction has no objective and reasonable justification. The existence of such a justification must be assessed in relation to the aim and effects of the measure under consideration, regard being had to the principles which normally prevail in democratic societies. A difference of treatment in the exercise of a right laid down in the Convention must not only pursue a legitimate aim: Article 14 is likewise violated when it is clearly established that there is no reasonable relationship of proportionality between the means employed and the aim sought to be realized.” Willis v. the United Kingdom, Application No. 36042/97, Judgment of 11 June 2002, Reports 2002-IV, para. 48. D. Martin, Egalité et non-discrimination dans la jurisprudence communautaire : Etude critique à la lumière d’une approche comparatiste, Bruxelles : Bruylant, 2006, p. 113. Hoogendijk v. the Netherlands, Application No. 58641/00, First Section Admissibility Decision of 6 January 2005, under “the law” at para. 2.

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group and that this may amount to indirect discrimination.”178 Since the notion of indirect discrimination is relatively new in the Court’s jurisprudence, it needs to be further developed. The ECtHR itself is aware of this issue. The dissenting judges in the Grand Chamber Case of Oršuš and Others v. Croatia criticized the majority for having offered too little “practical guidance on how to develop and apply the notion of indirect discrimination”179 and also for having “viewed the case in the first place as a means of further developing the notion of indirect discrimination in the Court’s jurisprudence.”180 Given that the ECtHR examines whether cases of both direct and indirect discrimination can be objectively justified, relying on its jurisprudence before the cjeu or before national courts, which have transposed the provisions of the Racial Equality Directive into national law, and that this may prove problematic and confusing, as in cases of direct discrimination, the national judge should not resort to the objective justification test when he/she applies national legislation which has transposed the Racial Equality Directive.181 6

The Potential of Both the ECtHR and the cjeu Jurisprudence in the Fight against Structural Discrimination of the Roma in Education

Both the ECtHR and the Racial Equality Directive have potential in the fight against segregation of the Roma in education. In order to develop a solid body of jurisprudence, some important issues should be envisaged. First of all, a clear distinction between the concepts of direct and indirect discrimination is necessary, both at the cjeu and at the ECtHR, since it has repercussions for the justification model at the EU level, which differs in cases of direct and indirect discrimination. The lack of a clear distinction between direct and indirect discrimination in the jurisprudence of the ECtHR182 might hamper the building of coherent, logical and solid models of reasoning in this field. 178 d.h. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, para. 184. 179 Oršuš and Others v. Croatia, Grand Chamber Judgment, Joint Partly Dissenting Opinion, para. 19. 180 Oršuš and Others v. Croatia, Grand Chamber Judgment, Joint Partly Dissenting Opinion, para. 15. 181 See above Chapter 8 at 3.2 Segregation of Roma Children in Education: Direct or Indirect Discrimination? 182 See above 4.2.3.3. Direct or Indirect Discrimination on the lack of a clear distinction ­between the concepts of direct and indirect discrimination in the Sampanis case.

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Second, another hurdle to be taken by the ECtHR is the exact identification of the grounds of discrimination.183 The Section Courts did not succeed in looking further than the apparent first-sight-facts in the cases of d.h. and Others and Oršuš and Others, but fortunately the Grand Chamber did and overruled both judgments. It is of capital importance that the right grounds of discrimination are distinguished, especially in situations of segregation of the Roma in education, where discrimination on the ground of race is often ‘disguised.’ This have shown the facts of the Oršuš case in which Roma children were put into separate classes apparently on the basis of language criteria. These language criteria, when examining the case more thoroughly, seemed to be a pretext for racial discrimination. A correct analysis of such cases is especially important under the application of the (transposed provisions of the) Racial Equality Directive, since categorizing such cases as cases of direct discrimination increases the level of protection of the persons discriminated, due to the fact that an objective justification in cases of direct discrimination is not possible. Third, the fact that ngos are increasing pressure on national courts to bring controversial cases related to Roma segregation in education before the cjeu by means of a request for a preliminary ruling should be welcomed. One or more cjeu rulings on Roma educational issues might contribute to a better understanding of the mechanisms under the Racial Equality Directive, p ­ rovided that the cjeu provides well-reasoned and elucidating answers to preliminary questions by national courts and takes the opportunity to clarify the provisions of the Racial Equality Directive while engaging in ‘system reasoning.’184 183 See also the case of Munoz Diaz v. Spain, Application No. 49151/07, Chamber Judgment of 8 December 2009, in which the ECtHR held that Spain had violated Art. 14 echr in conjunction with Art. 1 of Protocol No. 1 by refusing the applicant a survivor’s pension due to the fact that she had not been married according to Spanish civil law. The discriminatory treatment of the applicant of Roma origin consisted in the fact that the Spanish Constitutional Court when judging upon the applicant’s case did neither take into account her good faith in believing previously to have concluded a valid marriage nor the existence of exceptional circumstances, whilst doing so in a number of other cases. What is remarkable in this case, is that the ECtHR does not identify the grounds of discrimination, but only refers to a ‘disproportionate difference in treatment.’ From the reasoning of the Court, one can derive that ‘association with a national minority’ seems to be the implicit ground for discrimination in the present case, even though one could also qualify the discriminatory treatment of Mrs Munoz Diaz as amounting to discrimination on the basis of race. It is regrettable that the ECtHR did not explicitly identify the ground of discrimination in this case. 184 For more on so-called ‘system reasoning’ see K. Henrard, ‘The First Substantive cjeu Judgment on the Racial Equality Directive: A Strong Message in a Conceptually Flawed and Responsively Weak Bottle,’ Jean Monnet Working Paper 09/09, p. 35.

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The reasoning of the Court in C-83/14 chez Razpredelenie Bulgaria AD v Komisia za zashtita ot diskriminatsia, in which the Court clearly spells out the difference between direct and indirect discrimination, and also acknowledges the possibility of direct discrimination by association,185 is a nice example of such ‘system reasoning,’ which can facilitate the proper application of non-­ discrimination standards at the national level and boost the effective protection of Roma rights in education. Fourth, it is hoped that the ECtHR will soon acknowledge that segregation is a form of racial discrimination and that it will be more cautious in discerning the differences between separate schools and separate classes on the one hand and supportive or remedial classes on the other hand, as analysed by the Council of Europe acfc in its thematic commentary on education. 7

Conclusions under Chapter 9

As to the relation of the fcnm vis-à-vis the echr, two references to the echr were included in the fcnm, in its Articles 19 and 23. Even though the acfc is not formally bound by the judgments of the ECtHR, one can observe that it makes all possible efforts to formulate the acfc Opinions in such a way that they are consistent with the established case-law of the ECtHR. There is not only a mutual influence between different organs at the Council of Europe level (the fcnm and its acfc vis-à-vis the echr with the ECtHR) but there has also been an influence of EU equality law, more concretely of the provisions of the Racial Equality Directive, on the jurisprudence of the ECtHR. The Racial Equality Directive has been a source of inspiration for the ECtHR in developing the notion of indirect discrimination in its jurisprudence. It should be welcomed that the ECtHR ‘imported’186 the concept of indirect discrimination from the EU and is currently further developing it in its jurisprudence. Both the Racial Equality Directive and the fcnm with its monitoring mechanism (State Reports, acfc Opinions, State Comments) are referred to by the ECtHR in its jurisprudence on the segregation of Roma children in education. Hereby the ECtHR does not only take into account the information figuring in the State Reports and the acfc Opinions, but also the content of the State Comments. 185 See above Chapter 8 at 3.2.2 Case C-83/14 illustrating the difference between direct v. ­indirect discrimination. 186 S. Fredman, Human Rights Transformed, Oxford: oup, 2008, p. 221.

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The information contained in the State Reports, acfc Opinions and State Comments is used in favour of the applicants in their establishment of a prima facie case which reverses the burden of proof on the defendant state. The information included by states in their State Comments is also used by the Court as an argument in favour of the applicants, e.g., for supporting the claim that the curriculum in the separate classes or schools was reduced in scope and volume. It is regrettable that the ECtHR has never taken a clear stance on the fact that segregation (be it in the sphere of education or in any other public field) is a particularly condemnable form of racial discrimination. The ­differential ­treatment of Roma children by relegating them to substandard forms of education, be that in separate classes or separate schools, does not only entail ­negative consequences for their further school career. Segregation per se is harmful as it lowers the self-esteem of the segregated pupils and degrades them to ‘second class’ pupils. The latter should also be taken into account when judging upon the fact whether the differential treatment in the form of segregation in education has put the segregated pupils at a disadvantage compared to the majority pupils. What is positive about the evolution of the Court’s case law in respect of Roma segregation in education is that the Court itself gains a growing acceptance for its own case law: what was achieved in d.h. and in Oršuš at the appeal level of the Grand Chamber with a divided vote, has now been consolidated in Horvath and Kiss and in the Lavida case in a first instance case with a ­unanimous vote.

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Case Study 1 Introduction The present chapter contains a case study on the segregation of Roma children in education in the Czech Republic and Germany, two EU member states with significant Roma minorities. The findings for the Czech Republic and Germany are representative for the situation of the Roma in education in several other Member States and give the reader insight into the nature and extent of the problems faced by Roma children regarding equal access to quality education. 2

Case Study on the Czech Republic and Germany: Justification for the Choice of States

In order to illustrate that desegregation of Roma in education poses a lot of challenges and has been far from achieved yet, this chapter is dedicated to two case studies on the situation of the Roma in education in the Czech Republic and in Germany. 2.1 The Czech Republic The Czech Republic was a quite obvious choice for a case study, since the practice of segregation of Roma children in education in the Ostrava region was held to be in violation of Art. 14 echr, taken together with Art. 2 Protocol No 1 (discrimination on the grounds of ethnic origin, taken together with a violation of the right to education) by the Grand Chamber in the case of D.H. and ­others v. Czech Republic.1 After the outcome of the D.H. case, which is considered a landmark case in the quest for Roma desegregation in education, the Czech Republic is being monitored by several ngos and the Committee of Ministers, which makes it easier to find various reports on the situation of Roma children in education in that particular country. It should be noted in this context that the situation in the surrounding Eastern European countries, such as Bulgaria, Hungary, Romania and Slovakia is not 1 See above Chapter 9 at 4.1 The Case of D.H. and Others v. Czech Republic: Chamber Judgment of 7 February 2006.

© koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004354210_012 .

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very different from the one in the Czech Republic and therefore the situation of Roma children in education in the Czech Republic can be held to be quite representative for the situation of these children in education in other Central and Eastern European states.2 Some might even think of it as ‘unfair’ that only the Czech Republic, which indeed has taken some—­although l­imited— initiative to gradually improve the situation of the Roma in education—was reprimanded by the ECtHR, whereas exactly the same problem exists in the neighbouring country of Slovakia, against which no case was brought to the ECtHR.3 The fact that few other states (only Greece, Croatia and Hungary)4 have been convicted so far for the segregation of Roma children in their educational systems is probably related to the necessity for ngos, which bring these cases to the ECtHR, to concentrate their resources on a few states only and to the precondition of the exhaustion of domestic remedies.5 2 The problem of relegating Roma children to special education for the mentally disabled is related to the fact that there is an overall tradition in these countries of intelligence testing upon school entry by means of culturally biased tests. See the Roma Education Fund Report ‘Pitfalls and Bias: Entry testing and the overrepresentation of Romani children in special education,’ April 2012, available at (accessed on 1 August 2013). Even though the report covers only the Czech Republic, Hungary, Serbia and Slovakia, the same problems exist in Romania and Hungary as well, which is confirmed by the recent ECtHR judgment of Horvath and Kiss v Hungary, see above Chapter 9 at 4.4 Horvath and Kiss v. Hungary, Chamber Judgment of 29 January 2013. 3 See the dissenting opinion of Judge Jungwiert, where he notes the following: “I find the conclusions reached by the majority (see paragraphs 205 to 210 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 illogical 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.” ECtHR, D.H. and Others v. Czech Republic, Grand Chamber Judgment of 13 November 2007, Dissenting Opinion of Judge Jungwiert, at 15. 4 For cases on segregation of Roma children in education brought against Greece, Croatia and Hungary, see Chapter 9 above. 5 A case is only admissible to the ECtHR after domestic remedies are exhausted. One of the reasons why no Slovak case on the segregation of Roma children in education has been brought to the ECtHR is exactly related to this precondition of exhaustion of domestic remedies. There were either no cases which had fulfilled the precondition of exhaustion of domestic remedies as the applicants did not appeal to the negative decision of the lower courts, or the applicants obtained redress, as was the case in the recent decision of the Prešov Discrict Court of 5 December 2011. The latter ruled that the elementary school in the Slovak village

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Romania and Bulgaria would also have been logical choices for a case study, as these countries, with 8.63% and 9.94% respectively,6 have the highest Roma percentage (of their total population) among all EU Member States. In the Czech Republic for instance, it is estimated that only 1.90% of the population is of Roma origin.7 An argument against Romania or Bulgaria as subjects for a case study however was that they acceded to the EU only in January 2007, and therefore the transposition deadline for the Racial Equality Directive was almost 3 years later than the transposition deadline for those countries which joined the EU already in May 2004. Thus in the case of Romania and Bulgaria, for the Racial Equality Directive, less data on the implementation of the Racial Equality Directive is available compared to those Member States which joined the EU already in May 2004. 2.2 Germany As the argument of double standards8 for the old and new Member States often comes up when discussing the Framework Convention, it is appropriate to include also a case study of a Western European Member State. As France and Belgium have not ratified the Framework Convention, they are not suitable for a case study, as they do not report to the acfc and thus no fcnm related data for these countries are available. Some western European countries, which did ratify the Framework Convention and which have a Roma population of a substantial number, are Spain and Germany. As recently an in-depth study on the educational situation of the Sinti and Roma in Germany has been published, Germany was the most obvious choice for the second part of the case study. of Šarisské Michal’any in the Prešov region had discriminated against the Roma children in the school by teaching them in separate classrooms without reasonable justification. See Amnesty International, Press Release, ‘Slovak Court Rules against Segregation in Education,’ 9 January 2012, available at (accessed on 1 August 2013). 6 According to Council of Europe estimates. These figures are the average estimates per country as a percentage of the total population. The table with estimates on Roma population in European countries is available on the homepage of the Roma portal of the Council of Europe, at (accessed on 1 September 2015). 7 Ibid. 8 For accusations of double standards in the Framework Convention and in the context of EU Eastern enlargement conditionality, see, among others, Ch. Hillion, ‘Enlargement of the European Union – The Discrepancy Between Membership Obligations and Accession Conditions as Regards the Protection of Minorities,’ Fordham International Law Journal 2, 2003, vol. 27, pp. 715–740. More generally on double standards, see K. Henrard (ed.), Double Standards pertaining to Minority Protection, Leiden, Boston: Martinus Nijhoff Publishers, 2010.

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Case Study on the Czech Republic

According to the 2001 public census, 11 718 Roma are living in the Czech Republic, which amounted to 1.9 % of the total population.9 However, their real number is estimated at about 200 000.10 The First State Report of the Czech Republic under the monitoring mechanism of the Framework Convention provides the following data: [e]ven though fewer than 33 000 persons declared the Romany [sic] national identity during the [1999] census, qualified estimates and comparisons with registration of Romany citizens before November 1989 show that currently about 200,000 Romanies [sic] live in the Czech Republic. Of this number 20,000 are Vlax Romanies whose culture and language are substantially different. More than 95 percent of Romanies, Czech citizens living in the Czech Republic, moved to the Czech Lands from Slovakia after the Second World War or are descendants of these Romany migrants. The reason for the low number of persons who declared “romipen” (Roma, Romany national identity) is fear of possible consequences: Information collected in a 1930 public census, when all citizens were required to state national identity in a non- anonymous manner, was used in 1939 and thereafter to send Romanies into concentration camps and later to death transports. Due to the aversion of the majority towards Romanies, declaration of the Romany national identity, albeit anonymous, demands a certain amount of bravery.11 Despite territorial dispersion of the Roma population throughout the Czech Lands, they can be considered concentrated in industrial cities in Northern Bohemia and Northern Moravia and in Prague.12 3.1 Analysis of AC Opinions and Committee of Ministers Resolutions The first AC Opinion on the Czech Republic was adopted on 6 April 2001— that is about one year after the case of D.H. and others v Czech Republic was

9

These figures stem from a table with estimates on the Roma population in European countries which is available on the homepage of the Roma portal of the Council of Europe, at (accessed on 1 September 2015). 10 Ibid. 11 coe acfc, First State Report submitted by the Czech Republic, received on 1 April 1999, ACFC/SR/(1999)006, p. 12. 12 Ibid., p. 6.

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lodged with the ECtHR13—hence the facts of the case were certainly known to the Secretariat of the Framework Convention and to the experts of the Advisory Committee at the time of the drafting of the first AC Opinion. The AC Opinion comments extensively on the situation of Roma children in education in its report under Art. 12 fcnm: 61. The system of so-called “special” schools has recently been the subject of much attention. While these schools are designed for mentally handicapped children, it appears that many Roma children who are not mentally handicapped are placed in these schools due to real or perceived language and cultural differences between Roma and the majority. The Advisory Committee considers that such practice is not compatible with the Framework Convention. The Advisory Committee stresses that placing children in such special schools should take place only when it is absolutely necessary and always on the basis of consistent, objective and comprehensive tests. 62. The “special” schools have led to a high level of separation of Roma pupils from others and to a low level of educational skills in the Roma community. This is recognized by the Czech authorities. Both governmental and civil society actors agree on the need for a major reform. There is however disagreement about the precise nature of the reform to be carried out, of the amount of resources to be made available in this respect and of the speed with which reforms are being implemented. The Advisory Committee is of the opinion that the Czech authorities should develop the reform, in consultation with the persons concerned, so as to ensure equal opportunities for access to schools for Roma children and equal rights to an ordinary education, in accordance with the principles set out in Committee of Ministers Recommendation No. (2000) 4 on the education of Roma/Gypsy children in Europe. 63. The Advisory Committee notes with approval the initiatives that have been taken to establish so-called zero-classes, allowing the preparation of Roma children for basic school education, inter alia by improving their Czech language skills and would encourage these facilities being made more broadly available. Furthermore the Advisory committee considers the creation of posts of Roma pedagogical advisors in schools, a civil society initiative, to be a most positive step. The Advisory C ­ ommittee ­encourages the State authorities in its efforts to ensure the increase and development of such posts. A further crucial objective remains to encourage a much higher number of Roma children accessing and s­ uccessfully 13

The case of D.H. and others v Czech Republic was lodged with the ECtHR on 18 April 2000.

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completing secondary education. The Advisory Committee notes that there appears to be no serious complaints about the possibilities for persons belonging to national minorities to receive an education, with the exception of those complaints relating to Roma.14 The Committee of Ministers in its first Resolution ResCNM(2002)2 on the Czech Republic does refer to the situation of the Roma, not in the context of education but rather in a more general context: Despite increased governmental action, there is still scope for improvement, including by law-enforcement officials, with regard to inter-­cultural dialogue and tolerance and the protection against ethnically motivated threats, violence and hostility, especially as concerns Roma. Despite the determination of the Czech authorities to improve significantly the situation of Roma through a long-term policy, real problems remain, notably as regards the discrimination encountered by persons belonging to this minority in various fields.15 In the Second AC Opinion on the Czech Republic, which was adopted in 2005, the issues of segregation of Roma children in education receives even more attention than it did in the first Opinion. This is probably related to the fact that in the meantime, ngos had raised awareness of the issue and more ngo reports with detailed information on the situation of Roma children in education were submitted to and consulted by the fcnm secretariat, compared to 2001. The structure of the Opinion slightly defers from the structure of the first AC Opinion, in that the second Opinion now consists of 4 parts per thematic issue: a short reminder of the findings of the first Opinion (1), an analysis of positive developments (2), a sketch of the outstanding issues (3) and some recommendations (4). The following outstanding issues were identified: 145. Although constant monitoring and evaluation of the school situation of Roma children is one of the Government’s priorities, the State ­Report says little about the extent to which they are currently integrated in schools, or the effectiveness and impact of the many 14 15

Opinion on the Czech Republic, adopted on 6 April 2001, ACFC/OP/I (2002)002, paras 61–63. Committee of Ministers, Resolution ResCNM(2002)2 on the implementation of the Framework Convention for the Protection of National Minorities by the Czech Republic, 6 February 2002, para. 1.

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measures taken for them. The Advisory Committee notes with concern that these measures have produced few improvements. It also notes that local authorities do not systematically implement the Government’s school support scheme, and do not always have the determination needed to act effectively in this field. 146. The Advisory Committee notes with concern that, according to nongovernmental sources, a considerable number of Roma children are still being placed, at a very early age, in “special” schools, and that revision of the psychological tests used in this context has not had a marked impact. According to non-official estimates, Roma account for up to 70% of pupils in these schools, and this – having regard to the percentage of Roma in the population – raises doubts concerning the tests’ validity and the relevant methodology followed in practice. 147. This situation is all the more disturbing, insofar as it also makes it more difficult for Roma children to gain access to other levels of education, thus reducing their chances of integrating in the society. Although legislation no longer prevents children from advancing from “special” to regular secondary schools, the level of education offered by “special” schools generally does not make it possible to cope with the requirements of secondary schools, with the result that most drop out of the system. 148. It is too early to determine whether the revised educational system introduced by the new Education Act (Act N° 561/2004 Coll.), will substantially change the present situation of over-representation of Roma children in “special” schools or “special” classes. It is necessary for the authorities to keep the circles concerned constantly informed of the new developments and to discuss with them the implementation of the new Act. 149. In addition, the Advisory Committee notes that, in spite of the awareness-raising initiatives taken by the Ministry of Education, many of the Roma children who attend ordinary schools are isolated by other children and by teaching staff, or even placed in separate classes. At the same time, it is recognised that in some schools Roma children are the largest pupil-group simply because the schools concerned are located near the places where Roma reside compactly. It is important to ensure that these schools, too, provide quality education. 150. Estimates as to the number of Roma children who remain outside the school system vary. It appears that those who do attend school

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rarely advance beyond primary school. Material conditions in some of the schools they attend are reportedly precarious, and the ­teaching they receive is still, in most cases, insufficiently adapted to their situation.16 Also in the second Committee of Ministers Resolution on the Czech Republic, the issue of segregation of Roma children in education received increased attention. Whereas the first Committee of Ministers Resolution did not refer explicitly to the situation of Roma children in education, the second does, and notes the “continuing isolation of Roma children within the education system”17 as an issue which has to be dealt with as a matter of priority. One of the concrete recommendations, apart from the general recommendation to provide more appropriate solutions to the difficulties encountered by the Roma in a number of fields, relates to segregation in education; the government is asked “to take further steps to eradicate the practice of the isolation of Roma children within the education system.”18 In the third AC Opinion on the Czech Republic, adopted on 1 July 2011, the problem of the segregation of Roma children in education is addressed among the ‘issues for immediate action.’ The AC notes in its executive summary that Roma children still face serious difficulties in the education system. “Practical schools,” attended by a disproportionately large number of Roma children, have replaced “special schools” without any substantial change to their composition, curriculum and position within the education system of the country and continue to teach on the basis of a reduced curriculum which does not give them access to higher educational levels.19 In its ‘issues for immediate action,’ a category which was integrated in the third monitoring cycle, the AC gives a short overview in the form of bullet points of urgent minority rights problems which call for immediate action. In its third AC Opinion on the Czech Republic, the acfc identified 3 issues which call 16 17 18 19

Second Opinion on the Czech Republic, adopted on 24 February 2005, ACFC/OP/II (2005)002, paras 145–150. Committee of Ministers, Resolution ResCNM(2006)2 on the implementation of the Framework Convention for the Protection of National Minorities by the Czech Republic, 16 March 2006, para. 1 b) issues of concern. Committee of Ministers, Resolution ResCMN(2006)2 on the implementation of the Framework Convention for the Protection of National Minorities by the Czech Republic, 16 March 2006, para. 2. Third Opinion on the Czech Republic, adopted on 1 July 2011, ACFC/OP/III (2011)008, p. 2.

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for immediate action, two of which are related to non-respect of Roma rights. In the framework of these ‘issues for immediate action,’ the acfc calls upon the Czech Republic to eliminate, without further delay, practices that lead to the continued segregation of Roma children at school; redouble efforts to remedy all shortcomings faced by Roma children in the field of education.20 The third opinion is structured into 3 main parts: the main findings, the articleby-article findings, and conclusions. The issue of Roma segregation in education is mainly discussed under the specific heading ‘education’ in the main findings. The relevant paragraphs read as follows: 23. Roma children still face serious difficulties in the education system. The European Court of Human Rights in the case of D.H. and others v. the Czech Republic from 2007 ruled that the Czech Republic violated the European Convention on Human rights by placing a disproportionate number of Roma children into “special schools” in which they were subjected to a limited curriculum and segregated from the mainstream student population. The measures needed to fully implement this judgment have not yet been introduced. Changes introduced in recent years have not yielded significant results. 24. “Practical schools,” attended by a disproportionately large number of Roma children, have replaced “special schools” without any substantial change to their composition, curriculum and position within the education system of the country. These schools have not been integrated into the mainstream education system and continue to teach on the basis of a reduced curriculum which does not give the pupils attending these schools access to higher educational levels. Moreover, there are no opportunities for Roma children to learn the Romani language in primary schools, and Romani is taught as a subject only in some secondary schools.21 The AC Opinion shows that the ECtHR judgment in the case of D.H. and Others v. Czech Republic has not brought about any improvement so far for the ­situation of Roma children in education when it comes to their segregation on 20 21

Ibid, p. 2. Ibid., p. 7, paras 23−24.

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the basis of their ethnic origin. The critical tone and the explicit reference to the D.H. case in the AC Opinion are to be welcomed. The Committee of Ministers Resolution on the Czech Republic under the third monitoring cycle was adopted on 12 December 2012. The wording of the Resolution in relation to the desegregation of Roma children in education is quite sharp: Roma children still face serious difficulties in the education system. A  disproportionately large number of Roma children attend “practical schools” which have replaced “special schools”. Measures taken to implement the ruling of the European Court of Human Rights in the case of D.H. and others v. the Czech Republic are still to yield significant results.22 The Committee of Ministers therefore recommends the Czech Republic  to “eliminate, without further delay, practices that lead to the placement of a disproportionately large number of Roma children at “practical schools”; strengthen efforts to remedy shortcomings faced by Roma children in the field of education.”23 Finally, the acfc Fourth Opinion on the Czech Republic confirms that the Czech Republic still has not managed to comply with the D.H. judgment: The placement of a disproportionate number of Roma children into “practical schools” in which they are taught according to a limited curriculum and segregated from the mainstream student population has continued. The latest Action Plan on Inclusive Education and the 2012 Consolidated Action Plan for the execution of the European Court of Human Rights D.H. judgment, which both aimed to reduce the proportion of Romani pupils in “special education” classes, has failed to achieve its aim. It is encouraging that a recent amendment to the Education Act adopted in February 2015 removed a passage that allowed children without mental disability to be enrolled into “practical (special) schools.” Also, the authorities’ decision to provide the final year of pre-school education free of charge and plans for making it compulsory should improve the prospects of Roma children at school.24 22 23 24

Committee of Ministers, Resolution ResCMN(2012)21 on the implementation of the Framework Convention for the Protection of National Minorities by the Czech Republic, 12 December 2012, para. 1. Ibid., para. 2. acfc, Fourth Opinion on the Czech Republic, adopted on 16 November 2015, ACFC/OP/IV(2015)004, at p. 1.

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This position is confirmed by the Committee of Ministers, which, in its ‘recommendations for immediate action’ calls upon the Czech Republic to ensure the rapid and full implementation of the 2015–2016 reform of the education system with the view to ensuring systematic placing of Roma pupils in mainstream education and to preventing children from being inappropriately placed in “practical schools”; redouble efforts to remedy shortcomings faced by Roma children in the field of education, including by providing free individual support measures to pupils with special needs; ensure that fully-informed consent is given as a condition for placement into “special education.”25 3.2 Racial Equality Directive Country Reports The European Commission monitors the implementation of the Racial Equality Directive together with the implementation of Council Directive 2000/78/ EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, also known as the Employment Framework Directive. In order to monitor the impact of these two instruments, country reports were drafted by the European Network of Legal Experts in the nondiscrimination field, and since December 2014 by the European network of legal experts in gender equality and non-discrimination.26 The latter Network is managed by the Migration Policy Group,27 Human European Consultancy28 and Utrecht University. As of January 2018, the last country report on the Czech Republic29 covered the calendar year 2016 and was drafted by Mr David Zahumensky. The reporting description for the country rapporteurs related to the implementation of ­Article 3(1)g of the Racial Equality Directive is quite explicit and shows evidence of awareness of the problems encountered by Roma children in e­ ducation.

25 26 27 28 29

Committee of Ministers, Resolution ResCMN(2017)8 on the implementation of the Framework Convention for the Protection of National Minorities by the Czech Republic, 29 Novmber 2017. The website of the European Network of Legal Experts in gender equality and non-­ discrimination field is available at (accessed on 1 September 2015). More info on Migration Policy Group is available on (­accessed on 1 September 2015). More info on Human European Consultancy is available on (accessed on 1 September 2015). European Network of Legal Experts in the non-discrimination Field, Country Report Non-Discrimination, the Czech Republic, 2017, available at (accessed on 1 January 2018).

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It states that “[Article 3(1)g Racial Equality Directive] covers all aspects of education, including all types of schools.” The rapporteurs are asked to: consider cases and/ or patterns of segregation and discrimination in schools, affecting notably the Roma community and people with disabilities. If these cases and/ or patterns exist, please refer also to relevant legal/political discussions that may exist in your country on the issue. Please briefly describe the general approach to education for children with disabilities in your country, and the extent to which mainstream education and segregated “special” education are favoured and supported. The 2017 county report on the Czech Republic (covering the calendar year 2016), contains a separate section on ‘trends and patterns regarding Roma pupils.’30 It still reports about “specific patterns existing in education regarding Roma pupils, such as segregation”: Since 2016 the ‘inclusive [education] system’ applies, according to the amended Sections 16, 16a and 16b of the Schools Act. Nevertheless, although children, pupils and students with special educational needs are entitled to free support measures, which are financed by the school, problems may still arise because the estimate of the costs of support measures does not include all students with special educational needs. As regards the monitoring of the education of Roma pupils, the analysis and electronic surveys are, and will be, performed by the Czech School Inspectorate. According to the statistics from 2016, the number of Roma pupils educated under the framework for basic education in mainstream schools increased year-on-year by 0.6 percentage points, which presents a slightly positive trend. An important document issued by the Ministry is new action plan for inclusive education for the period 2016–2018, which determines collective education priorities, strategies and deadlines for specific measures. In 2016, at meeting No. 1222(DH), the Committee of Ministers of the Council of Europe expressed concern that the percentage of Roma pupils in classes or groups for children with ‘mild intellectual disabilities’ remains disproportionate and urged the authorities to ensure the necessary support to pupils entering or transferred to mainstream education.

30

European Network of Legal Experts in the non-discrimination Field, Country Report Non-Discrimination, the Czech Republic, 2017, pp. 86–88.

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In February 2016, the revised action plan for the execution of the judgment in D.H. and Others was issued. The revised action plan describes all adopted and planned measures. In September 2016, the Czech Government submitted a complementary report containing changes following from the amendment to the Schools Act. In conclusion, practical changes from 1 September are rather small scale, since the pupils with special needs must first be examined and then should receive new opinions from spcs within a two-year transformation period. In the future, more transfers from former practical schools to ordinary schools should be supported. The success of the current reform might be still endangered by the lack of individual skills, unpreparedness of the spcs or the unwillingness of ordinary schools to work with pupils with disabilities. No authority is tracking the impact of these measures on the Roma students. The right to file an appeal against a decision taken by the spc to an independent central authority according to Section 16b of the amended Schools Act (…) can also help to prevent the unnecessary placement of Roma pupils in classes designed for persons with disabilities.31 In a previous report32 covering the state of affairs up to 1 January 2014, Zahumensky describes the content of the new Schools Law which abolished the so-called special schools, but he stresses that in practice, the segregation of children of Roma origin continues to take place in schools with reduced curricula, although these schools are no longer labelled as “special”: The Schools Law contains a general anti-discrimination clause, forbidding discrimination against EU and Czech citizens. According to Section 2 para 1, education shall be based on the principles of equal access of all citizens of the Czech Republic or nationals of any other EU Member State to education without any discrimination based on any ground such as race, colour, sex, language, belief or religion, nationality, ethnic or s­ ocial origin, property, kith or kin, or the health condition or any other status of a citizen. The non-discrimination provisions of the Anti-discrimination Law therefore apply to its material scope. The Anti-discrimination 31 Ibid. 32 European Network of Legal Experts in the non-discrimination Field, Report on Measures to Combat Discrimination: Directives 2000/43/EC and 2000/78/EC, Country Report 2013, the Czech Republic, available at (accessed on 1 September 2015).

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Law prohibits discrimination in access to education and provision of education. The Schools Law, adopted in 2004 and in effect from 1 January 2005, changed the former system of special and mainstream schools. It provided children with special educational needs, including ‘socially disadvantaged’ children, the right to be accommodated by means of ‘special educational arrangements.’ No special actions or measures were taken to accompany the legislation, except those already in effect (for example, preparatory classes or class teaching assistants). See also above, Sections 2.3.1, 3.2.4. The Schools Law formally abolished the so-called special schools, which in the past catered for a considerable proportion of Roma pupils. In practice, the segregation of children of Roma origin continues to take place in schools with reduced curricula, although these schools are no longer labelled as “special.” There are no clear and objective criteria for placement in special education and no measures to enhance the sensitivity of educational professionals and foster a system based on cultural diversity. The actual implementation of culturally sensitive or adapted tests for determining the academic and intellectual abilities of children from ethnic minorities is low. The situation is similar in relation to the implementation of other measures to secure the inclusion of Roma children in mainstream education. Because of the persistent problem of the segregation of Roma children in schools with reduced curricula in comparison to mainstream schools, the Czech Republic has been criticised repeatedly by international institutions. In July 2013, the UN Human Rights Committee reiterated its concern that “Roma children continue to be overrepresented in schools for pupils with mild mental disabilities or “practical elementary schools.” The UN Committee also highlighted that Romani pupils continue to be placed in Roma-only classes or classes with a limited curriculum in mainstream schools. It requested the Czech government to take immediate steps to eradicate the segregation of Roma children in its education system, by ensuring that the placement in schools and classes is carried out according to clear and objective criteria. In March 2013, during the adoption of the UN Universal Periodic Review outcome document on the Czech Republic, the Government repeated its commitment to desegregate schools and ensure equal access of Romani pupils to the right to education. In 2012 the Czech Ombudsman performed research to gather ethnic data regarding pupils in former special schools (now mostly practical

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primary schools). The data were gathered by means of observations by ‘third parties,’ i.e. equality body employees and teachers. This survey carried out in 67 randomly chosen former special schools across the Czech Republic showed that Roma children represented 32% or 35% of all pupils. When these figures are compared to the share of Roma people in the total population of the Czech Republic (the figure varies between 1.4% and 2.8%), it is obvious that the percentage of Roma children found in the given schools is disproportionate. Indirect discrimination in access to education therefore continues, and Czech authorities have so far failed to remedy the situation quoted in the judgment five years ago. On the basis of the survey results, the Ombudsman formulated legal recommendations addressed to the Government, and to the Ministry of Education, Youth and Sports. These recommendations included: (1) To clearly and consistently incorporate the individual integration of pupils with special educational needs into the provisions of Section 16 of the Schools Law; (2) To leave out the option to place a pupil with no disability into a special class or school as granted by the provisions of Section 10 Paragraph 2 (it allows a pupil or pupils with a different type of disability or health impairment to be placed in a class (group) of disabled pupils. This, according to the provisions of Section 16 Paragraph 3 of the Education Act, is understood to mean less severe forms of medical disorders, long-term illness or other debilitation); and the provisions of Section 3 Paragraph 5 a) and b) (it allows for placement of a pupil without disability into a “special” school, including a temporary placement of “pupils on a ground of social disadvantage”) from the Decree on the Education of Pupils with Special Educational Needs; (3) To create precise records of former special schools and the number of pupils educated in accordance with the appendix to the Framework Education Program for Children with Light Mental Disability; these records should be regularly updated and sent to the Ombudsman and to the Czech School Inspectorate. In 2013 it had been six years from the D.H. judgement of the European Court of Human Rights. In October 2013, the government presented a progress report on the implementation of the Action Plan to the Committee of Ministers. Amnesty International in their “shadow” report pointed out that to date the government has failed to adopt measures (a) explicitly mandating the desegregation of Czech schools and (b) that would put in place sufficient safeguards against discrimination in access to education. Other ngos presented similar conclusions. The Committee

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of Ministers i.a. reiterated the importance of rapidly obtaining concrete results and encouraged the authorities to accelerate the implementation of outstanding measures, in particular with regard to the revised diagnostic tools and the legislative amendments aimed at removing the possibility to place pupils without a disability in classes or groups for pupils with disabilities, and to consider the adoption of interim measures. They also invited the Czech authorities to provide updated information on the implementation of the consolidated action plan in due time for the 1201st meeting (DH) (June 2014).33 In other previous country reports,34 the issue of the segregation of Roma children in education was mainly dealt with by the rapporteur under the implementation of Article 3(1)g Racial Equality Directive on education, but the rapporteur also referred to the issue under Article 2 (2)b on indirect discrimination and under Article 3 (1)b on access to all types and to all levels of ­vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience. The rapporteur consistently referred to the ECtHR decision of D.H. and others v the Czech Republic in the different country reports. Even though the 2009 country report extensively referred to the coe ecri Reports on the Czech Republic, in none of the country reports is there a reference to the Advisory Committee Opinions on the Czech Republic on the implementation of Article 12 fcnm by the Czech Republic, which is regrettable. ngo Research: Report by Open Society Justice Initiative ( June 2012), by Amnesty International/errc ( June 2012), and by Amnesty International (April 2015) On the occasion of the 5th anniversary of the D.H. case, both the Open Society Justice Initiative35 and Amnesty International/errc36 published a report on 3.3

33

34 35

36

European Network of Legal Experts in the non-discrimination Field, Report on Measures to Combat Discrimination: Directives 2000/43/EC and 2000/78/EC, Country Report 2013, the Czech Republic, pp. 57–59, available at (accessed on 1 September 2015). All the Czech Republic Country Reports are available at (accessed on 1 September 2015). Open Society Justice Initiative, ‘Failing Another Generation: The Travesty of Roma Education in the Czech Republic,’ June 2012, available at (­accessed on 1 August 2013). Amnesty International and errc, ‘Five More Years of Injustice: Segregated Education for Roma in the Czech Republic,’ November 2012, available at (accessed on 1 August 2013). 37 A. Ivatts, ‘In the Czech Republic, Segregation of Roma Children Continues,’ 7 November 2013, available at (accessed on 1 January 2014). 38 Ibid. 39 Amnesty International, ‘Must try harder: ethnic discrimination of Romani children in Czech schools,’ April 2015, available at (accessed on 1 September 2015). 40 Ibid., p. 5.

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The report discerns three different patterns of discrimination against Roma children within the education system in Czech Republic: the overrepresentation of Romani pupils in so-called practical schools (primary schools designed for pupils with mild mental disabilities); the segregation of Roma in mainstream schools and classes; and various other forms of differential treatment in mixed mainstream schools.41 Regarding the disproportionate placement of Roma children in practical schools for pupils with mild mental disabilities, the report provides evidence that this disproportionate placement still takes place and describes the content of the new Action Plan, due to come into effect by September 2016: According to the 2014 survey of the Czech School Inspectorate, about 32% of children studying under educational programmes for pupils with mild mental disabilities were Roma. This figure is hugely disproportionate to the number of Roma in the Czech Republic which is estimated at between 150,000 and 300,000, i.e. 1.4–2.8% of the total population. In an admission that efforts to date were not having the desired effect, a new Action Plan adopted by the government in February 2015 envisaged a comprehensive Amendment of the Schools Act to “guarantee the maximum achievable … education in mainstream schools for all pupils.” The plan envisaged: strengthened monitoring of the work of the psychological assessment centres by the Czech School Inspectorate; the introduction of mandatory attendance of the last grade of kindergarten; and, significantly, the abolition of the educational programme for pupils with mild mental disabilities with a view to their being integrated into mainstream education. The implementation of this reform, due to come into effect in ­September 2016, still requires the adoption of additional decrees. These must ensure that schools integrate and support struggling Romani pupils in regular mixed mainstream classes, rather than allowing for their continued “group integration” in effectively segregated classes for pupils with special educational needs. If implemented fully, the ending of the special educational programme for pupils with mild mental disabilities offers the prospect of significant progress towards achieving integrated education for Romani children, as it would remove one of the filters currently being used to exclude them from mainstream education. However, unless some of the underlying factors pushing Romani children towards practical schools 41 Ibid.

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are also addressed, Romani children will continue to struggle to secure equal access to quality education. These factors include prejudicial attitudes towards Roma by educators, a chronic lack of resources to support Romani children struggling in the mainstream educational system, the prejudice that many Romani children face from other pupils in mixed mainstream schools and the pressures that parents feel to accept their transfer to practical schools.42 The report also examines the widespread segregation of Roma children in mainstream education, which takes the forms of relegation into separate schools, buildings and classes. In all the locations visited in the course of researching its report, Amnesty International identifies schools commonly referred to as “Roma schools” and criticizes that the phenomenon has gone fundamentally unchallenged by both the local authorities responsible for the schools and the Ministry of Education. The report suggests that segregated schooling is not only the result of residential segregation, but often of the deliberate separation of pupils by schools, the refusal of school directors to enrol Roma children, the failure to tackle the prejudice encountered by Roma children in mixed mainstream schools and the lack of measures by national and local government to address the problem of ethnic segregation. As a key driver of segregated education, the report identifies so-called ‘white flight,’ the fact that non-Roma parents seek out schools with no or a low number of Roma pupils, and remove their children from schools once they feel there are too many Roma pupils. It is also the case that many, but by no means all Romani parents, prefer to send their children to “Roma schools” on believing that there, their children will face less prejudice from teachers and fellow pupils.43 The report finally also describes other forms of unequal treatment, such as the failure to adequately tackle racial bullying by fellow pupils, excessive psychological testing for mental disabilities prior to and after enrolling in school, and the prejudicial labelling of Romani pupils and their parents as lacking discipline and failing to value education. According to the report, all these factors contribute to institutionalizing separate and unequal education for Roma children.44 On the occasion of the 10th anniversary of the D.H. case, in November 2017, the osce Office for Democratic Institutions and Human Rights (odihr) joined 42 Ibid., pp. 5–6. 43 Ibid., p. 7. 44 Ibid.

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with other global and regional intergovernmental human rights organizations in calling for greater efforts to ensure inclusive education, in a statement45 issued together with the United Nations Human Rights Office (ohchr), the European Union Agency for Fundamental Rights (fra), the European Network of National Human Rights Institutions (ennhri) and the European Network of Equality Bodies (Equinet). The statement calls for a redoubling of efforts to bring children together in education in the spirit of commitment to dignity, equality and human rights, in the light of evidence that, despite efforts since the European Court of Human Rights’ 2007 D.H. judgement, the segregation of Roma children in schools is increasing. It also calls on States to “redouble their efforts to develop their knowledge base as well as to produce and make public data in this area, with due consideration to privacy and data protection.”46 3.4 Evaluation of the Situation in the Czech Republic According to the statement issued by osce odihr47 in November 2017, segregation of Roma children in schools is increasing, not decreasing. Discrimination of Roma children takes the form of the overrepresentation of Romani pupils in so-called practical schools (primary schools designed for pupils with mild mental disabilities); the segregation of Roma in mainstream schools and classes; and the differential treatment in mixed mainstream schools. In September 2014, the European Commission has initiated an infringement procedure against the Czech Republic for non-respect of the provisions of the Racial Equality Directive due to the systemic segregation of Roma children in education.48 In February 2016, a revised action plan for the execution of the D.H. judgment was issued. The revised action plan describes all the adopted and planned measures. In September 2016, the Czech Government submitted a complementary report to the Council of Europe containing changes following from the amendment to the Schools Act. In conclusion, according to the 2017 country report on the Czech Republic by the European Network of Legal Experts in the non-discrimination Field, 45

osce odihr, ‘Call to Action : Bring Children Together for Diversity – As segregation of Roma in education is worsening, equality and human rights organizations call for redoubles efforts at inclusive education,’ Brussels, Strasbourg, Vienna, Warsaw, 13 November 2017, available at (accessed on 1 January 2018). 46 Ibid. 47 Ibid. 48 See above Chapter 4 under 5.5 Infringement Procedure.

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practical changes from 1 September 2016 on are rather a small scale, since the pupils with special needs must first be examined and then should receive new opinions from Special Pedagogical Centres (‘spcs’) within a two-year transformation period. In the future, more transfers from former practical schools to ordinary schools should be supported. The success of the current reform might be still endangered by the lack of individual skills, unpreparedness of the spcs or the unwillingness of ordinary schools to work with pupils with disabilities. No authority is tracking the impact of these measures on the Roma students. The right to file an appeal against a decision taken by the spc to an independent central authority according to Section 16b of the amended Schools Act could help to prevent the unnecessary placement of Roma pupils in classes designed for persons with disabilities.49 It thus remains to be seen whether the new revised action plan of February 2016 will yield the necessary results. It is regrettable that, more than 10 years after the D.H. Judgment, the Czech Republic still has not managed to reform its educational system in such a way as for Roma children to have equal access to mainstream education. 4

Case Study on Germany

In the first State Report of Germany, an entire section is devoted to the Sinti and Roma in Germany. The report contains the following information on history, numbers and geographical location: The Sinti have traditionally lived in German-speaking territory since the 14th or 15th centuries. Roma settled in Germany at a later time. Again and again, in the course of history, Sinti and Roma suffered discrimination, were crowded out from various trades and driven out of towns or regions. In instances, even into this century, attempts made by Sinti to settle in their home region were thwarted. Despite these problems, the Sinti and Roma by and by managed to establish themselves locally, and in their respective home regions, they worked as manual workers, employees, civil servants, craftsmen, artists, small tradesmen and handicraftsmen, and other businesspeople. Due to the racist fanaticism under the National Socialist (Nazi) tyranny, the Sinti and Roma in Germany and in the areas o­ ccupied by German armed forces were subjected to persecution and 49

European Network of Legal Experts in the non-discrimination Field, Country Report Non-Discrimination, the Czech Republic, 2017, p. 88.

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genocide with the aim of their extermination. Hundreds of thousands of Sinti and Roma were murdered, and their cultural heritage was, for the most part, destroyed. Of the 40,000 officially registered German and ­Austrian Sinti and Roma, more than 25,000 were murdered by May 1945. This persecution, aimed at systematic and definitive extermination, left its mark on the survivors and also has an impact on the members of the generation born after 1945. The memories of those persecuted will, continue to decisively influence their consciousness and their identity. After 1945, many of the surviving Sinti and Roma, whose health had been impaired and whose material basis of existence had been destroyed, still had to struggle with discrimination; for instance, they were subject to local registration with the police and the criminal identification service. […] The German Sinti and Roma are estimated to number up to 70,000 persons. Some of the Sinti organisations put the numbers even higher. The majority of them live in the capitals of the “old Länder” of Germany [the 11 federal states that belonged to the frg within its territorial boundaries up to German unification], including Berlin and its environs, and in the conurbations of the greater Hamburg area, the Rhine/Ruhr region with Düsseldorf and Cologne at its centre, the Rhine/Main and Rhine/ Neckar conurbations, and the greater Kiel area. In some cases, major numbers of German Sinti and Roma also live in regions of geographically close, smaller towns. Thus, German Sinti and Roma populations are to be found, for instance, in medium-sized and small towns of East Friesland, Northern Hesse, the Palatinate, Baden and Bavaria. The German Sinti and Roma only represent a small, not quantifiable, share of the population in all of their settlement areas.50 4.1 Analysis of AC Opinions and Committee of Ministers Resolutions The first AC Opinion on Germany was adopted on 1 March 2002.51 The question of the situation of Roma children in education is not dealt with under ­Article 12 fcnm, as was the case in the Reports on the Czech Republic, but rather under Article 6 fcnm. The AC notes that “children of Roma/Sinti, migrants and immigrants are over-represented at lower secondary schools and 50 51

Report submitted by Germany pursuant to Article 25, paragraph 1 of the Framework Convention for the Protection of National Minorities, received on 24 February 2002, ACFC/SR(2000)001, section I.4.4. Opinion on Germany, adopted on 1 March 2002, ACFC/OPI(2002)008.

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special schools for under-achievers and correspondingly under-represented at intermediate and grammar schools” and expresses to be “concerned by this state of affairs which merits close attention, in order to ensure that effective measures are taken to tackle these problems.”52 Regarding education, it should be noted that it is mainly the responsibility of the Länder and so it is largely up to them to promote the culture, history, language and religion of national minorities. In its second AC Opinion on Germany, adopted on 1 March 2006, the AC again underscored being concerned by “the persistent overrepresentation of children belonging to the Roma/Sinti minority and of immigrants’ children in the special schools for under-achievers (Sonderschulen) and their underrepresentation in secondary and tertiary education.”53 Again, the matter was discussed under Art. 6 fcnm, and more precisely under the heading “integration and community relations,” and not under Art. 12 fcnm, as one would have expected. Apparently, by 2006, the situation of Roma children in education as described in the first AC Opinion on Germany had not improved. In the third AC Opinion, adopted on 27 May 2010, the issues of the segregation of Roma children in education in Germany was dealt with in more detail compared to the first and second Opinion, possibly because of an increased awareness after the adoption by the Grand Chamber of the ECtHR of the judgment in the landmark case of D.H. and Others on the one hand, and because of the observation that, since the ratification of the fcnm by Germany, little progress had been made in this field on the other hand. The issue was not discussed under Art. 6 fcnm any more, as was the case in the first and second AC Opinion, but the observations regarding the segregation of Roma children in education were now made under Art. 12 fcnm, which allowed the AC to make more in-depth observations, focusing on the educational aspect, and not only on the non-discrimination aspect of the problems related to segregation in education. In the main findings, however, the observations related to the situation of Roma children in education did come under the heading “combating discrimination and racism” and not under the heading “education.” It is stated that: “Roma and Sinti children continue to face difficulties in education, due to the persistence of prejudice and stereotyping. It is a matter for concern that they are persistently over-represented in ‘special’ schools.”54 52 53 54

Ibid., para. 36. Second Opinion on Germany, adopted on 1 March 2006, ACFC/OPII(2006)001, para. 15. Third Opinion on Germany, adopted on 27 May 2010, ACFC/OPIII(2010)003, para. 20.

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These main findings then figured under Article 12 fcnm, where an entire section is devoted to the Roma and Sinti in the educational system. In a first step, the AC recalled the recommendations of the previous monitoring cycles, it then went on to picture the current situation and finally formulated additional recommendations: 137. During the previous monitoring cycles, the Advisory Committee urged the authorities to adopt measures to improve participation of Roma and Sinti children in the education system, on an equal footing with other pupils. 138. It also encouraged the authorities to support plans for Roma and Sinti assistants and mediators and to ensure that these persons received high-quality training. 139. Information available to the Advisory Committee indicates continuing problems with the schooling of Roma and Sinti children. In addition to the problems of absenteeism and drop-out that are still common, the Advisory Committee has learned from various sources that these children continue to be over-represented in “special” schools and classes. Some Roma and Sinti representatives say that frequent assignment to a “special” school is partly due to poor communication between teaching staff and Roma and Sinti parents, and to persistent prejudice against the Roma and Sinti within the education system. The Advisory Committee finds this situation a matter for serious concern and incompatible with the principles of Article 12 of the Framework Convention. 140. The Advisory Committee notes with satisfaction that a number of Länder have taken measures to overcome these difficulties. It notes in particular that in Baden-Württemberg it is planned that, in future, the decision to place a child in a “special” class or school will be a matter for the parents rather than the educational authorities. The Advisory Committee hopes that this reform will lead to better co-operation between Roma and Sinti parents and teaching staff and that parents will be given all the assistance they need in reaching a reasoned and fully informed decision. It also welcomes the fact that a number of local projects involving Roma and Sinti school mediators continue to be implemented. These are designed to improve school attendance by Roma and Sinti children. It is important that these programmes should be sustainable and that the positive experience gained from them should be better known and replicated in other Länder.

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Recommendation 141. The Advisory Committee urges the German authorities to continue and intensify measures aimed at promoting equal opportunities for Roma and Sinti pupils in the educational system. Resolute action should be taken without delay to end unjustified placing of these children in “special” schools.55 The structure of the third cycle monitoring report differs slightly from the structure of the second cycle monitoring reports in that the recommendations formulated by the AC are differentiated. A distinction is made between issues requiring immediate action and other recommendations. The fact that the recommendations related to the Sinti and Roma in education are listed among the ‘issues requiring immediate action’ highlights again that improving the situation of Sinti and Roma in education is an issue of foremost priority for the Advisory Committee. One of the reasons why the issue might have been identified as one requiring immediate action is the lack of an overall official policy in this field.56 The Committee of Ministers in its resolution57 has confirmed these findings using the same wording as the Advisory Committee in its Opinion and recommends, as an issue for immediate action, that Germany takes “resolute action without delay to end the unjustified placing of Roma and Sinti pupils in ‘special’ schools.”58 In its fourth Opinon, adopted on 19 March 2015, the Advisory Committee formulates 3 recommendations for immediate action, of which one is, again, related to putting an end to discrimination against Roma and Sinti children in education, which shows that Germany still has not remedied the problem. The Advisory Committee requests Germany to take resolute measures to put an end to discrimination against Sinti and Roma children in the education system, including ending the unjustified placement of Sinti and Roma children in special schools, and to create an inclusive education system.59

55 56 57

Ibid., paras 137–141. See also the remark in ACFC/OPIII(2010)003, para. 208. Committee of Ministers, Resolution ResCMN(2011)10 on the implementation of the Framework Convention for the Protection of National Minorities by Germany, adopted on 15 June 2011. 58 Ibid. 59 Fourth Opinion on Germany, adopted on 19 March 2015, ACFC/OP/IV(2015)003, p. 2.

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As in the previous monitoring cycle, the Committee of Ministers has adopted exactly the same wording under ‘recommendations for immediate action’ in its resolution as the wording used by the Advisory Committee in its fourth Opinion.60 4.2 Racial Equality Directive Country Report The last country report on Germany61 of the European Network of Legal Experts in the non-discrimination Field covered the state of affairs up to 1 January 2017 and was drafted by Professor Matthias Mahlmann.62 Under the section ‘Education’ – ‘Trends and Patterns regarding Roma children’ he reports the following: In Germany, there are no specific patterns existing in education regarding Roma pupils such as segregation. Segregation in the sense of (often legally) enshrined patterns of exclusion of certain social groups –in contrast to individual and structural issues of discrimination –is not a feature of the German school system. Given the statements on the issue of segregation by the representatives of the Sinti and Roma community to this rapporteur, this seems to be the standpoint of the Sinti and Roma community as well.63 The previous country report on Germany64 covering the state of affairs up to 1 January 2014, like the older country reports on Germany,65 remarkably does 60 61 62 63 64

65

Committee of Ministers, Resolution ResCMN(2016)4 on the implementation of the Framework Convention for the Protection of National Minorities by Germany, adopted on 3 February 2016. European Network of Legal Experts in the non-discrimination Field, Country Report Non-Discrimination, Germany, 2017, available at (accessed on 1 January 2018). The reporting description for the country rapporteurs related to the implementation of Article 3(1)g of the Racial Equality Directive has already been discussed above under 3.2. European Network of Legal Experts in the non-discrimination Field, Country Report Non-Discrimination, Germany, 2017, p. 68, available at (accessed on 1 January 2018). European Network of Legal Experts in the non-discrimination Field, Report on Measures to Combat Discrimination: Directives 2000/43/EC and 2000/78/EC, Country Report 2013, Germany, available at (accessed on 1 September 2015). See, for instance, the 2011 country report on Germany covering the state of affairs in G ­ ermany up to 1 January 2012. European Network of Legal Experts in the non-­ discrimination Field, Report on Measures to Combat Discrimination: Directives 2000/43/EC and 2000/78/EC, Country Report 2009, Germany, available at (accessed on 1 September 2015).

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not deal with the issue of the segregation of the Roma in education in the full text of the report, but only in a footnote, stating that: [t]he German Federal Anti-Discrimination Agency uses the term “segregation” widely in the sense of separation into different social groups, cf. Zweiter Gemeinsamer Bericht der Antidiskriminierungsstelle des Bundes und der in ihrem Zuständigkeitsbereich betroffenen Beauftragten der Bundesregierung und des Deutschen Bundestages (2013), p. 14 et passim. In this sense, it concludes that segregation exists in the educational system. Differing educational opportunities for people from a migrant background are in any case well documented, cf. A. Klose in B. Rudolf and M. Mahlmann, Gleichbehandlungsrecht, Baden-Baden, Nomos, § 10 for further details. Segregation in the narrower sense of (legally) enshrined patterns of exclusion of certain social groups – in contrast to individual and structural issues of discrimination – are, however, not a feature of the German school system. Given the statements on the issue of segregation by the representatives of the Sinti and Roma community to this rapporteur, this seems to be the standpoint of the Sinti and Roma community as well. There are some independent investigations on this matter, reporting that a high percentage of Sinti and Roma children do not attend school and are over-represented in remedial schools. However, in the absence of reliable statistical data, these reports have to draw on interviews and other less comprehensive data (cf. e.g. errc/eumap Joint EU Monitoring and Advocacy Program / European Roma Rights Centre Shadow Report Provided to the Committee on the Elimination of Discrimination Against Women, Commenting on the fifth periodic report of the Federal Republic of Germany Submitted under Article 18 of the United Nations Convention on the Elimination of All Forms of Discrimination against Women, Budapest, 09.01.04). There is the widespread perception – again including voices from the German Sinti and Roma community – that these kinds of studies do not convincingly establish any patterns of segregation (in the narrower sense), though discrimination against Sinti and Roma continues to be a problem, given some surveys on the experience of discrimination by Sinti and Roma or structures of prejudice. S.D. Strauß (ed.) (2011) Studie zur aktuellen Bildungssituation deutscher Sinti und Roma: ­Dokumentation und Forschungsbericht. As mentioned above, there has been very little case-law on the matter in recent years.66

66

European Network of Legal Experts in the non-discrimination Field, Report on Measures to Combat Discrimination: Directives 2000/43/EC and 2000/78/EC, Country Report 2013,

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This remark is at odds with the priority given to the issue of segregation of Roma children in education by the Advisory Committee67 and by the Committee of Ministers,68 which has been requesting Germany to “take resolute measures to put an end to discrimination against Sinti and Roma children in the education system, including ending the unjustified placement of Sinti and Roma children in special schools, and to create an inclusive education system.”69 It is also at odds with the findings of the recent report70 published by the Foundation Remembrance, Responsibility, Future (Stiftung Erinnerung, Veantwortung und Zukunft), which is presented in the next section. Regrettable is that the rapporteur does not refer to these AC Opinions and the Committee of Ministers Resolutions, and that he does not go into the problematic of the over-representation of Roma and Sinti children in special schools. One could argue that this over-representation in special schools could possibly amount to a form of segregation. ngo Research: Report by the Foundation ‘Remembrance, Responsibility, Future’ According to the results of a study conducted by RomnoKher GmbH and financed by the Stiftung Erinnerung, Verantwortung, Zukunft [Foundation ­Remembrance, Responsibility, Future] there are clear instances of over-representation of Roma and Sinti children in special schools, as well as widespread anti-Gypsyism among teachers and fellow pupils.71 The study was conducted between 2007 and 2011 by researchers working in the fields of history, political sciences, pedagogy, sociology, and human rights. It is the first comprehensive 4.3

67 68 69 70

71

Germany, p. 75, footnote 238, emphasis added, available at (accessed on 1 September 2015). Third Opinion on Germany, adopted on 27 May 2010, ACFC/OPIII(2010)003, para. 210 and Fourth Opinion on Germany, adopted on 19 March 2015, ACFC/OP/IV(2015)003, p. 2. Committee of Ministers, Resolution ResCMN(2016)4 on the implementation of the Framework Convention for the Protection of National Minorities by Germany, adopted on 3 February 2016. See above at 4.1 Analysis of AC Opinions and Committee of Ministers Resolutions. D. Strauß (ed.), Studie zur aktuellen Bildungssituation deutscher Sinti und Roma, Dokumentation und Forschungsbericht, Marburg: I-Verb.de, 2011, available at (accessed on 1 August 2013). An English summary of the study is available at (accessed on 1 August 2013). For a press release on the study in English, see Deutsche Welle, “Study shows that Sinti and Roma face an uphill climb for education,” 25 Mai 2011, available at (accessed on 1 August 2013). D. Strauß (ed.), Studie zur aktuellen Bildungssituation deutscher Sinti und Roma, Dokumentation und Forschungsbericht, 2011, Marburg: I-Verb.de.

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study collecting data on the situation of the Roma and Sinti in education in Germany, where Roma and Sinti are questioned about their personal schoolbiography by Roma and Sinti peers.72 275 German Sinti and Roma from 3 generations were interviewed by Romani peers who received a previous schooling on how to conduct the interviews. Assuming that approximately 100 000 Sinti and Roma live in G ­ ermany—a number which is slightly higher than the one registered by Germany in its State Report under the fcnm—then 1 on 383 was interviewed. As to the representativity of the results, the researchers conducting the study state that strictly speaking, even though a sample of 1 on 383 might not seem to be representative at first sight, it is still highly plausible that the results of the study are representative for the majority of the Roma and Sinti population in Germany, as the interviewees were selected according to different features such as social situation, age, gender, geographical location and level of education. The results of the study were surprising: 13 % of the interviewees did not go to school (compared to less than 1 % of the majority population) and 10.7 % attended a special school (compared to 4.9 % of the majority population). As many as 81.2 % of the interviewees personally experienced discrimination in school. The researchers note in this context that these experiences of discrimination are as well related to different forms of anti-Gypsyism and prejudice of peers on an everyday basis, which is tacitly tolerated by most of the teachers, as to overt forms of discrimination by teachers. The success of single Sinti and Roma pupils in schools can be often attributed to the support of a single teacher or few peer pupils.73 Researchers involved in the study agree that the poor educational representation is directly related to the persecution of the Sinti and Roma in Nazi Germany and the ensuing ostracism from German society after World War II. During the Nazi reign, the Sinti and Roma were forced to leave school and deported to concentration camps. Those who survived developed such a 72

73

Another more descriptive study on the situation of Roma in education in Germany was conducted by the European Forum for Migration Studies Institute at the University of Bamberg in 2004. However, this study does not contain any concrete data and criticizes the fact that the German government does not collect this data. The study has been compiled by the national Focal Point of the Racism and Xenophobia Network operated by the European Monitoring Centre on Racism and Xenophobia (eumc). See Raxen National Focal Point for Germany, ‘Roma in Public Education,’ November 2004, available at (accessed on 1 August 2013). D. Strauß, ‘Zehn Ergebnisse der Bildungsstudie und Empfehlungen,’ available at (accessed on 1 September 2015).

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f­ar-going scepticism toward the majority schooling system that they did not send their own children to school. This scepticism is even present nowadays. The researchers involved in the study identified a pattern of an intergenerational trauma: parents even today still do not have a good feeling about sending their kids to school, as they fear that they might face far-reaching hostilities or even not come back.74 The prejudice which Sinti and Roma pupils face, ranges from open hostility—verbal assaults such as ‘Gypsies stink’ or ‘Gypsies steal’— to teachers who go so far as to say that “Hitler did right [der Hitler hat Recht gemacht]”75 or pupils who mock that “one has forgotten to gas you [man hat vergessen Dich zu vergasen].”76 Several other parallel statements in interviews point at the presence of widespread anti-Gypsyist stereotypes in German society and at a lack of knowledge about Roma history and identity. Therefore the researchers conducting the study see the building of mutual trust and information and awareness raising among the majority population as two fundamental preconditions for an improvement of the educational situation of the Sinti and Roma in Germany.77 The results of the study triggered the setting up of the project “Sinti- und Roma-Bildungsarbeit als Profession: Sinti und Roma in pädagogischen, sozialen und anderen Berufen etablieren (RomaPro)” which was financed by the xenos-Programme „Integration und Vielfalt“ of the German Federal Ministry for Labour and Social Affairs and the European Social Fund. The aim of the project (June 2012–December 2014) was to develop strategies and concepts to support Sinti and Roma in equal access to education and the labour market.78 4.4 Evaluation of the Situation in Germany The unjustified placing of Roma children in ‘special’ schools is not only a feature of Eastern European school systems. ngo research suggests that, also in Germany, Roma children are over-represented in special schools. 74 75 76

77 78

See the interview with, among others, L.H., a 32-year-old Roma in D. Strauß (ed.), Studie zur aktuellen Bildungssituation deutscher Sinti und Roma, Dokumentation und Forschungsbericht, 2011, Marburg: I-Verb.de, p. 92. Ibid., p. 70. Ibid., p. 76. See also Deutscher Bundestag, Kinderkommission, ‘Es geht um gleichberechtigte Teilhabe,’ 2011, available at (accessed on 1 August 2013). D. Strauß (ed.), Studie zur aktuellen Bildungssituation deutscher Sinti und Roma, Dokumentation und Forschungsbericht, 2011, Marburg: I-Verb.de, p. 94. The results of the project are presented in a brochure edited by raa Berlin: raa e.V. (ed.), Bildungsaufbruch! Für die gleichberechtigte Teilhabe von Sinti und Roma in Deutschland, Berlin, September 2014, available at (accessed on 1 September 2015).

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The repercussions of an inter-generational trauma after the persecution of the Sinti and Roma during the Nazi regime, which contributes still today to the segregation of the Sinti and Roma in education because of far-going scepticism and the lack of a proper education amongst parents, have been largely underestimated by researchers and policy makers in Germany. The scepticism of parents towards the majority school system is amplified by the personal experience of the discrimination most Roma face. These experiences of discrimination occur less in special schools or remedial schools as there is an extremely high concentration of foreigners, which makes Roma parents more inclined to send their children to these schools, or at least not to object when their children are sent to these schools. The lack of mutual trust between the Roma and the majority population, the existence of negative stereotypes and the lack of awareness about the history, culture and identity of the Roma among the majority population contribute to the over-representation of Sinti and Roma in special schools in Germany. 5

Situation in other EU Member States

Roma segregation in education does not only occur in the Czech Republic and in Germany, but is widespread throughout Europe. The report ‘Developing anti-discrimination law in Europe’ of December 2014,79 prepared by the European Network of Legal Experts in the Non-Discrimination Field, notes that the segregation of Roma children in education still constitutes one of the most widespread manifestations of discrimination against the Roma. According to the report, Roma segregation in education provides a good example of the serious challenges faced by several states in terms of implementation and effective enforcement, including Bulgaria, Croatia, Cyprus, the Czech Republic, Finland, the former Yugoslav Republic of Macedonia, Greece, Hungary, ­Poland, Romania and Slovakia. (…) In Bulgaria, the Czech Republic, Hungary, Latvia, Poland, Romania and Slovakia, a disproportionate number of Roma children attend remedial ‘special’ schools for children with intellectual disabilities. (…) 79

Chopin, I., and Germaine, C., for the European Network of Legal Experts in the non-­ discrimination field, ‘Developing Anti-Discrimination Law in Europe: The 28 EU Member States, the fyrom, Iceland, Liechtenstein, Norway and Turkey compared,’ Brussels: ­European Commission, DG for Justice and Consumers, December 2014, available at (accessed on 1 September 2015).

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Segregation of the Roma also occurs in some mainstream schools through the existence of segregated classes. This is the case in Bulgaria, Croatia, the Czech Republic, Finland, Greece, Hungary, Latvia, Romania, Slovakia and Slovenia. (…) There are only a few instances where segregated classes have been challenged under national legal systems, for instance in Bulgaria, Croatia, Denmark, Finland, Greece, Hungary, Romania and Slovakia. (…) In many states, including Belgium, Croatia, Cyprus, Finland, Lithuania and Portugal, school absenteeism and disproportionately high drop-out rates are serious issues among the Roma, Sinti and Traveller communities. (…) In a large number of Member States, for example, residence patterns also lead to a high concentration of Roma children (e.g. Bulgaria, Cyprus, Hungary, Romania and Slovakia) or children from particular ethnic minorities (e.g. France, the Netherlands, and the United Kingdom) in certain schools, resulting in so-called ‘ghetto schools.’80 These findings are to a certain extent confirmed in the April 2014 thematic report ‘Report on Discrimination of Roma Children in Education,’81 drafted by Lilla Farkas, which was a follow-up report to a 2007 thematic report on the same topic. The 2014 Farkas report focuses on the discrimination of Roma children in education in 11 EU Member States82 notably the United Kingdom, France, Italy, Spain, Greece, the Czech Republic, Slovakia, Hungary, Romania, Croatia and Bulgaria, whereby all these Member States are identified as having specific problems in the area of Roma education. Finally, the Midterm review of the EU Framework for National Roma Integration Strategies by the European Commission of August 2017 identifies 80 81

82

Ibid., pp. 63–67. L. Farkas, ‘Report on Discrimination of Roma Children in Education,’ Brussels: European Commission, DG Justice, April 2014, available at (accessed on 1 September 2015). The reasons why the 2014 Farkas report is limited to only 11 EU Member States is because it is based on the results of a survey conducted by the Fundamental Rights Agency and the undp on ‘The Situation of Roma in 11 EU Member States,’ published in 2012. The latter reveals, among others, huge gaps in educational attainment between Roma and the majority population living nearby: only 15 % of young Roma adults surveyed have completed upper-secondary general education, versus more than 70 % of the majority population living nearby. fra, ‘The Situation of Roma in 11 EU Member States—Survey Results at a Glance,’ 23 May 2012, available at (accessed on 1 January 2014).

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s­ egregation in education as one of the remaining challenges. It refers to “one to two thirds of Roma children attending schools where most or all pupils are Roma. The figures is over 60% for SK, HU, BG or between 29–48% in EL, HR, ES, CZ and RO.”83 6

Conclusions under Chapter 10

Already since the first fcnm monitoring cycle, the practice of placing disproportionately large numbers of Roma children in special schools for children with mild mental disabilities in the Czech Republic has been consistently brought up by both the acfc in its Opinions and by the Committee of Ministers, which had unequivocally recommended the Czech Republic to eliminate, without further delay, practices that lead to the placement of a disproportionately large number of Roma children at “practical schools” and to strengthen efforts to remedy shortcomings faced by Roma children in the field of education. More recently, the European Commission has initiated an infringement procedure against the Czech Republic for non-respect of the provisions of the Racial Equality Directive due to the segregation of Roma children in education. To date, the situation of Roma children in education has not significantly improved. It remains to be seen if the said infringement procedure will make the Czech Republic speed up the announced educational reforms in order to avoid a conviction before the cjeu. Regarding Germany, the acfc has also consistently expressed its concern over the over-representation of Roma and Sinti children in lower ­secondary schools and special schools for under-achievers, and their under-­representation at intermediate and grammar schools. In the third and fourth monitoring­ cycle, this was even identified as an issue for immediate action. As Germany was neither included in the three fra surveys EU-MIDIS I (2008), the Roma survey (2011) and EU-MIDIS II (2016)84 nor mentioned in the reports ‘Developing anti-discrimination law in Europe’ which monitor the implementation of the Racial Equality Directive, the problem of the over-­representation of Roma and Sinti pupils in special schools has so far not caught the attention of the European Commission. A small-scale study 83 84

European Commission, Factsheet, ‘Midterm review of the EU Framework for National Roma Intergration Strategies,’ Brussels, September 2017, available at (accessed on 1 January 2018). The countries covered in the three fra surveys were the six EU Member States Bulgaria, the Czech Republic, Greece, Hungary, Romania and Slovakia. In addition to this, Roma in Portugal and Spain were covered in both the 2011 Roma survey and EU-MIDIS II.

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conducted ­between 2007 and 2011 by RomnoKher GmbH confirms the over-­ representation of Roma and Sinti children in special schools in Germany and shows that 81.2 % of the interviewees had experienced discrimination in an educational context (e.g., discriminatory remarks by teachers or fellow pupils). The collection of additional data on the educational situation of Roma and Sinti children in education could show a more complete picture and the full extent of the problem, which could mobilise the German authorities to adopt a comprehensive policy on educational inclusion for Roma and Sinti children.

Chapter 11

Recent Roma Policy Initiatives at the Council of Europe and at the European Union 1 Introduction The ‘Roma issue’ was put on top of the international agenda again after the controversial expulsions of Roma of Romanian and Bulgarian origin by France in August and September 2010. In an immediate reaction to these expulsions in September 2010,1 the Secretary General of the coe, Thorbjørn Jagland, stressed the need for coordinated action between the EU, the coe and the national Member States and took the initiative to organize a High Level meeting on the Roma in Strasbourg. During this High Level meeting the ‘Strasbourg Declaration’ was adopted and the function of ‘Special Representative of the Secretary General for Roma Issues’ with its own srsg Support Team was created at the coe. At the same time, at the EU level, in September 2010, the European Commission established a Roma Task Force2 to assess Member States’ use of European Union funds. The proposal was part of an analysis of the situation of the Roma in France and in Europe by Vice-President Viviane Reding, EU Justice Commissioner, László Andor, EU Commissioner for Employment, Social Affairs and Inclusion, and Cecilia Malmström, EU Commissioner for Home Affairs. The Commission’s Roma Task Force, which includes senior officials from all relevant Commission departments, was established, among others, to analyse how Member States are following up the Commission’s Report of April 2010 on ‘Improving the tools for the social inclusion and non-discrimination of Roma in the EU,’3 which called for concrete programmes to help Roma integration. 1 Council of Europe Press Release 668(2010), ‘Council of Europe puts forward initiative to improve Roma situation,’ Strasbourg, 16.09.2010, available at (accessed on 1 January 2014). 2 See European Commission Press Release IP/10/1097, ‘European Commission to assess Member State’s use of European Union Funds for Roma Integration,’ Brussels, 07.09.2010 (accessed on 1 January 2014). 3 European Commission, ‘Improving the tools for the social inclusion and non-­discrimination of Roma in the EU,’ Brussels, June 2010, available at (accessed on 1 January 2014). The report was accompanied by the following press release: EU Press Release, ‘Commission urges Roma Social Inclusion,’

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In the meantime the European Commission also started working on an EU Framework for National Roma Integration Strategies up to 2020, which was adopted on 5 April 2011. The EU Framework for National Roma Integration Strategies up to 2020 was presented as a “ground breaking initiative aimed at improving the lives and ensuring the enjoyment of fundamental rights for millions of Roma living across the European Union.”4 All EU Member States were to submit their National Roma Integration Strategy to the Commission by the end of 2011 and to appoint a national Roma contact point5 with the authority to coordinate the development and implementation of the strategy. The Commission assesses progress on an annual basis. In August 2017, the Commission published a midterm review of the EU Framework for National Roma Integration Strategies. The main findings of this review were that the EU Framework has brought the issue of Roma integration higher up on the political agendas and has set up the necessary structures and funding to improve Roma inclusion. However, as regards real change in the situation of the Roma between 2011 and 2016, it is clear that five years is too short a period to undo centuries of discrimination and deprivation.6 At the Council of the European Union, in December 2013, a Council Recommendation on effective Roma integration measures in the Member States7 was adopted. The purpose of this Recommendation is to provide guidance to Member States in enhancing the effectiveness of their measures to achieve Roma integration and strengthen the implementation of their national Roma 7 April 2010, IP/10/407. See also EU Press Release, ‘Roma Integration: First Findings of Roma Task Force and Report on Social Inclusion,’ MEMO/10/701, Brussels, 21 December 2010. 4 fra, ‘fra will support Commission’s Drive to Improve the Situation of Roma across the EU,’ 5 April 2011, available at (accessed on 1 March 2013). 5 A list of the National Roma Contact Points is available on the EU Roma Framework website of the European Commission under (accessed on 1 September 2015). 6 European Commission, Factsheet, ‘Midterm review of the EU Framework for National Roma Intergration Strategies,’ Brussels, September 2017, available at (accessed on 1 January 2018). 7 Council of the European Union, ‘Council Recommendation on effective Roma integration ­measures in the member states,’ Employment, Social Policy, Health and Consumer Affairs Council Meeting, Brussels, 9 and 10 December 2013, available at (accessed on 1 September 2015).

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integration strategies. The Council Recommendation will also serve as a framework for transparent monitoring. In the Recommendation, the C ­ ouncil requested the Commission to ensure that the information provided by the Member States will serve as a basis for the preparation of its annual reports on the implementation of the national Roma integration strategies and will contribute to the European Semester of the Europe 2020 Strategy through the country specific recommendations. The Commission follows-up on this request by addressing, in its Country Specific Recommendations8 the need to promote the participation of Roma children in quality inclusive early childhood and school education for the five countries with the largest Roma communities and most acute challenges: Bulgaria, the Czech Republic, Hungary, Romania and Slovakia. This chapter is dedicated to these recent policy initiatives adopted by the EU—the Platform on Roma Inclusion and the EU Framework for National Roma Integration Strategies up to 2020 (Section 2)—and by the coe—the Strasbourg Declaration and the Special Representative of the Secretary General for Roma Issues with the srsg (Section 3)vas they are of paramount importance for the social inclusion of the Roma. Even though they are ‘only’ policy instruments and not legally binding tools, they deserve some detailed attention as they are focusing on how to achieve more concrete results in the field of Roma inclusion. In the fourth section, some recent cooperation initiatives between the EU and the coe in the field of Roma rights protection are highlighted.9 8 See, for instance, the 2015 European Semester. In the 2017 European Semester, the Commission stressed that efforts should also focus on reducing inequalities in access to quality education, in particular for disadvantaged groups such as the Roma and students with a migrant background. Recommendations concerning education-related issues were proposed in 2017 for Austria, Belgium, Bulgaria, Spain, France, Lithuania, Cyprus, Croatia, Hungary, Austria, Romania, Slovakia and the United Kingdom. See European Commission, Communication, ‘2017 European Semester: Country-Specific Recommendations,’ Brussels, 22.5.2017, com(2017)500 final, p. 12. More information on the European Semester and on the Country Specific Recommendations is available at (accessed on 1 January 2018). 9 Most of the documents related to cooperation between the EU and the Council of Europe do not have a public nature but are restricted to Council of Europe staff only. This is why no research could be conducted on the nature of the existing cooperation between the EU and the Council of Europe on Roma related matters.

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Recent Policy Initiatives at the EU Level: the Platform on Roma Inclusion, the Platform against Poverty and Social Exclusion, and the EU Framework for National Roma Integration Strategies up to 2020

2.1 The Platform on Roma Inclusion The idea of a European Roma Platform emerged at the first European Roma Summit in Brussels in September 2008. Following this event, EU countries called on the European Commission to organize “an exchange of good practice and experience between the EU countries in the sphere of inclusion of the Roma, provide analytical support and stimulate cooperation between all parties concerned by Roma issues, including the organisations representing Roma, in the context of an integrated European Platform.”10 In April 2009 the European Commission launched the EU Platform for Roma Inclusion (or ‘European Roma Platform,’ hereinafter referred to as ‘the Platform’).11 The Platform was created to support policy developments for Roma integration and stimulate exchanges and coordination among Member States, international organizations and Roma civil society. The main aim of the Platform is the successful implementation of Roma inclusion policies and the alignment of these policies with mainstream policies in other fields such as, among others, education.12 Vladimir Špidla,13 a former member of the

10

Council of the European Union, Press Release 16862/08 (Presse 359), ‘Main Results of the General Affairs and External Relations Council,’ Brussels, 8.12.2008, available at (accessed on 1 January 2014). 11 The EU Platform for Roma inclusion had its first meeting in Prague on 24 April 2009 in the framework of the Czech Presidency of the EU. At this first meeting of the Platform the 10 Common Basic Principles on Roma inclusion aiming at effectively addressing the inclusion and integration of Roma were identified. 12 See also EU Council of the European Union, ‘Council Conclusions on Inclusion of the Roma: 2947th Employment, Social Policy, Health and Consumer Affairs Council Meeting,’ Luxembourg, 8 June 2009, at para. 7, available at (accessed on 1 January 2014). In these ‘Council Conclusions on the Inclusion of the Roma,’ the Council of the European Union invites the Commission and the Member States ‘to make use of the integrated European platform for Roma inclusion for the exchange of good practice and experience between the Member States […] and in the cooperation between all parties and international­organizations concerned by Roma issues’ (at para. 12). 13 Vladimir Špidla, the former head of the DG ESA, showed a great deal of interest in Roma related initiatives and he was unofficially in charge of Roma issues within the European Commission. The presence in his cabinet of one of the best Czech experts on Roma related issues, Jan Jarab, was seen by many as the most significant strategic step taken by

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­ uropean Commission with responsibility for Employment, Social Affairs and E Equal Opportunities (‘esa’), called the Platform a “process of more intensive policy coordination among Member States in this area.”14 The communication from the Commission on ‘An EU Framework for National Roma Integration Strategies up to 2020’15 contains an explicit reference to the Platform on Roma inclusion. It states that the Commission is committed to playing a stronger role in the Platform and to reinforcing the Platform’s role, building on past experience and by linking its work with the four priority areas of national Roma integration strategies. Through the Platform, concerned stakeholders, especially representatives of the Roma communities, should have the possibility to play a role in the European Framework for National Roma Integration Strategies. The strengthened Platform can support Member States to find the relevant policy responses through the exchange of good practices and the discussion of approaches from international organisations with experience in promoting Roma inclusion. It will also provide the Commission with feedback on the results of national efforts on the ground through the voice of Roma civil society.16 The seventh Roma Platform, which took place in Brussels in March 2012, was held with the aim to giving all stakeholders involved an opportunity to express

14 15

16

the European Commission in better dealing with Roma related issues. The current head of the DG Employment, Social Affairs and Inclusion is Mr László Andor. In July 2010 some Roma related competencies (those related to non-discrimination and equal opportunities) moved from DG ESA to the newly created DG Justice. The Directorate-General for Justice was created on 1 July 2010, following the division of the former Directorate-­ General for Justice, Freedom and Security into two separate Directorates-General. The current head of DG Justice is Mrs Viviane Reding, Vice-President of the European Commission. Her portfolio covers justice, fundamental rights and citizenship and both Mr Andor and Mrs Reding are competent for Roma issues. V. Špidla, Speech/09/192, ‘Launch of the EU Platform for Roma inclusion,’ Prague, 24.04.2009, available at (accessed on 1 January 2013). European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Brussels, com(2011) 173/4. European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Brussels, com(2011) 173/4, p. 12.

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their views on the recently submitted National Roma Integration Strategies and also to launch proposals for the successful implementation of national Roma integration strategies.17 In spite of the Commission’s good intentions to strengthen the role of the Platform, the Platform of March 2012 did not offer much of an opportunity for the Roma themselves or for Roma civil society representatives to have their positions heard. ngos and other stakeholders noted that “[e]xperience with the EU Roma Platform strongly suggests a total overhaul is necessary if it is to become an effective EU-wide coordinating mechanism for Roma policy discussion and assessment.”18 The Platform of March 2012 was primarily used by the EU and the Member States to praise the initiatives they had been taking, and not to give a forum to all stakeholders to express their views. This is clear from the composition of the panel of speakers. Not less than 22 speakers were invited to speak during the opening session or on one of the three panels (putting plans to work; the active participation of stakeholders; socio-economic aspects of Roma inclusion).19 Out of these 22 speakers, two were representatives of the European Commission, one of the fra, seven were representatives of the EP, eight were representatives of the member states, and only four speakers were representatives from ngos and civil society (Eurocities, Civic Association Live Together, erio and Open Society Foundations). Merely two out of the 22 speakers had a Roma background.20 All panels were chaired by a director of the European Commission from the different relevant DGs (DG Justice, DG Regional Policy and DG Employment). Whereas the European Institutions were over-represented at the Platform, the Member States were very well represented and the ngos, civil society and 17

See the website of the Extraordinary EU Platform on Roma Inclusion, available at (accessed on 1 January 2014). 18 European Roma Policy Coalition, ‘EU Roma Framework weak on discrimination against Roma,’ 5 April 2011, available at (accessed on 1 January 2014). The European Roma Policy Coalition is an informal gathering of non-governmental organisations operating at EU level on issues of human rights, anti-discrimination, anti-racism, social inclusion, and Roma and Travellers’ rights. Its members are Amnesty International, the European Roma Rights Centre, the European Roma Information Office, the Open Society Institute, European Network Against Racism, Minority Rights Group International, the European Roma Grassroots Organizations Network, Policy Center for Roma and Minorities, the Roma Education Fund, and Fundación Secretariado Gitano. 19 The agenda of the EU Platform on Roma Inclusion of March 2012 is available at the mini-site of the Platform, under (accessed on 1 January 2014). 20 Livia Jaroka (mep) and Ivan Ivanov, the director of erio.

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the Roma themselves were strongly under-represented. Some ngos like enar and Amnesty International, with a critical stance towards the National Roma Integration Strategies (‘nris’), had lobbied for several months to be invited as a speaker but were not given the floor on the panel itself.21 The European Roma Policy Coalition, which held a preparatory meeting of civil society representatives a day before the platform took place, was allowed to speak spontaneously and presented a common statement on the third panel, but was not originally included in the programme. In order to strengthen the Platform, it would have been necessary, however, to include more Roma representatives and civil society representatives from the beginning in the official agenda. The criticism voiced after the seventh meeting of the Platform was taken into account by the Commission when drafting the agenda for the eighth Platform, which was more balanced, with half of the speakers originating from civil society organizations.22 It seems that the ‘strengthened Platform’ as announced in April 2011 needed some time to be put in place, but is now operative, as the exchanges at the eighth Platform were fruitful and constructive, with a lot of room for input from civil society and the Roma themselves. In 2015, the format of the Platform was further reformed allowing more participants to be part of the discussion and reducing barriers between the different stakeholders. The March 2015 Platform concentrated on the future of the Platform. The need for a structured dialogue at EU level among all stakeholders was reconfirmed. Participants agreed that it is important to build trust among stakeholders of Roma integration at national and local levels. It was suggested that to this end national Roma platforms could be set up with the support of the Commission. The national Roma platforms could bring all stakeholders from the national, regional and local levels together. They should be understood as networks linking actors of change from various institutions in permanent dialogue and cooperation on implementation and monitoring of National Roma Integration Strategies. National Roma Platforms could then in their turn also feed the thematic preparation of the European Platform.23 21

Interview with Shannon Pfohmann, Chair of the European Roma Policy Coalition and Deputy Director of enar, Brussels, 22 March 2012, on file with the author. 22 Out of 23 speakers, only 6 were representing the Commission and the EP and 3 the Member States, whilst no less than 11 speakers represented civil society. Furthermore, the fra, Unicef and the who were also represented. For the agenda of the eight Platform, see

(accessed on 1 January 2014). 23 European Commission, 9th European Platform for Roma Inclusion: Summary and Conclusion, available at (accessed on 1 September 2015).

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The 2016 Platform was dedicated to the topic of ‘Mutual accountability of all.’ Stakeholders at the Platform agreed that a lot has been accomplished since the adoption of the EU Framework for National Roma Integration Strategies up to 2020. The integration of the Roma has been put high on both, EU and Member States’ agendas. There is more funding allocated to support Roma ­integration measures than ever before. There is also an improvement in enforcing the EU law (3 infringement proceedings were launched). There are governmental bodies following the Roma integration in Member States (National Roma Contact Points). There is also progress in improving the dialogue among all stakeholders (the launch of Roma National Platforms). There are several programmes devoted to Roma integration. Local authorities have managed to develop their local development strategies and also to better access EU funding. The local authorities also managed to support Roma integration measures from their local budget. There are also steps taken in respect of improving the education of Roma children. More visibility is given to Roma youth and the role and protection of Roma women. It was, however, concluded that despite all these achievements the situation of the Roma on the ground remains unchanged. More efforts at all levels are still needed. As it was highlighted, there is still a need for better coordination (among all stakeholders), transparency in respect of funding and policies, data collection, impact monitoring and ­efficient use of funding. The ngos’ stakeholders called on their greater involvement in the consultation, implementation and monitoring (at EU, national, regional levels). They also expressed the need to improve the European Platform; they called on their better involvement in the organisation and participation in the Platform. They also asked for better continuity between the Platforms. The importance of Roma communities involvement in Roma programmes, projects as well as the necessity of integrated and long term policies were also mentioned.24 The 2017 European Platform for Roma inclusion, held in Brussels in November, continued promoting the participatory interaction among all relevant stakeholders, including representatives of European and national Roma and pro-Roma civil society organisations, national and local authorities of the EU Member States and enlargement countries, European institutions, international organisations and academia. The topic chosen for the Platform was 24

European Commission, Follow-up Report on the European Platform for Roma Inclusion ‘Mutual accountability of all,’ s.d., available at (accessed on 1 January 2018).

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‘transition from education to employment for the Roma.’ The thematic focus was decided in close cooperation with the European-level umbrella Roma and pro-Roma civil society organisations. The 2017 European Platform for Roma inclusion was dedicated to discussions on the challenges related to the transition of Roma children and youth from education to employment. The Roma still remain the most underrepresented group on the labour market, with high numbers of people falling into unemployment. Many Roma youngsters (15–24) are neither following post-compulsory education nor employment or training. The combination of various factors, such as poverty and deprivation, low levels of education and skills and discrimination in both education and employment constitute serious structural barriers for the Roma to fulfil their potential in the labour market.25 2.2 The Platform against Poverty and Social Exclusion The European platform against poverty and social exclusion is one of seven flagship initiatives of the Europe 2020 strategy26 for smart, sustainable and inclusive growth. It is designed to help EU countries reach the headline target of lifting 20 million people out of poverty and social exclusion.27 Even though it does not specifically target the Roma as such, but rather people experiencing poverty in general, it is very relevant as a policy initiative working towards social inclusion in, among others, the field of Roma education. The platform was launched in 2010 and will remain active until 2020. It is based on five areas for action: 1. Delivering actions across the whole policy spectrum such as the labour market, minimum income support, healthcare, education, housing and access to basic banking accounts. 25 26

27

See European Commission, DG Justice Newsroom, ‘11 the Meeting of the European Platform for Roma Inclusion,’ November 2017, available at (accessed on 1 January 2018). Europe 2020 is the European Union’s ten-year growth strategy. It focuses on addressing the shortcomings of our growth model and creating the conditions for a different type of growth that is smarter, more sustainable and more inclusive. To render this more tangible, five key targets have been set for the EU to achieve by the end of the decade. These cover employment; education; research and innovation; social inclusion and poverty reduction; and climate/energy. The strategy also includes seven ‘flagship initiatives’ providing a framework through which the EU and national authorities mutually reinforce their efforts in areas supporting the Europe 2020 priorities such as innovation, the digital economy, employment, youth,, industrial policy, poverty, and resource efficiency. See the Europe 2020 website, available at (accessed on 1 January 2014). DG Employment, Social Affairs and Inclusion website, available at (accessed on 1 January 2014).

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2.

Better use of EU funds to support social inclusion. The Commission has proposed that 20% of the European Social Fund be earmarked for fighting poverty and social exclusion. 3. Promoting robust evidence of what does and does not work in social policy innovations before implementing them more widely. 4. Working in partnership with civil society to support more effectively the implementation of social policy reforms. The participation of people experiencing poverty is now acknowledged as a catalyst for inclusion strategies. 5. Enhanced policy coordination among EU countries has been established through the use of the open method of coordination for social protection and social inclusion (Social omc) and the Social Protection Committee in particular.28 The annual convention of the platform provides an opportunity for dialogue between policy makers, key stakeholders and people who have experienced poverty. At the annual convention of November 201329 a separate workshop was dedicated to the topic “Promoting Roma access to quality inclusive education and the labour market.”30 The workshop was organized in cooperation with the Open Society Foundations, the Roma Education Fund and the ­secretariat of the Decade for Roma inclusion. It included presentations on a comparative review of national and local approaches to building inclusive education and labour markets for Roma integration, identifying success factors and promising approaches for the use of EU funds. The aim of the workshop was to have an open debate between European and national policy-makers, stakeholders, experts and civil organizations and draw conclusions on what should be financed from EU funds in the context of Roma inclusion, desegregation and antidiscrimination in education and the labour market. The workshop further aimed at helping Member States to address their Country Specific Recommendations, to plan the use of EU funds for Roma inclusion in the next seven years and to contribute to the 2014 European semester.31 28 Ibid. 29 For more information on the 2013 annual convention, see the convention website, ­available at (accessed on 1 January 2014). 30 Background information on the workshop on Roma inclusion is available at the convention website under point 2. “Roma inclusion policies,” see (accessed on 1 January 2014). 31 The European Semester is a yearly cycle of economic policy coordination. Each year the European Commission undertakes a detailed analysis of EU Member States’ programmes

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In 2016, the annual convention was renamed ‘Annual Convention for Inclusive Growth’ and neither the 2016 nor the 2017 annual convention had a Romarelated topic on the agenda. The main topics of the 2017 annual convention included youth unemployment, child and youth poverty, intergenerational fairness, and social inclusion challenges facing young people.32 These are relevant for the Roma as well, and it is regrettable that the Roma were not explicitly mentioned as a particular target group. 2.3 The EU Framework for National Roma Integration Strategies33 2.3.1 Overall Aim and Goals The EU framework for National Roma Integration Strategies up to 2020 (‘the Framework’) develops a targeted approach for a more effective response to Roma exclusion by setting EU-wide goals for integrating the Roma in education, employment, health and housing. Its overall aim is to make a tangible difference to Roma people’s lives over the next decade by focusing on the Roma in national, regional and local integration policies in a clear and specific way, addressing them with explicit measures to prevent and compensate for the multiple disadvantages they face. Member States were asked to submit national Roma strategies to the Commission by the end of 2011, specifying how they will contribute to achieving the overall EU level integration goals, including setting national targets and allowing for sufficient funding (national, EU and other) to deliver them. By 22 March 2012, the day on which the Extraordinary Platform on Roma Inclusion was organized, all Member States had submitted their nris. The goals formulated in the EU Framework for National Roma Integration Strategies address the four main areas for improving social and economic integration for the Roma, all of which are primarily national policy areas:



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of economic and structural reforms and provides them with recommendations for the next 12–18 months. The European semester starts when the Commission adopts its Annual Growth Survey, usually towards the end of the year, which sets out EU priorities for the coming year to boost growth and job creation. See (accessed on 1 January 2014). See European Commission, Annual Convention for Inclusive Growth ; Conference Report, 24 April 2017, available at (accessed on 1 January 2018). See also #ACIG 2017 on Twitter. The content of this paragraph is based on MEMO/11/216, ‘EU Framework for national Roma strategies: Frequently asked questions,’ Brussels, 5 April 2011, available at (accessed on 1 January 2014).

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– Education: ensuring that all Roma children complete primary school; – Employment: cutting the employment gap between Roma and other citizens; – Health: reducing the gap in health status between the Roma and the general population; – Housing: closing the gap in access to housing and public utilities such as water and electricity. The Framework was endorsed on the highest political level by Council Conclusions34 issued on 19 May 2011.35 2.3.2 Goals in the Policy Area of Education Especially relevant for the purpose of this book is the first policy area of education. The only concrete objective to be reached by the Member States is, as stated above, “ensuring that all Roma children complete primary school.” Apart from that, a reference is also made to the importance of early childhood education and care. The relevant paragraph in the EU Framework on education concludes as follows: 34

35

Council of the European Union, ‘Council Conclusions on an EU Framework for National Roma Integration Strategies up to 2020,’ 3089th Employment, Social Policy, Health and Consumer Affairs Council Meeting, Brussels, 19 May 2011, available at (accessed on 1 January 2014). On the legal nature of Council conclusions, see L. Senden, Soft Law in European Community Law, Oxford and Portland Oregon: Hart Publishing, 2004, pp. 194–195. Senden notes that, in general, the nature of the provisions laid down in Council conclusions is twofold: “Firstly, Council conclusions always contain provisions or considerations of a declaratory nature, expressing the views of and the agreement reached within the Council on a certain matter. […] As such, conclusions are also a means to inform the public of the Council’s viewpoints and of the ways in which certain matter should or will be approached in the future. […] Secondly, Council conclusions may also contain provisions of a requesting nature, calling upon the Commission and/or the Member States to take certain action. […] The action requested aims primarily at enabling the Commission to develop further initiatives on the basis of the prescribed action, which often concerns the submission of certain data by the member States to the Commission, the drawing up of Commission reports on the basis thereof and the possible development of proposals for future initiatives. […] One may also find self-commitments in Council conclusions. […] So, whether confined to being an act of a declaratory nature or going further by calling upon the Commission and/or the Member States to develop certain action, it appears that Council conclusions do not specifically aim at laying down general rules of conduct and having external effect. Thus, more in general, conclusions can be typified as political statements expressing some common agreement on future Community action.” The Council conclusions on an EU Framework for National Roma Integration Strategies up to 2020 are thus not a legally binding instrument but a political statement expressing common agreement on future EU action in the field of Roma inclusion.

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This is why Member States should ensure that all Roma children have access to quality education and are not subject to discrimination or segregation, regardless of whether they are sedentary or not. Member States should, as a minimum, ensure primary school completion. They should also widen access to quality early childhood education and care and reduce the number of early school leavers from secondary education pursuant to the Europe 2020 strategy. Roma youngster should be strongly encouraged to participate also in secondary and tertiary education.36 2.3.3 Monitoring Mechanism Finally, the Framework lays down foundations for a mechanism to monitor results. In this context, the EU’s Fundamental Rights Agency will carry out regular surveys to take stock of the economic and social situation of the Roma, and work will be carried out with national statistical authorities to obtain better data. In addition, EU member states have been asked to designate national contact points to manage, report on and monitor their own national strategies. In October 2012, the Commission established a network of National Contact Points for Roma integration, giving the Member States the opportunity to discuss solutions to the challenges identified and exchange best practices. In November and December 2012, a smaller group of National Contact Points for Roma integration further discussed how to enhance the effectiveness of measures to achieve Roma integration in the Member States. That group subsequently reported back to the network of National Contact Points for Roma integration. Some member States, such as Italy37 for instance, have designated as a national contact point the already existing national equality body, which the member states had established pursuant to Art. 13 of the Racial Equality Directive. In cases of such an overlap, the national contact point is not only competent to manage, report on and monitor the national strategies but also to provide independent assistance to victims of discrimination in pursuing their complaints about discrimination, to conduct independent surveys concerning

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They contain provisions of a requesting nature and invite the Member States and the Commission to take action in the field of Roma inclusion. European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Brussels, com(2011) 173/4, pp. 5–6. The Office for the promotion of equal treatment and removal of discrimination based on race or ethnic origin (acronym in Italian: unar) has been identified by the Italian

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discrimination and to publish independent reports and make recommendations on any issue relating to such discrimination.38 Apart from the fact that some Member States have entrusted their national equality bodies with the supervision of the national Roma integration ­strategies, there is no institutional link between the monitoring of the Racial Equality Directive on the one hand and the monitoring of the nris on the other hand. The Commission has however facilitated contacts and exchange between the National Roma Contact Points and the national equality b­ odies, by inviting the latter to the National Roma Contact Point meetings. For instance, during the 4th meeting of the national Roma contact points in February 2014 in Brussels, the national Roma contact points discussed with the national equality bodies how to effectively address discrimination towards Roma in the Member States.39 As to the concrete implementation of the monitoring procedure conducted by the European Commission, the Commission reports annually to the European Parliament and the Council on the progress being made by Member States. It bases its monitoring on: – The results of the Roma household survey regularly carried out by the Fundamental Rights Agency, the United Nations Development Programme in cooperation with the World Bank; – National reform programmes in the frame of the EU 2020 Strategy, in particular for those countries with a high share of Roma population; – Ongoing work within the Open Method of Coordination in the field of social policies; – Member States contributions based on their own monitoring systems which national authorities are requested to include in their national Roma integration strategies.40

­Government as the National Focal Point for the nris. See Italy, ‘National Strategy for the Inclusion of Roma, Sinti and Caminanti Communities – European Commission Communication No 173/2011,’ Roma, 28 February 2012, available at (accessed on 1 January 2014). 38 See Art. 13 (2) Racial Equality Directive. 39 European Commission, Memo, Roma Integration: national representatives discuss progress and pool ideas, Brussels, 13 February 2014, available at (accessed on 1 September 2015). 40 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Brussels, com(2011) 173/4, p. 14.

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2.3.4 Monitoring by the European Commission The results of a first assessment of all national Roma integration strategies were presented by the Commission in its Communication of 21 May 2012 on ‘National Roma Integration Strategies: a first step in the implementation of the EU Framework.’41 The Communication does not focus on the progress made so far by the Member States, but rather contains an invitation to the Member States to consider a number of adaptations to their nris as a way forward. A second monitoring exercise was concluded with the Commission’s Communication of 26 June 2013 ‘Steps forward in implementing national Roma integration strategies,’42 in which the Commission highlighted the need for further action in order to secure the necessary preconditions for the successful implementation of measures aimed at speeding up progress on Roma integration. The 2014 Report on the implementation of the EU Framework for National Roma Integration Strategies43 looked at overall progress in all four key areas and the 2015 Report44 was mainly dedicated to new approaches to funding Roma integration. In August 2017, the Commission published a midterm review of the EU Framework for National Roma Integration Strategies. The main findings of this review were that the EU Framework has brought the issue of Roma integration higher up on the political agendas and has set up the necessary structures and funding to improve Roma inclusion. However, as regards real change in the situation of Roma between 2011 and 2016, it is clear that five years is too short a period to undo centuries of discrimination and deprivation.45 41

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European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘National Roma Integration Strategies: a first step in the implementation of the EU Framework,’ Brussels, com(2012)226 final, 21 May 2012. European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Steps forward in implementing National Roma Integration Strategies,’ Brussels, com(2013)454 final, 26 June 2013. European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Report on the implementation of the EU Framework for National Roma Integration Strategies,’ Brussels, com(2014)209 final, 2 April 2014. European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Report on the implementation of the EU Framework for National Roma Integration Strategies 2015,’ Brussels, com(2015)299 final, 17 June 2015. European Commission, Factsheet, ‘Midterm review of the EU Framework for National Roma Intergration Strategies,’ Brussels, September 2017, available at (accessed on 1 January 2018). See also

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Worth nothing is that the Commission itself does not collect data regarding the improvement of the situation of the Roma in the different Member States, but is dependent for its monitoring on the information submitted by the Member States themselves. However, many Member States do not have a solid system of data collection in place, and thus the monitoring of concrete progress in the field is hampered. A special role in the monitoring procedure is played by the Fundamental Rights Agency of the EU, as this agency does have the means to collect data, albeit only to a certain extent. At the midterm review of the EU framework for national Roma integration strategies, the European Commission presented the ‘Roma integration indicators scoreboard (2011–2016).46 This scoreboard presents changes in the situation of the Roma in nine EU Member States as recorded by two fra surveys in 2011 and in 2016. The important role of the fra in the monitoring procedure is discussed below. 2.3.5 Role of the fra in the Monitoring Procedure The EU’s Fundamental Rights Agency has a key role to play in the monitoring procedure of the nris, by collecting data on the social and economic situation of the Roma, in cooperation with other organizations. Monitoring and the evaluation of existing instruments and measures are needed to steer the further development of the strategies, and their specific actions at regional and local level, to support building on and sharing of good practice within and between Member States, and to avoid ‘policy failure’ by acting as early warning mechanisms by providing regularly robust evidence to policy makers to guide their decisions.47 In order for such monitoring to be effective, Roma integration programmes and strategies must be built on reliable demographic, employment, health, education and housing statistical data broken down by ethnic origin. In all these areas, there is a need for quantifiable indicators to measure progress over time. Then, any meaningful data collection and monitoring system will require

46 47

the full report and its swd, European Commission, Communication from the Commission to the European Parliament and the Council, Midterm review of the EU Framework for national Roma integration strategies, Brussels, 30,8,2017, com(2017)458 final, available on the same website in the newsroom. European Commission Staff Working Document, ‘Roma integration indicators scoreboard (2011–2016),’ accompanying the Midterm review of the EU Framework for national Roma integration strategies, Brussels, 30,8,2017, swd(2017)286 final. M. Kjaerum, ‘Putting Plans to Work,’ Speech at the Roma Platform, Brussels, 22 March 2012, available at (accessed on 1 January 2014).

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cooperation and involvement of relevant line ministries (health, education, social affairs, etc.), national statistical institutes, specialized bodies, local authorities, civil society, and most importantly the Roma themselves. Member States will need to build up their administrative capacity to collect and analyse data and develop an integrated evidence-based policy response to identified challenges.48 The EU Framework has tasked the fra to contribute to the monitoring of the nris through research, data collection and know-how, and by working together with the Member States and other key actors to provide regularly a comparative analysis of the evolving situation of the Roma across the EU. This should underpin the reporting on the progress of the Framework.49 As tasked by the Commission and the Council, the fra will be expanding its on-going research on the Roma to cover all Member States; designing the next waves of Roma surveys to measure progress on the ground; and extending an invitation to Member States to work together with the fra in developing effective monitoring methods that can produce comparable results.50 More concretely, the fra will offer to Member States assistance in 4 fields, in order to make the nris work. These fields of assistance were summed up and presented by Mortem Kjaerum, the director of the fra, during the extraordinary Platform on Roma inclusion in March 2013 in Brussels: 1. First, the results of its comprehensive quantitative EU wide survey research and comparative analysis. This kind of data will provide evidence regarding the impact of interventions on the ground, as foreseen in the national strategies. 2. Second, the results of a mapping exercise that we will carry out in 2013 across the EU identifying the available official and non-official data sources that already exist at different governance levels, regional or local, on the situation of the Roma. Through this we will be able to identify existing unused or under-utilised data sources, as well as gaps and needs for ethnically disaggregated data at national level and the fra can assist Member States in identifying the best way of using such sources and closing the gaps. 3. Third, the results of our intensive in depth qualitative research, which will also start next year. We will focus on the local level where policy failures are most visible, and where the consequences of Roma exclusion 48 Ibid. 49 Ibid. 50 Ibid.

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and deprivation are most directly felt. What are the obstacles to making more effective use of the EU’s structural funds, how do certain conflicts between Roma and non-Roma erupt, and what could help in finding local solutions to local problems? The fra seeks to get close to this local reality by conducting field research that involves and engages with local authorities and the local communities, both Roma and non-Roma. 4. Finally, the fra will provide its expertise to facilitate the exchange of information and know-how with Member States and help them develop the right monitoring tools. In many national integration strategies, we have seen references to the fra data and expertise. (…) [T]ogether with interested partners, and in cooperation with Member States, we could elaborate a compendium of promising practice on monitoring methods and common basic/core indicators relevant for measuring Roma integration in the context of the EU Framework.51 The aim of these different forms of assistance is that national authorities start carrying out the type of monitoring work that can produce robust and comparable data. The Finnish nris describes this very well: “In the future, Romanirelated information gathering and the development of its methods should be the responsibility of national statistical authorities, as they, being permanent and statutory authorities, possess the necessary continuity, expertise and access to databases.”52 The fra has been hosting an ad-hoc working party on Roma integration indicators.53 These regular meetings brought together Member States’ national Roma contact points, the European Commission and representatives from national statistical offices. The aim was to develop a reporting template with common rights-based indicators which can comprehensively assess National Roma Integration Strategies and Roma integration efforts at the EU level. The template draws on lessons learned and feedback from a prior piloting phase in several Member States. Based on the Council Recommendation on e­ ffective Roma integration measures in the Member States, 51 52

53

M. Kjaerum, ‘Putting Plans to Work,’ Speech at the Roma Platform, Brussels, 22 March 2012, available at (accessed on 1 January 2014). Ministry of Social Affairs and Health Finland, Working Group for National Policy on Roma, ‘The Proposal of the Working Group for a National Policy on Roma. Working Group Report,’ Helsinki, 25 November 2009, p. 88, available at (accessed on 1 January 2014). fra, ‘Working Party on Roma Integration Indicators meets at fra,’ Vienna, 11 March 2015, available at (accessed on 1 September 2015).

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the ­Structure-­Process-­Outcomes indicators assess: (a) the legal and policy framework; (b) the concrete measures to implement the framework; and (c) achievements. Benefiting from the presence of representatives from national statistical offices, participants in the ad-hoc working party were able to discuss statistical data pilots and data sources for populating the indicators.54 This reporting template was used by the Member States for the first reporting under the Council Recommendation which was due by 1 January 2016. Furthermore, the fra has developed the ‘Roma integration indicators scoreboard (2011–2016),55 which was presented at the midterm review of the EU framework for national Roma integration strategies. This scoreboard presents changes in the situation of the Roma in nine EU Member States as recorded by two fra surveys in 2011 and in 2016. In 2016, the Second European Union Minorities and Discrimination Survey (EU-MIDIS II)56 collected information on the situation of the Roma in Bulgaria, Croatia, the Czech Republic, Greece, Hungary, Portugal, Romania, Slovakia and Spain. The 2011 Roma survey covered the same countries, apart from Croatia. However, information on the situation in Croatia was collected in the UNDP/World Bank/EC 2011 Regional Roma survey. The surveys were all carried out using a similar methodology, applying a multi-stage selection of respondents. To optimise the sampling approach, EU-MIDIS II refined the methodology applied in 2011. Despite the similar approaches, the surveys are subject to some limitations as to their direct comparability. In 2017, the fra attempted to address the limitations as to the comparability of the surveys. Given the relative similarity of the unweighted samples of the 2011 and 2016 surveys for the nine Member States, the 2011 sample was weighted to reflect the differences between those two surveys as regards regional coverage and the urban nature of surveyed localities. For Croatia, the same approach was applied to the dataset from the UNDP/World Bank/EC survey.57 54 55 56 57

fra, ‘Working Party on Roma Integration Indicators meets at fra,’ Vienna, 11 March 2015, available at (accessed on 1 September 2015). European Commission Staff Working Document, ‘Roma integration indicators scoreboard (2011–2016),’ accompanying the Midterm review of the EU Framework for national Roma integration strategies, Brussels, 30.08.2017, swd(2017)286 final. fra, ‘Second European Union Minorities and Discrimination Survey EU-MIDIS II: Roma – selected findings,’ Luxembourg, Publications Office of the EU, 2016. European Commission Staff Working Document, ‘Roma integration indicators scoreboard (2011–2016),’ accompanying the Midterm review of the EU Framework for national Roma integration strategies, Brussels, 30.08.2017, swd(2017)286 final, p. 1.

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The scoreboard presents 18 indicators in four main thematic areas (education, housing, employment and health) and the cross-cutting area of poverty. It also presents average values for the Member States in question.58 2.3.6

EU Funding for the Roma under the New Programming Period 2014–2020 In 2014, with the start of a new programming period for the European Structural and Investment Funds, the EU Framework for National Roma Integration Strategies could impact on the way EU funding has been allocated. Key tools to improve the efficiency of EU funds for Roma inclusion developed by the Commission were the following: – To receive funding under the new investment priority on socio-economic integration of marginalised communities such as Roma, Member States must have an effective policy framework with achievable goals, and strong monitoring methods in place. Member States must ensure that civil society, local authorities and social partners are involved in the planning, implementation and monitoring of EU-funded action; – Funds target the specific needs of disadvantaged micro-regions most affected by poverty and groups at highest risk of social exclusion; – Funds are concentrated on a limited number of priorities to prevent fragmentation.59 Since segregation in education and housing is one of the most significant challenges in this area, the Commission announced in its 2015 implementation Report that it will issue new methodological guidance on how the EU funds can promote desegregation. It will also closely monitor the implementation and fulfilment of conditions and will support the most affected Member States, involving National Roma Contact Points to improve the use and monitoring of EU funds for Roma inclusion when implementing their 2014–2020 operational programmes.60 The midterm review of the EU framework for national Roma integration strategies reports in the following manner on the progress made regarding the use of EU funds for Roma inclusion: 58 59 60

For 2011, the average does not include Croatia, which at that time was not a Member State. The caveats that need to be considered when analysing values for 2011 and 2016 are provided alongside each indicator. European Commission, Factsheet on Progress made by EU Member States in Roma Integration, June 2015, available at (accessed on 1 September 2015). European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee

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For the 2014–2020 programming period, the EU framework and the European Semester have ensured that there is a strong linkage between policy and funding priorities. The link between implementation of csrs and the esifs ensures that mainstream policy reforms serve inclusion goals. For example, the Commission asked Member States that received csrs calling for enhanced Roma participation in education to select the investment priority ‘socio-­ Economic integration of marginalised communities such as Roma’ and to mainstream Roma inclusion under other relevant priorities (most importantly, ‘fighting early school-leaving and promoting equal access to quality early childhood, primary and secondary education’). Inclusive education cannot be achieved by targeted actions alone, but requires reforms of mainstream education. The 2014–2020 rural development programmes of the Member States most concerned provide support under priority 6 “promoting social inclusion, poverty reduction and economic development in rural areas” which includes measures to address the specific needs of marginalised groups including, but not limited to Roma. The Commission also encouraged the involvement of nrcps in the planning of EU funds, including as members of monitoring committees. For 2014–2020, several new tools have been introduced (in addition to the ‘socio-economic integration of marginalised communities’ investment priority) to improve the effectiveness of the esifs as regards social inclusion, including that of Roma: – a new set of requirements to ensure that Member States that allocate EU funds for Roma inclusion, have national strategic Roma inclusion policy frameworks and meet the pre-conditions for their effective implementation – a more robust partnership principle (as part of a European code of conduct) to guide cooperation with civil society, local authorities and social partners in the planning, implementation and monitoring of EU-funded interventions – increased earmarked funding for capacity-building for civil society organizations – obligatory minimum allocation ratios for investment in social inclusion – support for the physical, economic and social regeneration of deprived communities that may involve stronger integrated housing measures – territorial and integrated approaches addressing the specific needs of geographical areas most affected by poverty and target groups at highest risk of social exclusion, facilitated by a multi-fund approach – enhanced results-oriented monitoring arrangements (common indicators focusing on outputs and results) and reporting on a Roma-specific investment priority, and

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– guidance for Member States on the use of EU funds to tackle segregation61 In June 2016, the Court of Auditors published the results of its audit on EU policy initiatives and financial support for Roma inclusion, concluding that significant progress in setting out EU policy initiatives promoting Roma inclusion had led to clear improvements for the 2014–2020 period. The Court called for additional efforts to ensure that the new tools improved results on the ground. It also made specific recommendations regarding the use of the esifs, data collection and monitoring.62 Critical Appraisal of the EU Framework for National Roma Integration Strategies 2.4.1 General Criticism The EU Framework for National Roma Integrations Strategies has been at the same time welcomed and criticized by ngos active in the field of Roma rights. It has been welcomed for offering a prospect of a robust monitoring mechanism, with annual reporting on progress to ensure that strategies will be implemented, and that money directed towards Roma integration reaches its final beneficiaries. At the same time it has been harshly criticized for falling far short of fully tackling the challenges of Roma exclusion, which are intimately linked to widespread hostility and discrimination against the Roma. Several ngos stated that they were “deeply disappointed that while the Framework recognizes the need to fight discrimination against Roma and ensure their equal access to all fundamental rights, it fails to specify measures to combat discrimination, intimidation, anti-Gypsyism, hate speech or violence against Roma. In this respect, the Framework is far from fulfilling [the] recommendations of the European Parliament.”63 They were also concerned that 2.4

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of the Regions, ‘Report on the implementation of the EU Framework for National Roma Integration Strategies 2015,’ Brussels, com(2015)299 final, 17 June 2015, p. 7. European Commission, Communication from the Commission to the European Parliament and the Council, Midterm review of the EU Framework for national Roma integration strategies, Brussels, 30.08.2017, com(2017)458 final, p. 5. European Court of Auditors, Press Release, ‘Roma integration: significant progress, but obstacles and dilemmas remain, say EU auditors,’ Luxembourg, 28 June 2016, avialable at (accessed on 1 January 2018). European Roma Policy Coalition, ‘EU Framework weak on discrimination against Roma,’ 5 April 2011, available at (accessed on 1 January 2014). See also the critiques uttered by the European Association for the defense of Human Rights (aedh): aedh, ‘the European Framework for Roma integration: aedh calls

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despite the general failure of existing Roma inclusion policies to produce tangible results and many Member States’ lack of experience with such policies, the Framework offers no clear guidance for developing or implementing more effective national strategies. The Framework is too unambitious in some areas and fails to establish explicit targets for Member States, nor does it oblige them to collect relevant disaggregated data to allow proper monitoring and evaluation. The Framework also fails to present a clear coordination mechanism, which is crucial to ensuring full and effective engagement of the European Commission, Member States and civil society.64 2.4.2 Criticism as to the Goals Formulated in the Field of Education In the field of education, the Communication was criticized for lack of ambition and failing to go beyond calling on states to “ensure that every child completes primary school.” For those Roma children in segregated educational institutions for children with mental disabilities being taught an inferior curriculum, the fact of completing primary school does not lead to inclusion, since their ‘diploma’ does not allow them to access higher education and they have an enormous disadvantage compared to children who were allowed to complete regular primary school. What is missing, according to ngos, in the EU Framework Strategy is a clear and firm statement calling on Member States to refrain from segregating Roma children into substandard forms of education. In the concluding paragraph of the EU Framework Strategy under the heading ‘education’ there is a reference to segregation, in the sense that the Member States should ensure that all Roma children have access to quality education and are not subject to discrimination or segregation. This could have been formulated as an additional concrete policy goal to be achieved at the national level, apart from the goal of ensuring that every child completes primary school. What can be welcomed is the explicit reference to the Communication on Early Childhood Education and Care (‘ecec’), adopted by the Commission on 17 February 2011,65 which highlights the key role that ecec can play in overcoming the educational disadvantage faced by Roma children. The C ­ ommunication

upon European Union to strengthen its position and to take into consideration acts of violence against Roma,’ Brussels, 27 April 2011. 64 Ibid. 65 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee

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on ecec stated that “although their needs for support are greater, participation rates of Roma children in ecec are generally significantly lower than for the native [sic] population, and expanding these opportunities is a key policy challenge across the EU. ecec can play a key role in overcoming the educational disadvantage faced by Roma children, as highlighted by pilot actions on Roma inclusion currently underway in some Member States with contributions from the EU budget”.66 This statement was taken from the European Commission’s Communication on Early Childhood Education and Care,67 but again, no concrete policy goals were formulated related to ecec. Member States are called to ‘widen access’ to ecec and to ‘reduce the number’ of early school leavers from secondary education, without setting concrete goals in the form of figures. This is a missed opportunity. The Open Society Institute suggests in this context that: the Commission should insist that Member States, as a minimum, should set targets to ensure that all children, including Roma, have access to two years of quality pre-school; that the percentage of Roma children completing primary school is the same as the percentage of majority children, with an aim to meeting the EU 2020 goal for school completion for Roma and non-Roma children. Concise targets and firm indicators need to be in place so that Member States ensure that all Roma children have access to quality education, and measures taken to reduce the gap in secondary school completion rates. While the Communication mentions that Romani children and young people should not be subjected to discrimination, or schooled in segregated settings, what is lacking is a firm statement calling on Member States to desist from the practices of misdiagnosing Roma children as ‘mentally handicapped’ and sending them to special schools […].68



of the Regions, ‘Early Childhood Education and Care: Providing all our children with the best start for the world of tomorrow,’ Brussels, com(2011) 66 final, 17 February 2011. 66 Ibid. 67 European Commission, Communication from the Commission, ‘Early Childhood Education and Care: Providing all our children with the best start for the world of tomorrow,’ Brussels, com(2011)66 final, 17 February 2011. 68 B. Rorke, ‘An EU Framework for Roma Integration by 2020: A New Departure or Much Ado about Nothing?,’ European Policies Initiative, Policy Brief 31, May 2011, p. 1, available at (accessed on 1 January 2014).

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2.4.3

Criticism as to the Lack of Action to Combat Racism and Discrimination The need to link social inclusion priorities with anti-discrimination measures has already been highlighted above.69 This was also echoed by the European Parliament Resolution of 9 March 201170 on the EU Strategy on Roma Inclusion and in a declaration adopted by the coe’s Committee of Ministers.71 Unfortunately, the EU Framework for National Roma Integrations Strategies does not contain a reference to the need for resolute and unequivocal action to combat racism, discrimination and anti-Gypsyism. However, the national Roma strategies can only be successful if they reflect an unambiguous recognition of the interdependence of inclusion and anti-discrimination as a prerequisite for meaningful integration.72 The Commission was receptive to these remarks and dedicated a special section on the need to fight discrimination and anti-Gypsyism in the 2015 Report on the implementation of the EU Framework for National Roma Integration Strategies.73 Anti-Gypsyism was also on the agenda of the 9th Roma Platform. In the conclusions of this Roma Platform, the need to combat anti-Gypsyism, especially in the field of education, is stressed, as 69 70

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See above Chapter 3 at 6.2.1 Combating anti-Gypsyism. European Parliament, Resolution on the EU Strategy on Roma Inclusion, OJ 2012 C 199E, 9 March 2011. In the Resolution, the EP explicitly recognizes that the Roma experience severe discrimination and stigmatization in public and private life (at A). The EP also notes that the EU Strategy on Roma Inclusion is to address all forms of violations of the fundamental rights of Roma – including discrimination, segregation, hate speech, ethnic profiling and unlawful fingerprinting, as well as unlawful eviction and expulsion – by ensuring the full transposition and stronger implementation of all related directives and EU law (at P). Moreover, the EP stresses that the growing stigmatisation of Roma and antiGypsyism in political discourse and the general public are causes for concern, and that the questionable repatriations and returns of Roma that have been taking place in several Member States have created fear and anxiety amongst the Roma population as well as worrying levels of racism and discrimination (at Q). coe Committee of Ministers, Declaration of the Committee of Ministers on the Rise of Anti-gypsyism and Racist Violence against Roma in Europe, Adopted by the Committee of Ministers on 1 February 2012 at the 1132nd meeting of the Ministers’ Deputies, Strasbourg. The Declaration explicitly recognizes the interdependence of inclusion and antidiscrimination (see vi). See also Decade of Roma Inclusion, ‘National Strategies: The Conversation has Barely Begun,’ Press Release, 22 February 2012, available at (accessed on 1 January 2014). European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘Report on the implementation of the EU Framework for National Roma Integration Strategies 2015,’ Brussels, com(2015)299 final, 17 June 2015, pp. 9–10.

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the fight against the increasing level of intolerance against Roma should start already in education and requires inclusive reform of mainstream education systems. Education was meant in its wider concept, starting with teachers, future educators, mainstream population about who the Roma are; including the facts about Roma history (Roma Holocaust) and culture in school curriculum, promoting diversity and equality in education, educating on the forms of discrimination and anti-Gypsyism, etc… The role of Roma civil society and Roma themselves as key actors in this process is of outmost importance. Furthermore, in its midterm review on the EU Framework for National Roma Integration Strategies, the Commission, in its assessment on ways to strengthen the EU framework to be further explored in the forthcoming evaluation, identified the need to reinforce and distinguish the anti-discrimination and anti-Gypsyism focus under the EU Framework.74 More than a Policy Document: the December 2013 Council Recommendation on Effective Roma Integration Measures in the Member States On 9 December 2013, the Council of the European Union unanimously adopted the “Council recommendation on effective Roma integration measures in the Member States.”75 The Council Recommendation was adopted less than six months after the Commission’s proposal and was communicated by the Commission as being the “first ever EU legal instrument for Roma inclusion.”76 Even though the Council Recommendation is indeed a ‘legal instrument,’ in contrast to the policy documents which were adopted so far in this field, it is not binding upon the Member States. However, a higher degree of commitment and engagement from Member States to end the exclusion and unequal treatment of Roma communities is now required. The purpose of the Recommendation is to 2.5

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European Commission, Factsheet, ‘Midterm review of the EU Framework for National Roma Intergration Strategies,’ Brussels, September 2017, p. 3, available at (accessed on 1 January 2018). Council of the European Union, ‘Council Recommendation on effective Roma integration measures in the member states,’ Employment, Social Policy, Health and Consumer Affairs Council Meeting, Brussels, 9 and 10 December 2013, available at (accessed on 1 January 2014). European Commission, Press Release, ‘First ever EU legal instrument for Roma inclusion adopted,’ 9 December 2013, IP/13/1226.

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provide guidance to Member States in enhancing the effectiveness of their measures to achieve Roma integration and strengthen the ­implementation of their national Roma integration strategies or integrated sets of policy measures within broader social inclusion policies aimed at improving the situation of Roma and at closing any gaps between Roma and the general population.77 The Recommendation consists of 4 parts, covering the following areas: substantive policy issues; horizontal policy measures; structural measures; and reporting and follow-up. The substantive policy issues reflect the four key areas which were already addressed in the EU framework for nris, notably education, employment, healthcare and housing. The recommendations in the field of education reach a lot further than the recommendations which were previously formulated in the EU framework for nris. Nine measures are listed up which are suggested in order to ensure the equal treatment and full access of Roma children to quality mainstream education: (a) eliminating any school segregation; (b) putting an end to any inappropriate placement of Roma pupils in special needs schools; (c) reducing early school leaving throughout all levels of education, including at secondary level and vocational training; (d) increasing the access to, and quality of, early childhood education and care, including targeted support, as necessary; (e) considering the needs of individual pupils and addressing those accordingly, in close cooperation with their families; (f) using inclusive and tailor-made teaching and learning methods, including learning support for struggling learners and measures to fight illiteracy, and promoting the availability and use of extracurricular activities; (g) encouraging greater parental involvement and improving teacher training, where relevant; (h) encouraging Roma participation in and completion of secondary and tertiary education; 77

Council of the European Union, ‘Council Recommendation on effective Roma integration measures in the member states,’ Employment, Social Policy, Health and Consumer Affairs Council Meeting, Brussels, 9 and 10 December 2013, p. 5, available at (accessed on 1 January 2014).

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(i)

widening access to second-chance education and adult learning, and providing support for the transition between educational levels and ­support for the acquisition of skills that are adapted to the needs of the labour market. A fifth issue which is addressed as a substantive policy issues is the question of EU funding. The Member States committed themselves to allocate at least 20 % of the total esf resources for the promotion of social inclusion and combating poverty and discrimination. In the field of horizontal policy measures, the issues of anti-discrimination, Roma children’s and women’s rights, poverty reduction through social investment and empowerment are addressed. The latter is to be understood as the promotion of active Roma participation in society. Reference is also made in this context to the need to train and employ qualified mediators, and to the need for awareness raising among the Roma of their rights. Furthermore, 5 structural measures are proposed, comprising: the development of local action plans or strategies; the need for an appropriate ­monitoring and evaluation of the national strategies; the support of the work of the bodies for the promotion of equal treatment; to strengthen the mandate of the national contact points for Roma integration; and to engage in transnational co-operation. The Member States committed themselves to communicate to the Commission the measures they have taken as follow-up to the recommendation after two years, and the Council will assess the need to revise and update the recommendation after five years. Although formally the European Parliament is not required to vote on the matter, it has supported the Council Recommendation, following a vote on 5 December by the Civil Liberties Committee (libe). The Committee endorsed a draft resolution on progress on implementing National Roma Integration Strategies which underlined the role of local and regional authorities in developing and implementing the Roma policies, as well as the importance of allocating adequate financial resources to Roma inclusion policies.78 The vote shows the commitment of the EP to matters related to Roma inclusion. Overall reactions by civil society and Roma ngos to the Council Recommendation were very positive. erio called the Recommendation “the s­ trongest EU

78

European Commission, Press Release, ‘First ever EU legal instrument for Roma inclusion adopted,’ 9 December 2013, IP/13/1226.

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instrument for Roma inclusion”79 and the executive director of Equal Rights Trust stated that [t]he Recommendation is evidence of the heightened state of alert among the European political elites, who now see more clearly the catastrophic knock-off effects of the continued exclusion of the Roma from European societies. This Recommendation, together with the ex-ante conditionality regarding the implementation of national Roma integration strategies for accessing the EU Structural Funds, has a chance to bring some tangible improvements in the lives of Roma people.80 The errc and ergo reacted jointly via the European Roma Policy Coalition with the statement that “the Recommendation sends a strong message to member states to effectively fight and end discrimination against Roma, and ensure their inclusion at all levels of society.”81 The wording of the Recommendation is promising, focusing both on substantive policy issues with ambitious but realistic goals to work towards in all 4 key areas of education, employment, housing and health, and on horizontal policy measures, paying special attention to the need for far-going anti-­ discrimination policies and the need to combat poverty. The Recommendation recognizes the interdependence of inclusion and anti-discrimination strategies82 and also the importance of empowerment of the Roma community, which is a precondition for mutual cooperation and reciprocal recognition.83 It seems that the criticism launched after the adoption of the EU Framework for nris was largely received and taken into account in the formulation of the Council Recommendation.

79

erio, ‘A Step forward in ensuring Roma inclusion,’ Brussels, 9 December 2013, available at (accessed on 1 January 2014). 80 The Equal Rights Trust, ‘Important Recommendations for Achieving Equality for Roma Adopted by EU Council,’ London, 23 December 2013, available at (accessed on 1 January 2014). 81 erpc, ‘erpc welcomes new Council Recommendation on Roma,’ Brussels, 10 December 2013, available at (accessed on 1 January 2014). 82 See above Chapter 3 at 6.2.3 Reciprocal Recognition and Recognizing the Interdependence of Inclusion and Anti-discrimination Strategies. 83 See above Chapter 3 at 6.2 Mutual Cooperation and Reciprocal Recognition.

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One aspect which has constantly been absent in the debate, however, is the element that Roma inclusion should not lead to assimilation and should be ­accompanied by the necessary measures to preserve Romani identity.84 3

Recent Policy Initiatives at the Council of Europe since the Strasbourg Declaration

3.1 The Strasbourg Declaration On 16 September 2010, the Secretary General of the coe presented to the coe Committee of Ministers an initiative to help overcome the challenges related to the rights and obligations of Roma communities throughout Europe, proposing a High Level Meeting which was to launch a process involving the coe, the EU and national governments, focusing on specific actions aimed at improving the economic and social integration of the Roma in Europe.85 The High Level Meeting resulted in the ‘Strasbourg Declaration on Roma,’86 which established a non-exhaustive list of priorities, which should serve as guidance for more focused and more consistent efforts at all levels, including through active participation of the Roma. The Strasbourg Declaration formulates propositions in the field of non-discrimination and citizenship, social inclusion, and international co-operation. In the field of education, which is considered to fall under the heading ‘social inclusion,’ the member States of the coe agreed to: [e]nsure effective and equal access to the mainstream educational system, including pre-school education for Roma children and methods to secure attendance, including, for instance, by making use of school ­assistants and mediators; [and also to p]rovide, where appropriate, in service training of teachers and educational staff.87 84

85 86 87

That this is a concern is apparent from statements made at the ergo annual members platform in November 2013. See the statement by Lilya Makaveeva of the Bulgarian ngo Integro who stated to be most concerned with the way the word “integration” has been used in some cases to justify measures that force Roma to deny their identity or to completely assimilate. ergo, ‘ergo Annual Members Platform: with Roma about Roma,’ Brussels, 28 November 2013, available at (accessed on 1 January 2014). Council of Europe Press Release 668(2010), ‘Council of Europe puts forward initiative to improve Roma situation,’ Strasbourg, 16.09.2010, available at (accessed on 1 January 2014). coe CM, ‘The Strasbourg Declaration on Roma,’ CM(2010)133 final, 20.10.2010. Ibid., p. 3 at para. 33.

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The Strasbourg Declaration was also accompanied by the ‘Strasbourg Initiatives,’88 a selection of proposals by the Secretary General of the coe for concrete actions to be implemented by national governments, local and regional authorities, with an immediate and measurable impact. The ‘Strasbourg Initiatives’ are building on existing activities at European, national or local level. They should serve as an illustration of good practices and as a catalyst for further action in the implementation of the priorities listed in the Final Declaration of the High Level Meeting on Roma. The Secretary General has recently formulated a proposal for updating the Council of Europe agenda on Roma inclusion (2015–2019) and has formally consulted cahrom on this proposal during its 9th meeting in May 2015.89 Special Representative of the Secretary General for Roma Issues (‘srsg’) and the srsg Support Team Immediately after the adoption of the above mentioned Strasbourg Declaration, Mr Jeroen Schokkenbroek was appointed Special Representative of the Secretary General for Roma issues in November 2010. He was appointed responsible for organizing Roma-related activities in a coordinated, transversal manner on the basis of the priorities and modalities set up by the Strasbourg Declaration. This was followed by the constitution of a srsg Support Team on Roma issues. This structure acted as a hub bringing together the different projects on the Roma being undertaken at the coe following the High Level Meeting on Roma. It also built on the work carried out by and on the results achieved by the coe in this field, in particular over the past 15 years. After the resignation of Mr Valeriu Nicolae as Special Representative of the Secretary General for Roma issues in the summer of 2017, about which the Council of Europe never adopted any official communication, the function of srsg was abolished. The Ad Hoc Committee of Experts on Roma and Traveller Issues (cahrom)90 at its 14th meeting in Strasbourg on 24–27 October 2017, was informed about the inclusion of the Roma and Travellers Team into the Directorate of Democratic Governance and Anti-Discrimination

3.2

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Secretary General of the coe, ‘Strasbourg Initiatives,’ available at (accessed on 1 January 2014). 89 Council of Europe, cahrom, Final Abridged Report of the 9th cahrom Meeting, Strasbourg, 25–27 May 2015, cahrom (2015)16. 90 On cahrom, see below at 3.2.2.2 Ad hoc Committee of Experts on Roma Issues (cahrom).

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­(DGII-Democracy). As the Roma and Travellers Team91 is thus not directly attached to the office of the Secretary General anymore, but instead incorporated into one of the directorates, this might hamper co-operation with other Council of Europe sectors, including monitoring bodies (ecri, the fcnm, and the European Charter for Regional or Minority Languages), the sogi Unit, the No Hate Speech, the Intercultural Cities programme, and the Democratic Governance Department.92 The work of the Roma and Travellers Team focuses on capacity building and awareness raising (1), analysis and exchange of policies and good practices on the Roma in Member States (2), transversality and coordination (3), and advice and support to Member States (4). 3.2.1

Capacity Building and Awareness Raising: Romed, Romact, Romacted, Justrom, Inclusive Schools and Dosta The Council of Europe has currently 6 programmes on Roma capacity building and awareness raising, notably romed, romact, romacted, justrom, Inclusive Schools, and Dosta. 3.2.1.1 European Roma Mediators Training Programme (‘romed’) The European Roma Mediators Training Programme (‘romed’) was created at the 2010 High-Level meeting.93 Mediation consists of employing people with a Roma background from local Roma communities or with a good knowledge of Roma issues, to act as mediators between the Roma and the public ­institutions. Mediators’ tasks and responsibilities include facilitating communication between Roma and public institutions in the field of education, housing, e­ mployment and health services.94 In July 2011, the European Commission joined the romed Programme, making it into a joint action of the coe and the European Commission.95 The importance of mediation as an effective tool towards the social inclusion of the Roma was highlighted by the coe Committee of Ministers

91

More information on the new Roma and Travellers Team is available at (accessed on 1 January 2018). 92 cahrom, 14th Meeting of the cahrom, Abridged Meeting Report, Strasbourg, 18 December 2017, cahrom(2017)32, available at (accessed on 1 January 2018). 93 See the Council of Europe romed website, available at (accessed on 1 January 2018). 94 Ibid. 95 See below at 4.2 European Commission and Council of Europe Roma Mediators Agreement.

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­ ecommendation on mediation as an effective tool for promoting respect for R human rights and social inclusion,96 adopted in September 2012. It stresses, among others, that experience has shown the importance of ensuring that mediation produces the desired results without unwanted negative side-effects and recommends the coe Member States to develop and maintain an effective system of quality mediation with Roma communities. Its second phase, ROMED2, together with a new Council of Europe and European Commission joint initiative romact,97 aimed at the support of local partners in 40 municipalities across 10 countries. The action of the two programmes is complimentary: while the ROMED2 programme focuses on the community and their participation in democratic governance through mediation, the romact programme works on building local level political commitment and the capacity of policy development. The second phase of the romed programme worked simultaneously on both Roma citizens’ ability to participate and the authority’s ability to respond. It was implemented from April 2013 to February 2017. 3.2.1.2 romact romact is a joint initiative of the Council of Europe and the European Commission, implemented with the support of the European Alliance of Cities and Regions for Roma Inclusion, to promote the inclusion of Roma at local and regional level.98 The initiative was implemented from October 2013 to July 2017 and aimed at building the capacity of local and regional authorities (targeting both elected officials and senior civil servants, but also in the middle/long term Roma population and the population of pilot municipalities at large) to develop and implement plans and projects for Roma inclusion. The romact project intended to improve the accountability, inclusiveness and responsiveness of local authorities towards Roma citizens and thereby on the delivery of services. It is about building up political will and sustained policy engagement through general capacity-building at local and regional levels through the elaboration of sustainable plans and projects for Roma Inclusion.99 The project was implemented in close cooperation with the ROMED2 Programme of the Council of Europe and MERI/MtM Programme of the Open Society Foundations, and a monitoring programme of the EU’s Fundamental 96

coe CM, Recommendation CM/Rec(2012)2 of the Committee of Ministers to Member States on mediation as an effective tool for promoting respect for human rights and social inclusion of Roma, 12 September 2012. 97 See below at 3.2.1.2 romact. 98 See the Council of Europe romact website, available at (accessed on 1January 2018). 99 Ibid.

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Rights Agency (fra) to achieve optimal impact at local level. By working together, the four initiatives were mutually reinforcing, forming a comprehensive package of services mobilized to respond to local needs.100 Since October 2013 until July 2017, romact has been implemented in 115 municipalities, generating over 25 000000 € through inclusive projects for approx. 65 000 beneficiaries, with an average investment of 25 000 € per municipality per year.101 3.2.1.3 romacted Romacted “Promoting good governance and Roma empowerment at local level,” is a new Joint Programme between the European Union (DG NEAR) and the Council of Europe.102 The programme will be implemented by the Council of Europe’s Roma and Travellers Team and the Office of the Directorate General of Programmes in Albania, Bosnia and Herzegovina, Kosovo, Montenegro, Serbia, “the former Yugoslav Republic of Macedonia” and Turkey for a period of 36 months, starting in May 2017. The aims of the programme are to: – build up political will and sustained policy engagement of local authorities to enhance democratic local governance and to build up capacity and stimulate the empowerment of local Roma communities to contribute to the design, implementation and monitoring of plans and projects concerning them; – empower the Roma community - on the individual level (assisting people to practice their basic rights and to expand their capacity and skills), as well as on the community level (assisting people to get organised to voice their interests around community problem-solving); – improve and expand the institutions’ commitment, capacities, knowledge and skills in working for Roma inclusion, putting into practice the concepts of good governance. The specificity of the actions would be to assist the local authorities to integrate Roma specific dimension/measures into the mainstream local policies, budgets and public service delivery on their agenda, while enhancing the participation of the Roma citizens in the design, implementation and monitoring of those policies and projects. As a result of the implementation of the 100 Ibid. 101 Ibid. 102 See the Council of Europe romacted website, available at < http://pjp-eu.coe.int/en/ web/roma-local-governance> (accessed on 1 January 2018).

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programme, it is expected that the participating municipalities remain with consolidated features to continue serving the needs of the Roma population such as sustainable local action plans and one-stop-shops that facilitate the access of Roma to the public services. The target groups of the project are local public administrations (the elected representatives and relevant officials) and the Roma communities from the selected municipalities. They are also the first short-term beneficiary groups of the project. Overall, the project will target 50 municipalities. The mid- to long-term beneficiaries are the Roma population and the population of the municipality in general. The target groups of the project are local public administrations (the elected representatives and relevant officials) and the Roma communities from the selected municipalities. They are also the first short-term beneficiary groups of the project. Overall, the project will target 50 municipalities. The mid- to long-term beneficiaries are the Roma population and the population of the municipality in general. romacted results from the experience of the romed and romact programmes and will reflect upon the adaptation of these methodologies and activities to each beneficiary and selected location, in order to fit into the policy cycle and the dynamics and reality of each municipality, and thus bringing an additional input to existing policies and practices for an effective and more inclusive functioning.103 3.2.1.4 justrom justrom is a joint programme of the Council of Europe and European Commission aiming to improve the access to justice of Roma and Traveller women in Bulgaria, Greece, Ireland, Italy and Romania. As such, the programme aims to empower Roma and Traveller women to adequately address discrimination and other human rights violations committed against them, including early/forced marriage, trafficking, domestic violence, housing evictions, police abuse and hate crime by raising their awareness about discrimination, complaint mechanisms, the justice system and human rights institutions. It provides legal information, advice, aid and/or representation through setting up legal centres and thus further facilitate access to court and court proceedings at national and international level. In addition, it aims to enhance the capacity of the judiciary, law enforcement in the application of anti-discrimination standards with a focus on m ­ ultiple discrimination, gender equality and Roma and Traveller women. Not lastly, 103 Ibid.

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this programme will further increase the synergy and coherence between the institutional frameworks of the EU and the Council of Europe, national Roma integration strategies and civil society initiatives.104 3.2.1.5 Inclusive Schools The European Commission and Council of Europe have also initiated a new joint project on “Inclusive schools: making a difference for Roma children” targeting schools where Roma children learn, in the Czech Republic, Hungary, Romania, the Slovak Republic and the United Kingdom. The starting point of the project “Inclusive schools: making a difference for Roma children” is based on the main assumption that it is not enough to draw up policies of change. Change needs to be reflected at school level and in the environment of the children and there is often a gap between the statements and requirements in policy documents and the reality in which these need to be implemented. Practise has proven that for schools to overcome the rift of exclusive teaching and learning approaches, they have to re-examine what they teach, how they teach and how they assess learners’ performances. A real link with the non-formal education and the support for families and communities is necessary to create a shift in education - for the benefit of all learners. Instead of focusing on the child as the problem, inschool puts at the heart of its action the education system and its capacity to respond to the needs of Roma children, to celebrate differences and support their learning experience. The main activities under this project will focus on two levels. The first level will be pilot schools, with the aim to increase the understanding for the benefits of inclusive education. Within each country, the programme will target up to 4 schools in different municipalities, and will include one additional school with proven know-how in inclusive education practices per country as the “national support school.” The second level of intervention will target policy review and adaptation. The project thus consists of four interlinked intermediate outcomes: – Setting up support mechanisms and resources for pilot inclusive schools; – Provision of support to teachers to practice inclusive teaching; – Supporting the removal of concrete barriers for vulnerable groups including through changes of legislation in the targeted countries; – Raising awareness of the benefits of inclusive education for the general public as well as decision makers;

104 See the Council of Europe justrom website, available at (accessed on 1 January 2018).

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At the beginning of the project, the initial criteria for the selection of pilot schools will be developed in consultation with Ministries of Education from each country. By the end of the project (December 2018), teachers will acquire new skills. It will enable them to manage their class despite the diverse learning needs, they will be able to practice multi-level teaching methods that enable them to identify barriers the child is experiencing, teaching in a way that includes all these learners accommodating the different needs and learning styles. Staff will be confident and better equipped, through the effective training they will have received. Children experiencing barriers to learning, instead of being prescribed to a “special school” which might be far away from their home or being left out of the school, will be enrolled and/or fully part of the school within their neighbourhood. With well-functioning structures such as well-informed and trained teachers, adequate out-of-school activities and non-formal education support for children, targeted support measures for vulnerable children and families, etc., the school governance ensures the whole school community is developed to teach learners in a way that brings the best out of them. Overall school performance is improved as learners are instructed in an environment that takes their needs into account.105 Whereas the intentions and the methodology of the project are good, it remains to be seen how the ‘good practices’ of 4 small-scale projects at local level will be able to impact on education policy at a national level.106 3.2.1.6 Dosta Dosta, a Romani word meaning “enough,” is a Council of Europe awareness raising campaign which aims to bring non-Roma closer to Roma citizens by breaking down the barriers caused by prejudices and stereotypes.107 It was created by the Council of Europe under the joint Council of Europe and European Commission programme on Roma in South- Eastern Europe 105 Project description as available at the inschool project website, available at (accessed on 1 January 2018). 106 For instance in the Czech Republic, after more than a decade of reviewing educational policy to bring national education legislation and policy in line with the D.H. judgment, the Czech Republic still has not put an end to the practice of segregation of Roma children in education. To believe that 4 small-scale projects at local level will be able to impact education policy at a national level might therefore be a bit naive. 107 For more information on the Dosta! campaign, see the campaign website (accessed on 1 January 2018).

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“Equal rights and treatment for Roma in South-Eastern Europe”­(2006–2007). Since 2007 the campaign has been extended to all Council of Europe member states and 18 Council of Europe member States have joined the campaign. In September 2016, the Dosta! Campaign joined uefa’s respect Campaign to reinforce the fight against anti-Gypsyism, racism and violence and in particular violence against women and children. Furthermore it aims to raise awareness of all aspects of racism and discrimination in football among members of the football family, to propose practical solutions addressing the issue of discrimination in football and to share examples of good practices involving different parties in different settings – e.g., clubs, ngos and fan groups. In September and October 2016, the Dosta! & respect Campaign during the opening ceremonies of uefa games in Romania was promoting the fight against anti-Gypsyism at stadiums. Such activities are sending out a strong and decisive message against discrimination.108 3.2.2

Analysis and Exchange of Policies and Good Practices on Roma in Member States 3.2.2.1 Database on Policies and Good Practices A database has been recently established where national and local authorities, along with ngos or anyone working with the Roma can find the best practices so far in use. The idea is to build a pool of projects and policies that work and that can be adapted for use in different countries and contexts, creating a momentum for continual positive change throughout Europe. The Roma and Travellers Team will include in the database transferrable, innovative, longterm impact-oriented projects that have been identified as good practices through cross-cutting assessments, including by beneficiaries, and validated as such by the coe or other national or international partners.109 3.2.2.2

3.2.2.2.1

Ad hoc Committee of Experts on Roma Issues (cahrom)

The Predecessor of cahrom: the Committee of Experts on Roma and Travellers MG-S-ROM

The setting up by the Committee of Ministers of a Committee of Experts on Roma and Travellers (MG-S-ROM) was already decided on in September 1995. 108 Council of Europe, Briefing Note, ‘Football empbraces the fight against anti-gypsyism,’ Strasbourg, s.d., available at (accessed on 1 January 2018). 109 This good practices database is available at (accessed on 1 January 2018).

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This Committee was the first coe body responsible for reviewing the situation of the Roma and Travellers in Europe on a regular basis.110 Under the authority of the European Committee on Migration (‘cdmg’), MG-S-ROM was instructed to: – study, analyse and evaluate the implementation of policies (national programmes and/or action plans) and practices of member states concerning Roma and Travellers; – draw up guidelines for the development and/or implementation of policies which promote the rights of the Roma and Traveller populations taking into account the findings of the monitoring mechanisms of the relevant legal instruments of the Council of Europe; – keep under review the situation of Roma and Travellers in member states in compliance with relevant legal instruments of the Council of Europe.111 The Committee met twice a year and welcomed participants from 32 Member States. The Parliamentary Assembly, the Congress of Local and Regional Authorities of Europe and ecri could send one or more representatives. In addition, representatives of the osce (Office for Democratic Institutions and Human Rights/Contact Point for Roma and Sinti Issues) and the European Commission attended meetings of the Committee as observers. The Committee could invite representatives of other coe bodies and other international organizations, where appropriate. Lastly, depending on the agenda of its meetings, it could invite competent experts and representatives of Roma and Travellers organizations. The European Roma and Travellers Forum had observer status. MG-S-ROM held its 30th and last meeting in Wroclaw, Poland in October 2010 as it was replaced by a new Committee of Experts, cahrom.112 3.2.2.2.2

cahrom: an Upgrade of the Intergovernmental Work on Roma

Following the High-Level meeting on Roma and Travellers of October 2010, intergovernmental work on Roma issues has been upgraded at the coe: on 16 February 2011 the Ministers Deputies adopted terms of reference for a new Committee of Experts (‘cahrom’) to be answerable directly to the Committee of Ministers. The terms of reference, which have been renewed by the Ministers Deputies for the years 2018–2019, place emphasis on the analysis and evaluation of the implementation of national policies and thematic exchanges 110 See the MG-S-ROM website at (accessed on 1 January 2014). 111 Ibid. 112 Ibid.

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of experience and good practices. International organizations, the European Roma and Travellers Forum and other relevant (Roma) organizations are associated as observers to the cahrom.113 3.2.3 Co-operation and Coordination with Third Parties A third field in which the Roma and Travellers team is active, in addition to the two other fields of action of capacity building/awareness raising and the exchange of policies and good practices on Roma in Member States, is the field of co-operation and coordination with third parties. Roma issues are also regularly raised by the Secretary General of the coe in his bilateral contacts with Member States, other international organizations and ngos.114 A nice example of co-operation and coordination with third parties is the International Task Force for the Education of Roma (‘itfer’). itfer was initiated by the coe and the osce/odihr in 2009, and it currently has ten members (coe, osce/odihr, the European Commission, unesco, unicef, the Roma Education Fund, the Open Society Institute, International Step by Step Associations, the European Wergeland Centre and the European Economic and Social Committee). An ongoing exchange of information has been established through the secretariats of the member organizations in order to design joint activities, action plans, guidelines, brochures, reports and any other forms of co-operation in the field of education of Roma, Sinti and Travellers and to avoid overlapping.115 Other examples of inter-institutional co-operation are the production of a kit for early childhood care and education, comprising a pedagogical kit produced by the coe, a study on the situation of preschool attendance of Roma

113 See the cahrom website at (accessed on 1 January 2018). 114 The coe, represented by the srsg on Roma issues, attended a number of national and international events to foster co-operation between the coe and national authorities and international governmental and non-governmental organizations. As an example, he attended and addressed the 4th, 5th and 6th meetings of the European Platform for Roma Inclusion, organized by the European Commission, on 13 December 2010, on 8 April 2011, and on 22 March 2012 respectively. These meetings, organized around specific Romarelated themes are attended by all inter-governmental organizations and institutions and several ngos. At the 5th meeting in Budapest, the coe srsg for Roma issues was invited to address the Platform to give a first reaction to the European Framework for National Roma Integration Strategies from the perspective of the coe. 115 The last meeting of the itfer was held on 20–21 June 2011. See the itfer website at (accessed on 1 September 2015).

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children carried out by osce/odihr and a publication with guidelines for preschool education jointly produced by the coe and unesco.116 3.2.4 Advice and Support to Member States The fourth and last field of action of the Roma and Travellers team is advice and support to Member States. This is a service provided to the Member States upon request. An example of this advice and support in the field of Roma educational rights is the support granted to Greece. During a bilateral meeting between the srsg for Roma issues and the Greek Deputy Minister for Education on 3 February 2011 in Athens, the question of desegregation was discussed, including the challenge of securing sufficient support from local authorities to integrating Roma into the mainstream education system. The Deputy Minister officially invited the coe to be member of the Advisory Committee responsible for the evaluation of the implementation of Greece’s national Roma education action plan.117 4

Cooperation Initiatives between the EU and the Council of Europe in the Field of Roma Rights Protection

Agreement between the European Community and the Council of Europe on Cooperation between the European Agency for Fundamental Rights and the Council of Europe A concrete legal framework118 for strengthening inter-institutional cooperation between the EU and the coe in the field of fundamental rights has recently been established with the ‘Agreement between the European ­Community 4.1

116 Secretary General of the Council of Europe, ‘Follow-up to the Strasbourg Declaration on Roma: First Progress Report (November 2010–April 2011) by the Secretary General of the Council of Europe,’ SG/Inf(2011)11 rev, Strasbourg, 20 April 2011, pp. 11–12. 117 Secretary General of the Council of Europe, ‘Follow-up to the Strasbourg Declaration on Roma: First Progress Report (November 2010–April 2011) by the Secretary General of the Council of Europe,’ SG/Inf(2011)11 rev, Strasbourg, 20 April 2011, p. 12. 118 For a comprehensive overview of the framework of cooperation between the Council of Europe and the EU, see the website of the Council of Europe of the directorate of external relations, available at (accessed on 1 January 2014). This framework comprises of, among others, the Memorandum of Understanding between the Council of Europe and the European Union (2007); the Report by JeanClaude Juncker, “Council of Europe - European Union: A sole ambition for the European continent” (2006); a Compendium of texts governing the relations between the Council of Europe and the European Union (2001); and the Agreement on co-operation between the European Union Agency for Fundamental Rights and the Council of Europe (2008).

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and the Council of Europe on cooperation between the European Agency for Fundamental Rights and the Council of Europe.’119 The Agreement is aimed at avoiding duplication and at ensuring that the activities of the fra and the activities of the coe’s human rights monitoring bodies complement each other.120 The acfc is also to be involved in this cooperation, as Art. 1 (b) of this Agreement stipulates that the acfc is also considered to be one of the ‘coe’s human rights monitoring committees.’ De Schutter notes in this context that it will be essential also that the [Fundamental Rights] Agency, like other EU institutions, bodies or agencies, establish systematic links with the secretariat of the fcnm within the coe, whenever they are confronted with questions related to minority rights. Only under these conditions can the European Union develop itself into an actor actively contributing to the protection and promotion of minority rights in the EU Member States, in a way which would conclusively settle outstanding complaints about double standards concerning minority protection.121 European Commission and Council of Europe Roma Mediators Agreement (‘romed’) and subsequent programmes romed was the first of a whole series of Joint Programmes between the European Union and the Council of Europe on Roma capacity building and awareness raising. It was followed by romact, romacted, justrom, and ‘Inclusive Schools,’ which have all been discussed in more detail above.122 As mentioned above, the romed Programme was adopted by the coe at the High Level Meeting in Strasbourg. Right after its adoption, the European Commission uttered the wish to join the romed Programme, making it into a joint action of the coe and the European Commission. 4.2

119 Agreement between the European Community and the Council of Europe on cooperation between the European Union Agency for Fundamental Rights and the Council of Europe, OJ L 186/7, 15 July 2008, available at (accessed on 4 April 2012); see also Memorandum of Understanding between the Council of Europe and the European Union, CM(2007)74, 10 May 2007. 120 Article 2 of the Agreement reads as follows: “This Agreement establishes a cooperation framework between the Agency and the Council of Europe in order to avoid duplication and ensure complementarity and added value.” 121 O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union’ in K. Henrard (ed.), Double Standards Pertaining to Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, p. 115. 122 See above at 3,2,1 Capacity Building and Awareness Raising.

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coe Secretary General Thorbjorn Jagland and EU Commissioner for Education, Culture, Multilingualism and Youth Androulla Vassiliou officially endorsed the Roma Mediators Agreement in July 2011, launching the Programme at a meeting of the coe Committee of Ministers with the signature of a joint declaration.123 The declaration refers to the Memorandum of Understanding signed in Strasbourg on 11 May 2007124 and states that: “[t]he Council of Europe and the European Union have intensified their efforts to improve the place of the Roma minority within European society. By joining forces, both organisations want to improve access to education for Roma children.” A document for the first of two funding agreements was also signed, which saw the EU make one million Euros available to the coe for 2011 and 2012, allowing a total of 1000 mediators to be trained. The training sessions equip people with a Roma background, either from Roma communities or with a good knowledge of Roma issues, to act as mediators between the Roma and public institutions.125 This is one of the first concrete results yielded by the High Level Conference in Strasbourg of November 2010 and a good example of how cooperation between the coe and the EU to promote an equal access of Roma children to education creates a ‘win-win’ situation for both organizations, and in the end for the Roma targeted by the project, because of combining efforts instead of duplicating them.126 After the success of romed, the European Commission and Council of Europe initiated with romact, romacted, justrom and ‘Inclusive schools’ a whole series of Roma-related joint projects. 123 Declaration between the European Commission and the Council of Europe, Strasbourg, 6 July 2011, on file with the author. 124 Memorandum of Understanding between the Council of Europe and the European Union, CM(2007)74, 11 May 2007. 125 Council of Europe, Press Release, ‘European Commission and Council of Europe step up work for Roma with Mediators Agreement,’ DC045(2011), Strasbourg, 6 July 2011, available at  (accessed on 1 January 2014). 126 However, it should be noted that there is need for more continuous funding for Roma mediators. ngos report that, as long as funds are available, the mediators contribute substantially to a better integration of the Roma in the field of education and to a better mutual understanding between the Roma minority and the school directorate/majority population. As soon as the funds are cut, or are no longer available, and the position of Roma mediator is vacant, no further progress can be achieved, and the achieved results even suffer set-backs. The fact that romed was immediately followed up by romed2 together with romact can be welcomed. It remains to be seen how more continuous funding for Roma mediators can be secured in the long term.

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Conclusions under Chapter 11

The controversial expulsions of the Roma of Romanian and Bulgarian origin by France in August and September 2010 worked as a catalyst for increased policy initiatives in the field of Roma inclusion, both at EU and at Council of Europe level. At EU level, the European Commission endeavoured to develop a targeted approach for a more effective response to Roma exclusion with its EU Framework for National Roma Integration Strategies up to 2020, by setting EU-wide goals for integrating Roma in the 4 key areas of education, employment, health and housing. The Framework required Member States to submit national Roma strategies to the Commission by the end of 2011, specifying how they will contribute to achieving the overall EU level integration goals. The EU Framework for nris was criticized by civil society for a lack of ambition related to the goals formulated, among others, in the field of education, for a lack of action on combating racism and discrimination, and for the absence of a robust monitoring mechanism. Regarding the latter, the fra plays a strong role, but the Member States themselves appear not sufficiently committed to the collection of ethnically disaggregated data which would allow one to measure progress. With the Framework for nris, the role of the Platform on Roma inclusion was strengthened. The Commission is currently supporting Member States in setting up national Roma platforms to bring together all stakeholders from the national, regional and local levels. A reflection is ongoing on how to ensure the inclusive open participation of all stakeholders in national Roma Platforms and in the European Platform, and on how the link between national platforms and the European platform can be ensured. The Council Recommendation on effective Roma integration measures in the Member States, adopted in December 2013, has to a great extent envisaged the critiques by ngos and civil society after the adoption of the EU Framework for nris. It formulates more ambitious goals in the field of education and recognizes the interdependence of inclusion and anti-discrimination ­strategies and also the importance of empowerment and active involvement of the Roma community, which is a precondition for mutual cooperation and reciprocal recognition. It remains to be seen, however, how the commitments made by the Member States will translate into concrete actions and how seriously progress will be monitored at a national level. In its midterm review of the EU Framework for nris in August 2017, the European Commission indicated that the framework had brought the issue of Roma integration higher up on the political agendas and had set up the necessary structures and funding to improve Roma inclusion. However, as regards

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real change in the situation of the Roma between 2011 and 2016, there are still a high number of remaining challenges. In the field of education, these challenges are segregation in education, with one to two thirds of Roma children attending schools where most or all pupils are Roma,127 high early school-­leaving rates, and too few Roma pupils making it to universities. At Council of Europe level, the function of srsg was created, with competences in the field of capacity building and awareness raising, exchange of policies and good practices of Roma in Member States, co-operation and coordination with third parties, and advise and support to Member States. The srsg increased the visibility and centralized the work of the coe on Roma inclusion. It is regrettable that the function was not prolonged after the resignation of the last srsg, Valeriu Nicolae, in the summer of 2017. The cooperation regarding policies in the field of Roma education between the EU and the coe has been enhanced, among others by a series of jointly implemented programmes: romed, romact, romacted, justrom and ‘Inclusive Schools.’ However, more could be done to ensure that the two organizations are not duplicating but rather supplementing each other’s work in the field of Roma inclusion in general.

127 According to the Midterm review factsheet, the figure is over 60% for Slovakia, Hungary and Bulgaria, and between 29 and 48% in Greece, Croatia, Spain, the Czech Republic and Romania. See European Commission, Factsheet, ‘Midterm review of the EU Framework for National Roma Intergration Strategies,’ Brussels, September 2017, available at (accessed on 1 January 2018).

Chapter 12

The Added Value of the fcnm in the Field of Roma Education 1 Introduction The main question discussed in this chapter is whether and how the fcnm ‘added’ anything to the already existing human rights instruments described in Chapter 2 when it comes to ensuring equal access to quality education for Roma children. In conceptualizing this, the concept of ‘added value’ as an indicator for success was proposed in Chapter 4. The approach of the present Chapter is a more concrete one: how has the fcnm contributed to the inclusion of Roma children in education in particular and to a better respect for Roma educational rights in general? What are the advantages of the fcnm compared to other existing legal provisions in the field? Is it really the only comprehensive legally binding document concerning minority rights? Did the fcnm present any added value for the jurisprudence of the ECtHR? These questions are dealt with in the first section. The second section elaborates on the reach and scope of the fcnm. This question is relevant when judging upon the ‘added value’ and the effectiveness of the fcnm, for, if the Roma are excluded from its application, they will not profit from its provisions. The question of reach is divided into the question of membership of Council of Europe Member States on the one hand and the question of the definition of minorities and the identification of beneficiaries on the other hand. Finally in the third and last section the advantages of the approach adopted by the fcnm versus the approach adopted by the Racial Equality Directive regarding Roma educational rights are analysed. The advantages of a minority policy based on positive minority rights versus a minority policy based on non-­discrimination only are discussed and the shortcomings of the latter are exposed. 2

More than a Fig-Leave Exercise: The fcnm as an All-encompassing Legally Binding Tool in Protecting Roma Educational Rights

The ‘framework’ character of the convention, the absence of a clear definition of minorities, the lack of a clear commitment to collective rights, the rather © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004354210_014

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general formulation of some of its provisions, the extensive claw-back clauses, and the lack of judicial enforcement led to not inconsiderable scepticism at the time of the creation of the Framework Convention.1 After all, as Marc Weller underscores in his book dedicated to the implementation of the fcnm of 2005, “the governments of the Council of Europe adopted this convention with all its apparent defects instead of the Protocol to the European Convention of Human Rights[2] that had been put forward by the Council’s own Parliamentary Assembly.”3 That Protocol would have placed minority rights in Europe directly within the system of human rights protection, and would have made judicial enforcement of these minority rights by the ECtHR possible. The question Weller then asks is whether the fcnm turned out to be “a fig-leaf exercise, commenced at a time when the then still mainly Western European institutions were demanding compliance by the states of Eastern and Central Europe with standards they themselves were unwilling to accept as hard legal obligations?”4 The aim of this section is to show that the fcnm is indeed more than a mere fig-leaf exercise and that it presents a clear ‘added value,’ not only for the protection of minorities in general but also for a better access to quality education for the Roma minority. Legal Nature: the Only Comprehensive and Legally Binding Document Concerning the Rights of National Minorities with a Holistic Approach From the outset, the designation of the fcnm as a ‘Framework Convention’ has led to some confusion, leading to some doubts about its legal character. Of course, it is clear that the convention is a treaty, a legally binding instrument. However, the framework character manifests itself in two aspects: first, the provisions contained in the fcnm tend to be phrased in more general terms (so-called programme-type provisions) and second, the fcnm is not directly applicable and is not meant to be incorporated or transformed directly into national law. However, in view if this background, the fcnm does well in establishing the first more comprehensive catalogue of minority rights in hard law.5 When the 2.1

1 M. Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, pp. 609–610. 2 coe Parliamentary Assembly Recommendation 1201(1993) of 1 February 1993 on an Additional Protocol on the Rights of National Minorities to the European Convention on Human Rights, 22nd Sitting, Doc. 6742. 3 M. Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, p. 610. 4 Ibid. 5 M. Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, pp. 633–634.

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fcnm was adopted in 1995 and entered into force in 1998, it was the only comprehensive and legally binding document concerning the rights of national minorities, and this still is the case today. Nevertheless, there are various older minority specific provisions, and even (sections of) instruments,6 such as Art. 27 iccpr, which is also legally binding on the contracting states, or such as the 1992 UN Declaration on the Rights of Persons belonging to Ethnic Religious and Linguistic Minorities, which is not legally binding but ‘hardened’ through the incorporation in treaties, like the 1995 Treaty on Good-Neighbourliness and Friendly Cooperation between Slovakia and Hungary, and which could even be considered to be of customary international law.7 Compared to these other existing legal provisions on the rights of persons belonging to minorities, the fcnm is the only legally binding instrument offering a, what Sia Ǻkermark calls, ‘holistic’ approach: the main difference [compared to other minority rights instruments] lies in that the Framework Convention addresses the totality of the living conditions, needs and rights of minorities while balancing them continuously with the need to respect the territorial integrity of states and the wish to ensure an active and acknowledged presence by persons belonging to minorities in the societies where they live. […] The fcnm emphasizes the issues of ‘tolerance and intercultural dialogue’ (especially in Article 6), non-discrimination and adoption of ‘adequate measures’ in order to promote full and effective equality (Articles 4 and 5) […]. This holistic approach is characteristic of the fcnm, but is also one of the challenges in its implementation and monitoring. The fcnm does then offer not simply a legal tool for the assessment of minority protection but equally a framework of ‘values’ to guide European societies.8 Indeed, the entire architecture of the system established under the Framework Convention is built upon the assessment that a right to non-discrimination, even if most effectively implemented, is not sufficient to ensure the p ­ rotection

6 K. Henrard, ‘The Added Value of the fcnm (ii),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument?, 2008, Antwerp, Oxford, Portland: Intersentia, p. 93. 7 Ibid., p. 94. 8 S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (i),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument?, 2008, Antwerp, Oxford, Portland: Intersentia, pp. 71–72.

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and promotion of the distinct identity of persons belonging to national minorities.9 In contrast to icerd and cedaw, the ‘adequate measures’ in order to promote full and effective equality (Art. 14 fcnm) are not necessarily temporary or just intended to redress disadvantages from the past by means of affirmative action, but could also include some kind of institutionalized, permanent measures.10 Henrard notes in this context that “the minority focus of the fcnm leads to a more explicit recognition of the importance of substantive equality, and the fact that this might require ‘special’ measures, also of a more permanent nature.”11 For Henrard, this reveals a major benefit of having minority explicit standards: “especially when it concerns sensitive issues (like affirmative action and other special measures), it is positive not to have to rely on interpretations by a supervisory body but to have an explicit legal basis.”12 Discrimination in the field of educational rights constitutes one of the major issues addressed by the Advisory Committee and might be considered as the area of minority rights where the added value of the Framework Convention is most clearly to assess.13 In respect of the prohibition of segregation of Roma children in education and the fulfilment of Roma educational rights, the fundamental approach which was followed by the Advisory Committee, when monitoring the implementation of Articles 12, 13 and 14 in relation to the segregation of Roma children in education, was based on the assumption that pupils belonging to national minorities should be integrated as far and as rapidly as possible into the general educational system, while being provided with sufficient possibilities to learn, or to be instructed in, their mother tongue. The Commentary on Education under the Framework Convention for the Protection of National Minorities has highlighted three core considerations which need to be taken into account when assessing the compliance of

9

10 11 12 13

R. Hofmann, ‘The Impact of international norms on the protection of national minorities in Europe: the added value and essential role of the framework convention for the protection of national minorities,’ Strasbourg, 5 December 2006, DH-MIN(2006)018, p. 9. See also below under 4.1 Minority Rights as a Wider Notion Compared to Non-Discrimination Rights: not only Protection from Discrimination but also Promotion of Identity. K. Henrard, ‘The Added Value of the fcnm (ii),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument?, 2008, Antwerp, Oxford, Portland: Intersentia, p. 112. Ibid., p. 113. Ibid., p. 113. R. Hofmann, ‘The Impact of international norms on the protection of national minorities in Europe: the added value and essential role of the framework convention for the protection of national minorities,’ Strasbourg, 5 December 2006, DH-MIN(2006)018, p. 21.

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e­ ducational policies with the provisions of the Framework Convention, which can be summarized as the ‘why,’ ‘who’ and ‘how’ questions: First, the fcnm requires not only the protection of minority cultures and languages in education, but also promotes intercultural dialogue between the minority and the majority, a spirit of tolerance in educational efforts and even an ethos of bilingualism and pluri-lingualism (the question why minority education). Second, the Advisory Committee is aware of the fact that several actors are co-responsible for the availability and quality of the education offered, such as decision-makers at the central, at the regional and at the local level, school head teachers and teachers. Moreover, the right of effective participation of the minorities concerned, as enshrined in Art. 15 fcnm, should be guaranteed when drafting and implementing educational policies (the question who is involved in minority education). Third, there are different methods to address the varying needs of minorities. One possible step would be the introduction of multicultural and intercultural elements in education, and the training of bilingual and multilingual teachers. In the case of the Roma, a first step would be the offering of access to good quality education and especially inclusive education supporting a climate of tolerance and intercultural dialogue (the question how the goal of access to good quality education for all can be reached). These three core considerations overlap with three important preconditions which were identified as being essential for the eradication of Roma ­segregation in education: – the combating of stereotyping and prejudice as a first precondition for Roma desegregation in education (Chapter 114); – intercultural education as a second precondition for Roma desegregation in education (Chapter 215); and – the prerequisite of a social construct of mutual cooperation and reciprocal recognition as a third precondition for Roma desegregation in education (Chapter 316). The added value of the fcnm in the field of Roma educational rights thus lies in its holistic approach (see Articles 4, 5 and 6 on non-discrimination and the promotion of full and effective equality, taken together with Articles 12, 13 and 14 on equal access to quality education and instruction in the minority 14 15 16

See Chapter 1 under 3.2 Roma, a Unique Minority Group. See Chapter 2 under 3.2.2 Intercultural Education as a Precondition for Social Inclusion and Desegregation of the Roma: Adopting a Positive Attitude towards the Roma Cultural Model. See Chapter 3 under 6.2 Mutual Cooperation and Reciprocal Recognition.

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l­ anguage, and Art. 15 on effective participation), encompassing all the relevant preconditions necessary for a full realization of the educational rights of Roma children. The Added Value of the Specific Nature of the Monitoring Procedure References to “a climate of tolerance and dialogue” and “a spirit of tolerance and intercultural dialogue” The reference to the creation of “a climate of tolerance and dialogue” and also to “a spirit of tolerance and intercultural dialogue” is a leitmotiv throughout both the wording of the fcnm and of the Advisory Committee Opinions. The expression appears in different contexts: the spirit of understanding and tolerance is not only crucial for a good implementation of the provisions of the fcnm (1.2.1.1), but it is also a feature of the relation of the Advisory Committee and the Committee of Ministers as monitoring bodies with the State Parties (1.2.1.2). 2.2 2.2.1

2.2.1.1

Reference to a Climate of Tolerance and Dialogue as a leitmotiv in the Wording of the fcnm and in the Advisory Committee Opinions Intercultural dialogue is understood as a process that comprises an open and respectful exchange of views between individuals and groups with different ethnic, cultural, religious and linguistic backgrounds and heritage, on the basis of mutual understanding and respect. It requires the freedom and ability to express oneself, as well as the willingness and capacity to listen to the views of others. Intercultural dialogue contributes to political, social, cultural and economic integration and the cohesion of culturally diverse societies. It fosters equality, human dignity and a sense of common purpose. It aims to develop a deeper understanding of diverse world views and practices, to increase co-operation and participation (or the freedom to make choices), to allow personal growth and transformation, and to promote tolerance and respect for the other.17 In this respect, the two notions of tolerance and intercultural dialogue go hand in hand, as intercultural dialogue implicates tolerance. The notions of tolerance and intercultural dialogue occur at several occasions in the preamble, the wording and the explanatory report of the fcnm and can be considered as a leitmotiv. In the Preamble, it is underscored that the creation of a climate of tolerance and dialogue is considered “necessary to enable cultural diversity to be a source and a factor, not of division, but of enrichment for each society.” Other 17

Council of Europe, White Paper on Intercultural Dialogue ‘Living Together as Equals in Dignity,’ Strasbourg, 7 May 2008, available at (accessed on 1 January 2014).

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references to the concepts of tolerance and intercultural dialogue can be found in the Articles 2, 6 and 9 and in the explanatory report under these articles, as well as in the explanatory report under Art. 12: Article 2 The provisions of this framework Convention shall be applied in good faith, in a spirit of understanding and tolerance and in conformity with the principles of good neighbourliness, friendly relations and co-­ operation between States. Explanatory Report para. 32. This article provides a set of principles governing the application of the framework Convention. […] The principles mentioned in this provision are of a general nature but do have particular relevance to the field covered by the framework Convention. Article 6 1 The Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons’ ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media. Explanatory Report para. 49. In order to strengthen social cohesion, the aim of this paragraph is, inter alia, to promote tolerance and intercultural dialogue, by eliminating barriers between persons belonging to ­ethnic, cultural, linguistic and religious groups through the encouragement of intercultural organisations and movements which seek to promote mutual respect and understanding and to integrate these persons into society whilst preserving their identity. Article 9 4 In the framework of their legal systems, the Parties shall adopt adequate measures in order to facilitate access to the media for persons belonging to national minorities and in order to promote tolerance and permit cultural pluralism. Explanatory Report para. 62. This paragraph emphasises the need for special measures with the dual aim of facilitating access to the media for persons belonging to national minorities and promoting tolerance and cultural pluralism. Article 12 (no explicit reference to tolerance and intercultural dialogue in the article, but a reference in the explanatory report)

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Explanatory Report para. 71. This article seeks to promote knowledge of the culture, history, language and religion of both national minorities and the majority population in an intercultural perspective (see Article 6, paragraph 1). The aim is to create a climate of tolerance and dialogue, as referred to in the preamble to the framework convention and in Appendix ii of the Vienna Declaration of the Heads of State and Government.18 In its opinions, the Advisory Committee has constantly recalled the need to encourage a spirit of tolerance and intercultural dialogue, and this in different contexts.19 Especially in relation to the persistence of negative stereotypes affecting the Roma in many countries,20 the importance of the creation of a spirit of tolerance and intercultural dialogue as a precondition for social inclusion has been highlighted by the Advisory Committee. As mentioned above21 the drafters of the fcnm were well aware of the fact that the combating of stereotyping and prejudice is a precondition for desegregation and the social inclusion of minorities. 2.2.1.2 The fcnm as a Tool for Dialogue with the State Parties Instead as a Means of Coercion and as a Tool for Dialogue of the State Parties with the Minorities At the outset, substantial criticism of the Framework Convention and its monitoring mechanism was voiced, especially by academics.22 This criticism related to the programmatic formulation of the fcnm, the limited scope of the special measures called for in order to eliminate discrimination and to achieve dignity and equal rights, weak wording and frequent qualifications in the text and the absence of group rights.23 In the meantime, however, it is widely acknowledged that some of the ‘weaknesses’ in the language of the Framework Convention are in fact ‘strengths,’ as practice has developed and civil society has become engaged.24 The programmatic formulations allow states a margin 18 19

Stress added. A. Chablais, ‘Review of the Monitoring Process of the Council of Europe Framework Convention,’ eymi, vol. 4, 2004/2005, p. 532. 20 See, for example, Opinion on Spain, 27 November 2003, ACFC/OP/I (2004)004, para. 49. 21 See Chapter 1 under 3.2 Roma, a Unique Minority Group. 22 For a critical position towards the fcnm and its monitoring system see G. Alfredsson, ‘A Frame an Incomplete Painting: Comparison of the Framework Convention for the Protection of National Minorities with International Standards and Monitoring Procedures,’ ijmgr 7, 2000, pp. 291–304. 23 A. Philips, ‘The 10th anniversary of the Framework Convention for the Protection of ­National Minorities,’ ejm, vol. 1, issue 3, 2008, pp. 183–189. 24 Ibid.

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of appreciation of how to respond to their unique environment, while upholding key principles.25 The Advisory Committee has managed to develop working methods which focus—more than those of most other monitoring bodies—on a constructive dialogue with all stakeholders.26 In contrast to most existing international human rights treaties monitoring systems, States parties are not only obliged to report periodically, but they also have a legal duty to maintain a continuous dialogue with the Advisory Committee.27 Rainer Hofmann notes that the comments of the governments on the Advisory Committee Opinions “must be seen as an essential part of this dialogue, since they largely contain information on recent developments, often directly relating to concerns raised and comments made by the Advisory Committee.”28 Moreover, governments are expected not only to regularly submit information as to measures taken in response to the specific conclusions of the Committee of Ministers, but also to report on initiatives taken on the Advisory Committee’s detailed and specific comments. The monitoring under the fcnm thus provides an incentive for states to intensify their dialogue with national minorities and may also lead to a deeper understanding of the elements that have been successful and those that are not.29 According to Weller, the depth and quality of the dialogue that has taken place between governments and the Advisory Committee is equivalent and in some instances superior to that found in relation to other human rights ­instruments.30 The Advisory Committee has taken the view that minority issues are developing dynamically. Its demands on governments appear to be increasing over time. Moreover, the Advisory Committee seems to have ­higher expectations in relation to states already advanced further in minority co-­governance than others.31 Weller notes in this context that it is a 25 26

Ibid., pp. 183–184. E. Lantschner, ‘Evolution and Value of the Thematic Commentaries of the Advisory Committee of the Framework Convention for the Protection of National Minorities,’ European Yearbook on Human Rights, 2010, pp. 275–276. 27 R. Hofmann, ‘Introduction,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, p. 13. 28 Ibid. 29 A. Philips, ‘The 10th anniversary of the Framework Convention for the Protection of ­National Minorities,’ ejm 3, 2008, p. 182. 30 M. Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, p. 634. 31 For a discussion on whether this practice undermines the claim that the minority rights enshrined in the fcnm have a defined legal substance, see M. Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, p. 635.

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unique advantage that this dialogue is forced to occur through the ­Advisory Committee mechanism. Instead of having to rely exclusively on ngo advocacy in seeking to improve provisions by states, this dialogue is elevated to the intergovernmental level. Hence, the same governments that show little appetite at present formally to negotiate an even more advanced treaty on minority rights are actively contributing to lifting the expectations of performance in relation to the Framework Convention.32 This is one of the greatest achievements of the fcnm and its monitoring procedure, and a clear ‘added value’ compared to the monitoring procedures of other human rights instruments. Another example of a participatory dialogue at another level is the invitation of the President of the Advisory Committee to the Rapporteur Group on Human Rights. In that Rapporteur Group the acfc President presents the Advisory Committee Opinions and listens to state comments. Alan Philips notes that this is an unusual procedure for a legally binding convention, and it was also initially part of the criticism of the fcnm architecture. However, in the meantime it is acknowledged that this participatory dialogue helps resolving misunderstandings and helps to show the depth of evidence and the accuracy of the analysis of the Advisory Committee.33 This continuous and constructive dialogue between the Advisory Committee and representatives of governments is probably a lot more effective than to obtain legal redress at the ECtHR for a violation of one or more convention rights. 2.2.2 Stimulation of an Active Civil Society through ngo Involvement ngos and minority associations play a key role in the monitoring mechanism of the Framework Convention. Resolution 97 (10) on the monitoring ­arrangements of the fcnm34 explicitly provides that the Advisory Committee may receive and invite information from sources other than state reports.35 In practice, local ngos and minority associations, with the support from international ngos, have very often used this opportunity to provide the 32 33 34 35

M. Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, p. 635. A. Philips, ‘The 10th anniversary of the Framework Convention for the Protection of National Minorities,’ ejm, vol. 1, issue 3, 2008, p. 185. Committee of Ministers, Resolution (97)10 Rules adopted by the Committee of Ministers on the Monitoring Arrangements under Articles 24 to 26 of the Framework Convention for the Protection of National Minorities, 17 September 1997. At para. 30.

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­ dvisory Committee with well researched reports informing about the state of A implementation of the Framework Convention on the ground. Such alternative information, as well as the possibility to have direct contacts with ngos, have been greatly appreciated by the Advisory Committee and have even proved to be essential for the Advisory Committee to effectively fulfil its monitoring tasks. There are several possibilities for ngo input in various phases of the monitoring, such as: – drafting shadow reports, which cover the situation of one or several minorities and focus on selected articles or topics or provide information on all articles of the Framework Convention; – providing information to the Advisory Committee through different types of written submissions at the time when the report of the State concerned is due (every 5 years); – sending ad hoc information on specific issues irrespective of the status of the monitoring with regard to the State concerned; – using the fcnm as a tool for dialogue and liaising with the State authorities during the preparation of the State Report, obtaining information on the implementation of the fcnm and discussing it, and participating in followup meetings once the monitoring results are made public; – increasing transparency by encouraging the authorities to publish the country-specific Opinion of the Advisory Committee as soon as possible and to translate it in local languages; – increasing awareness on minority rights by organizing training sessions for ngos and minorities on the Framework Convention; – contributing to the consultations undertaken by the Advisory Committee upon the preparation of its commentaries on specific themes.36 The compilation and consideration of state reports thus provides opportunities for domestic ngos to engage in constructive exchanges with governments. This effectively takes the form of a structured dialogue or exchange of information and views. Mark Lattimer, director of the ngo Minority Rights Group International, stresses that in the establishment and maintenance of this dialogue, two factors are of particular importance: state visits by the Advisory Committee members, which greatly improve their accessibility to domestic ngos and u ­ nderstanding 36

Secretariat of the fcnm, ‘The role of ngos in the monitoring mechanism of the fcnm,’ s.d., available at (accessed on 1 January 2014).

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of the situation on the ground, and the publication of the Advisory Committee Opinions and State Comments, which enables civil society and the media to make meaningful inputs at later stages in the process.37 These two factors also constitute a significant ‘added value’ of the fcnm. 2.2.3 Involvement of Minorities A key principle behind the fcnm is to show that minorities are valued in theory and in practice in a genuinely democratic society. Participatory processes are crucial to respond to the psychological situation in which minorities can find themselves, where, both individually and collectively, minorities can feel excluded and discriminated against, as Alan Philips notes correctly.38 In order to include representatives of national minorities in the monitoring process, the Advisory Committee has consistently called upon states parties to integrate the position of representatives of national minorities into their state reports. Rainer Hofmann underscores that the participation of national minorities is not limited to this first stage of the monitoring process, but is a continuous aspect of it: […] The inclusiveness of the monitoring process is further increased by the fact that the participants of the […] follow-up seminars […] also include representatives of the national minorities concerned. […] This strong involvement of the ultimate beneficiaries of the Framework Convention in its monitoring system clearly distinguishes this system from those existing under most, if not all, other international human rights instruments based on regular state reports.39 For Rainer Hofmann this feature of continuous involvement of minorities in the monitoring process “constitutes another most relevant added value of the Framework Convention.”40 37

38 39 40

M. Latimer, ‘The Framework Convention as a catalyst for action at domestic level: the ngo perspective,’ pp. 58–61, in Council of Europe (ed.), Filling the Frame: five years of monitoring the Framework Convention for the Protection of National Minorities, Strasbourg: Council of Europe Publishing, 2004. A. Philips, ‘The 10th anniversary of the Framework Convention for the Protection of ­National Minorities,’ ejm, vol.1, issue 3, 2008, p. 186. R. Hofmann, ‘The Impact of international norms on the protection of national minorities in Europe: the added value and essential role of the framework convention for the protection of national minorities,’ Strasbourg, 5 December 2006, DH-MIN(2006)018, p. 24. Ibid., p. 25.

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2.2.4 A Good Follow-up: The Aspect of Continuity The secretariat of the fcnm frequently organizes follow-up seminars in the different state parties.41 Such follow-up seminars bring together the authorities, civil society, as well as representatives of the Advisory Committee to discuss, in situ, how to put the recommendations of the Framework Convention’s monitoring bodies into practice.42 They are excellent occasions to discuss the implementation of the fcnm in a constructive and inclusive atmosphere. Sometimes these follow-up seminars reveal that additional awareness-raising activities are needed and that “the monitoring of the fcnm is not yet fully embraced by all sectors of public administration.”43 However, the organization of the follow-up seminars depends largely on the goodwill of the authorities concerned, since neither the Framework Convention itself nor Resolution 97(10) of the Committee of Ministers obliges the state parties to do so. The follow-up seminars have been and still are the main tool to advance an ongoing dialogue with the national authorities between the monitoring cycles. It is this aspect of continuity which also confers a certain added value upon the fcnm, compared to the monitoring mechanisms of other international human rights instruments. Therefore it is to be welcomed that, in the third and fourth monitoring cycle, country visits have become a regular practice and form an indispensable part of the monitoring process. They allow the acfc to build on the state report and acquire a better understanding of the situation in the country, by meeting with government officials at central and regional level, representatives of parliament and relevant institutions including ombudsmen, as well as civil ­society organisations and minority representatives.44 On the Relation between the fcnm and the ECtHR: The Added Value of the fcnm for the Jurisprudence of the ECtHR Chapter 9 has already revealed to what extent the ECtHR in its judgments refers or does not refer to the State Reports and the Advisory Committee 2.3

41

As of 25 January 2012, 44 follow-up seminars have been organized, of which 25 under the first monitoring cycle, 17 under the second monitoring cycle and 2 under the third monitoring cycle. See (accessed on 25 January 2012). 42 A. Chablais, ‘Review of the Monitoring Process of the Council of Europe Framework Convention,’ eymi, vol. 4, 2004/2005, p. 539. 43 Ibid. 44 coe acfc, 10th Activity Report, covering the period 1 June 2014–31 May 2016, ACFC/ INF(2016)001, p. 15.

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Opinions issued under the fcnm monitoring mechanism.45 Therefore this section will focus mainly on the added value of the fcnm for the jurisprudence of the ECtHR but also compared to the jurisprudence of the ECtHR, in the sense that the monitoring mechanism of the fcnm allows for a broader discussion of structural problems such as the problem of the segregation of Roma children in education, whereas the ECtHR is always bound by the concrete facts of a certain case. 2.3.1 The ECtHR and Minority Issues In spite of the absence of a specific provision on minority rights in the European Convention on Human Rights and its Protocols, the European Court of Human Rights has reviewed, since its early activity, several cases concerning minority issues. Art. 14 echr guarantees the right not to be discriminated against in the enjoyment of convention rights on the ground, inter alia, of belonging to a national minority, language, religion and national origin. In addition, the Court has afforded some protection to minorities especially by means of other provisions of the Convention, such as Articles 10 (right to freedom of expression), 11 (right to freedom of association) and 8 (right to family life). The extent to which the ECtHR has addressed minority issues has been discussed extensively in legal doctrine46 and therefore it will not be discussed here. 45 46

See above Chapter 9 under the different headings ‘References to the fcnm’ under the respective cases. See, among others (in chronological order) F. Benoit-Rohmer, ‘La Cour européenne des droits de l’homme et la défense des droits des minorités nationales,’ Revue trimestrielle des droits de l’homme, vol. 51, no 13, 2002, p. 563–586; S. Spiliopoulou Ǻkermark, ‘The Limits of Pluralism – Recent Jurisprudence of the European Court of Human Rights with Regard to Minorities: Does the Prohibition of Discrimination Add Anything?,’ Journal on Ethnopolitics and Minority Issues in Europe, vol. 3, 2002, available electronically at www.ecmi .de; R. Medda-Windischer, ‘The European Court of Human Rights and Minority Rights,’ Journal of European Integration, vol. 25, no. 3, 2003, p. 249–271; A.H.E. Morawa, ‘The European Court of Human Rights and Minority Rights: The ‘Special Consideration Standard’ in Light of Gypsy Council,’ International Journal on Minority and Group Rights, vol. 10, no. 2, 2003, pp. 97–109; G. Pentassuglia, ‘Minority Issues as a Challenge in the European Court of Human Rights,’ German Yearbook of International Law, vol. 46, 2003, pp. 401–451; K. Henrard, ‘A Patchwork of ‘successful’ and ‘missed’ synergies in the jurisprudence of the echr’ in K. Henrard and R. Dunbar, Synergies in Minority Protection, Cambridge: cup, 2006, pp. 314–364; F. de Varennes, ‘Using the European Court of Human Rights to Protect the Rights of Minorities’ in Council of Europe (ed.), Mechanisms for the Implementation of Minority Rights, Strasbourg: Council of Europe Publishing, 2006, pp. 83–108; E. Kastanas, ‘La protection des personnes appartenant à des minorités dans la jurisprudence de la Cour européenne des droits de l’homme,’ Les droits de l’homme et la constitution, 2007, pp. 197–218; M. Weller (ed.), Universal Minority Rights, A Commentary on the Jurisprudence of International Courts and Treaty Bodies, Oxford: oup, 2007; P. Tavernier, ‘Quelques

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2.3.2

Reference Made to the fcnm and the AC Opinions by the ECtHR in the Implementation of the echr In Chapter 9, it has already been discussed how the ECtHR refers to the fcnm, and more precisely to the Advisory Committee Opinions and the state reports in its jurisprudence related to Roma educational rights. The findings in Chapter 9 have shown that the monitoring mechanism under the fcnm played a very important role towards the outcome of the Grand Chamber judgment in the case of D.H. and Others v. the Czech Republic. The Grand Chamber accepted the Czech Republic State Report and the Advisory Committee Opinion, together with other statistical evidence submitted by ngos, as arguments in favour of a presumption of indirect discrimination, which reversed the burden of proof on the Czech government. Accordingly, since the Czech government was not able to prove that the Roma children had not been discriminated against, the Court had to find a violation of Art. 14 echr taken together with Art. 2 of Protocol No. 1. The evidence taken from the fcnm State Report on the Czech Republic and from the related Advisory Committee Opinion was extremely relevant for the outcome of the Grand Chamber case. In this sense, the information on the segregation of Roma children in education contained in the fcnm State Reports and in the acfc Opinions presents a clear ‘added value’ for the jurisprudence of the ECtHR related to the segregation of Roma children in education. 2.3.3

Added Value of the fcnm Mechanism Compared to the ECtHR Jurisprudence: Allowing for a Broad Discussion of Structural Problems Even though the ECtHR in the case of D.H. and Others took the wider context of the facts of the case into consideration, generally speaking it is only allowed to focus on the facts of each individual case. An added value of the fcnm compared to the jurisprudence of the ECtHR in Roma educational matters lies in the fact that it allows, according to Bruno de Witte “for a broad discussion of all structural issues of minority protection connected with the content of the convention.” Therefore the mechanism of the fcnm, according to some scholars, might even be considered to be “more effective than that of the echr.”47

47

r­ éflexions sur la protection des minorités par la Cour européenne des droits de l’homme,’ Un droit pour les hommes libres, 2008, pp. 253–261; F. Tulkens et S. Piedimonte, ‘La protection des minorités nationales dans la jurisprudence de la Cour européenne des droits de l’homme,’ Chemins d’Europe, 2010, pp. 653–670. B. De Witte, ‘Introduction,’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument?, 2008, Antwerp, Oxford, Portland: Intersentia, p. 3.

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Whether the fcnm should be considered to be “more effective” than the echr of course depends on how one defines “effectiveness.” In any case, this statement reveals that the fact that the fcnm could not be adopted as an additional protocol to the echr, but ‘only’ as a framework convention, appears to have entailed also certain advantages. 2.4 Conclusion on the Added Value of the fcnm This section has shown that the fcnm presents a clear added value at different levels. First, it is the only comprehensive and legally binding document concerning the rights of national minorities with a holistic approach. Second, the specific nature of the monitoring procedure based on a far going constructive dialogue with the state parties presents an added value compared to the monitoring procedures under other international instruments. And finally, the fcnm and its monitoring procedure as a source of information for the ECtHR positively contributes to the development of the ECtHR jurisprudence in the field of Roma educational rights. However, a caveat should be added, which is formulated by Sia Ǻkermark in the following way: “The added value of the fcnm [only] remains intact as long as all these actors [States, the Advisory Committee, the Committee of Ministers, other international bodies, minorities and individuals] wish to continue to reconfirm their support.”48 Indeed the well-functioning of the fcnm and its monitoring system depends on the co-operation and support of all these different actors and the continuity of the open dialogue between all the actors concerned. 3

Reach and Scope

Having established that the fcnm presents a certain added value compared to other human rights instruments relevant for Roma educational rights, the question of the reach of the provisions of the fcnm arises. Does the fcnm extend minority rights to the Roma? This question was examined in Chapter 5, but it is useful to shortly revisit the question of the reach of the fcnm. For, if the Roma are excluded from its scope of application, they will not profit from its provisions. 48

S. Spiliopoulou Ǻkermark, ‘The Added Value of the fcnm (i),’ in A. Verstichel, A. Alen, B. De Witte and P. Lemmens (eds), The Framework Convention for the Protection of National Minorities: A Useful Pan-European Instrument?, 2008, Antwerp, Oxford, Portland: Intersentia, p. 90.

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The question of reach can be divided into the question of fcnm ‘membership’ (read: ratification) of Council of Europe Member States on the one hand and the question of the definition of minorities and the identification of beneficiaries on the other hand. 3.1 Membership of the fcnm and Status of Ratification The issue of participation in the fcnm was a source of concern from the beginning, as minority rights are still viewed with suspicion by governments in Europe. This was also the main reason why the initiative of the Council of Europe Parliamentary Assembly of creating an additional protocol to the echr was not successful.49 Marc Weller underscores that, given this caution on the part of governments, the spread of membership in the fcnm is truly astonishing. The fcnm had quickly reached the requisite twelve ratifications before entering into force and the number of states parties has tripled by now, standing at 39 at the time of writing.50 The fcnm has been signed, but not ratified, by a further four states.51 Andorra, France, Monaco and Turkey have not signed.52 Weller notes that, while some present non-members may yield and join the fcnm,53 this may prove more difficult in relation to others: 49 50 51 52

53

M. Weller, ‘Conclusion,’ in Marc Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, p. 628. July 2012, updated in January 2014. Belgium, Greece, Iceland, Luxembourg. In sum, out of 47 Council of Europe Member States, 39 have ratified, 4 have signed and 4 have not signed, notably Andorra, France, Monaco and Turkey. Turkey is a candidate to join the EU. Entry negotiations by the EU with Turkey began already in October 2005, but they are expected to take relatively long. As the ratification of the fcnm is one of the conditions for EU-membership, Turkey will probably ratify the fcnm in the course of it compliance with the Copenhagen criteria. It is to be hoped that the EU will insist not only on membership of the fcnm but also on actual implementation steps. As for France, it does not recognize the existence of national minorities on its territory. In the case of Andorra and Monaco, in these micro-states, the native population is a minority in its own country. Andorra and Monaco also do not recognize the existence of any minority on their territory. For a detailed analysis of the obstacles to ratification by these States, see Parliamentary Assembly, Committee on Legal Affairs and Human Rights, ‘Ratification of the Framework Convention for the Protection of National Minorities by the Member States of the Council of Europe,’ Doc. 10961, 12 June 2006, available at (15 June 2011). One of these possible ‘yielders’ may be Belgium, which, before it can ratify, first needs to amend its constitution and to agree on a definition on the concept of ‘national minority.’ On 31 July 2001 the Belgian federal government signed the fcnm as part of a wider community compromise (the Lambermont Agreement) with the following reservation: “The Kingdom of Belgium declares that the Framework Convention applies without prejudice to the constitutional provisions, guarantees or principles, and without prejudice to the

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France will not easily move from its view that it is a state of equal c­ itizens, where there is no need or space for the concept of minority protection. Greece’s position has been that minority issues are regulated exclusively by the post-First World War arrangement, in particular the Treaty of Lausanne. This has inhibited a more open stance on minority issues affecting communities other than those denominated as minorities in that arrangement. Nevertheless, it is inevitable that minority issues will increasingly be discussed in the language of legal claims, also in the reluctant states. This result will be attributable in part to the Framework Convention.54

54

legislative rules which currently govern the use of languages. The Kingdom of Belgium declares that the notion of national minority will be defined by the Interministerial Conference of Foreign Policy.” The reservation can be consulted at (accessed on 1 January 2014). This Interministerial Conference of Foreign Policy was given the assignment to propose a definition of the concept of ‘national minority,’ which would be acceptable for both the Flemish and the Walloons, but so far it has not succeeded in doing so. Experts in constitutional law have also pointed out that the scope and the impact of the ratification of the fcnm on the Belgian constitutional structure, language laws and community equilibriums are unpredictable. The fcnm, after all, is contrary to the principle of territoriality, one of the foundations of the subdivision in language areas and of language legislation in Belgium. In view of the fact that the fcnm is a so-called ‘mixed agreement,’ all federated Parliaments have to agree to its signature and ratification. On 24 July 1997 the Flemish Government declared that it would only sign the treaty subject to the reservation that neither the Dutch speakers nor the French speakers could be considered as a national minority in the light of the existing institutional equilibriums within the federal state and of the language legislation. Both communities are dominant in their own language area and are minorities in the other area, but are co-dominant in the federal structures and in the bilingual Brussels-Capital Region. Resolution 1301 on the Protection of Minorities in Belgium adopted by the Parliamentary Assembly of the Council of Europe in 2002 indicated, however, that the notion of national minority would also refer to regional minorities, i.e., to Dutch speakers in Wallonia and French speakers in Flanders. The Resolution can be consulted at (accessed on 1 January 2014). For more on the reasons why Belgium cannot and did not ratify the fcnm, see J. Clement, Taalvrijheid, bestuurstaal en minderheidsrechten. Het Belgisch model. Een constitutionele zoektocht naar de oorsprong van het territorialiteitsbeginsel en de minderheidsrechten in de bestuurstaalwetgeving, Antwerpen: Intersentia, 2003; J.-C. Scholsem, ‘Quel avenir pour la Convention-cadres [sic] pour la protection des minorités nationales en Belgique?,’ cdpk 12, 2008, vol. 3, pp. 577–586; J. Velaers, ‘Het Kaderverdrag tot bescherming van de nationale minderheden: een non possumus voor Vlaanderen?,’ pp. 103–158, in A. Alen and S. Sottiaux (eds.), Taaleisen juridisch getoetst, Mechelen: Kluwer, 2009. M. Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, p. 629.

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The Question of the Definition of Minorities and the Identification of Beneficiaries The question of the definition of minorities is the second controversial aspect affecting the reach of the fcnm. The absence of a generally accepted definition of minorities has already been discussed in Chapter 155 and the question whether Roma fall into the personal scope of application was discussed in Chapter 5. As the issues have been extensively discussed above, it only remains to be stressed that the Advisory Committee has always avoided a doctrinaire approach to this question. Instead, it has sought to apply the provisions of the fcnm in an extensive way, while recognizing that some parts of the fcnm can only be applied in relation to territorially settled minorities.56 The Advisory Committee thus adopts a pragmatic approach which is Article-based and not Convention-based, defining on an Article-by-Article basis which Articles apply to which minority groups and by doing so gradually increases the personal scope of application of the fcnm in a covert way. 3.2

4

The Added Value of the fcnm versus the Racial Equality Directive

Minority Rights as a Wider Notion Compared to Non-Discrimination Rights: Not only Protection from Discrimination but also Promotion of Identity It has been already highlighted in Chapter 3 that the right not to be discriminated on the one hand and minority rights on the other hand represent complementary but distinct categories. The issue of respect for minority rights is independent of whether minority members are treated in a non-discriminatory way. Even if minorities are not discriminated, they still are entitled to special rights allowing them to preserve their physical and cultural integrity. As mentioned above, this shows that minority rights are a much wider notion than the right not to be discriminated. Consequently, legal tools designed to combat discrimination will contribute to the protection of minority rights, but are not sufficient to protect minority rights. This is confirmed by Kristin Henrard, who forwards the following thesis in relation to the echr: 4.1

55 56

See above Chapter 1 under 3.1.1 The Absence of a Minority Definition in International Law. M. Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, p. 631.

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[t]he importance of the effective protection of individual human rights for the protection of (members of) minorities cannot be overemphasized. However, the analysis and discussion of the relevant articles of the Convention and the corresponding jurisprudence has revealed that approaching the minority issue merely through the prohibition of discrimination and individual human rights is rather unsatisfactory … [because] the absence of an explicit minority protection focus [in the text] also manifests itself in a rather restrictive interpretation of the rights ­enshrined in the Convention.57 This assessment is not only true in the context of the echr, but also in a more general context and applies to the situation of the Roma in education: approaching the issue of Roma segregation in education through the prohibition of discrimination and individual human rights is unsatisfactory. There is a clear need to grant them special minority rights in order to guarantee the fulfilment of their educational rights. It is only the fcnm, and not the Racial Equality Directive, which expands upon the duty to refrain from and to prevent discrimination by also encouraging the adoption of special measures.58 Marc Weller stresses that the issue of special measures marks the point where the concept of protection from ­discrimination on the one hand and that of promotion of identity on the other hand meet.59 In this respect, the fcnm does not only stand in close relationship with universal non-discrimination instruments such as the cerd, and other regional instruments, including Protocol 12 to the echr and the EU antidiscrimination legislation, such as the Racial Equality Directive, but it has even more to offer as it also covers issues of ‘protection of existence’ and of minority identity in the form of special measures, and not only issues of ‘protection from discrimination.’ It promotes the principle of minority identity, and thus also Roma identity, which is of paramount importance in the context of i­nclusive 57 58

59

K. Henrard, Devising an Adequate System of Minority Protection: Individual Human Rights, Minority Rights and the Right to Self-Determination, The Hague, Boston, London: Martinus Nijhoff Publishers, 2000, pp. 141–143. According to a definition developed by Kristin Henrard, positive action, affirmative action or preferential treatment encompasses a great variety of special measures, policies and practices that are meant to address historical and/or structural disadvantages of particular disadvantaged groups in society. For more on the relationship between the legal acceptance of positive action on the one hand and special minority rights on the other hand, see K. Henrard, ‘Boosting Positive Action: The Asymmetrical Approach towards Non-Discrimination and Special Minority Rights,’ ZaöRV 71, (2011), vol. 2, pp. 379–418. M. Weller, ‘Conclusion,’ in M. Weller (ed.), The Rights of Minorities, Oxford: oup, 2005, p. 619.

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education. Only when Roma parents are reassured that their children will not have to renounce their Roma identity as a consequence of going to school, where their children become immersed in the majority culture and language, can Roma parents overcome their—often well founded—scepticism towards the majority school system.60 4.2 The fcnm and the Racial Equality Directive as Complementary Instruments Finally, it should be stressed that the Framework Convention, as a minority rights instrument, does not only foresee a protection against discrimination in general, and against segregation in education in particular, but it also supports the active promotion of the Roma language and culture. The Racial Equality Directive, which is a tool for combating discrimination, does not actively promote the Roma language and culture. In order to be able to integrate into the ‘majority’ society, it is important that minorities are given certain guarantees when it comes to the protection of their own cultural heritage. Any social inclusion policy aiming at combating segregation should therefore also underscore the existence of guarantees when it comes to the preservation of the minority’s identity and culture. It is obvious that the will to integrate is higher and the scepticism towards the majority educational system lower if the minority is reassured that it is not to renounce its own language and culture. As Alain Chablais notes correctly, the fight against segregation and the promotion of the Roma language and culture are not mutually exclusive, but complement each other. He stresses that [t]he position of principle taken by the Advisory Committee against all forms of segregation of Roma children [in education] should […] not be seen as conflicting with increased efforts by governments to develop Roma language and culture teaching. Rather the contrary: the Advisory Committee has indeed stressed that the promotion of Roma language and culture, which can also involve the setting up of Roma classes and the development of more focused curricula, is to be supported when this corresponds to the wish of the Roma themselves.61 60

For more on the Roma perception of schooling as a means for assimilation, see Chapter 2 under 2.4.3 Fear of Assimilation by Means of Majority Education. 61 See a contrario para. 76 and para. 84 of the opinion on Poland; paras 129 and 138–141 of the second opinion on Croatia; see also para. 97 of the opinion on Bosnia and Herzegovina; para. 68 of the opinion on Slovenia; para. 74 of the opinion on Spain; para. 90 of the opinion on Serbia and Montenegro.

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In sum, a balance is to be found between the need for a better integration of Roma pupils in the educational system in the numerous cases where they are isolated, marginalized and even segregated in substandard schools on the one hand, and the measures to be taken to encourage the development of their cultural and linguistic identity on the other hand. It is important to emphasize that these two objectives are equally important and not mutually exclusive.62 This aspect of promotion of minority language and culture is absent from the regulatory framework of the Racial Equality Directive. This is related to the nature of the latter, which is a non-discrimination instrument, and not an instrument promoting minority rights. However, in order to successfully achieve Roma inclusion in education, the guarantee for the Roma to be able to conserve their own language and culture is crucial. Olivier De Schutter notes in this context that whereas the EU has spectacularly occupied the field of antidiscrimination in the recent years, in some respects even overshadowing the efforts made by the Council of Europe in this field, it has been reluctant to address the question of minority rights, some Member States taking the view that the latter route was unnecessary if a strong antidiscrimination agenda was pursued. Yet, enlargement of the EU has brought the question of minority rights to the forefront of the political debate.63 It is doubtful that the integration of the Roma and the realization of Roma educational rights can be achieved when adopting a strong anti-discrimination agenda without granting concrete minority rights. This is another reason why more coordinated action between the coe and the EU on policy initiatives, such as the romed project,64 in the field of minority rights and social inclusion is of paramount importance.

62

A. Chablais, ‘Review of the Monitoring Process of the Council of Europe Framework Convention,’ eymi, 2004/2005, vol. 4, pp. 526–527. 63 O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to ­Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, p. 71. 64 On romed see above Chapter 11 at 3.2.1.1 European Roma Mediators Training Programme.

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Conclusions under Chapter 12

The fcnm presents a clear added value at different levels. First, it is the only comprehensive and legally binding document concerning the rights of national minorities with a holistic approach. Second, the specific nature of the monitoring procedure based on a far going constructive dialogue with the state parties presents an added value compared to the monitoring procedures under other international instruments. And finally, the fcnm and its monitoring procedure as a source of information for the ECtHR positively contributes to the development of the ECtHR jurisprudence in the field of Roma educational rights. However, as the effectiveness of the monitoring mechanism of the fcnm largely depends on the constructive dialogue between all the actors involved−which are states, the Advisory Committee, the Committee of Ministers, other international bodies, minorities and individuals−the added value of the fcnm only remains intact as long as all these actors wish to continue to reconfirm their support. A legal instrument can only be effective if it is adhered to by a large enough number of state parties, and if the beneficiaries, in casu the Roma, are not excluded from its scope of application. This is the case for the fcnm. With 39 States having ratified the instrument, it is truly pan-European. The question whether the Roma fall into the personal scope of application was already discussed in Chapter 5, where it was answered in the affirmative. Regarding the scope of application of the fcnm, the acfc adopts a pragmatic approach which is Article-based and not Convention-based, defining on an Article-byArticle basis which articles apply to which minority groups. By doing so it gradually increases the personal scope of application of the fcnm in a covert way. Finally, even though the fcnm and the Racial Equality Directive should primarily be considered as complementary instruments, the fcnm has a certain added value vis-à-vis the Racial Equality Directive: it has even more to offer as it also covers issues of ‘protection of existence’ and of minority identity ­protection in the form of special measures, and not only issues of ‘protection from discrimination.’ It promotes the principle of minority identity, and thus also Roma identity, which is of paramount importance in the context of inclusive education. The integration and social inclusion of the Roma and the realization of Roma educational rights is unlikely to be achieved when adopting a strong anti-discrimination agenda without granting concrete minority rights. It is obvious that the will to integrate is higher and the scepticism towards the majority educational system lower if the minority is reassured that it is not to renounce its own language and culture.

Chapter 13

The Added Value of the Racial Equality Directive in the Field of Roma Education 1 Introduction The Racial Equality Directive, due to its legal nature of being a non-­ discrimination instrument, is not as suitable to advance minority rights as are instruments which contain special measures for persons belonging to minorities. However, the Directive does complement the Framework Convention and does present some added value for the protection of Roma educational rights. This added value will be examined in the present chapter. The overall question as to whether the Racial Equality Directive has improved the protection against discrimination on grounds of racial or ethnic origin for people within the EU has already been discussed elsewhere, e.g., by ­Erica Howard in her doctoral thesis ‘The EU Race Directive.’1 Howard concludes her research with the view that the Racial Equality Directive has improved the protection of victims of racial or ethnic origin discrimination in the EU, that it has established common minimum standards, and that it has put the EU Member States under a legally enforceable duty to ensure that their national laws conform to this minimum standard. In doing so, according to Howard, the Directive has added value to the protection against racial or ethnic discrimination provided at both national and international level. At ­national level, all Member States had to adopt new legislation or amend existing legislation. For some Member States, the transposition of the Directive meant that completely new legislation against discrimination had to be adopted while other countries already had laws in practice, but these laws needed to be amended to bring them in line with the Directive.2 The question arising now is whether this general statement on the added value of the Directive to the protection against racial and ethnic discrimination is also applicable in the case of discrimination against Roma children in 1 E. Howard, The EU Race Directive, Oxon: Routledge, 2010. 2 E. Howard, The EU Race Directive, Oxon: Routledge, 2010, p. 184.

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e­ ducation. Due to a lack of disaggregated data collection on discrimination on the basis of race or ethnic origin against the Roma, it is difficult to assess whether the situation of the Roma in education throughout the EU has improved after the transposition of the Racial Equality Directive. The case studies presented in Chapter 10, and the midterm review of the EU Framework for National Roma Integration Strategies indicate that the situation of Roma children in education throughout Europe has not significantly improved. The question on the concrete added value of the Directive for the realization of Roma educational rights will thus have to remain unanswered due to the lack of sufficient data. The importance of the collection of ethnically disaggregated data and statistics for the development of a policy on Roma inclusion, among others in the field of education, and for the monitoring of the effectiveness of the Racial Equality Directive is highlighted in the first section. Even if the concrete added value of the Racial Equality Directive for the improvement of Roma educational rights in the EU cannot be established, an overall added value compared to other existing international human rights instruments can be distinguished. The main added value of the directive lies in its legal enforceability, of which the Commission recently has made use in the form of infringement procedures against the Czech Republic, Slovakia and Hungary due to the segregation of Roma children in education in these ­Member States. A third section examines the overall contribution of the EU—not only by means of the Racial Equality Directive but also from a more general point of view—to the implementation of the fcnm. In Chapter 9 on the jurisprudence of the ECtHR in matters related to discrimination of Roma children in education, it has already been shown how the wording of the Racial Equality Directive has positively influenced the development of the concept of indirect discrimination in the jurisprudence of the ECtHR. The question arises whether, vice versa, under the monitoring system of the Racial Equality Directive, references to the fcnm can be found. This and other related topics are examined in a fourth section on general cross-references and synergies between the fcnm monitoring system and the monitoring of the implementation of the Racial Equality Directive. After having established where exactly the added value of the Racial Equality Directive lies, its shortcomings should also be identified. The fifth section of this chapter exposes several shortcomings of the Racial Equality Directive for the protection of Roma educational rights. Because of these shortcomings, the Racial Equality Directive is not an appropriate tool to contribute towards the full realization of Roma educational rights and towards an improved integration of the Roma in European societies.

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Therefore it has been suggested that a more important contribution to the protection of the rights of the Roma could be made by the EU, within the framework of its existing powers, by adopting a directive specifically aimed at encouraging the integration of Roma. The need for such a specific Roma Integration Directive, the proposal for the directive, and the current state of affairs related to this proposal are discussed in the sixth section. Finally, the contribution of the Racial Equality Directive to the adoption of the National Roma Integration Strategies, which have been recently adopted under the EU Framework for National Roma Integration Strategies, is examined in the last section. 2

Lack of Ethnically Disaggregated Data and Statistics

The importance of data collection for the good implementation of Articles 5, 12 and 14 fcnm has already been discussed in Chapter 7 above.3 The same goes for the Racial Equality Directive. In order to be able to paint an overall picture of the progress made in combating racial discrimination and to describe whether the situation of the Roma, and other minorities, in different areas like employment, housing or education has improved after the transposition of the Racial Equality Directive, it is of paramount importance to collect ethnically disaggregated data. The fra Factsheet on ‘Combating racial discrimination’4 notes that in some EU Member States, like France, Germany and Portugal, it is illegal to collect statistics about racial or ethnic minorities. In part this is because governments believe it is an interference with privacy to identify whether an individual belongs to a minority. However, research shows that most members of minority groups are willing to include information about their ethnicity in a census, if this is made anonymous and used to combat discrimination.5 It is also difficult to determine how often discrimination occurs. Not all EU Member States keep statistics on how many complaints are made specifically on racial discrimination. Where this information is available, in some Member States rates are extremely high while in others they are extremely low. This may be due to differences in levels of awareness about the law.6 3 See above Chapter 7 under 3.3 The Importance of Data Collection for a Good Implementation of the Articles 5, 12 and 14 fcnm. 4 fra, ‘Combating racial discrimination,’ Vienna: fra, 2012, available at (accessed on 1 January 2014). 5 Ibid. 6 Ibid.

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ngos, the Network of Legal Experts in the Non-discrimination Field and the fra therefore constantly motivate Member States to collect ethnically disaggregated data and stress that without the collection of ethnically disaggregated data it is extremely difficult to develop policies to prevent discrimination and promote equality and inclusion. A lack of data collection renders it difficult to identify where problems exist and also to measure the success or failure of instruments combating these problems.7 As mentioned above,8 for the purpose of the midterm review of the EU Framework for National Roma Integration Strategies, the fra has developed the ‘Roma integration indicators scoreboard (2011–2016).9 This scoreboard presents changes in the situation of the Roma in nine EU Member States as recorded by two fra surveys in 2011 and in 2016 in four main thematic areas (education, housing, employment and health) and the cross-cutting area of poverty. In 2016, the Second European Union Minorities and Discrimination ­Survey (EU-MIDIS ii)10 collected information on the situation of the Roma in B ­ ulgaria, Croatia, the Czech Republic, Greece, Hungary, Portugal, Romania, Slovakia and Spain. The 2011 Roma survey covered the same countries, apart from Croatia.11 The surveys were all carried out using a similar methodology, applying a multistage selection of respondents. To optimise the sampling approach, EU-MIDIS ii refined the methodology applied in 2011. Despite the similar approaches, the surveys are subject to some limitations as to their direct comparability. In 2017, the fra attempted to address the limitations as to the comparability of the surveys. Given the relative similarity of the unweighted samples of the 2011 and 2016 surveys for the nine Member States, the 2011 sample was weighted to reflect the differences between those two surveys as regards regional coverage and the urban nature of surveyed localities.12 7 8 9 10 11 12

fra, ‘The Racial Equality Directive: application and challenges,’ Luxembourg: Publications Office of the European Union, 2012, p. 25. See above Chapter 11 at 2.3.5 Role of the fra in the Monitoring Procedure. European Commission Staff Working Document, ‘Roma integration indicators scoreboard (2011–2016),’ accompanying the Midterm review of the EU Framework for national Roma integration strategies, Brussels, 30.08.2017, swd(2017)286 final. fra, ‘Second European Union Minorities and Discrimination Survey EU-MIDIS ii: Roma – selected findings,’ Luxembourg, Publications Office of the EU, 2016. However, information on the situation in Croatia was collected in the UNDP/World Bank/EC 2011 Regional Roma survey. For Croatia, the same approach was applied to the dataset from the UNDP/World Bank/EC survey. European Commission Staff Working Document, ‘Roma integration indicators scoreboard (2011–2016),’ accompanying the Midterm review of the EU Framework for national Roma integration strategies, Brussels, 30.08.2017, swd(2017)286 final, p. 1.

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The scoreboard presents 18 indicators in four main thematic areas (education, housing, employment and health) and the cross-cutting area of poverty. For the thematic area of education, the following indicators were used: (1) Share of children 4-age [sic: read 4 years old] up to starting compulsory primary education age who attend early childhood education, household members (%) (2) Share of compulsory-schooling-age children attending education, household members, 5–17 (depending on the country) (%) (3) Early leavers from education and training, household members, 18–24 (%) (4) Share of people who felt being discriminated because of being Roma in the past 5 years, when in contact with school (as parent or student), respondents, 16+ (%) (5) Share of Roma children, 6–15 years old, attending classes where ‘all classmates are Roma’ as reported by the respondents, household members 6–15 in education (%). For instance, whereas the average share of 6–15 year-old Roma attending classes where “all classmates are Roma” amounted to 10% in 2011, it amounted to 15% in 2016.13 These and other survey results suggest that public authorities have not implemented effective measures to ensure Roma children’s equal participation in pre-school or kindergarten, upper-secondary or tertiary education.14 The Commission, in its midterm review of the EU framework for nris, identifies the lack of data as one of the ‘persisting challenges’ and stresses that it supports Member States’ efforts in a number of ways, including work to enhance the role of national equality bodies and promote equality data collection.15 3

Added Value Compared to Other Existing International Human Rights Instruments Due to its Concrete Enforcement Provisions

The Racial Equality Directive presents an added value compared to other ­international human rights instruments on non-discrimination, because the enforcement of the latter is often problematic. As the Directive imposes a 13 14 15

European Commission, Factsheet, ‘Midterm review of the EU Framework for National Roma Intergration Strategies,’ Brussels, September 2017, available at (accessed on 1 January 2018). fra, ‘Second European Union Minorities and Discrimination Survey EU-MIDIS ii: Roma – selected findings,’ Luxembourg, Publications Office of the EU, 2016, p. 10. European Commission, Communication from the Commission to the European Parliament and the Council, Midterm review of the EU Framework for national Roma integration strategies, Brussels, 30.08.2017, com(2017)458 final, p. 13.

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l­ egally enforceable obligation16 to adopt certain legislation in the field of non-­ discrimination, it possesses an ‘added value’ compared to those instruments not containing any enforcement provisions, such as the icerd (where the enforcement provisions are vague and the sanctions provided are often ineffective), Art. 14 echr (which is only accessory in character17), or Protocol No 12 echr (which has only been ratified by a relatively small number of states18). The Commission recently opened infringement procedures against the Czech Republic, Slovakia and Hungary on the basis of the provisions of the ­Racial Equality Directive.19 It considered that there is strong evidence that Roma children in the Czech Republic, Slovakia and Hungary are subject to wide-­ranging discrimination in education by disproportionally and systematically placing them in separate schools for children with mental disabilities. Even though the provisions of the Racial Equality Directive were correctly transposed into national Czech, Slovak and Hungarian national law, it is the application of the law in practice which appears problematic. Amnesty International, in its April 2015 report ‘Must Try Harder’20 suggests that the wider ranging reforms of the educational system which the Czech government has recently proposed are a direct consequence of the infringement procedure the Commission has opened: The deep-rooted discrimination of Roma in the Czech education system prompted the European Commission to initiate infringement proceedings against the Czech Republic for breach of European Union antidiscrimination legislation in September 2014. This process is still in its early days. The effect, however, has been to prompt the Czech government to propose wider ranging reforms of the Czech educational system than any government since the ruling of the Europe Court of Human Rights in 2007. In addition to proposing to end the separate educational programmes for children with mild mental disabilities, the government has also put 16 17

18 19 20

See above Chapter 4 under 4.4 Enforcement of the Racial Equality Directive: Implementation, Preliminary Rulings, Direct Effect and State Liability. The ECtHR did not find a breach of Article 14 echr on the grounds of racial discrimination until 2001, although it now appears to be more willing to accept that racial discrimination in violation of Art. 14 echr has occurred. See E. Howard, The EU Race Directive, Oxon: Routledge, 2010, p. 184. As of 1 January 2014, Protocol No 12 has been ratified by 18 States. See the offical website of the Treaty Office of the Council of Europe (accessed on 1 January 2014). See above Chapter 4 at 4.5 Infringement Procedure. Amnesty International, ‘Must Try Harder: Ethnic Discrimination of Romani Children in Czech Schools,’ April 2015, p. 8, emphasis added, available at (accessed on 1 September 2015).

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forward plans to strengthen the funding available to support under-­ performing children within the mainstream educational system. Perhaps the infringement procedure succeeds in bringing about the necessary change which the DH case was not able to bring about since 2007. 4

The Contribution of the Racial Equality Directive and the EU as a Whole to the Implementation of the fcnm

4.1 Minority Rights: One of the Values on which the Union is founded The Treaty of Lisbon introduced for the first time an explicit reference to the rights of persons belonging to minorities, in listing these rights among the values on which the Union is founded.21 The question of the legal basis for a minority rights policy at the EU level has been addressed elsewhere22 and this does not fall into the scope of this study. The present section is exclusively dedicated to the question of how far not only the Racial Equality Directive but also the EU as a whole contributes to the realization of minority rights and the implementation of the fcnm. 4.2 Minority Protection in the EU after the Lisbon Treaty23 As of today, the EU still does not hold an overall legislative competence to rule on the protection of national minorities. However, it has the ­possibility 21

22 23

See Art. 2 teu, which reads as follows: “The Union is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities. These values are common to the Member States in a society in which pluralism, non-discrimination, tolerance, justice, solidarity and equality between women and men prevail.” (emphasis added) See, for instance, O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, pp. 78–79. For more on minority protection in the EU see: L. Cariolou, ‘Recent Case Law of the European Court of Human Rights Concerning the Protection of Minorities,’ European Yearbook of Minority Issues, vol. 7, 2007/2008, pp. 512–544; J. Dutheil de la Rochere, ‘Challenges for the Protection of Fundamental Rights in the EU at the Time of the Entry into Force of the Lisbon Treaty,’ Fordham Journal of International Law, vol. 33, 2010, pp. 1776–1799; E. Defeis, ‘The Treaty of Lisbon and Human Rights,’ ilsa Journal of International and Comparative Law, vol. 16, 2010, pp. 413–421; K. Drzewicki, ‘National Minority Issues and the EU Reform Treaty. A Perspective of the osce High Commissioner on National Minorities,’ Security and Human Rights, vol. 19, 2008, pp. 137–146; J. Kokott and F. Hoffmeister, ‘Opinion 2/94, Accession of the Community to the European Convention for the Protection of Human Rights and Fundamental Freedoms,’ American Journal of International Law, vol. 90, 1996, pp. 664–669; T. Lock, ‘The ecj and the ECtHR: The Future Relationship Between the two

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to rule on a variety of issues that are of relevance to persons belonging to national minorities. In this regard, Gabriel Toggenburg underscores that the 2005 European Parliament Resolution on the protection of minorities and anti-­ discrimination24 proposed various competence bases in the EU treaties — including provisions in the area of anti-discrimination, culture, education, research, employment, judicial cooperation, free movement, and the common market.25 These provisions could be used as a legal basis for minority friendly legislative initiatives and could thus strengthen the respective articles of the fcnm. In the Resolution, the EP urges the Commission to establish a policy standard for the protection of national minorities having due regard to Art. 4 (2) fcnm.26 Regarding the situation of the Roma in education, the EP notes that “Roma face racial segregation in education and the risk of being placed incorrectly in schools for the mentally disabled.”27 As to the issue of equal access to education, Art. 165 tfeu28 (ex-Art. 149 tec) on improving access to education could

24

25 26 27 28

European Courts,’ The Law and Practice of International Courts and Tribunals, vol. 8, 2009, pp. 375–398; Y. McDermott, ‘Human Rights and the Lisbon Treaty: Consensus or Conditionality?,’ Whittier Law Review, vol. 31, 2009/2010, pp. 733–757; Cs. Pákozdy, ‘Tendencies of Minority Protection in the Law of the European Union,’ Miskolc Journal of International Law, vol. 5, 2008, pp. 39–49; K. Shoraka, Human Rights and Minority Rights in the European Union, London and New York: Routledge, 2010; Ph. Syrpis, ‘The Treaty of Lisbon: Much ado … but about what?,’ Industrial Law Journal, vol. 37, 2008, pp. 219–235; G.N. Toggenburg, ‘Exploring the Fundament of a New Agent in the Field of Rights Protection: The F(undamental) R(ights) A(gency) in Vienna,’ European Yearbook of Minority Issues, vol. 7, 2007/08, pp. 597–625; G.N. Toggenburg, ‘The EU’s Evolving Policies vis-à-vis Minorities: A Play in Four Parts and an Open End,’ Bozen/Bolzano: eurac Research, 2008; G.N. Toggenburg, ‘The New Treaty of Lisbon and the Protection of Minorities – Some Introductory Remarks,’ in P. Karpf (ed.), Sind wir alle Europäer oder ist noch Platz für Volksgruppen?, Klafenfurt am Wörthersee: Kärnten Dokumentation Band 26, 2010, pp. 129–137; K. Topidi, EU Law, Minorities and Enlargement, Antwerp, Oxford, Portland: Intersentia, 2010. European Parliament, Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe, OJ 2006 C 124E, p. 405, in particular para. 49 for a ‘list of legislative measures to be taken before the entry into force of the Constitutional Treaty.’ See also para. 45 where the EP encourages the Member States that have yet to ratify the fcnm to do so without further delay. G.N. Toggenburg, ‘The New Treaty of Lisbon and the Protection of Minorities – Some Introductory Remarks,’ in P. Karpf (ed.), Sind wir alle Europäer oder ist noch Platz für Volksgruppen?, Klafenfurt am Wörthersee: Kärnten Dokumentation Band 26, 2010, p. 135. However, this recommendation has remained a dead letter. European Parliament, Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe, OJ 2006 C 124E, p. 411 at para. 39. Art. 165 tfeu reads as follows: 1. The Union shall contribute to the development of quality education by encouraging cooperation between Member States and, if necessary, by supporting and supplementing their action, while fully respecting the responsibility of the Member States for the content

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contribute indirectly to a better implementation of Articles 12 and 14 fcnm by furthering the integration of minorities into society.29 As the notion ‘national minority’ is included in the wording of the Charter of Fundamental Rights of the European Union, it now has become a term of primary EU law. Article 21 of the Charter stipulates that discrimination “on the grounds of membership of a national minority” is prohibited. The legal basis for minority protection in the EU thus does not only rest in Art. 19 tfeu, but also in Art. 21 of the Charter of Fundamental Rights. Whereas Art. 19 tfeu, on the basis of which measures to combat discrimination such as the Racial Equality Directive can be adopted, directly contributes to an EU minority rights policy, the EU can also resort to soft law measures30 in other areas relevant to the protection of minority rights. But even where the EU has competences to adopt legislative measures, the potential of EU law has not been made use of, in the

2.

4.

29 30

of teaching and the organisation of education systems and their cultural and linguistic diversity. The Union shall contribute to the promotion of European sporting issues, while taking account of the specific nature of sport, its structures based on voluntary activity and its social and educational function. Union action shall be aimed at: developing the European dimension in education, particularly through the teaching and dissemination of the languages of the Member States, encouraging mobility of students and teachers, by encouraging inter alia, the academic recognition of diplomas and periods of study, promoting cooperation between educational establishments, developing exchanges of information and experience on issues common to the education systems of the Member States, encouraging the development of youth exchanges and of exchanges of socio-educational instructors, and encouraging the participation of young people in democratic life in Europe, encouraging the development of distance education, developing the European dimension in sport, by promoting fairness and openness in sporting competitions and cooperation between bodies responsible for sports, and by protecting the physical and moral integrity of sportsmen and sportswomen, especially the youngest sportsmen and sportswomen. 3. The Union and the Member States shall foster cooperation with third countries and the competent international organisations in the field of education and sport, in particular the Council of Europe. In order to contribute to the achievement of the objectives referred to in this Article: the European Parliament and the Council, acting in accordance with the ordinary legislative procedure, after consulting the Economic and Social Committee and the Committee of the Regions, shall adopt incentive measures, excluding any harmonisation of the laws and regulations of the Member States, the Council, on a proposal from the Commission, shall adopt recommendations. European Parliament, Resolution on the protection of minorities and anti-discrimination policies in an enlarged Europe, OJ 2006 C 124E, p. 413 at para. 49 (g). Such as the funding of certain programs or the encouragement of an improved coordination between the initiatives adopted by the Member States.

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absence of a systematic attempt to exercise the existing competences in order to implement the values of the fcnm.31 While using the examples of the promotion of regional and minority languages on the one hand and of the regulation of audio-visual services on the other hand, Olivier De Schutter demonstrates32 that the political will to counter the alleged double standards33 concerning minority protection by adopting a coherent minority protection policy at the EU level in line with the prescripts of the fcnm is not there yet. Bruno de Witte confirms this thesis and notes that the EU often integrates minority rights ‘through the backdoor’ of cultural, linguistic diversity and educational policies, instead of adopting legislative measures.34 The advantage of such a piecemeal approach is that it does not provoke principled opposition by such states who would argue that the EU lacks express powers in the field of minority protection or that this question should be solved at the national level according to the principle of subsidiarity.35 However, after the entering into force of the Lisbon Treaty and the now binding36 character of the Charter of Fundamental rights, a more comprehensive EU approach to the question of minority protection might be appropriate. The recent innovations introduced by the Lisbon Treaty confirm and formalize a long standing commitment of the EU for minorities. […] [T]he recent legislative developments clearly emphasize the fact that the EU is equipped with “constitutional resources” that allow developing EU secondary law in a way that it respects and protects

31

O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to ­Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, p. 90. Ibid., p. 88. 32 Ibid. 33 One could indeed reproach the EU for having conducted a very inconsistent policy towards minorities so far: while protection of minorities is still a part of the Copenhagen criteria for the new candidate member states, there is still no standard for minority rights in the Union’s policy, nor is there an understanding of who can be considered a member of a minority. 34 B. De Witte, ‘The constitutional resources for an EU minority policy,’ in G.N. Toggenburg (ed.), Minority Protection and the enlarged European Union. The way forward, Budapest: Open Society Institute, 2004, pp. 109–124. 35 Ibid. 36 According to its Article 51, the Charter is binding upon the EU and upon the Member States, but only when they are implementing Union law. The scope of application of the Charter is thus limited.

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­ ersons belonging to minorities. In fact, the Treaty of Lisbon can be seen p as introducing a legal obligation37 to do so.38 Some scholars argue that, with the new Art. 10 tfeu,39 the EU is even set under a legal obligation to combat discrimination, as it shall40 aim to actively combat discrimination in defining and implementing its policies and activities. Preconditions for the Full Effectiveness of Minority Provisions under EU law: a Working Relationship between the EU and the Secretariat of the fcnm When analysing the EU minority rights policy, it is important to distinguish between the positive dimension and the negative dimension of the EU minority rights policy. The positive dimension is related to the active protection and promotion of minority rights by the exercise of the powers attributed to the Union by its Member States. The negative dimension relates to the fact that both the institutions and the Member States when they act in the field of the application of Union law are obliged to respect both the general principle of equal treatment and certain specific minority rights. Some examples of the limited, but nevertheless significant competences attributed to the EU to protect and promote minority rights in the EU can be found in the writings of Olivier de Schutter.41 The components of the negative dimension of the EU approach to minority rights and certain of its limitations have also been extensively discussed by the same scholar in a recent contribution.42 To re-visit these issues would go beyond the scope of this book. What is interesting to look into here, is how the effectiveness of minority provisions under EU law can be increased. 4.3

37 38 39 40 41 42

On the legal obligation for the EU to actively combat discrimination in all circumstances, see above Chapter 4 under 4.2 The Racial Equality Directive and the new Article 10 tfeu. G.N. Toggenburg, ‘The New Treaty of Lisbon and the Protection of Minorities – Some Introductory Remarks,’ in P. Karpf (ed.), Sind wir alle Europäer oder ist noch Platz für Volksgruppen?, Klafenfurt am Wörthersee: Kärnten Dokumentation Band 26, 2010, p. 130. Art. 10 tfeu reads as follows: “In defining and implementing its policies and activities, the Union shall aim to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” Legislative acts mostly use ‘shall’ and ‘shall not’ to express mandatory action and prohibition. The use of the modal verb ‘shall’ in Art. 10 tfeu clearly indicates the existence of a mandatory action/legal obligation. O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to ­Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, pp. 76–97. Ibid., pp. 98–111.

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De Schutter identifies 3 conditions which have to be fulfilled before provisions such as Article 2 teu (with the inclusion of the right of minorities in the values on which the Union is founded), Article 21 Charter of Fundamental Rights (with the explicit recognition of the right not to be discriminated on the basis of one’s membership of a national minority), or the inclusion of a concern for the impact on minorities in the pre-screening of EU legislation in the context of extended impact assessment, can be fully effective. These 3 conditions are: a clear understanding of what the concept of ‘minorities’ refers to in the context of EU law; a shared commitment of the EU Member States to improve their monitoring of the situation of minorities under their jurisdiction in areas such as housing, employment, health and education; and a working relationship to be established between the competent institutions of the EU and the Secretariat of the Framework Convention for the Protection of National Minorities.43 As to the first precondition, due to the politically sensitive character and a lack of overall political acceptance of a definition of the term ‘minority,’ it is not to be expected that such a definition will be adopted soon. As to the improvement of the monitoring of the situation of minorities, the monitoring mechanism which will be developed under the EU Framework for National Roma Integration Strategies44 is certainly a step in the right direction. Finally, as to the working relationship between the EU institutions and the secretariat of the fcnm, there is no formal link between the institutions of the EU and the Secretariat of the fcnm. With the progressive recognition of minority rights in the legal order of the EU, the EU should take the country-specific Advisory Committee Opinions and Committee of Ministers resolutions more into account when developing its own monitoring mechanisms or other tools in the field of minority protection. This is also one of the core messages of the report45 prepared upon the request of the Heads of State and Government of the Member States of the Council of Europe convening at the Warsaw S­ ummit of 43

44 45

Olivier De Schutter, “The Framework Convention on the Protection of National Minorities and the Law of the European Union” in Kristin Henrard (ed.), Double Standards Pertaining to Minority Rights, Martinus Nijhoff Publishers, Leiden, 2010, pp. 105–106. The content of these 3 preconditions is discussed by De Schutter on pp. 106–111. See below under 8. The Racial Equality Directive in the Context of the Framework for National Roma Integration Strategies up to 2020. J.C. Junker, ‘Council of Europe – European Union: A sole ambition for the European continent,’ Report by Jean-Claude Junker, Prime Minister of the Grand Duchy of Luxembourg to the Heads of State or Government of the Member States of the Council of Europe, 11 April 2006. See more generally on the question of the relationship between the two organizations in the protection and promotion of human rights: O. De Schutter, ‘The Two ­Europes of Human Rights. The Emerging Division of Tasks Between the Council of

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the Council of Europe on 16–17 May 2005 by Mr Juncker, former Prime Minister of Luxembourg, now President of the European Commission, on the future of the relationship between the EU and the Council of Europe. Junker stresses in the report that the “EU bodies should recognize the Council of Europe as the Europe-wide reference source for human rights. The decisions and conclusions of its monitoring structures should be systematically cited as a reference.”46 The creation of a formal cooperation between the secretariat of the fcnm and the EU institutions would certainly have a positive effect on the protection of minority rights in the EU in general and on the monitoring systems of both the fcnm and the Racial Equality Directive. Already existing cross-references and synergies between the fcnm monitoring system and the monitoring of the implementation of the Racial Equality Directive are discussed in the next section. 5

Cross-references and Synergies between the fcnm Monitoring System and the Monitoring of the Implementation of the Racial Equality Directive

How the Racial Equality Directive has figured as a point of reference for ECtHR case law and how the ECtHR ‘imported’ the concept of indirect discrimination from EU equality legislation has already been discussed above.47 This section is dedicated to the mutual influences and synergies between the monitor­ ing system of the Racial Equality Directive on the one hand and the monitoring system of the fcnm on the other hand. References Made to the fcnm in the Context of the Monitoring of the Racial Equality Directive In the context of the monitoring of the Equality Directives, The Migration Policy Group and Human European Consultancy have established and manage a ‘European Network of Legal Experts in the Non-discrimination Field’ that provides independent information and advice on the implementation of 5.1

46

47

­ urope and the European Union in Promoting Human Rights in Europe,’ Columbia JourE nal of European Law 3, vol. 14, 2008, pp. 509–561. J.C. Junker, ‘Council of Europe – European Union: A sole ambition for the European continent,’ Report by Jean-Claude Junker, Prime Minister of the Grand Duchy of Luxembourg to the Heads of State or Government of the Member States of the Council of Europe, 11 April 2006, quoted by O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, p. 111. See above Chapter 9.

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the anti-discrimination Directives in all 28 Member States. In addition to the EU Member States, the candidate countries Turkey and the Former Yugoslav Republic of Macedonia have been part of the Network since December 2009. More recently, the eea countries (Iceland, Liechtenstein and Norway), Montenegro and Serbia are covered as well.48 30 country reports (EU 28, Turkey and fyrom) covering the state of affairs up to 1 December 2009 were examined as to the existence of references to the Framework Convention for the Protection of National Minorities. The result was disappointing: only 6 out of 30 country reports referred explicitly to the Framework Convention. Out of these 6, only one single report, the one on Cyprus,49 referred to the content of concrete Advisory Committee Opinions and Committee of Ministers Resolutions. The other 5 references to the Framework Convention were not related to the content of the monitoring procedure under the fcnm. France, which did not sign or ratify, stressed again that the Conseil d’État considered, in its advice to the government of 6 July 1995, that the Convention is incompatible with the French Constitution. In the report on Germany, a short reference in a footnote was added on the definition of a ‘national minority’ which Germany adopted in its declaration to the fcnm on what ethnic groups are considered to be ‘national minorities.’ A third reference to the fcnm can be found in the country report of Ireland, where it is stressed that Ireland reports on developments concerning the Traveller community within the framework of the icerd and the fcnm. In the report on Lithuania, it is mentioned that the Republic of Lithuania has signed and ratified the Council of Europe Framework Convention for the Protection of National Minorities and in the report on Romania, a reference to a court decision in which the fcnm was cited was included. One can thus conclude that the legal experts drafting the country reports on the implementation of the Equality Directives did not pay any attention to the obligations of these countries under Art. 4 fcnm and did not seek to establish any references or parallels with the content of the State Reports, the Advisory 48

49

At the time of writing, 35 country reports on the implementation of Directives 2000/43/EC and 2000/78/EC were available (EU 28, the 4 candidate countries fyrom, Montenegro, Serbia and Turkey, and the 3 eea countries) covering the state of affairs up to 1 January 2017. The country reports are published on line on the website of the European Equality Law Network, available at (accessed on 1 January 2018). In the report on Cyprus, a reference can be found to the content of the Opinion on C ­ yprus by the Advisory Committee on the Framework Convention for the Protection of National Minorities of 2001 and to Resolution Rescmn(2002)3 on the implementation of the Framework Convention for the Protection of National Minorities by Cyprus.

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Committee Opinions or the Committee of Ministers resolutions adopted in the framework of the monitoring mechanism of the fcnm. References Made to the Racial Equality Directive by the Advisory Committee to the Framework Convention in its Opinions The Advisory Committee of the Framework Convention, in its comments under the implementation of Art. 4 fcnm, has frequently encouraged State Parties to consider the introduction of a single comprehensive anti-discrimination body. In this context, the Advisory Committee has made extensive reference to the Racial Equality Directive.50 At the time of writing,51 the fcnm had as many as 39 ratifications and the monitoring process was in the fourth monitoring cycle. A total of 139 Advisory Committee Opinions had been adopted, followed by not less than 125 Committee of Ministers Resolutions. All documents have not been reviewed as to the presence of a reference to the Racial Equality Directive, but in those opinions checked, a reference was mostly present, especially under Art. 4 fcnm. It seems thus that the Secretariat of the fcnm has acknowledged the importance of the Racial Equality Directive for the protection against discrimination of persons belonging to minorities and considers it an instrument which supports the good implementation of Article 4 fcnm. 5.2

5.3 Monitoring the Implementation of the fcnm by the EU? One of the recommendations contained in the European Parliament ‘Resolution with recommendations to the Commission on European regional and lesser-used languages — the languages of minorities in the EU — in the context of enlargement and cultural diversity’52 following the Ebner report53 on 50

51 52

53

See para. 27 of the opinion on Spain; paras 28–29 of the opinion on fyrom; para. 26 of the opinion on Slovenia; para. 33 of the opinion on Poland; para. 29 of the opinion on Ireland. Alain Chablais, “Review of the Monitoring Process of the Council of Europe Framework Convention,” eymi, vol. 4, 2004/2005, p. 530. These figures are valid as of 1 January 2018. For a table of signatures and ratifications and a status of the monitoring work, see the website of the fcnm at < https://rm.coe. int/1680673212> (accessed on 1 January 2018). European Parliament Resolution with recommendations to the Commission on European regional and lesser-used languages — the languages of minorities in the EU — in the context of enlargement and cultural diversity, 2003/2057(ini), OJ C 076 E, 25 March 2004, pp. 374–381. M. Ebner, ‘Report with recommendations to the Commission on European regional and lesser-used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity,’ 2003/2057(ini), 14 July 2003, available at (accessed on 1 January 2014).

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‘European regional and lesser-used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity’ was that the EU should play a more active role in monitoring the impact of the state policies on the situation of national minorities. The Ebner report proposes that: the European Parliament itself should see that: 26. a specific section of the EP’s reports on human rights, or its own specific reports, deal with the protection of minorities; 27. the European Parliament’s Committee on Culture is regularly and officially informed by the secretariat of the European Charter on Regional or Minority Languages concerning the state of ratification, and developments in relation to the implementation of, the European Charter for Regional or Minority Languages in the EU Member States; 28. the European Parliament’s Committee on Human Rights is regularly and officially informed by the secretariat of the Council of Europe’s Framework Convention on the Protection of National Minorities on the state of ratification, and developments in the implementation, of the Framework Convention in the EU Member States; 29. if they have not already done so, Member States and candidate countries ratify, as soon as possible, the Council of Europe’s European Charter for Regional or Minority Languages and its Framework Convention for the Protection of National Minorities; the Member States and candidate countries should: 30. compile, as a basis for further measures, reliable data on ethnic, linguistic and religious minority groups, including immigrants and refugees, on their economic and social isolation/exclusion, and on the legal and practical status of regional and minority languages, and send such data to the European Monitoring Centre in Vienna; the Council should: 31. in agreement with the Commission, and as requested in the opinion on the Council report on human rights for 1999, include in its annual report on the human rights situation an analysis of the development of human rights, including the rights of national minorities, in the individual Member States, taking into account also the outcome of Council of Europe activities in this field, to make it possible to formulate strategies to ensure that national and European policies in this area are more consistent.54 54

Ibid., paras 26–31. Emphasis added.

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Olivier De Schutter notes that such a development could be imagined, mutatis mutandis, as regards other rights than those of linguistic minorities and it could focus on the fcnm rather than the European Charter on Regional and Minority Languages.55 According to De Schutter, this could present both an opportunity and a risk: The opportunity would be to use the powerful institutional machinery of the EU in order to improve the implementation of the relevant Council of Europe instruments by the EU Member States, not only by encouraging the ratification of those instruments, but also by monitoring the commitments of the EU Member States in that framework and, especially, by ensuring that the findings of the monitoring bodies of the Council of Europe are followed up. The risk, at the same time, would be to substitute one form of monitoring within the Union (through the European Parliament, in particular, perhaps increasingly with the assistance of the EU Fundamental Rights Agency) for a form of monitoring which is already performed by the Council of Europe bodies. In the worst case scenario, this could lead to diverging interpretations of the requirements of the relevant standards, and to the authority of the monitoring by the Council of Europe being undermined.56 In order to ensure that diverging interpretations of the requirements of the relevant standards, more particularly, of the provisions of the Framework Convention, are avoided, any monitoring performed by the EU on the Member States’ compliance with the provisions of the fcnm should be based explicitly on the wording of the Framework Convention. Also country-specific follow-up should be based on the findings of the monitoring bodies of the Council of Europe, that is the Advisory Committee Opinions and the Resolutions of the Committee of Ministers.57 As mentioned above, in the country reports on the transposition of the Racial Equality Directive, no reference to the Framework Convention was found. This is a missed opportunity, especially given the fact that the rapporteurs were expressly requested to analyse the situation of segregation of Roma children in education. It would have been appropriate for the country rapporteurs to refer to the observations concerning segregation of 55

O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to ­Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, p. 112. 56 Ibid. 57 Ibid., p. 113.

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Roma children in education by the Advisory Committee under the monitoring of Articles 12, 13 and 14 fcnm on education. 6

Areas Where the Racial Equality Directive Falls Short of Providing Full Protection

The current section looks into weaknesses of the Racial Equality Directive when it comes to its contribution to equal access to quality education for Roma children. 6.1 A Need for Positive Action Nowadays it is generally accepted that minority policies based on the principle of the neutrality of the state fail58 and that, in order to reach substantial equality, equality of opportunity and equality of results, positive action is necessary. Rainer Hofmann underscores that, although the Racial Equality Directive was not designed as such for the protection of persons belonging to national minorities, it clearly constitutes an important step to safeguard the legal position of persons belonging to racial and ethnic minorities. However, since it does not provide for any positive measures in favour of persons belonging to national minorities or any specific rights, it seems to reflect the approach predominant in the immediate post-World War ii period, according to which the implementation of the prohibition of discrimination constitutes a sufficient means to protect and promote the distinct identity of persons belonging to national minorities. This approach, however, does not fully reflect the currently prevailing assessment.59 Under the Racial Equality Directive, the EU member States have the choice whether or not to adopt positive measures in favour of certain disadvantaged groups, whose integration may not be realized only by relying on the prohibition of (direct and indirect) discrimination. Olivier De Schutter argues that in certain cases of systematic inequality—or of what might be called structural discrimination—positive action should not only be allowed, but obligatory, in 58 59

S. Van den Bogaert, ‘State Duty toward Minorities: Positive or Negative? How policies based on neutrality and non-discrimination fail,’ ZaöRV, vol. 64, 2004, pp. 37–64. R. Hofmann, “The Impact of international norms on the protection of national minorities in Europe: the added value and essential role of the framework convention for the protection of national minorities,” Strasbourg, 5 December 2006, DH-MIN(2006)018, p. 7.

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favour of groups who are politically powerless and thus cannot influence the political process in their favour in order to obtain the adoption of such measures.60 De Schutter refers in this context to Art. 2 (2) of the icerd, which all the EU Member States have ratified, and which provides that the adoption of positive measures may be required under certain conditions61 and argues that “positive measures may be required from the State in order to ensure real and effective equality under its jurisdiction.”62 Especially in cases of structural discrimination, as is the case of the Roma, due to the extent of the discrimination faced by a particular group in society, more is required in order to achieve effective equality than just to eradicate all forms of direct and indirect discrimination.63 6.2 Remarks Related to the De-segregation of the Roma in Education 6.2.1 Just the End of the Beginning Regarding de-segregation in education, non-discrimination instruments such as the Racial Equality Directive can be regarded as complementing minority rights instruments, but, as mentioned above, they will never be sufficient per se in order to reach the goal of de-segregation in education and the integration of the minorities in question into mainstream education.64 60

O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, p. 81. 61 Art. 2(2) icerd reads as follows: “States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.” (emphasis added) 62 O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to ­Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, p. 84. 63 Ibid. 64 See also Olivier de Schutter, who notes that the Racial Equality Directive remains confined to a traditional non-discrimination approach and may therefore be insufficient to promote the effective integration of ethnic and religious minorities in the Union. O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, p. 80; O. De Schutter, ‘Three Models of Equality and European Anti-Discrimination law,’ Northern Ireland Legal Quarterly 1, vol. 57, 2005, pp. 1–56; O. De Schutter and A. Verstichel, ‘Integrating the Roma into European Society: Time for a New Initiative,’ eymi, vol. 4, 2004/5, pp. 411–443; O. De Schutter and A. Verstichel, ‘The Role of the Union in Integrating the Roma: Present and Possible Future,’

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It has already been discussed65 that the adoption of measures to promote the inclusion of an ethnic minority, such as the Roma, often raises the fear that integration will lead to cultural assimilation. Therefore minority rights in education, as those stipulated in Articles 12, 13 and 14 fcnm are a conditio sine qua non to achieve integration into mainstream education, and policies based solely on non-discrimination will most likely fail. In spite of the added value which the Racial Equality Directive presents compared to other international human rights instruments in the field of nondiscrimination, it falls short of providing full protection, especially for Roma children against discrimination and segregation in education. The Racial Equality Directive does not contain any provisions for positive duties or for a duty to mainstream equality and diversity. The value which the EU provisions add to the existing international measures against discrimination lies in the setting of minimum enforceable standards of protection against racial and ethnic origin discrimination. However, by only permitting positive action and not actively promoting positive action, it neither aims at achieving equality of opportunity nor equality of results. If equality is to fight racial discrimination in all its forms and to eradicate segregation, a mere concept of formal equality is not sufficient to reach this aim. Therefore Christopher Brown sees the Racial Equality Directive as “only the end of the beginning,”66 because, at present, it does not yet ensure full, factual equality for all Europeans. It is clear that the main aim of the Directive is to establish formal equality rather than a more substantive concept of equality because of an absence of more proactive and preventative provisions. 6.2.2 No Reference to Segregation Another ‘deficit’ of the Racial Equality Directive is the lack of a reference to segregation as a severe form of discrimination. Already in its 2003 Report, the European Network of Experts in the Non-discrimination Field confirmed that Directive 2000/43/EC is inadequate to sufficiently address discrimination against the Roma, as it does not explicitly refer to desegregation. It is true that segregation is a form of discrimination and may be eliminated by positive action by the state; it is also true that the Race Equality Directive imposes explicit obligations on states to eliminate discrimination and encourages positive action. Unfortunately, member states have not appreciated the link between

65 66

European Diversity and Autonomy Papers, 2/2005, pp. 26–33, available at (accessed on 1 January 2014). See above Chapter 2 under 2.4.3 Fear of Assimilation by Means of Majority Education. Ch. Brown, ‘The Race Directive,’ Yearbook of European Law, vol. 21, 2001 (2002), p. 227.

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d­ iscrimination of Roma and segregation, and thus, the Racial Equality Directive has not lead to adequate states’ measures for the desegregation of the Roma.67 De Schutter and Verstichel note in this context, that the question to be asked is not only whether the Racial Equality Directive effectively prohibits discrimination, but also whether it is an adequate tool to ensure desegregation, as this is the situation the Roma inherited. They draw a parallel with the case of Brown v. Board of Education of Topeka68 and suggest that the Racial Equality Directive should be judged according to the criterion as to whether the Directive can put an end to segregation: Fourteen years after the United States Supreme Court had found, in Brown v. Board of Education, that racial segregation (the “separate but equal” educational system) was unconstitutional under the 14th Amendment to the United States Constitution, it had to acknowledge that the simple affirmation of the principle of non-discrimination would not achieve the aim of desegregation, and that affirmative action – in particular, the ‘bussing’ of children from predominantly African-American neighbourhoods to predominantly white neighbourhoods and conversely – could be required to fulfil the mandate of the Constitution. The Supreme Court considered that ensuring freedom of choice for the children was not necessarily sufficient. What mattered, in its view, was not the means chosen (freedom or, indeed, more affirmative measures), but the end result. In a landmark judgment of 27 May 1968, it concluded that the “freedom-of-choice” plan adopted by a school board to put an end to segregation should be judged by its effectiveness in achieving that aim, and that freedom (or “colour-blindness”) could not be seen as an end in itself. It quoted from a lower federal court: “If the means prove effective, it is acceptable, but if it fails to undo segregation, other means must be used to achieve this end. The school officials have the continuing duty to take whatever action may be necessary to create a ‘unitary, non-racial system.’” The Racial Equality Directive adopted on 29 June 2000 should be judged according to the same criterion.69 67 68 69

A. Xanthaki, ‘The Proposal for an EU Directive on Integration,’ Roma Rights Quarterly, 24 March 2005, available at (accessed on 13 February 2012). The case has been discussed above in Chapter 2 under 4.1 The Parallel with Brown v. Board of Education of Topeka. O. De Schutter and A. Verstichel, ‘The Role of the Union in Integrating the Roma: Present and Possible Future,’ European Diversity and Autonomy Papers, 2/2005, pp. 28–29,

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However, the fact that the Commission has recently initiated infringement procedures against the Czech Republic, Slovakia and Hungary on the basis of the Racial Equality Directive because of segregation of Roma children in education suggests that the Commission expects these Member States to take active measures to put an end to the long-existing practices of segregation of Roma children in their respective educational systems. It seems that the Commission is not satisfied that a mere amendment of the relevant national legislation will be sufficient to remedy the problem, but it has even required the Czech Republic to provide it with statistical evidence proving that the placement of Roma children in special schools has been effectively terminated. This implies the need for positive measures which will allow the Roma children concerned to be educated in inclusive mainstream education. 6.3 Possible Perverse Effects of the Racial Equality Directive Finally, as a result of the Racial Equality Directive, it has been argued that some EU Member States might believe or want to believe that, after having successfully transposed the directive into national law, they comply fully with the internationally defined requirements of equality law and thus have done enough in relation to minority protection as well. The fact that they have implemented the Racial Equality Directive may make it difficult, according to De Schutter, to convince those states that they should go further. The danger then exists that by adopting directives in the anti-discrimination field, the EU “may be preempting a field which the EU Member States will consider less important to cover by reference to the Council of Europe instruments,”70 such as the Framework Convention. Some scholars argue that the EU should better aim at achieving a standard of protection at least as strong as the standard defined by the instruments of the Council of Europe. The risk otherwise may be to undercut the efforts of the Council of Europe, by creating the impression that an alternative standard is available within the Union, from which the States belonging to both organizations simply may choose from [sic].71

70 71

available at (accessed on 1 January 2014). O. De Schutter, ‘The Framework Convention on the Protection of National Minorities and the Law of the European Union,’ in K. Henrard (ed.), Double Standards Pertaining to ­Minority Rights, Leiden: Martinus Nijhoff Publishers, 2010, pp. 113–114. Ibid., pp. 114–115.

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The fear that the implementation of the Racial Equality Directive might be used as an argument by states not to legislate in the field of minority protection since ‘enough has been done already’ seems not completely well founded, since it is obvious that governments are fully aware of the fact that measures in the field of non-discrimination contribute to a better realization of minority rights, but that these measures per se do not suffice to promote the conditions necessary for persons belonging to minorities to maintain and develop their culture and to preserve the essential elements of their identity. 7

Need for a Specific Roma Integration Directive?

7.1 Proposal for a ‘Directive on Roma Integration’ In May 2004 the EU Network of Independent Experts in Fundamental Rights published its ‘Report on the Situation of Fundamental Rights in the European Union for 2003.’72 The report referred to recent opinions of the Advisory Committee of the Framework Convention for the Protection of National Minorities, which highlighted the segregation of the Roma in housing and education and concluded that “[t]he most important contribution which the European Community could make to the protection of minorities, within the framework of its existing powers, would be the adoption of a Directive specifically aimed at encouraging the integration of Roma.”73 In presenting the need for such a Directive, the EU Network of Independent Experts noted the inappropriateness in several respects of the Racial Equality Directive, which is not specifically aimed at achieving the integration of groups that are traditionally excluded, such as the Roma: The Opinions of the Advisory Committee on the Framework Convention for the Protection of National Minorities leave no doubt as to the inadequacy of Directive 2000/43/EC of 29 June 2000, even though it protects the Roma against all discrimination on the ground of membership of an ethnic group. The urgent need to adopt a specific Directive based on ­Article 13 EC in order to encourage the integration of the Roma minority not only stems from the grave concerns that have been expressed in the evaluation reports on the situation of this minority in several Member States of the European Union, and not just in the acceding States where 72 73

European Union Network of Independent Experts in Fundamental Rights, ‘Report on the Situation of Fundamental Rights in the European Union for 2003,’ Brussels, January 2004. Ibid., p. 103.

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the question of integration of the Roma arises with particular acuteness. This urgency also stems from the inappropriateness in several respects of Directive 2000/43/EC, which was not specifically aimed at achieving the integration of groups that are traditionally excluded, such as the Roma. On the one hand, as has already been pointed out, the Directive does not give the Roma the guarantee of having access to reasonable accommodation matching their specific needs. […] On the other hand, with regard to the necessity of achieving the integration of the Roma, the mere prohibition of direct or indirect discrimination does not suffice. Equal treatment in this case involves taking into account a) the need to achieve desegregation of Roma in the area of housing and in particular of education, whether the situations of segregation that are encountered are the result of deliberate choices made by the public authorities or of personal preferences; b) the need to compensate for past discrimination which resulted in a particularly unfavourable situation for the Roma in social and economic life as a whole, by adopting a policy of affirmative action to integrate the Roma in the community; c) the need to encourage the integration of the Roma minority while respecting the attachment to an itinerant life which some of its members may still have. This calls for a policy that effectively promotes the free choice of members of that minority to either pursue an itinerant or semi-itinerant lifestyle or to adopt a sedentary lifestyle which should be allowed to develop in reasonable conditions. Directive 2000/43/EC of 29 June 2000 does not address the issue of segregation as such, that is to say, there where the separation of groups does not lead to one group being treated less favourably than another. It allows Member States to introduce measures of positive action (Article 5), yet without imposing this, that is to say, without making it an essential element of effective equal treatment. Furthermore, it does not answer the question of knowing how to allow members of a traditionally disadvantaged group to become integrated, without this resulting in a forced assimilation of the members of that group, to the detriment of their right to preserve the constituent elements of their identity. Finally, the scope ratione materiae of Directive 2000/43/EC is too limited for the needs of the Roma. Their exclusion from a number of public services and essential social goods is the result of their precarious administrative situation, their statelessness and, worst of all, the total lack of administrative documents attesting their legal status. These documents are often expensive to obtain for a highly impoverished people. A specific obstacle to their obtaining these documents is also the requirement to furnish proof of a fixed address to

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which social benefits can be paid, which de facto has the effect of excluding Roma who lead an itinerant or semi-itinerant life. […] Directive 2000/43/EC does not prohibit discrimination in the issuing of administrative documents. Such documents, however, are often required to ­access certain social benefits which constitute, particularly for marginalized peoples, an essential aid to integration. This is another reason why a Directive specifically aimed at Roma is indispensable.74 The legal basis for such a Directive specifically aimed at Roma, according to the Report, can be ex-Art. 13 tec (now Art. 19 tfeu)75 as the Directive would be seen as a tool to combat discrimination against the Roma based on their racial and ethnic origin. As to the content of the Directive, the Report does not make any concrete suggestions. Preferably the Directive would not only aim at combating discrimination but also at fostering the integration of the Roma into the majority society. 7.2 Evaluation The proposal for a directive on Roma inclusion has been warmly welcomed by several ngos advocating Roma Rights.76 In a question put to the French Presidency of the EU on the situation of Roma and Travellers,77 several French ngos (angvc, asav, ccfd, fnasat, Secours catholique, Fondation Abbé Pierre, Ligue des droits de l’Homme, Médecins du Monde, Romeurope) asked the French Presidency of the EU, which France assumed between July and December 2008, to work towards the adoption of a ‘European Framework Directive for the Inclusion of Roma and Travellers’ as recommended in the Report on the Situation of the Roma in an enlarged European Union. The Directive 74 75

76 77

Ibid., pp. 103–105. The first paragraph of this article reads as follows: “Without prejudice to the other provisions of this Treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation.” errc, ‘Binding States by Law to Roma Inclusion,’ Roma Rights Quarterly, 11 March 2005, available at (accessed on 1 January 2014). angvc, asav, ccfd, fnasat, Secours catholique, Fondation Abbé Pierre, Ligue des droits de l’Homme, Médecins du Monde, Romeurope, ‘Question put to the French Presidency of the European Union on the situation of Roma and Travellers,’ (2008), available at (accessed on 1 January 2014).

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would provide assurance, according to the ngos, that all policies for the integration of the Roma would be evaluated regularly in order to guarantee that their impact reaches the beneficiaries at a level appropriate to their needs. In the field of access to education, the ngos recommended that: [t]he directive should ensure that Roma and Travellers have effective access to education and regular schools. Measures need to be taken to eliminate all the legal, bureaucratic and practical obstacles leading to absenteeism and dropping out of school, such as the lack of ID documents, residence permits and transportation. The directive would define the framework for school support and programmes to combat illiteracy for adults belonging to the Roma community.78 Not only ngos but also legal scholars, such as Alexandra Xanthaki, seem to be in favour of the adoption of such a directive, as it “would be the first binding instrument specifically on Roma at the international level, a natural step after several non-binding recommendations and opinions in the international level.” Xanthaki stresses that [i] t is exactly at this level that a new directive on Roma integration will make the greatest difference: the implementation of existing standards. Although provisions of international conventions are legally binding on the states that have signed them, failure to respect these instruments does not lead to any consequences other than international criticism. This soft nature of international instruments is in accordance with the horizontal structure of the international community, in which each state is equal to the other. However, a European Directive on Roma integration will derive from a supranational institution, the European Union, and will therefore be a much stronger instrument.79 Indeed a Directive on Roma Integration would be an important step for the protection of the Roma in Europe. It would give Roma rights that they themselves as individuals can directly pursue at the domestic level and consequently make the states liable for segregationist practices as well as for omissions to act for the integration of the Roma. 78 Ibid. 79 A. Xanthaki, ‘The Proposal for an EU Directive on Integration,’ Roma Rights Quarterly, 24 March 2005, available at (accessed on 1 January 2014).

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Xanthaki concludes her arguments in favour of the directive by stressing that a Directive on Roma Integration would clarify the standards all Member States have to respect for the protection of Roma by using strong language; it would put an end to states resistance in accepting they must take positive action to protect the identity of Roma. In general, such a Directive is a long needed measure that could have long-lasting positive consequences for the Roma within the European Union.80 Two Alternative Proposals: A ‘Desegregation Directive’ or a ‘Positive Action Directive’ A second proposal as to Union legislation in the field of Roma integration involves a ‘Desegregation Directive’ covering the fields of education, housing and health. This idea has been a central plank in the proposals of mep Viktória Mohácsi, a Romani mep from Hungary in 2005. Although the author of this study has not seen a full proposal as to the dimensions of a ‘Desegregation Directive,’ its legal dimensions would presumably aim to bring into EU law a supplementary ban similar to the Art. 3 ban on segregation included in the International Convention on the Elimination of All Forms of Racial Discrimination (icerd).81 Others have proposed to adopt a ‘Positive Action Directive,’ which would bind EU Member States to undertaking positive action on behalf of minorities and other weak groups, or otherwise clarify EU Member States obligations in the field of positive action. Such a ‘Positive Action Directive’ might include a specific chapter on the Roma, or otherwise make specific reference to the Roma.82 7.3

7.4 Coordination of Initiatives In an interview of March 2005 by errc with Olivier De Schutter, who at that time was coordinator of the EU Network of Independent Experts in Fundamental Rights,83 De Schutter was asked to take a stand on the argument of 80 Ibid. 81 errc, ‘Binding States by Law to Roma Inclusion,’ Roma Rights Quarterly, 11 March 2005, available at (accessed on 1 January 2014). 82 Ibid. 83 Olivier De Schutter was the coordinator of the EU Network of Independent Experts on Fundamental Rights, which the European Commission had set up (2002–2006) upon the request of the European Parliament in order to ensure the monitoring of the Charter of Fundamental Rights, and is currently coordinator of the group of independent experts on

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opponents of the idea of a Roma Integration Directive. These opponents might argue that the legal obligations suggested by such a Directive could not be made sufficiently clear as to render them enforceable. De Schutter stressed that the Roma Integration Directive could be procedural rather than substantive: [i] t could build on Directive 2000/43/EC, and define as one of the missions of the equality bodies set up in accordance with Article 13 of that ­instrument that they request from all public bodies that they present equality schemes defining how they intend to promote the integration of the Roma, and that they define quantitative objectives in order to attain that objective. In fact, it seems crucial for the success of such an integration process that it be monitored at national level, more closely than it could be followed by the European Commission for instance, if the objectives to be attained were to be defined uniformly throughout the Union.84 Alternatively, De Schutter also mentioned the possibility of an initiative imposing on states to collect adequate information about the situation of the Roma in different sectors, to report to the Commission, and to define targets to achieve in order to improve the integration of the Roma, while sharing best practices. The ideal instrument for this would not be a directive, but rather a form of coordination of the initiatives adopted by the member states in order to fulfil the objectives set at the level of the EU. Already in 2005, De Schutter predicted that this second option would be ‘politically more realistic’ as it is easier to justify in terms of subsidiary. Moreover, such a form of ‘coordination of initiatives’ is not as politically sensitive as the adoption of a directive, as it is not legally binding. Currently there are no plans for adopting a directive on Roma integration and such a directive has never been seriously discussed at EU level, due to the lack of political consensus. With the adoption of the ‘EU Framework for National Roma Integration Strategies up to 2020,’85 it is clear that the EU chose

84 85

fundamental rights providing advice to the EU Fundamental Rights Agency. He has been a member of the EU Groups of legal experts on sexual orientation and on disability-based discrimination and is currently a senior expert within the EU Group of legal experts on discrimination. O. De Schutter, ‘EU Roma Integration Directive: Filling the Gap in the Equality Legal Regime,’ Roma Rights Quarterly, January 2005, issue 1, pp. 27–30, available at (accessed on 1 January 2014). European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Brussels, 5 April 2011, com(2011) 173 final.

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to implement the alternative option proposed by the Network of Independent Experts in Fundamental Rights, namely the option of a ‘coordination of initiatives.’ The EU Framework for National Roma Integration strategies has already been discussed above.86 As several of the National Roma Integration Strategies submitted under the EU Framework were weak and unlikely to deliver inclusion, and as the economic crisis even worsened the situation of the Roma, with systemic discrimination and ongoing racism in several Member States,87 the Commission decided to launch an explicit call on Member States to take meaningful and effective steps to ensure the inclusion of the Roma in the form of a proposal for a Council recommendation. On 9 December 2013, the Council adopted the Council Recommendation on effective Roma integration measures in the Member States, which has been discussed above in Chapter 11.88 As mentioned above, the purpose of the recommendation is to provide guidance to Member States in enhancing the effectiveness of their measures to achieve Roma integration and strengthen the implementation of their National Roma ­Integration Strategies.89 8

The Racial Equality Directive in the Context of the EU Framework for National Roma Integration Strategies up to 2020

In the EU Framework for National Roma Integration Strategies up to 2020, an explicit reference is made to the Racial Equality Directive, as a legal basis for Member States to give Roma (like other EU citizens) non-discriminatory access to education, employment, vocational training, healthcare, social protection and housing.90 The EU Framework however admits that non-discrimination alone is not sufficient to combat the social exclusion of the Roma. Therefore 86 87 88 89

90

On the EU Framework for National Roma Integration Strategies, see above Chapter 11 at 2.3 The EU Framework for National Roma Integration Strategies. See e.g., K. Harris, ‘For Europe’s Roma, racism gets worse in tough economic times,’ Time, 21 August 2013, available at (accessed on 1 January 2014). See above Chapter 11 under 2.5. More than a Policy Document: the December 2013 Council Recommendation on Effective Roma Integration Measures in the Member States. Council of the European Union, ‘Council Recommendation on effective Roma integration measures in the member states,’ Employment, Social Policy, Health and Consumer Affairs Council Meeting, Brussels, 9 and 10 December 2013, p. 5, available at (accessed on 1 January 2014) European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee

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the EU Framework is to complement and reinforce the EU’s equality legislation and policies by addressing the specific needs of the Roma regarding equal access to employment, education, housing and healthcare. The EU Framework also states that “the rigorous monitoring of the implementation of this Directive can be a useful instrument for measuring the integration of Roma.”91 This statement can be criticized, as the (monitoring of the) correct implementation of the Racial Equality Directive into national legislation is not per se an indicator for measuring the integration of the Roma. Several Member States have correctly implemented the provisions of the Racial Equality Directive into national legislation, but Roma children are still being marginalized, segregated into substandard education, and subject of stigmatizing rhetoric by high level politicians. The robust monitoring of the implementation of the Racial Equality Directive can provide important data on discrimination faced by Roma in the areas covered by the directive, but it is not a good indicator per se to measure Roma integration, as the latter depends on a lot more than only on the successful implementation of the Racial Equality Directive. The importance of horizontal policy measures in the field of anti-discrimination, which might not have been sufficiently stressed in the EU framework itself, was highlighted in the Council Recommendation on effective Roma integration measures in the Member States, adopted in December 2013. The Council recommendation recommends that Member States “continue their efforts to ensure the effective practical enforcement of Directive 2000/43/EC, in particular by ensuring that their national, regional and local administrative regulations are not discriminatory and do not result in segregation practices.”92 The Council even refers to the relevant case-law of the ECtHR on Roma discrimination and segregation, which should serve as a point of reference for the human rights compatibility of provisions and practices in this context. Furthermore, Member States are requested to implement desegregation measures concerning the Roma both regionally and locally, and to ensure that forced evictions are in full compliance with Union law and other international human rights obligations. Finally Member States are recommended to implement measures of the Regions, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Brussels, com(2011) 173/4, p. 3. 91 Ibid. 92 Council of the European Union, ‘Council Recommendation on effective Roma integration measures in the member states,’ Employment, Social Policy, Health and Consumer Affairs Council Meeting, Brussels, 9 and 10 December 2013, p. 8, available at (accessed on 1 January 2014).

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to actively combat discrimination and prejudice against the Roma in all areas of society.93 Finally, in its midterm review of the EU Framework for nris, the ­European Commission identified the full transposition and enforcement of anti-­ discrimination and anti-racism legislations as a key priority for Member States to address to fight anti-Gypsyism and discrimination and promote Roma inclusion more effectively.94 9

Conclusions under Chapter 13

Due to a lack of disaggregated data collection on discrimination on the basis of Roma ethnic origin in the Member States, it is difficult to assess whether the situation of the Roma in education throughout the EU has improved after the transposition of the Racial Equality Directive. The results of the Second European Union Minorities and Discrimination Survey (EU midis ii) conducted by fra in 2016 suggest that public authorities have not implemented effective measures to ensure Roma children’s equal participation in pre-school or kindergarten, upper-secondary or tertiary education.95 The Racial Equality Directive presents an added value compared to other international human rights instruments on non-discrimination due to its concrete enforcement provisions, and in particular the possibility for the Commission to initiate infringement procedures against those Member States in which Roma children face segregation in the educational systems. Even though the Treaty of Lisbon introduced an explicit reference to the rights of persons belonging to minorities as one of the values on which the Union is founded, the EU still does not hold an overall legislative competence to rule on the protection of national minorities, or racial or ethnic minorities such as the Roma. One can agree with Olivier De Schutter, that the effectiveness of already existing provisions, which indirectly promote minority rights, can be enhanced by, among others, a clearer understanding of what the concept of ‘minorities’ refers to in the context of EU law; a shared commitment of the EU Member States to improve their monitoring of the situation of m ­ inorities under their jurisdiction in areas such as housing, employment, 93 94 95

Ibid., p. 9. European Commission, Factsheet, ‘Midterm review of the EU Framework for National Roma Intergration Strategies,’ Brussels, September 2017, p. 3, available at (accessed on 1 January 2018). fra, ‘Second European Union Minorities and Discrimination Survey EU-MIDIS ii: Roma – selected findings,’ Luxembourg, Publications Office of the EU, 2016, p. 10.

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health and education; and a working relationship to be established between the competent institutions of the EU and the Secretariat of the Framework Convention for the Protection of National Minorities. More cross-references and synergies between the fcnm monitoring system and the monitoring of the Racial Equality Directive could be established. The experts reporting on the implementation of the Racial Equality Directive for the European Network of Legal Experts in the Non-discrimination Field, commissioned by the European Commission, do not refer to the fcnm or the work of the Advisory Committee in their country reports. The Commission could request them to establish these cross-references, in order to improve the quality of the monitoring. The Advisory Committee for its part does refer to the Racial Equality Directive in its Opinions, which is to be welcomed. Areas where the Racial Equality Directive falls short of providing full protection are the fact that it does not oblige the Member States to adopt positive measures to achieve substantial equality, but rather formulates this as an option, and the lack of a reference to segregation as a severe form of discrimination. In May 2004 the EU Network of Independent Experts in Fundamental Rights had launched the idea of adopting a Roma integration directive. A decade later, the time is still not ripe enough to propose a legally binding instrument focusing on Roma integration. Instead, a EU Framework for National Roma Integration Strategies up to 2020 was adopted in 2011, which did contain references to the Racial Equality Directive, but which was criticized for a lack of action on combating racism and discrimination against the Roma. This was remedied with the Council Recommendation on effective Roma integration measures in the Member States, adopted in December 2013. The Council Recommendation explicitly refers to the Racial Equality Directive, and to the need to implement de-segregation measures and measures to actively combat discrimination and prejudice against the Roma in all areas of society.

Chapter 14

The fcnm and the Racial Equality Directive as Complementary Instruments: Suggestions for a More Effective Monitoring and Implementation of the fcnm and the Racial Equality Directive in the Field of Roma Education 1 Introduction In the previous chapters it has been demonstrated that both the fcnm and the Racial Equality Directive present some added value compared to other existing legal instruments on Roma educational rights and that both instruments are contributing to desegregation of Roma children in education. However, progress is very slow. This chapter wants to formulate some suggestions for a more effective monitoring and implementation of the fcnm and the Racial Equality Directive in the field of Roma education. The first section of this chapter focuses on how to improve the implementation of the fcnm in order for it to yield even better results in the field of Roma desegregation in education. The section looks into suggestions related to the interpretation of certain provisions (substantive part), to ratification, to the monitoring procedure (procedural part), and to enhanced cooperation within the Council of Europe and with civil society. The second section does the same for the Racial Equality Directive and again looks into suggestions related to the interpretation of certain provisions (substantive part), additional measures promoting a better implementation (procedural part), and the need for a better monitoring of concrete results. The third section is dedicated to the question of a possible enhanced cooperation between the EU and the Council of Europe in the field of Roma rights protection. 2

fcnm: Suggestions for Improvement

2.1 Suggestions Related to the Implementation of Certain Provisions The following section formulates suggestions on how the implementation of certain provisions which are crucial for the situation of Roma children in education can be improved. © koninklijke brill nv, leiden, ���9 | doi:10.1163/9789004354210_016

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2.1.1

Art. 12 fcnm: A Clearer Distinction between Segregation Measures and Positive Action Measures Despite the fact that the Advisory Committee under the fcnm has warned on several occasions of the ‘dangerous grey zone’ between segregating special classes on the one hand, and supportive/remedial classes on the one hand1 the ECtHR has not made this distinction, as was clear from the reasoning of the First Section Court in the Oršuš case.2 In its Commentary on Education, the Advisory Committee has highlighted the dangers of qualifying segregating special classes, such as segregated Roma-only classes for Roma children ‘with language difficulties,’ as a form of positive support towards Roma children. If the children do not receive additional support, if their progress is not monitored and if they are not given the opportunity to enter mainstream schooling after some progress has been achieved, so-called ‘supportive’ or ‘remedial’ classes can rather have a segregational character and thus are not in accordance with Art. 12 fcnm. In some cases, as in the Oršuš case, segregating special classes, which are in clear violation of Art. 12 fcnm, are falsely interpreted as ‘positive measures,’ which they are not. The Advisory Committee could, in its comments on State Reports reporting under Art. 14 fcnm, pay increased attention to the differences between segregating special classes and supportive/remedial classes. 2.1.2

Art. 12 fcnm: Equal Opportunities for Access to Education at All Levels: Increased Attention to Early Childhood Education Under Art. 12 fcnm, the State Parties undertake to promote equal opportunities for access to education at all levels. The Advisory Committee has interpreted the provision ‘education at all levels’ in a broad way, so that it includes not only, primary, secondary, tertiary and vocational education, but also early childhood education and care (‘ecec’). Despite the well-documented, long term benefits of ecec,3 early childhood education often remains a ‘forgotten link’ in Roma education policies. State Reports rarely mention initiatives in the field of early childhood education for 1 Advisory Committee on the Framework Convention for the Protection of National Minorities, ‘Commentary on Education for the Framework Convention of the Protection of National Minorities,’ 2 March 2006, ACFC/25DOC(2006)002, p. 17, available at (accessed on 1 September 2015). 2 See above Chapter 9 at 4.3.1.3 Critical Appraisal. 3 UN News Centre, ‘UN says early childhood education is neglected critical first step in broader development,’ 26 October 2006, available at (accessed on 1 January 2014).

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Roma children in their reports under Art. 12 fcnm, even though early childhood education is crucial and indispensable to achieve equal access to education and social inclusion. The advantages of early childhood education and its necessity for Roma inclusion have been well documented: it helps in preventing psycho-social problems; it decreases child- or family-related developmental risks; it contributes importantly to the development of cognitive and language skills, providing disadvantaged children with a head start in primary school when formal instruction starts.4 Good quality and integrative early childhood education prepares children from socio-economically disadvantaged families and from minority families for formal schooling in primary school and contributes to social inclusion. Given the importance of early childhood education for the promoting of equal opportunities for access to education at all levels, the Advisory Committee under the fcnm, in its assessment of State Reports reporting under Art. 12 fcnm, could pay increased attention to the existence of early childhood education facilities and their quality in the different state parties. 2.2 Suggestions Related to Ratification 2.2.1 Suggestions Related to Ratification by coe Member States 39 of the 47 member States of the Council of Europe have ratified the Framework Convention. Belgium, Greece, Iceland and Luxembourg have signed but not ratified. France, Turkey, Andorra and Monaco have not signed it. The reasons for their refusal to adhere to the Framework Convention have been briefly analysed above.5 In most of these countries significant minority populations remain outside the protection mechanism of the Framework Convention. Pressure on these eight states, four of which are members of the EU and two of which are c­ andidates for membership (Iceland and Turkey) should be increased. One suggestion formulated by a group of ngos on the occasion of the conference assessing the impact of the fcnm after 10 years of implementation, is to have the Parliamentary Assembly of the Council of Europe (pace) monitor the rights of minorities in those eight countries concerned, based on the standards developed by the Framework Convention.

4 P.P.M. Leseman, ‘Early childhood education and care for children from low-income or minority backgrounds,’ oecd, 2002, available at (accessed on 1 January 2014). 5 See above Chapter 12 at 3.1 Membership of the fcnm and Status of Ratification.

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This would also allow, among others, to evaluate the situation of Roma children in education in France and Greece, which is worrying. In France there is an overall hostile political climate towards Roma, with increased expulsions of Roma immigrants from Romania and Bulgaria during the summer and autumn of 2010 and the scapegoating and negative stereotyping of Roma in the media. As only the Roma as members of an ethnic group were singled out for these expulsions,6 the measures were clearly discriminatory and not in compliance with EU law.7 A recent study8 by the national consultative commission on human rights shows that the children of Roma and Traveller families are often refused access to education: parents who want to enrol their children at school see the enrolment refused for a number of reasons, none of which are legal. This denial of access to education for Roma children could be addressed by the AC in its opinions and by the Committee of Ministers in a corresponding Resolution if France would ratify the Framework Convention. As to Greece, attention was drawn to unlawful segregation of Roma children in education in Greece when Greece was convicted before the ECtHR for a violation of Art. 14 echr taken together with Art. 2 Protocol No 1 in the cases Sampanis and Others v. Greece, Sampani v. Greece and Lavida v. Greece.9 A monitoring of the situation of Roma children in public educational facilities in Greece would be possible by the AC if Greece would ratify the Framework Convention.

6 This was evidenced by the publication of a ministerial circular, where it was recommended that 300 camps should be dismantled, and that priority should be given to Roma camps. The relevant paragraph of the circular reads as follows: “Le Président de la République a fixé des objectifs précis, le 28 juillet dernier, pour l’évacuation des campements illicites: 300 campements ou implantations illicites devront avoir été évacués d’ici 3 mois, en priorité ceux des Roms.” (emphasis added). See French Ministry of Internal Affairs, Circular IOC/K/1017881/J, 5 August 2010, available at (accessed on 1 January 2014). 7 For an in depth analysis of the legality of the Roma expulsions from France, see S. Van den Bogaert, ‘Over de rechtmatigheid van de Franse verwijderingsmaatregelen tegen Roemeense en Bulgaarse Roma,’ Chroniques de Droit Public–Publiekrechtelijke Kronieken 1, (2011), pp. 132–151. 8 Commission Nationale Consultative des Droits de l’Homme, ‘Étude et propositions sur la situation des Roms et gens du voyage en France,’ texte adopté en assemblée plénière le 7 février 2008 [text adopted at the plenary on 7 February 2008], available at (accessed on 1 January 2014). Violations of the right to education of Roma and Travellers are discussed under Section 1.1.2.2 of this document at pp. 12–13. 9 These cases have been discussed above in Chapter 9 at 4.2 Sampanis and Others v. Greece, Chamber Judgment of 5 June 2008, 4.2.5 A New Case with the Same Allegations: Sampani and Others v. Greece, and 4.5 Lavida and Other v. Greece, Chamber Judgment of 30 May 2013.

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The pace could examine on what legal basis it could monitor the situation of the different minorities, among others the Roma, in those countries which did not ratify the fcnm, and how this could be effectuated, e.g., by means of a Special Rapporteur. 2.2.2 Ratification of the fcnm by the EU? As the need for an increased cooperation between the Council of Europe and the EU in the field of Roma legislation and policy will be discussed in a separate section, this section will only be dedicated to the advantages of a possible ratification of the fcnm by the EU. Even though there are plans for the EU to adhere to the European Convention of Human Rights, there seems to be no realistic prospect of the EU ratifying the fcnm, as is clear from a recent speech by Alan Philips, former AC president,10 on the occasion of a policy dialogue in Brussels following the publication of a report on minorities in transition: I would be more than happy for the European Union to ratify the fcnm. However I see no realistic prospect of this now or in the next decade. Nor do I see any realistic prospect for the 27 States of the EU agreeing unanimously to establishing comprehensive, legally binding standards for the effective protection and promotion of minority rights with independent monitoring mechanisms. The agreements around the new European Union’s Fundamental Rights Agency in Vienna have reinforced the leading role of the Council of Europe in standard setting on Human and minority rights and made it clear that there should be no duplication. Consequently I would be pleased to see the European Commission play a more active role in the monitoring mechanisms of coe Human Rights Treaties, especially the fcnm. Inter alia the Commission could attend the relevant Committee of Ministers’ discussions and Parliamentary Committees could request observer status. While I support the sentiments of needing more robust implementation of minority rights, I am convinced that this will most likely come from a greater synergy between the EU and the coe, each of which are 10

Alan Phillips was elected as the UK nominated expert to the Council of Europe Advisory Committee (AC) on the fcnm in 1998 to serve from 1998 to 2002 and re-elected to serve again from 2006–2010. During the first mandate he was elected by the AC to be its first vice President for two consecutive 2 year periods. Subsequently in 2006 and again in 2008 he was elected to be the President of the Advisory Committee.

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stronger together on minority rights. It is here that we should be redoubling our efforts.11 As to the procedural aspects of a possible accession of the EU to the fcnm, the existent hurdles can be easily taken. On the side of the EU, formal restrictions in EU primary law which would prevent the EU from ratifying the fcnm are non-existent. In fact, the EU has ratified several Council of Europe conventions, including treaties on issues such as medical standards and wildlife protection. According to Hofmann and Friberg, “[i]f minority rights could be interpreted as present in the existing Article 6 of the teu [now Article 2 teu], this could provide sufficient legal basis to enable EU accession to the fcnm.”12 On the side of the fcnm, Article 29 fcnm, which stipulates that the ratification of the instrument is open for states only, would have to be amended to allow the EU’s accession. An accession of the EU to the fcnm would provide for numerous benefits, but those scholars13 launching the proposal also immediately admit that the idea is too politically sensitive to be realistic.14 Strong opposition of those Member States which have not signed (France) or which have signed but not ratified (Belgium, Greece, and Luxemburg) is to be expected, as ratification by all Member States is an essential prerequisite for a possible accession of the EU to the fcnm. Gulara Guliyeva15 lists up several arguments pointing at a penetration by the fcnm into EU law and policy:

11 12

13 14

15

A. Philips, ‘Minorities in an ever wider European Union,’ blogpost, 9 March 2011, available at (accessed on 1 January 2014). R. Hofmann and E. Friberg, ‘The Enlarged EU and the Council of Europe: Transfer of Standards and the Quest for Future Cooperation in Minority Protection,’ in G.N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward, Budapest: osi, 2004, p. 137. Such as Gulara Guliyeva. See G. Guliyeva, ‘Joining Forces or Reinventing the Wheel? The EU and the Protection of National Minorities,’ ijmgr 17, (2010), pp. 287–305. The idea is not completely politically absurd: the explicit proposal to insert a provision that the EU should seek to accede the fcnm, in addition to the echr, was in fact suggested by a Hungarian mep. It is clear that the proposal did not gain sufficient political support to be endorsed. See R. Hofmann and E. Friberg, ‘The Enlarged EU and the Council of Europe: Transfer of Standards and the Quest for Future Cooperation in Minority Protection,’ in G.N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward, osi, Budapest, 2004, p. 138. G. Guliyeva, ‘Joining Forces or Reinventing the Wheel? The EU and the Protection of National Minorities,’ ijmgr 17, (2010), pp. 289–292.

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− the way the European Parliament increasingly treats the fcnm as the benchmark for minority protection in the EU;16 − the way minority rights as stipulated in the fcnm have firmly entered EU pre-accession political conditionality and EU membership obligations;17 − the use of the fcnm as a yardstick in assessing candidate countries’ compliance with minority protection in recent Accession Partnerships;18 − the way the candidate countries’ compliance with the echr and the fcnm is placed on equal footing;19 − the increasing emphasis placed on the fcnm in the Commission’s regular Progress Reports, which assess the candidates’ compliance with the Copenhagen criteria and the objectives of the Accession Partnerships;20 16

17 18

19

20

Regarding the educational rights of minorities, the EP had adopted a series of resolutions calling on Member States to accommodate linguistic and cultural minorities. Guliyeva notes that if the initial resolutions of the EP suggested a preference for the development of minority standards at the national level, recent resolutions suggest that the EP nowadays prefers the fcnm as an EU yardstick. See EP, Resolution on measures in favour of minority languages and cultures [1983] OJ C68/103; EP, Resolution on a Community charter of regional languages and cultures and a charter of rights of ethnic minorities [1984] OJ C287/106; EP, Resolution on the languages and culture of regional and ethnic minorities in the European Community Doc. A2-150/87; EP, Resolution on linguistic and cultural minorities in the European Community [1994] OJ C061/110 (with a reference to the development of minority standards at the supranational level) versus EP, Report with recommendations to the Commission on European regional and lesser used languages – the languages of minorities in the EU – in the context of enlargement and cultural diversity, 2003/2057(ini) final A5-0271/2003; EP, Resolution on the protection of minorities and antidiscrimination policies in an enlarged Europe, Report 2003/2008(ini) (with a reference to the fcnm). See C. Hillion, Report on ‘The Framework Convention for the Protection of National Minorities and the European Union,’ Conference on Enhancing the Impact of the Framework Convention, Strasbourg, 9–10 October 2008. The Accession Partnerships set the targets in areas where candidate countries are encouraged to improve their performance. Although the early Accession Partnerships did not refer to the fcnm consistently, recent Accession Partnerships explicitly use this instrument as a yardstick in assessing candidate countries’ compliance with minority protection according to the Copenhagen criteria. The 2008 Accession Partnership with Turkey insists that the state should guarantee cultural diversity and ensure respect for and protection of minorities in accordance with the echr and the fcnm, and in line with best practices in Member States. See Council Decision 2008/157/EC of 18 February 2008 on the principles, priorities and conditions contained in the Accession Partnership with the Republic of Turkey and repealing Decision 2006/35/EC, OJ L 051, 26 February 2008, pp. 4–18. See also C. Hillion, Report on ‘The Framework Convention for the Protection of National Minorities and the European Union,’ Conference on Enhancing the Impact of the Framework Convention, Strasbourg, 9–10 October 2008. p. 7. In the 2001 Progress Report on Cyprus, the European Commission criticized the country because of the incompatibility between Article 2 of its constitution, which foresees the

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− the references to the fcnm not only in the pre-accession phase but also during the accession negotiation phase.21 These examples illustrate that the fcnm frequently figures in non-binding resolutions of the European Parliament and in the EU enlargement policy. Despite the fcnm’s increased significance in the EU pre-accession policies, accession conditionality in the context of the 2004–2007 enlargements did not explicitly include a ratification of the fcnm, as for instance Latvia ratified the fcnm in 2005, which is one year after it joined the EU. Moreover, there is still no legal obligation for the ‘old’ EU Member States to ratify the Framework Convention. One of the advantages of an internalisation of the fcnm by the Union is that “it might bring consistency as to the EU’s internal and external protection of minorities.”22 Moreover, there might be added value in enabling “an independent expert body to review [Union] acts in relation to their impact on interethnic relations under the fcnm.”23 However, it is also argued that “the EU’s potential accession to the fcnm may prove to be less useful than one may think, because some of the provisions of the fcnm are not applicable in the context of EU law.”24 For ­example, Toggenburg questions the applicability to the EU of those articles of the fcnm related to areas such as culture, media, research and education, where the Union has only weak competences.25 It is clear that an accession of the EU to the fcnm would not in itself widen the EU’s powers. Toggenburg sums

21

22 23

24 25

obligation to declare whether one belongs to the Greek or to the Turkish community, and Article 3 fcnm. See European Commission, Regular Report on Cyprus’ Progress towards Accession, sec(2001)1745, 13 November 2001, p. 18. For example, in the accession negotiation phase with Croatia, in the screening report on a new Chapter 23 on ‘Judiciary and Fundamental Rights,’ the European Commission explicitly referred to minority rights in the acquis communautaire. See European Commission, ‘Screening Report Croatia, Chapter 23: Judiciary and Fundamental Rights,’ 27 June 2007. p. 3, available at (accessed on 1 January 2014). G. Guliyeva, ‘Joining Forces or Reinventing the Wheel? The EU and the Protection of ­National Minorities,’ ijmgr 17, (2010), pp. 294–298. R. Hofmann and E. Friberg, ‘The Enlarged EU and the Council of Europe: Transfer of Standards and the Quest for Future Cooperation in Minority Protection,’ in G.N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward, Budapest: osi, 2004, p. 138. G. Guliyeva, ‘Joining Forces or Reinventing the Wheel? The EU and the Protection of ­National Minorities,’ ijmgr 17, (2010), p. 296. G.N. Toggenburg, ‘Minority Protection in a Supranational Context: Limits and Opportunities,’ in G.N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward, Budapest: osi, 2004, p. 16.

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up ­several difficulties related to a possible accession of the EU to the fcnm and concludes that “[t]he risk of overlaps and duplications with the Council of Europe should rather be limited by an overarching strategy of cooperation between the Union and the Council […] than by getting involved in a halfhearted ‘contractual adventure.’”26 Indeed, closer cooperation between the EU and the Council of Europe,27 which can stimulate a correct implementation of the existing instruments, is certainly preferable over an own set of rules developed by the EU which may duplicate or contradict the provisions of the Framework Convention. 2.3 Suggestions Related to the Monitoring Procedure 2.3.1 Increased Transparency 2.3.1.1 A Timely Adoption and Publication of AC Opinions and Committee of Ministers Resolutions Transparency of the monitoring process has always been a key concern for the AC, which keeps underlining the importance of the role of ngos both in the preparation of the State Reports and in the dissemination of the monitoring results.28 At the 601st meeting of the Ministers’ Deputies in September 1997, a few months before the fcnm entered into force, the Committee of Ministers ­adopted rules on the monitoring arrangements under Articles 24 to 26 fcnm,29 including on the publicity of the Committee of Ministers resolutions and the AC Opinions: the acfc Opinions were to be made public, at the latest together with the Committee of Ministers resolutions. Even though some member states agreed on publishing the AC Opinions shortly after adoption, some other member states requested that the AC Opinions remain confidential for lengthy periods after the relevant draft resolutions were pending, ­sometimes 26 27 28

29

Ibid., p. 16. On cooperation between the EU and the coe in the field of minority rights, see below under 4. An Enhanced Cooperation between the EU and the Council of Europe in the Field of Roma Rights Protection. AdvisoryCommitteeonthefcnm,‘7thActivityReportcoveringtheperiod1June2008–31May 2010,’ ACFC/INF(2010)001, published 28 May 2010, p. 11 at para. 48, available at (accessed on 1 January 2014). See also Advisory Committee on the fcnm, ‘8th Activity Report covering the period 1 June 2010 – 31 May 2012,’ ACFC/INF(2012)001, published 31 May 2012 available at (accessed on 1 January 2014). Committee of Ministers Resolution 97(10) on the monitoring arrangements under A ­ rticles 24–26 fcnm, 17 September 1997. For the provisions on publicity, see paras 25–27.

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even for months or years. It is clear that a timely publication of the AC Opinions contributes to greater transparency and allows all parties concerned to better participate in the dialogue process. Consequently, in April 2009, the Committee of Ministers modified the monitoring arrangements in order to guarantee a greater transparency in the monitoring process. It adopted a new resolution30 amending Articles 26 and 27 of Resolution (97)10 and adding an Art. 26 bis, which reads as follows: The opinion of the Advisory Committee concerning the report of a State Party shall be made public: (a) on the authorisation of the State Party concerned (which authorisation may be given immediately upon transmission of the opinion to the State Party or at any time thereafter); (b) four months after transmission of the opinion to the State Party concerned, unless that State Party submits a reasoned objection in writing to the Secretariat; (c) at the same time as the conclusions and recommendations of the Committee of Ministers concerning the opinion, unless the Committee of Ministers decides otherwise; or (d) at the latest, 12 months after transmission of the opinion to the State Party concerned, unless the Committee of Ministers decides otherwise. Thus, if no reasoned objection to the publication of the AC Opinion is submitted by the state party to the secretariat, the Opinion is made public four months31 after the date of transmission to the state. As the time between adoption of the AC Opinion and the adoption of the Committee of Ministers ­resolution is often lengthy, the new Article also foresees that the AC Opinions are published 12 months after transmission of the AC Opinion to the state parties at the latest, thus avoiding the risk of opinions being outdated when finally published and contributing to greater transparency and a better dialogue between all the parties concerned. Therefore the new ruling should be welcomed. It is clear that the monitoring process will be even more constructive if all stakeholders are involved. It remains to be seen whether the newly adopted 30 31

Committee of Ministers Resolution (2009)3, amending Resolution 97(10) on the monitoring arrangements under Articles 24–26 fcnm, 16 April 2009. Four months is also the time frame given to the state parties to submit written comments to the AC Opinion (see Art. 26 of Res (2009)3), which are then published together with the Opinion, unless the state party informs the secretariat that it does not wish its comments to be published (see Art. 27 of Res (2009)3).

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rules on early publication of the AC Opinions will also facilitate the timely adoption of the Committee of Ministers resolutions.32 For instance, in 2009, the year in which the new ruling was adopted and came into force,33 the Committee of Ministers only adopted three resolutions,34 which is a very low number compared to previous years (in 2008 8 resolutions were adopted, and in 2007 10 resolutions were adopted). According to Eva Konecna, the situation is partly explained by the lengthy discussions on draft resolutions on Bosnia and Herzegovina, Georgia, Latvia, Lithuania and Ukraine, which were initiated before 2009. This shows that the Committee of Ministers endeavours to find the most appropriate wording related to the implementation of minority rights in the politically sensitive context of the state parties concerned. Therefore in certain cases lengthy negotiations on the draft resolutions at issue can be conducted.35 Unfortunately, the average time between the adoption of an AC Opinion and the adoption of the corresponding Committee of Ministers resolution is longer than it used to be. In the case of some state parties, it has taken over a year to have a resolution adopted. A timely adoption of the Committee of Ministers resolutions however, even in politically sensitive cases, would greatly contribute to more transparency and enhance the positive dynamic of the monitoring procedure and the ongoing dialogue. Tove Malloy is even of the opinion that this ‘bargaining’ in the Committee of Ministers, which slows down the monitoring process, may put the normative power of the fcnm under strong pressure, as it is no longer enjoying the support it did.36 An excellent opportunity to discuss ways of improving mutual understanding between the AC and the Committee of Ministers and speeding up the monitoring procedure and the adoption by the Committee of Ministers of its 32 33

34 35 36

See also E. Konecna, ‘Frameworking Continues: Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities,’ eymi, vol. 8, issue 1, 2009, p. 577. In the spirit of the new Committee of Ministers resolution, several states not yet subject to the new rule—because of the fact that the Opinions concerning them were adopted prior to April 2009—agreed to prompt publication of their Opinions at the same time as their state comments. On Albania, Bosnia Herzegovina and Montenegro. E. Konecna, ‘Frameworking Continues: Review of the Monitoring Process of the Council of Europe Framework Convention for the Protection of National Minorities,’ eymi, vol. 8, issue 1, 2009, p. 577. Malloy, T., ‘Introduction and Acknowledgements,’ in T. Malloy and U. Caruso (eds), Minorities, their Rights, and the Monitoring of the European Framework Convention for the Protection of National Minorities, Essays in Honour of Rainer Hofmann, Leiden: Martinus Nijhoff Publishers, 2013, p. 9.

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Resolutions are the regular meetings between the Advisory Committee and the Chairman of GR-H, the Committee of Ministers’ Rapporteur Group on Human Rights. These meetings have also made it possible to assess how the Opinions are perceived by state parties, alongside providing an opportunity to exchange information regularly on more general issues of special importance to the Framework Convention and its monitoring mechanism.37 At present, the GR-H invites the President of the acfc to its meetings twice per year to present country-specific opinions and express views and concerns on related developments. These meetings facilitate a direct assessment of how the opinions are perceived by states parties, and also provide an opportunity to exchange information regularly on non-country specific issues of special importance to the Framework Convention and its monitoring mechanism. They also add a multilateral dimension to the process, thus transcending the scope of bilateral or interstate relations which in the past have sometimes resulted in insufficient protection of minority rights, and tensions.38 This enhanced cooperation between the AC and the Committee of Ministers through the GR-H should be upheld. 2.3.1.2 Translation of AC Opinions into the Romani Language To encourage dialogue with the Roma community at a national level and to ensure that the monitoring findings reach all concerned, it is essential for these findings to be made available in local languages. The Advisory Committee has always welcomed the fact that a number of countries think it helpful to translate AC Opinions and Committee of Ministers resolutions into their official language as well as their minority languages. Civil society initiatives along these lines have received Council of Europe support. For instance, Moldova and the former Yugoslav Republic of Macedonia have systematically translated all the different cycle AC Opinions and the corresponding Committee of Ministers Resolutions into Romani, apart from the documents of the fourth monitoring cycle. Romania has only translated the first AC Opinion and the corresponding Committee of Ministers Resolution into Romani. Sweden has translated the second cycle Committee of Ministers Resolution into 3 different Romani dialects (Arli, Keldarash and Kalé), and Kosovo translated 37

38

See also Advisory Committee on the fcnm, ‘7th Activity Report covering the period 1 June 2008 – 31 May 2010,’ ACFC/INF(2010)001, published 28 May 2010, available at (accessed on 1 January 2014). Advisory Committee on the fcnm, ‘10th Activity Report covering the period 1 June 2014 – 31 May 2016,’ ACFC/INF(2016)001, available at (accessed on 1 January 2018).

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the first AC Opinion into Romani, and the third progress report. However, in spite of the fact that the Roma live in substantial numbers in Bulgaria, the Czech Republic, Hungary and Slovakia, these countries have not had any documents translated into Romani. The Advisory Committee could play a positive role in convincing the countries concerned of the importance of having the AC Opinions and the Committee of Ministers Resolutions translated into Romani. 2.3.1.3

Overall Awareness Raising of the Importance of the fcnm among the Roma At the conference on the occasion of the 15th anniversary of the fcnm, one of the main topics discussed was the fact that the fcnm so far has only led to a limited improvement in the situation of the Roma in Europe, and the question how this can be remedied. In its contribution at the conference,39 the European Roma and Travellers Forum (‘ertf’) stressed that the fcnm is still little known within the Roma communities and little used to enforce the respect of their rights. The ertf committed itself to contribute, among others via conferences and seminars, to raise awareness of the fcnm among Roma organizations and to inform them about how to use the existing structures for their benefit. The Secretariat of the fcnm could, for instance, publish a handbook for Roma rights advocates with information on how Roma civil society can get more involved in the monitoring process and use the information contained in the State Reports and AC Opinions for advocacy purposes. 2.3.2 Promoting the Use of the Checklist on Education The ‘checklist on education’ referred to here is the ‘Inventory of Educational Issues Addressed by the Advisory Committee in its First Cycle Opinions’ as annexed to the AC Commentary on Education. As mentioned above,40 the commentary on education was drafted by a member of the AC to the fcnm, Athanasia Spiliopoulou Åkermark. She was assisted by the fcnm Secretariat. acfc opinions, State Reports and travaux preparatoires of the Framework Convention were examined and analysed, and the summary of the main ­findings were 39

40

R. Rustem, Head of the Secretariat of the ertf, ‘Roma as a European Minority in the Context of the Framework Convention for the Protection of National Minorities,’ contribution at the round-table event to celebrate the 15th anniversary of the Framework Convention for the Protection of National Minorities, Strasbourg, 25 November 2013, available at (accessed on 1 January 2014). See above Chapter 7 at 4. Thematic Commentary on Education.

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presented in a checklist. This checklist was not only to figure as a short summary of the main findings of the first cycle monitoring in the field of education, but also as a useful tool and aide mémoire for the Advisory Committee experts during country visits. The advantage of the checklist is that it gives a quick but comprehensive overview of the findings related to education of the Advisory Committee per Article and that it established cross-references between the different articles of the fcnm. As in the meantime the fourth monitoring cycle is coming to an end, it might be appropriate to update and complement the checklist so as to integrate the findings of the second third and fourth monitoring cycle. This might re-attract attention to the usefulness of the checklist as a tool for experts during country visits and also prompt the staff of the secretariat to establish more crossreferences between different articles on education when drafting the Advisory Committee Opinions. This is especially relevant in relation to the segregation of Roma children in education, which falls under the ambit of several articles. Issues of segregation of Roma children in education have been discussed in Advisory Committee Opinions under both Articles 6 (on the creation of a spirit of tolerance and intercultural dialogue and on the obligation to take appropriate measures to protect persons subject to discrimination) and 12 (on measures in the field of education and the promotion of equal access to education).41 Apart from that, a cross-reference to the monitoring of the following articles is also certainly of relevance: Art. 4 (on the right of equality and equal protection) as there is a clear link between the right to equal access to education and the right of equality in general; Art. 5 (on the promotion of the preservation of the minority’s identity) as education is an important tool for the preservation of identity; and Art. 14 (on the right to learn the minority language). 2.3.3 Installing a Collective Complaints Mechanism At the round table on the occasion of the 15th anniversary of the fcnm, it was discussed whether the monitoring mechanism of the fcnm, which was conceived 20 years ago and installed 15 years ago, is still a sufficient means to monitor the implementation of the fcnm. Rainer Hofmann, the former 41

See above Chapter 10 with the case study on Germany, where it is shown that the issue of segregation of Roma children in education in Germany was dealt with under Art. 6 in the first and second Advisory Committee Opinion, and under Art. 12 in the third Advisory Committee Opinion. A discussion under Art. 12 seems to be the most logical option, even though it also makes sense to establish a cross-reference with the monitoring under Art. 6, given the importance of appropriate measures to foster a spirit of tolerance towards the Roma and to combat anti-gypsyism, which is crucial if integration in the majority education system is to be achieved.

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­ resident of the AC, believes that it is time to supplement the existing monip toring mechanism with a collective complaints mechanism, similar to the one established under the European Social Charter.42 With such a collective complaints mechanism, minority groups would be able to address the AC with complaints. This complaints mechanism could also be linked to a possibility which was originally foreseen in the fcnm, but which was not made use of until 2014,43 notably the possibility that the Committee of Ministers asks states to report on urgent issues.44 A collective complaints mechanism would allow members of national minorities to access the monitoring system in a more formal way. 2.3.4

Requests by the Committee of Ministers to States to Report on Urgent Issues At present the monitoring system is based on monitoring cycles. This brings along certain disadvantages. In cases where a monitoring has just been completed, and an urgent issue comes up, there is no possibility for the AC to tackle the issue for another 2 or 3 years. Therefore Rainer Hofmann,45 as a complementary measure to a collective complaints mechanism for such urgent issues, suggests that the Committee of Ministers could request the States concerned to report on urgent issues. The legal basis for such a request is already present in Article 25 fcnm. However, the Committee of Ministers has only made use once of this possibility, notably in March 2014 in relation to Ukraine.46 42

43 44

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Council of Europe Podcast, ‘Celebrating 15 years of the protection of national minorities,’ interview with Rainer Hofmann, 26 November 2013, available at (accessed on 1 January 2014). See below at 2.3.4 Requests by the Committee of Ministers to States to Report on Urgent Issues. See Art. 25 (2) fcnm, which stipulates that “each Party shall transmit to the Secretary General on a periodical basis and whenever the Committee of Ministers so requests any further information of relevance to the implementation of this framework Convention.” (emphasis added). Council of Europe Podcast, ‘Celebrating 15 years of the protection of national minorities,’ interview with Rainer Hofmann, 26 November 2013, available at (accessed on 1 January 2014). In accordance with paragraph 36 of Resolution (97) 10 of the Committee of Ministers on the monitoring arrangements under Articles 24 to 26 of the Framework Convention, the Advisory Committee shall be involved in the monitoring of the follow-up to the conclusions and recommendations on an ad hoc basis, as instructed by the Committee of Ministers. Until 2014, this possibility had, however, never been used. In March 2014, at the request of the Ukrainian authorities, the Committee of Ministers instructed the

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2.3.5 The Creation of a Database for the Exchange of Information A third suggestion made by Rainer Hofmann on the occasion of the 15th anniversary of the fcnm it to make better use of existing technological means. The AC already has some internal databases, but could set up a more comprehensive database, where states could submit information on new legislation and new developments, and where ngos could raise their issues of concern. Through such a database, a continuous dialogue could be established, based on the information available in the database. 2.4 Suggestions Related to Enhanced Cooperation This section is dedicated to the potential of increased cooperation among the different monitoring mechanisms of the Council of Europe (which are the fcnm, the Language Charter and ecri), with the Commissioner for Human Rights, the Venice Commission, DH-MIN and cahrom. It also highlights the added value of the srsg and its Support Team for all coordination and cooperation matters on Roma issues. 2.4.1

Enhanced Cooperation of the fcnm Secretariat with Other Departments and Organs/Bodies within the Council of Europe Since the beginning of its activities, the Advisory Committee has placed particular emphasis on co-operation with other bodies active in the field of ­minority protection both within and outside the Council of Europe. Maintaining and strengthening synergies with its traditional partners, alongside developing good working relations with new bodies involved in minority protection have been a constant feature of the Committee’s work.47 Significant progress in the area of cooperation and coordination of Roma issues has been achieved with the creation of the Special Representative of the Secretary General for Roma

47

Advisory Committee, in accordance with the above provisions, to review the situation of national minorities in Ukraine and to report on its findings as soon as possible. The Advisory Committee carried out an ad hoc visit to Ukraine from 21 to 26 March 2014, holding meetings in Odessa, Kharkiv and Kyiv. It adopted in plenary an ad hoc report on 1 April 2014 and immediately forwarded it to the Committee of Ministers, which immediately published it. See coe acfc, 9th Activity Report, covering the period 1 June 2012– 31 May 2014, September 2014, available at (accessed on 1 September 2015). Advisory Committee on the fcnm, ‘7th Activity Report covering the period 1 June 2008 – 31 May 2010,’ ACFC/INF(2010)001, published 28 May 2010, p. 16.

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Issues. The work of the srsg and its Support Team has already been discussed above.48 As to the co-operation among the different monitoring mechanisms operating in the Council of Europe, in June 2009 the Advisory Committee invited Mr Terry Davis, the former Secretary General of the Council of Europe, to an exchange of views to discuss the progress made over the last few years in monitoring the Framework Convention, the main results achieved and the remaining challenges. On this occasion, the Secretary General drew the Advisory Committee’s attention to the need to devote greater attention to the co-operation among the different monitoring mechanisms operating in the Council of Europe, such as the ecri and the European Charter of Regional or Minority Languages, and to develop synergies among them.49 However, until today no form of institutionalized cooperation between the different monitoring mechanisms operating in the Council of Europe has been installed. 2.4.1.1 Language Charter The Advisory Committee co-operates with the Committee of Experts of the European Charter for Regional or Minority Languages and there are frequent close contacts between their respective secretariats. This is facilitated by the fact that it occurs that AC Members are at the same time also a Member of the Committee of Experts of the European Charter for Regional or Minority Languages, such as Ms Marieke Sanders-Ten Holte in 2012, or Ms Mahulena Hofmannova in 2013. As the Language Charter is less relevant for the protection of the rights of Roma children in education, this issue will not be examined in detail. 2.4.1.2 ecri The Advisory Committee’s co-operation with the ecri has continued in recent years, through the active participation of Ms Eva Smith and Mr Dalibor Jilek who were at the same time members of the Advisory Committee and of the ecri. In its Opinions, the Advisory Committee has also taken care to rely consistently on the findings of ecri in relations to issues of discrimination, xenophobia and intolerance, including by cross-references to ecri Reports. 48 49

See above Chapter 11 at 3.2 Special Representative of the Secretary General for Roma I­ ssues and the srsg Support Team. Advisory Committee on the fcnm, ‘7th Activity Report covering the period 1 June 2008 – 31 May 2010,’ ACFC/INF(2010)001, published 28 May 2010, p. 16.

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Thus cooperation between the fcnm secretariat, the ecri secretariat and the secretariat of the Language Charter and their respective experts is not institutionalized but it is possible through and facilitated by the fact that some experts fulfil functions in more than one committee. However, the latter is a matter of coincidence, which means that this personal overlap is not always necessarily existent, as experts are elected for four years only. The secretariat of the Framework Convention has lately enhanced its cooperation with ecri. The acfc and ecri organised two joint country visits: to Estonia in November 2014 and Georgia in March 2015. Joint monitoring exercises had already been organised in 2012 (Ireland) and 2013 (Bulgaria), following the encouragement of Council of Europe member states. The visits to Estonia and Georgia were chosen due to the coincidence of their respective monitoring cycles, as well as commonalities on the issues to be addressed. While the delegations were composed of representatives of both monitoring mechanisms and secretariats, each of the monitoring bodies subsequently adopted its findings separately following the normal procedures. These joint visits allowed the authorities and civil society representatives in Estonia and Georgia to address issues of interest to ecri and the acfc in a single visit. This approach was valued by all sides since it increased the effectiveness and consistency of the monitoring work, although it remains important that joint visits are well planned to be successful. Furthermore, achieving greater synergies among the three monitoring mechanisms (fcnm, ecri and Language Charter) will reduce the perceived monitoring fatigue, and provide new opportunities for joint follow-ups and result in greater impact on the ground.50 2.4.1.3 Commissioner for Human Rights The Advisory Committee invited the Council of Europe Commissioner for ­Human Rights, Mr Thomas Hammarberg to its plenary meeting in June 2009, to share with the Committee his experience and his concerns about the issues of protecting national minorities and on the impact of the Framework Convention in this field. The Commissioner considered the Framework Convention as one of the Council of Europe’s mainstays, and urged the states which had not yet ratified this instrument to do so without delay.51 He also stressed that he gave top priority to the situation of the Roma people, and that the Advisory 50 51

Advisory Committee on the fcnm, ‘10th Activity Report covering the period 1 June 2014 – 31 May 2016,’ ACFC/INF(2016)001, p. 25, available at (accessed on 1 January 2018). acfc, Meeting Report of the 35th meeting, ACFC/MR(2009)002, Strasbourg, 2 November 2009, pp. 5–6, available at (accessed on 1 January 2014).

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Committee’s work in this field was a major resource to which he frequently referred in his activities.52 The Commissioner also emphasised the importance of the availability of the thematic commentaries adopted by the Advisory Committee, which often helped him in suggesting appropriate solutions to the national authorities he met during his visits. In addition to this exchange of views, regular consultations take place between the secretariat of the Human Rights Commissioner and the secretariat of the fcnm. In practice, regular exchanges on country information, mutual briefings prior to country visits, increased numbers of cross-references in their respective documents are examples of this increased co-operation. Mr Hammarberg has also issued several blog posts condemning the stigmatisation of Roma, anti-gypsy stereotypes in the European media, anti-Roma rhetoric and hate, and segregated schools which marginalise Roma children.53 As a suggestion on how to increase cooperation between the fcnm secretariat and the Human Rights Commissioners’ services, Mr Hammarberg proposed that it would be useful if a member of the Advisory Committee could accompany him on some of his visits. The views of an expert on minorities’ issues would give more impact to his recommendations, thus helping to improve their monitoring under the supervisory mechanism of the Framework Convention.54 So far this suggestion has not been implemented. In April 2012 Mr Hammarberg was succeeded by Mr Nils Muiznieks. Just like his predecessor Mr Hammarberg, Mr Muiznieks pays particular attention to the respect for and the protection of the human rights of the Roma, highlighting on several occasions the importance of inclusive education for Roma children.55 In September 2017, Mr Muiznieks published a position paper on 52 Ibid. 53 Human Rights Commissioner, blog posts, ‘Do not stigmatize Roma,’ 15 September 2010; ‘European media and anti-Gypsy stereotypes,’ 7 July 2011; ‘European States should respect advice by unhcr,’ 16 June 2010; ‘Politicians using anti-Roma rhetoric and spreading hate,’ 28 June 2011; ‘Segregated schools marginalize Roma children – the decisions of the Strasbourg Court must be implemented,’ 20 May 2010; ‘Stateless Roma: no documents – no rights,’ 17 August 2010, all available at (accessed on 1 January 2014). 54 acfc, Meeting Report of the 35th meeting, ACFC/MR(2009)002, Strasbourg, 2 November 2009, p. 6, available at (accessed on 1 January 2014). 55 Segregation in education is also one of the issues the current Human Rights Commissioner pays particular attention to. See, among others, coe Commissioner for Human Rights, ‘Inclusive education vital for social cohesion in diverse societies,’ Strasbourg, 5 May 2015, available at (accessed on 1 September 2015). Council of Europe Commissioner for Human Rights, Position Paper, ‘Fighting school segregation in Europe through inclusive education,’ Strasbourg, September 2017, available at (accessed on 1 January 2018). Advisory Committee on the fcnm, ‘7th Activity Report covering the period 1 June 2008 – 31 May 2010,’ ACFC/INF(2010)001, published 28 May 2010, p. 17. One example can be found in the person of Alain Chablais, who left the secretariat of the fcnm to start working for the Venice Commission in 2005. Artemiza-Tatiana Chisca, former head of division of the Democratic Institutions and Fundamental Rights Division of the Venice Commission is also a former member of the secretariat of the fcnm. See above Chapter 11 under 3.2.2.2 Ad hoc Committee of Experts on Roma Issues (cahrom).

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Inviting the president of the AC to MG-S-ROM to exchange views on these issues could have created a win-win situation both for the AC and for MG-S-ROM. The terms of reference of cahrom—which now reports to the Committee of Ministers while the MG-S-ROM was reporting to the Steering Committee on Migration—contain a list of committees which may send representatives to meetings of the cahrom, without the right to vote.60 Among these committees is now also the Advisory Committee to the fcnm. According to Michael Guet, secretary of the cahrom, this upgrading of the intergovernmental work on the Roma reflects the priority given to this issue by the Committee of Ministers and the Secretary General since the High Level Meeting on Roma Issues held in Strasbourg on 20 October 2010. 2.4.1.6

The Special Representative to the Secretary General on Roma Issues (‘srsg’) At the Council of Europe, several DGs are working on Roma related issues. Some important projects and initiatives are the ‘Route of Roma Culture and Heritage’ and the project ‘Education of Roma Children in Europe’ of the Directorate General of Education, Culture and Heritage, Youth and Sport. The main coe division on Roma and Travellers however was not located in this DG but at the Directorate General of Social Cohesion. The Roma and Travellers Division of DG Social Cohesion coordinated projects such as the Dosta! Campaign,61 and the European Training Programme for Roma Mediators romed.62 The Roma and Travellers Division was replaced by the srsg ‘Support Team’ in November 2017. 60

cahrom, ‘Terms of Reference of the Ad hoc Committee of Experts on Roma Issues (cahrom) as adopted by the Committee of Ministers’ Deputies at their 1106th meeting on 16 February 2011,’ cahrom (2011)1, Strasbourg, 18 February 2011, at p. 3 B.5 Participants. 61 Dosta!, a Romani word meaning ‘enough,’ is a Council of Europe awareness raising campaign which aims to bring non-Roma closer to Roma citizens by breaking down the barriers caused by prejudices and stereotypes. The Dosta! campaign started as part of a wider Council of Europe/European Commission Joint Programme ‘Equal Rights and Treatment for Roma in South Easter Europe’ and has been implemented in Albania, Bosnia and Herzegovina, Montenegro, the Republic of Serbia, and the former Yugoslav Republic of Macedonia, during 2006 and 2007. Launched as a regional campaign, ‘Dosta!’ raised the interest of other Council of Europe Member States. Consequently, in 2008–2009, it was launched in Ukraine and Moldova, as well as opened to partnerships in other Council of Europe member States. Thus, Italy (May), Romania (June), Croatia (July), Slovenia (September) have joined the campaign in 2008, followed by Latvia in January 2009 and Bulgaria and France in April 2010. 62 On romed see above Chapter 11 at 3.2.1.1 European Roma Mediators Training Programme (‘romed’).

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From previous calendars of Roma related activities63 of DG Social Cohesion, one can conclude that there was an ever increasing cooperation between the Roma and Travellers Division of DG Social Cohesion and the division of DG Education responsible for the project ‘Education of Roma children in Europe.’ The centralization of cooperation on the Roma with the person of the Special Representative to the Secretary General on Roma Issue was an immense contribution towards the centralization and internal cooperation on Roma issues within the Council of Europe. Therefore, the re-integration in 2017 of the Roma and Travellers Team into the Directorate of Democratic Governance and Anti-Discrimination (DGII-Democracy) is regrettable. 2.4.2 Enhanced Cooperation with Civil Society and the Roma 2.4.2.1 Past Efforts How the co-operation of the AC with civil society is organised is described in the 7th Activity Report of the Advisory Committee: 103. Co-operation with civil society organisation has remained a key priority for the Advisory Committee, who examined on several occasions new ways to review the cooperation with civil actors. In addition to contacts and dialogue with minority associations and human rights ngos in the context of the monitoring process (country visits and follow-up seminars, submission/reception of shadow reports and replies to the Advisory Committee’s specific questions etc.), the Advisory Committee has continued to take an active part in capacity building activities for ngos related to the Framework Convention and its monitoring mechanism. […] 105. The members of the Advisory Committee had an exchange of views with three representatives of the European Minority Network on recent developments relating to the creation of working structures and methods specific to the latter and the means of developing co-operation with the Advisory Committee. The various possible modes of co-operation were considered in the light of the proposals and recommendations set out in the Declaration transmitted to the Advisory Committee by the European Minority Network during the October 2008 Conference on the Impact of the Framework Convention.

63

The calendar of Roma related activities of the Roma and Travellers Division of DG Social Cohesion is available at (accessed on 5 April 2012) and also on the website of the srsg under the heading ‘calendar’ available at (accessed on 5 April 2012).

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106. The members of the Advisory Committee stressed their openness to and interest in developing productive co-operation with the Network. At the same time, they made a number of suggestions on the requisite conditions for ensuring that the Network becomes genuinely operational in the near future, capable of promoting and successfully defending, at the European level, the rights of persons belonging to national minorities.64 The new cooperation between the AC and the European Minority Network is to be welcomed and could be even enhanced in the future. The Advisory Committee should also actively promote the submission of shadow reports, among others by ngos active in the field of Roma desegregation, and increase pressure on Member States to have the Advisory Committee Opinions and the Committee of Ministers Resolutions translated into minority languages. 2.4.2.2

Recommendations from the ‘ngo Declaration on the Framework Convention’ On the occasion of the conference ‘Enhancing the Impact of the Framework Convention: Past Experience, Present Achievements and Future Challenges,’ no fewer than 86 ngos jointly issued the ngo Declaration on the Framework Convention.65 In this Declaration, it has been suggested that, in order to facilitate the successful implementation of the Framework Convention, better consultation mechanisms should be put in place between states and ngos. Such mechanism should encompass two-way communication with feedback. In fact, in a number of states, the Framework Convention has been used as a successful means to develop a communication structure between governments on the one hand and minority groups and civil society on the other hand. Regrettably, this is not a uniform practice throughout the Council of Europe member states.66 The proposal launched by Rainer Hofmann on the occasion of the 15th anniversary of the fcnm to set up a database67 as a forum for exchange

64 65

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coe acfc, ‘7th Activity Report, covering the period 1 June 2008–31 May 2010,’ 28 May 2010, ACFC/INF(2010)001, p. 19. Amaro Drom and 85 others, ‘Assessing the Impact 10 years on: ngo declaration on the Framework Convention for the Protection of National Minorities – On the occasion of the Conference Enhancing the Impact of the Framework Convention: Past Experience, Present Achievements and Future Challenges,’ available at (accessed on 1 January 2014). Ibid., para. 15. See above at 3.3.5 The Creation of a Database for the Exchange of Information.

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of information and dialogue with the states signatories of the fcnm and civil society would comply with this request for better consultation mechanisms. It is also suggested in the said Declaration that the secretariat of the fcnm could compile a set of ‘good practices’ regarding the effective consultation and participation of minorities across the whole monitoring mechanism, as some State Reports still remain closed, even to a minimum consultation.68 3

Racial Equality Directive: Suggestions for Improvement

Suggestions Related to the Interpretation of Certain Provisions Defining ‘Racial and Ethnic Origin’ and ‘Roma’ broadly A Broad ‘Multi-Facetted’ Definition of the Concept of ‘Racial and Ethnic Origin’ Chapter 6 has already advocated the adoption of a ‘multi-facetted definition’ of the concept of ‘racial and ethnic origin’ covering all relevant Roma social attributes. Such a ‘multi-facetted’ definition has the potential to increase the level of protection of the Roma against discrimination under the Racial Equality Directive in the sense that it leaves no room for perpetrators to raise the argument that the discrimination did not take place on account of race or ethnic origin but on account of other social attributes, as all these social attributes— in the case of the adoption of a broad definition, comprising also social class, language, tribal affiliation, religion or area of residence—would be subsumed under the concepts of ‘race’ and ‘ethnic origin.’69 3.1 3.1.1 3.1.1.1

3.1.1.2 The Roma as a Dual Racial and Ethnic Minority In the same Chapter 6, it has also been argued that the concept of ‘race’ should not be abandoned nor that all discriminatory treatment based on different outer appearances should be subsumed under the concept of ‘ethnicity.’ Even though it is true that the difference between ‘race’ and ‘ethnicity’ tends to become more blurred, there are certain grounds for maintaining the two different concepts. As these grounds have already been discussed in the said

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Amaro Drom and 85 others, ‘Assessing the Impact 10 years on: ngo declaration on the Framework Convention for the Protection of National Minorities – On the occasion of the Conference Enhancing the Impact of the Framework Convention: Past Experience, Present Achievements and Future Challenges,’ para. 20. See above Chapter 6, and especially under 2.6.3 Roma as a Dual Racial and Ethnic Minority? and under 3. Conclusion. In order to avoid repetitive argumentation, please refer to these sections in Chapter 6.

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chapter,70 this section exclusively focuses on the question as to whether a failure to provide reasonable accommodation can be considered a form of prohibited discrimination. 3.1.2

Defining a Failure to Provide Reasonable Accommodation as a Form of Prohibited Discrimination The Racial Equality Directive does not contain a provision on the reasonable accommodation of the specific needs of the members of certain ethnic groups, such as the Roma. Thus the Directive leaves the question whether a failure to provide reasonable accommodation should be considered a form of prohibited discrimination under the Directive unanswered. Discrimination may arise where states, without objective and reasonable justification, not only treat persons in the same or a comparable situation differently, but also fail to treat differently persons whose situations are significantly different.71 De Schutter notes in this context that the obligation to take into account relevant differences should not be confused with the introduction of positive measures.72 An understanding of discrimination as comprising also the failure to treat differently persons whose situations are different, includes also the failure to take into account relevant differences of persons belonging to certain ethnic groups and thus to ‘accommodate difference.’ This raises the question as to whether the definition of discrimination in the Racial Equality Directive, which only includes direct and indirect discrimination, but not a failure to accommodate difference, is sufficient. A clear stance could be adopted by the cjeu on the fact that the failure to treat persons in different situations differently and to accommodate this difference amounts to discrimination. Moreover, a widening of the concept of ‘discrimination’ as covering also the failure to provide reasonable accommodation 70 71

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See above Chapter 6, and especially under 2.6.3 Roma as a Dual Racial and Ethnic Minority? and under 3. Conclusion. See also the jurisprudence of the ECtHR, e.g., the case of Thlimmenos v Greece (ECtHR) Reports 2000-IV 263 at para. 44, where the ECtHR holds that “the right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.” O. De Schutter, (on the authority of the European Network of Legal Experts in the non-­ discrimination field), ‘The Prohibition of Discrimination under European Human Rights Law, Relevance for the EU Non-Discrimination Directives – An Update,’ May 2011, p. 58, available at (accessed on 1 January 2014).

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can increase the level of protection of ethnic minorities, especially the Roma, under the Racial Equality Directive. 3.1.3 Promoting Positive Action Article 5 Racial Equality Directive allows the Member States to provide for positive action. The Racial Equality Directive simply permits positive action but does not make it mandatory.73 Certain authors argue that in the specific field of ethnic origin and racial equality, it is inadequate simply to permit positive action,74 which in other contexts has been subject to strict interpretation by the cjeu. So far no judgment of the cjeu exists interpreting the positive action provisions of the Racial Equality Directive, but there is some case law on positive action in general.75 Erica Howard notes that that the cjeu sees positive action as a derogation of the principle of equal treatment.76 In the Lommers case,77 the cjeu held that its case law on derogations from an individual right was applicable to positive action measures. This case law had introduced a proportionality test for such derogation. The cjeu held that: […] according to settled case-law, in determining the scope of any derogation from an individual right such as the equal treatment of men and women laid down by the Directive, due regard must be had to the principle of proportionality, which requires that derogations must remain within the limits of what is appropriate and necessary in order to achieve the aim in view and that the principle of equal treatment be reconciled as far as possible with the requirements of the aim thus pursued (Johnston, paragraph 38; Sirdar, paragraph 26, and Kreil, paragraph 23).78 73 74

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76 77 78

See E. Howard, ‘The European Year of Equal Opportunities for All – 2007: Is the EU moving away from a formal idea of equality?,’ European Law Journal, vol. 14, no. 2, pp. 168–185. K. Koldinska, ‘EU Non-Discrimination Law and Policies in Reaction to Intersectional Discrimination against Roma Women in Central and Eastern Europe,’ p. 253 in D. Schiek and A. Lawson (eds), European Union Non-Discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination, Ashgate, Farnham, 2011. For a short overview of cjeu case law, primarily in terms of Article 2(4) Gender Equal Treatment Directive 2002/73/EC, see K. Henrard (on the authority of the European Network of Legal Experts in the non-discrimination field), ‘Equal Rights versus Special Rights? Minority Protection and the Prohibition of Discrimination,’ June 2007, p. 30, available at (accessed on 1 January 2014). E. Howard, The EU Race Directive, Routledge, London and New York, 2010, p. 191. Case C-476/99, Lommers v Ministerie van Landbouw, Natuurbeheer en Visserij, 2002, ecr I-2891. At para. 39.

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Thus a proportionality test applies to positive action measures within the EU. The rather restrictive approach of the cjeu in relation to positive measures has been amply asserted.79 A strict interpretation of existing positive action provisions may limit the opportunity to take appropriate measures to protect against discrimination based on ethnic origin80 and vice versa, a broad interpretation allowing for several forms of positive action to fall under the scope of Article 5 Racial Equality Directive might lead to an increase of these positive measures. Howard notes in this sense that “[a]llowing the Member States a margin of discretion might lead to the development of some interesting and innovative measures that could be used as examples of good practices for other Member States.”81 Positive measures are especially necessary for persons facing multiple discrimination, such as Roma women or girls. In cases of discrimination of Roma women and girls, discrimination often has both a gender and an ethnic aspect. In cases of multiple and intersectional discrimination, positive measures could contribute to combat these forms of discrimination. However, they constitute only part of the solution as they do not eliminate the causes of the poor situation of Roma women or girls.82 At most, some of the consequences of their unequal position, discrimination and social exclusion would be addressed. Suggestions have been even made to make positive action mandatory, as it is under the icerd, rather than permissive.83 However, a modification of the wording of the Racial Equality in this sense is not likely to happen in the near or far future. There is some speculation though that the cjeu might possibly allow for a slightly broader interpretation of positive action in the light­of the 79

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See inter alia D. Caruso, ‘Limits of the Classic Method: Positive Action in the EU after the New Equality Directives,’ Harvard International Law Journal, 2003, vol. 44, no. 2, pp. 331–386; S. Pager, ‘Strictness and Subsidiarity: An Institutional perspective on affirmative action at the ecj,’ Boston College International and Comparative Law Review, 2003, vol. 26, no. 1, pp. 35–76; C. Costello, ‘Positive Action,’ in C. Costello and E. Barry (eds), Equality in Diversity: The New Equality Directives, Irish Centre for European Law/Equality Authority Dublin, Dublin, 2003, pp. 177–212. K. Koldinska, ‘EU Non-Discrimination Law and Policies in Reaction to Intersectional Discrimination against Roma Women in Central and Eastern Europe,’ p. 253 in D. Schiek and A. Lawson (eds), European Union Non-Discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination, Ashgate, Farnham, 2011. E. Howard, The EU Race Directive, Routledge, London and New York, 2010, p. 191. K. Koldinska, ‘EU Non-Discrimination Law and Policies in Reaction to Intersectional Discrimination against Roma Women in Central and Eastern Europe,’ p. 254 in D. Schiek and A. Lawson (eds), European Union Non-Discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination, Ashgate, Farnham, 2011. E. Howard, The EU Race Directive, Routledge, London and New York, 2010, p. 191.

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wording of Article 19 tfeu.84 This would also be a step in the direction of aiming at more substantive equality. Positive duties can already be inferred from some Treaty provisions, such as Articles 8 and 157 tfeu and also from Art. 23 of the Charter of Fundamental Rights.85 The complex area of equality for Roma women has been used by Sandra Fredman as a means to illustrate the need to react to multiple discrimination faced by Roma women by installing positive obligations.86 And for Kristina Koldinska, in the specific case of Roma women and girls, positive obligations are to be recommended for at least two reasons: [f]irst, there is an urgent need for systemic measures to mainstream equality for Roma women. Second, in the specific case of Roma women (disadvantaged in education, often isolated in poor housing) the individual claim-based possibilities provided by the equality directives are simple too meager and ineffective. The logical conclusion is that in the absence of positive obligations, the situation of Roma women in Europe will hardly improve at all.87 It is clear that pro-active models of equality aiming at substantive equality are more effective in tackling systemic and structural discrimination in general and segregation in education in particular, than measures and policies aiming merely at formal equality. Positive duties in relation to equality have already been identified in relation to indirect discrimination,88 but so far the cjeu has not yet identified a duty to adopt positive action measures. 84

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E. Howard, ‘The European Year of Equal Opportunities for All – 2007: Is the EU moving away from a formal idea of equality?,’ European Law Journal, 14(2), pp. 168–185; K. Koldinska, ‘EU Non-Discrimination Law and Policies in Reaction to Intersectional Discrimination against Roma Women in Central and Eastern Europe,’ p. 253 in D. Schiek and A. Lawson (eds), European Union Non-Discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination, Ashgate, Farnham, 2011. S. Fredman, ‘Changing the Norm: Positive duties in equal treatment legislation,’ Maastricht Journal of European and Comparative Law, 2005, vol. 12, no. 4, pp. 369–397. S. Fredman, ‘Positive Rights and Positive Duties: Addressing intersectionality,’ p. 76 in D. Schiek and V. Chege (eds), European Union Non-Discrimination Law: Comparative Perspectives on Multidimensional Equality Law, London: Routledge-Cavendish, 2008. K. Koldinska, ‘EU Non-Discrimination Law and Policies in Reaction to Intersectional Discrimination against Roma Women in Central and Eastern Europe,’ p. 255 in D. Schiek and A. Lawson (eds), European Union Non-Discrimination Law and Intersectionality: Investigating the Triangle of Racial, Gender and Disability Discrimination, Ashgate, Farnham, 2011. O. De Schutter for the EU Network of Independent Experts on Fundamental Rights, ‘Thematic Comment No 3: The Protection of Minorities in the European Union,’ 25 April 2005,

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As the Racial Equality Directive does not contain any explicit positive, proactive duties, it remains to be seen whether the cjeu will become more active in the identification of duties to promote equality, inter alia through a progressive interpretation of the prohibition of indirect discrimination.89 A positive feature is that, according to research conducted by the fra,90 across the Member States, a preventive, rather than reactive approach to indirect discrimination and the adoption of positive action measures can be noted. Suggestions Related to Additional Measures Promoting a Better Implementation 3.2.1 Disseminating Information on Anti-discrimination Laws and Increasing Accessibility and Visibility of the Specialized Equality Bodies Art. 10 Racial Equality Directive requires Member States to disseminate information about provisions in place to give effect to the Directive. Awareness of equality legislation and complaints procedures is crucial for a successful enforcement of the right to equal treatment, especially for vulnerable groups such as the Roma. The 2012 fra Report on the Racial Equality Directive: Application and Challenges describes that awareness-raising activities are organized in many of the Member States, including central government publications, educational initiatives, training, roundtables and public events.91 3.2

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p. 22 available at (accessed on 1 January 2014). De Schutter relates the duty to promote full and effective equality in terms of Art. 4 fcnm to the duty to differentiate in terms of the prohibition of discrimination. The absence of special measures in order to achieve full and effective equality would amount to a failure to provide effective accommodation to meet the specific needs of certain categories which would be indirectly discriminatory. K. Henrard (on the authority of the European Network of Legal Experts in the non-discrimination field), ‘Equal Rights versus Special Rights? Minority Protection and the Prohibition of Discrimination,’ June 2007, p. 31 footnote 111, available at (accessed on 1 January 2014). K. Henrard (on the authority of the European Network of Legal Experts in the nondiscrimination field), ‘Equal Rights versus Special Rights? Minority Protection and the Prohibition of Discrimination,’ June 2007, p. 32, available at (accessed on 1 January 2014). Henrard notes that the cjeu might be inspired by the acknowledgement of the need for pro-active measures to combat discrimination in Article 1(a) of the Gender Equal Treatment Directive 2002/73/EC. fra, ‘The Racial Equality Directive: Application and Challenges,’ Luxembourg: Publications Office of the European Union, 2012, p. 24. fra, ‘The Racial Equality Directive: Application and Challenges,’ Luxembourg: Publications Office of the European Union, 2012, p. 19.

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According to the last comparative reviews on the implementation of the Racial Equality Directive by the European Network of Legal Experts in the field of non-discrimination, Member States have made progress when it comes to dissemination of information on anti-discrimination law. In spite of these efforts, only 16 per cent of those coming from immigrant or ethnic minority backgrounds indicated in the fra EU-MIDIS survey92 that they were aware of any organization that supports victims of discrimination (such as an ngo or equality body). Sixty-three per cent of respondents indicated that they had not heard of the designated equality bodies in their country of residence. Fiftyseven percent were unaware or unsure about the existence of legislation prohibiting discrimination on grounds of racial or ethnic origin.93 These figures show that awareness-levels are still very low and that a lot more in this regard could be done. 3.2.2 Suggestions Related to Ensuring Access to a Legal Remedy Access to a legal remedy constitutes an essential ingredient in ensuring implementation of the prohibition of discrimination.94 The effectiveness of such procedures is undermined where victims of discrimination are reluctant to use these procedures. Several factors have been noted that act as a disincentive to using complaints procedures: − legal costs; − fear of negative consequences; − a perception that the situation would not alter; − a tolerance of or failure to recognise discrimination.95 The fra in its report on the application of the Racial Equality Directive suggests that consideration should be given to taking measures that widen access to complaints mechanisms, including: “broadening the mandate of equality bodies that are not currently competent to act in a quasi-judicial capacity; relaxing the rules on legal standing for ngos and other civil society 92

93 94 95

EU-MIDIS stands for the ‘European Union Minorities and Discrimination Survey.’ It is the first EU-wide survey to ask immigrant and ethnic minority groups about their experiences of discrimination and criminal victimization in everyday life. It also presents the first EU-wide data on minorities’ awareness of their rights in the field of non-discrimination, including knowledge about Equality Bodies. The figures presented here are taken from fra, ‘EU-MIDIS: Data in focus 3: Rights awareness and equality bodies,’ Luxembourg: Publications Office, 2010, p. 3, available at (accessed on 1 January 2014). fra, ‘The Racial Equality Directive: Application and Challenges,’ Luxembourg: Publications Office of the European Union, 2012, p. 19. Ibid., p. 25. Ibid., p. 25.

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organizations; increasing funding for voluntary organizations in a position to assist victims.”96 Further research should be conducted into the issue on how access to a legal remedy for members of an ethnic minority can be insured. In this context, the recently published report on ‘Roma and the enforcement of anti-discrimin­ ation law’ by the European network of legal experts in gender equality and non-discrimination can be welcomed.97 3.3 Suggestions Related to the Monitoring of Results 3.3.1 Collecting Data98 A significant feature of the Racial Equality Directive is that it does not just focus on individual prejudice and its consequences, but on institutional social patterns and practices. Group outcomes are emphasized, both in order to diagnose discrimination and to discover whether remedial measures have been effective.99 The ways in which statistical and other data can support the implementation of equal treatment law, how international and European law, in particular data protection law, regulates the collection of such data, the extent to which the EU Member States engage in the collection of data and the question whether statistical data is made use of in legal proceeding at the national level are topics which have been investigated and discussed extensively by Timo Makkonen, expert for the European Network of Legal Experts in the

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Ibid., p. 25. I. Chopin, C. Germaine, and J. Tanczos, for the European Network of Legal Experts in gender equality and non-discrimination, ‘Roma and the enforcement of anti-discrimination law,’ Brussels: European Commission, DG for Justice and Consumers, November 2017, available at (accessed on 1 January 2018). The issue of data collection under the fcnm is not discussed in this chapter, as the stance of the Advisory Committee to the fcnm is clear: the AC has always encouraged the state parties to the fcnm to engage in more data collection and to acquire supplementary data by means of household and sociological surveys and studies. The AC has also always underscored that in order to adopt effective measures conducive to full and effective equality, it is essential to have available and reliable and up-to-date data on the socioeconomic situation and educational status of national minorities, disaggregated by age, sex and geographical distribution. Also in the fcnm thematic commentary on education, the importance of data collection has been underscored. T. Makkonen for the European Network of Legal Experts in the non-discrimination field, ‘Measuring Discrimination: Data Collection and EU Equality Law,’ November 2006, avai­ lable at (­accessed on 1 January 2014).

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non-discrimination field, in his 2006 report on Data Collection and EU Equality Law.100 The EU has acknowledged the crucial role played by statistics in activating anti-discrimination policies and increasing its capacity to ensure social cohesion and promote diversity and equality. Ethnic data—as one component within disaggregated data—can be generated and used in ways that protect the privacy of individuals and groups while providing critical information to help policymakers fight racism and discrimination and draft viable equality programs.101 Bernhard Rorke, international research and advocacy director for the Open Society Roma Initiatives and also lecturer in political theory, notes that the European Common Basic Principles for Integration, adopted in 2004, call for clearly defined objectives and highlight the need for evaluation and monitoring. But little has been done by the EU to support and encourage governments to collect data disaggregated by ethnicity.102 The increased support which is to be given by the fra to the governments of the Member States in the field of data collection in the context of the monitoring of the implementation of the National Roma Integration Strategies can boost the collection of ethnically disaggregated data by the Member States. The ‘Roma integration indicators scoreboard (2011–2016)103 which has been developed by the fra for the midterm review of the EU framework for national Roma integration strategies could be even more enhanced. This scoreboard presents changes in the situation of Roma in nine EU Member States as recorded by two fra surveys in 2011 and in 2016. As the Member States often invoke the (false) argument of privacy and data protection, the Commission could issue guidelines on the interpretation of its regulations on ethnic data collection and processing to clearly and authoritatively prevent misconceptions that the regulations prohibit the use of data regarding ethnicity.104 Indeed, the report by Timo Makkonen clearly confirms that the oft-stated perception that international and European laws on the right to privacy and the protection of data prohibit the collection of personal data relating to the equality grounds is false: the pertinent laws only set out 100 Ibid. 101 B. Rorke, Beyond Rhetoric: Roma Integration Roadmap for 2020: Priorities for an EU framework for national Roma integration strategies, Budapest: osi, p. 27. 102 Ibid. 103 European Commission Staff Working Document, ‘Roma integration indicators scoreboard (2011–2016),’ accompanying the Midterm review of the EU Framework for national Roma integration strategies, Brussels, 30.08.2017, swd(2017)286 final. 104 Ibid.

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the legal framework and the qualitative criteria that must be met when data is collected or otherwise processed. Accordingly, the report recognizes the need to engage in data collection in order to work towards the realization of equal treatment in practice.105 In order to get useful data in the long term, the Commission plans on fostering cooperation between national statistical offices and Eurostat so as to be able to identify methods to map the EU’s least developed micro-regions, where the most marginalized groups live, and in particular the Roma. However, for the successful implementation of the respective national Roma integration strategies, comprehensive statistical data is required, also from outside microregions. The incentive to coordinate the data gathering of the least developedmicro regions should be welcomed, but the collection of disaggregated data, allowing the establishing of larger trends and patterns of, among others, the segregation of Roma children in education, is required in order to draft and implement effective inclusion policies.106 Finally, it is mentioned in the EU Framework that the fra should work with Member States to develop monitoring methods which can provide a comparative analysis of the situation of the Roma across Europe.107 The role of the fra and its potential has already been examined above in Chapter 11.108 3.3.2

A Common Monitoring Body for the Racial Equality Directive and for the Framework for National Roma Integration Strategies? The Example of Italy According to Art. 13 Racial Equality Directive, the Member States are to designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the ground of racial and ethnic origin. These ‘bodies for the promotion of equal treatment,’ also called ‘national equality bodies,’ may form a part of agencies charged at a national level with the defense of human 105 T. Makkonen for the European Network of Legal Experts in the non-discrimination field, ‘Measuring Discrimination: Data Collection and EU Equality Law,’ November 2006, p. 9, available at (accessed on 5 April 2012). 106 For a number of concrete recommendations to the EU related to data collection, see B. Rorke, Beyond Rhetoric: Roma Integration Roadmap for 2020: Priorities for an EU framework for national Roma integration strategies, Budapest: osi, pp. 29–30. 107 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Brussels, com(2011) 173/4, pp. 13–14. 108 See above, Chapter 11 at 2.3.5 The Role of the fra in the Monitoring Procedure.

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rights or the safeguard of individual’s rights. The competences of these bodies, according to Art. 13 (2) Racial Equality Directive, include: − without prejudice to the right of victims and of associations, organisations or other legal entities referred to in Article 7(2), providing independent assistance to victims of discrimination in pursuing their complaints about discrimination, − conducting independent surveys concerning discrimination, − publishing independent reports and making recommendations on any issue relating to such discrimination. A similar body, called ‘national contact point for the national Roma integration strategy’ is to be appointed by the Member States in the framework of their compliance with the framework for nris. This national contact point should have the authority “to coordinate the development and implementation of the strategy or, where relevant, rely on suitable existing administrative structures.”109 Some Member States, like Italy, have assigned their national equality body— which they established to comply with the transposition of the Racial Equality Directive— with the coordination of the development and implementation of the nris, hereby merging the national equality body and the national contact point for the nris. In the case of Italy, for example, the Office for the promotion of equal treatment and removal of discrimination based on race or ethnic origin (in Italian, Ufficio Nazionale Antidiscriminazioni Raziali; ‘unar’)110 has been appointed by the Italian Government as the National Focal Point for the present Roma Inclusion Strategy. unar was originally established in order to comply with Art. 13 of the Racial Equality Directive. It thus combines the function of a national equality body and of a national contact point for the Italian nris. To assign the already existing national equality body with the task of coordinating the development and implementation of the nris and to concentrate both functions in one office is a measure other Member States should consider. It has already been criticised above111 that most nris do not pay enough attention to the fight against discrimination and to ensuring that antidiscrimination legislation is effectively enforced. This is a major weakness, as 109 European Commission, Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions, ‘An EU Framework for National Roma Integration Strategies up to 2020,’ Brussels, com(2011) 173/4, p. 10. 110 The unar website is available at (accessed on 1 September 2015). 111 See above Chapter 11 at 2.3.3 Criticism as to the Lack of Action to Combat Racism and Discrimination.

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fighting anti-Gypsyism and taking effective measures to tackle discrimination should be at the core of the nris. By appointing the existing national equality bodies as national Roma contact points and centralizing the equality body and the Roma contact point in one office, a better monitoring of both the Racial Equality Directive and the nris can be possible. Also a better exchange of all information related to racial discrimination of the Roma, especially in the fields covered by the nris, which are access to education, housing, health and the labour market, can be guaranteed. From the point of view of victim assistance this would also be of added value for the Roma. The Roma, who are often victims of discrimination, would then only have one contact point for all questions related to discrimination and related to their rights under the nris. Therefore the Italian example should be promoted and Member States should be informed about the advantages of merging the two bodies. Council Recommendation on effective Roma integration measures in the Member States adopted in December 2013 recommends that the Member State promote regular dialogue between their National Contact Point for Roma Integration and their national bodies for the promotion of equal treatment.112 In the monitoring of the implementation of this Council Recommendation, the Commission could pay special attention to the question as to whether this dialogue effectively takes place in the different Member States. The Commission has been actively promoting it by inviting the equality bodies to participate in the National Roma Contact Point meetings in Brussels. Such a dialogue and an exchange of relevant information can strengthen the working of both bodies in the field of Roma anti-discrimination and avoid duplication of work. 3.4 A Roma Coordinator for the European Commission At the Council of Europe, the centralisation of the work on the Roma in the sgsr support team has greatly benefitted the cooperation of the different services within the Council of Europe working on Roma-related issues. The European Commission could consider a similar approach, and concentrate all Roma-related issues in one core team around a central ‘Roma Coordinator.’ As several DGs have different competences in the field of Roma inclusion,113 112 Council of the European Union, ‘Council Recommendation on effective Roma integration measures in the member states,’ Employment, Social Policy, Health and Consumer Affairs Council Meeting, Brussels, 9 and 10 December 2013, p. 11 at 3.7, available at (accessed on 1 January 2014). 113 The following DGs participate in the Roma Task Force: agri, empl, sante, near, just, eac and regio. DG empl is responsible for all aspects related to social inclusion, poverty

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the work of the Commission on Roma integration could benefit from the establishment of the function of such a Roma Coordinator, who could be based in DG Justice and Consumers. The Roma Coordinator could have a mandate similar to the one of the EU Anti-Trafficking Coordinator.114 He/she could be responsible for improving coordination and coherence within the European Commission and among EU institutions, EU agencies and international actors in the field of Roma inclusion, and also for the monitoring of the implementation of the National Roma Integration Strategies. 4

An Enhanced Cooperation between the EU and the Council of Europe in the Field of Roma Rights Protection

As the emerging division of tasks between the Council of Europe and the EU in promoting fundamental rights in Europe has already been discussed elsewhere,115 there is no need to elaborate on the issue here. It is however suggested that an enhanced formal institutionalized cooperation between the EU and the Council of Europe in the field of Roma rights protection could benefit the work of both organizations in this field. reduction and inclusion in the labour market. It also manages the romact project in cooperation with the Council of Europe. DG eac is responsible for all education related matters, such as ecec. It is involved in the Council of Europe romed project. DG near is responsible for Roma policy in the enlargement countries and co-manages the romacted programme with the Council of Europe. DG regio manages the bulk of the European Structural and Investment Funds (erdf and CF, whereas esf is managed by DG empl). In DG just, 3 units used to work on Roma-related matters. just D 1 was the lead unit for the Roma-related infringement procedures on the basis of the Racial Equality Directive, just D3 was the ‘Roma unit’ responsible for all Roma-related policies and just C1 was the lead unit for the implementation of the Framework Decision on Racism and Xenophobia and thus for anti-Gypsyism-related issues. After the appointment, as of 1 February 2016, of Ms Tiina Astola as Director-General for Justice and Consumers, the DG was re-organised at the end of 2016 and the two units working on Roma were merged into unit D.1 Nondiscrimination and Roma coordination.Unit C.1 kept its portfolio and was renamed C.2. 114 More information on the office of the EU Anti-Trafficking Coordinator can be found on her website, available at (accessed on 1 September 2015). 115 O. De Schutter, ‘The Two Europes of Human Rights. The Emerging Division of Tasks Between the Council of Europe and the European Union in Promoting Human Rights in Europe,’ Colombia Journal of European Law, vol. 14, no. 3, Summer 2008, pp. 509–561. On how to create synergies in the field of minority policy and programming between the Council of Europe and the EU see R. Hofmann and E. Friberg, ‘The Enlarged EU and the Council of Europe: Transfer of Standards and the Quest for Future Cooperation in Minority Protection,’ in G.N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward, osi, Budapest, 2004, pp. 141–142.

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Legal scholars have frequently underscored the importance of closer ties and a legal framework for inter-institutional co-operation in the field of fundamental rights in general and minority protection in particular: “…several joint initiatives between the European Commission have originated from informal contacts between staff members. Nevertheless, closer legal ties with regularized inter-institutional meetings should be promoted to encourage cooperation in programming, efficient use of resources and to avoid duplication.”116 The Agreement between the European Community and the Council of Europe on Cooperation between the European Agency for Fundamental Rights and the Council of Europe117 of June 2008 is already a step in the right direction. A more institutionalized cooperation between the Council of Europe and the EU could go beyond an agreement with the fra, which is a mere agency of the EU with only a limited mandate. Establishing a formal relationship between the fra and the AC to the fcnm could be considered. However, as long as the fra does not receive an explicit mandate from the Council to take up thematic work in the field of minority protection−at present it only has a mandate to work in the field of discrimination on the basis of membership of a national minority and in the field of Roma integration118−such a formal relation is unlikely to be established. The Secretary General of the Council of Europe in his First Progress Report (November 2010–April 2011) on the follow-up to the Strasbourg Declaration on the Roma stressed the need for stronger co-operation, coordination and concerted action both within the Council of Europe and between the Council of Europe and other key players, in particular the EU. (…) We should establish a more strategic partnership so as to maximise synergies and impact.119

116 R. Hofmann and E. Friberg, ‘The Enlarged EU and the Council of Europe: Transfer of Standards and the Quest for Future Cooperation in Minority Protection,’ in G.N. Toggenburg (ed.), Minority Protection and the Enlarged European Union: The Way Forward, osi, Budapest, 2004, p. 125. 117 Discussed above in Chapter 11 at 4.1 Agreement between the European Community and the Council of Europe on Cooperation between the European Agency for Fundamental Rights and the Council of Europe. 118 See the fra’s multiannual framework: Council of the European Union, Council Decision No 252/2013/EU of 11 March 2013 establishing a Multiannual Framework for 2013–2017 for the European Union Agency of Fundamental Rights. 119 Secretary General of the Council of Europe, ‘Follow-up to the Strasbourg Declaration on Roma: First Progress Report (November 2010–April 2011) by the Secretary General of the Council of Europe,’ SG/Inf(2011)11 rev, Strasbourg, 20 April 2011 at p. 13.

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romed and romact, romacted, justrom and ‘Inclusive Schools’120 are nice examples of a successful cooperation between the EU and the Council of Europe on Roma related matters, but these initiatives are project-related, which run over a certain period of time only. A more strategic partnership can only be successfully established if a legal framework for regular cooperation on Roma related issues between the European Commission and the Council of Europe is created which foresees a more formalized character of inter-institutional relations between all relevant branches of the European Commission and the Council of Europe in order to facilitate joint planning and programming of activities. 5

Conclusions under Chapter 14

This last chapter was devoted to the question of how a more effective monitoring and implementation of the fcnm and of the Racial Equality Directive can be achieved. First, regarding the monitoring and implementation of the fcnm, a difference should be made between the substantive provisions of the fcnm on the one hand and the procedural aspects of the monitoring on the other hand. As to the substantive provisions of the fcnm, a clearer distinction between segregation measures and positive action measures aiming at the integration of Roma children in education could be made. This can also serve as guidance for the ECtHR in its jurisprudence on Roma segregation in education. Furthermore, increased attention could be paid to the importance of early childhood education and care for a successful educational path later on. As to the procedural aspects of the monitoring itself, a timely adoption and publication of the AC Opinions and especially of the Committee of Ministers’ Resolutions would contribute to an increased transparency of the monitoring process. A systematic translation of the AC Opinions into Romani language by those states with considerable Roma minorities would also increase the transparency of the monitoring process, and create better awareness of the potential of the fcnm as an instrument for Roma rights advocacy among Roma civil society. Furthermore, the 3 suggestions launched by Rainer Hofmann on the occasion of the 15th anniversary of the fcnm, which include the setting up of a collective complaints mechanism comparable to the one under the European Social Charter, the Committee of Ministers making use of the possibility to 120 See above Chapter 11 at 3.2.1 Capacity Building and Awareness Raising.

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request states to report on urgent issues, and the setting up of a database as a tool for dialogue between states, civil society and the fcnm secretariat, are valuable suggestions as to how the procedural aspects of the monitoring can be improved. Apart from that, a ratification by those Council of Europe Member States who have not ratified so far would allow for the monitoring of fcnm in those states as well. The monitoring of the fcnm can also be improved through an enhanced cooperation of the fcnm secretariat with other departments and organs/bodies within the Council of Europe, such as the Language Charter, the ecri, the Commissioner for Human Rights, the Venice Commission, the cahrom and the Roma and Travellers Team. Second, regarding the monitoring and implementation of the Racial Equality Directive, here as well a difference should be made between the substantive provisions of the Racial Equality Directive on the one hand and the procedural aspects of the monitoring on the other hand. As to the substantive provisions of the Racial Equality Directive, a ‘multifacetted’ definition of the concept of ‘racial and ethnic origin’ has the potential to increase the level of protection of the Roma against discrimination under the Racial Equality Directive. In the absence of a provision on the reasonable accommodation of the specific needs of the members of certain ethnic groups, such as the Roma, in the Racial Equality Directive, an interpretation of the concept of ‘discrimination’ as covering also the failure to provide reasonable accommodation can increase the level of protection of ethnic minorities, especially the Roma, under the Racial Equality Directive. And in the absence of any explicit positive, pro-active duties on the Member States, the cjeu could become more active in the identification of duties to promote equality, inter alia through a progressive interpretation of the prohibition of indirect discrimination. As to the procedural aspects of promoting a better implementation of the Racial Equality Directive, access to a legal remedy for victims of discrimination should be better ensured. Moreover, the dissemination of information on antidiscrimination laws and a better accessibility and visibility of the specialized equality bodies can lead to a better awareness by potential victims of their rights. Regarding the monitoring of concrete progress in the field, the importance of the collection of ethnically disaggregated data cannot be stressed enough. There is a need for the establishment of EU-wide indicators. Exchange of data and information and regular dialogue between the National Contact Point for

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Roma Integration and the national bodies for the promotion of equal treatment in the Member States should be promoted. Finally, closer legal ties between the Council of Europe and the EU in the field of Roma inclusion with regularized inter-institutional meetings should be promoted to encourage cooperation in programming, efficient use of resources and to avoid duplication.

Conclusions The Framework Convention for the Protection of National Minorities and the Racial Equality Directive have not brought along the desired effect when it comes to the combating of segregation of Roma children in the sphere of education. Government efforts to date have failed to meet this challenge of including Roma children into mainstream education in a substantive and sustainable way. Breaking the vicious circle of poverty, deprivation and exclusion of the Roma urgently requires increased, long-term investments in the education of the Roma, together with effective actions to address other areas of exclusion such as employment, healthcare and housing, as they have a mutually reinforcing effect. Promoting effective inclusion in education also requires combating deep-rooted discrimination and intolerance towards the Roma. The first chapter has demonstrated that there are several factors distinguishing the Roma from other minorities, such as the lack of kin-state support, the problematic socio-economic situation of the Roma, and their historical marginalization with nowadays even their ‘securitization.’ The factual recognition of extreme vulnerability justifies a legal differentiation of the Roma versus other minorities and justifies the adoption of specific measures. The term ‘Roma’ is used as an umbrella term covering different groups, who speak different languages and have a different ethnic and social background. Therefore there is no “one size fits all”-solution for the Roma in Europe. In Europe, equal access to quality education for the Roma is not guaranteed. A particular problem is the systematic segregation of Roma into classes for children with mental deficiencies. The education provided in these segregated classes is of low quality and prevents the Roma pupils from accessing higher education. In the second chapter, it has been shown that providing equal access to quality education for the Roma is hampered by the fact that some Roma parents have often tended to disapprove of formal education, and considered it unnecessary for their traditional lifestyle, due to their own negative experience with the educational system. Roma parents consider school to be part of a coercive environment and perceive it as a sort of tentacle grasping their children towards assimilation. Moreover, there often is a prevailing understanding among the majority population that Roma culture and traditions hold back their social advantage, instead of seeing Roma culture as enriching. Factors responsible for exclusion from education are diverse and have a systematic character. Discrimination in access to quality education has a dual nature: discrimination is both a consequence of exclusion as well as its p ­ rimary cause. Addressing these systemic factors can reduce discrimination. A first

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step t­ owards desegregation in education and social inclusion is therefore the combating of stereotyping and prejudice and the establishment of a true intercultural dialogue between the Roma and non-Roma communities at a local level, by means of inter-cultural education, instead of only seeking the causes for the desolate situation of the Roma with the Roma themselves. Any solution towards long-term integration in education cannot be paternalistic, but has to emerge in close cooperation with the Roma communities concerned and their leaders. Chapter 3 has highlighted that the right not to be discriminated against on the one hand and minority rights on the other hand represent complementary but distinct categories: minority rights are a much wider notion than the right not to be discriminated against. Consequently, legal tools designed to combat discrimination will contribute to the protection of minority rights, but are not sufficient to protect minority rights. The minority rights discourse, categorizing the Roma as a (national) minority or alternatively as a non-territorial European minority has been criticized for its negative, polarizing consequences, as it highlights the differences between the minority versus the majority and can thus hamper inclusion. Romani identity politics are necessary in order to define the Roma as a group for political purposes, so that policies can be directed towards them, but at the same time Romani identity politics stress the difference of the Roma versus the non-Roma. A means to overcome, or at least significantly reduce, the negative consequences of Romani identity politics can be found in the adoption of policies aiming at explicit but not exclusive targeting. Possible strategies for making the minority discourse work in spite of the dangers of identity politics are the avoidance of a narrative of victimhood and the establishment of a social construct of mutual cooperation and reciprocal recognition. Thereby the interdependence of inclusion strategies and antidiscrimination strategies should be borne in mind. Chapter 4 has found that both the Framework Convention and the Racial Equality Directive should be read in the wider context of the existing international provisions on minority protection and non-discrimination. The Framework Convention can be considered as forming an integral part of the existing international human rights instruments. The Racial Equality Directive in its turn has to be interpreted in the light of the international non-discrimination standards as mentioned in its third recital. Guidance as to the meaning and content of the different concepts used but not defined in the Racial Equality Directive, such as the meaning of ‘education,’ can also be found in the international standards as mentioned in the third recital. In order to assess the contribution of the Framework Convention and the Racial Equality Directive towards­the desegregation of Roma children in education, the concept

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of ‘­added value’ is proposed. ‘Added value’ should be understood in the sense that the contribution of the Framework Convention and the Racial Equality Directive is measured in terms of what level of protection for Roma children in education they ‘add,’ directly or indirectly, compared to already existing international instruments in the field of minority rights education. As to the personal scope of application of the Framework Convention, the Convention does not contain a definition of ‘national minority,’ hence it is up to the states parties to determine whether they consider the Roma on their territory to constitute a national minority, while respecting the provisions of the Vienna Convention on the Law of Treaties and the basic principle of pacta sunt servanda. Due to the diversity among the different Roma sub-groups, when assessing whether ‘the Roma’ fall into the personal scope of application of the Framework Convention, one should differentiate between those Roma traditionally present on the territory of the states parties since their migration from India in supposedly the 16th century on the one hand, and those Roma who migrated from Central-Eastern Europe towards Western and Northern Europe from the 1960s onwards for economic purposes on the other hand. Only the former qualify to be called a ‘national minority’ due to their historical and long-lasting ties with the state. The Advisory Committee has an unchallenged competence to examine the position taken by a government as regards the personal scope of application of the Framework Convention as to its compatibility with the principles set out therein. When examining the implementation of the Framework Convention by state parties, the Advisory Committee has consistently encouraged the authorities to be inclusive and context-specific and to consider, on an article-by-article basis, which rights should be made available to whom in order to ensure the most effective implementation of the fcnm based on facts rather than status. Making abstraction from the Danish and Dutch situation, no Roma have been arbitrarily excluded from the personal scope of application of the Framework Convention. The declarations—which are de facto reservations—of Denmark and of the Netherlands are problematic, as they arbitrarily exclude the Roma from the personal scope of application of the Framework Convention. The Advisory Committee however has succeeded in extending the reporting obligations for both Denmark and the Netherlands to the Roma as well, in spite of the narrow personal scope of the application of the Framework Convention in both countries. (see Chapter 5) The Racial Equality Directive prohibits discrimination on grounds of racial or ethnic origin in respect of all persons, not only minorities, so in principle it applies universally ratione personae. The concept of ‘racial or ethnic origin’ is not defined in the directive. It is thus left up to the Member States to define­ ‘racial or ethnic origin’ in their national laws implementing the directive. The

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‘multi-facetted definition’ of the concepts of race and ethnic origin as proposed by legal scholar Lilla Farkas is to be welcomed as it has the potential to increase the level of protection of the Roma under the Racial Equality Directive. A broad definition of ‘racial or ethnic origin’ leaves no room for perpetrators to argue that the discrimination did not take place on account of race or ethnic origin but on account of other social attributes, as all these social attributes would be subsumed under the concepts of ‘race’ and ‘ethnic origin.’ Another reason why a ‘multi-facetted definition’ should be adopted is because it leaves room for the use of both concepts of ‘race’ and ‘ethnic origin.’ Even though the concept of ‘race’ is controversial, differences in physical appearances are apparent and cannot be overlooked, whereas the ethnic background of a person is often not apparent. Persons belonging to ethnic minorities with different physical appearances than those of the majority population are thus more vulnerable than ethnic minorities who at first sight cannot be identified as such. Moreover, from a sociological point of view, a definition based on ethnicity might more easily justify inferior treatment then a definition based on race. Whereas it will be more difficult to attach the concept of race exclusively to minorities—due to the fact that race is related to physical appearance and all human beings necessarily have a certain physical appearance—it is easier to use the concept of ethnicity as exclusively attached to minorities. In the case of a definition based on ethnicity, the majority group might not see itself as an ethnic group, but as the embodiment of universal values. This is to be avoided. A request for a preliminary ruling by a national judge to the cjeu on the scope of the concepts of ‘race’ or ‘ethnicity’ as occurring in the Racial Equality Directive might shed some more light upon the matter. However, at the time of writing this book, only a little cjeu jurisprudence on the scope of the concepts used in the Racial Equality Directive was available. (see Chapter 6). As to the scope of application of the Framework Convention in the field of education, the acfc promotes a wide understanding of the notion of ‘education’ under the Framework Convention. Key provisions on the right to education for persons belonging to national minorities are Articles 12, 13 and 14 fcnm. The relevance of Articles 4, 5 and 6 fcnm as a ‘continuum of core obligations’ of states should also be stressed. Guidance as to the interpretation of the above mentioned articles can be found in the acfc Thematic Commentary on Education, which is an extremely valuable source of information for all questions related to educational rights for minorities under the Framework Convention, and also a prominent source of interpretation for the States parties to the Framework Convention. One of the key issues addressed in the Thematic Commentary on Education is the question of the balance between the

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need to guarantee minority language education and the need to avoid unnecessary segregation. (see Chapter 7) The level of education to which the Racial Equality Directive applies ratione materiae is not specified in Article 3 of the Racial Equality Directive. It is generally accepted that ‘education’ under the Racial Equality Directive should be interpreted in a broad manner as to cover all types of education, as is the case under Articles 12–14 fcnm. The Racial Equality Directive conceptualizes discrimination as direct or indirect discrimination in its Article 2. Harassment and instruction to discriminate can also amount to discrimination. Whether segregation of Roma children in education amounts to direct or indirect discrimination depends on the facts of the case and should be decided on a caseby-case basis. A correct qualification is important as it has consequences for the justification defenses: in cases of direct discrimination, the perpetrator cannot objectively justify the differential treatment, whereas in cases of indirect discrimination, it is possible to justify the differential treatment. (see Chapter 8) Chapter 9 has given an account of the relation of the Framework Convention vis-à-vis the echr: two references to the echr were included in the Framework Convention, in its Articles 19 and 23. Even though the acfc is not formally bound by the judgments of the ECtHR, one can observe that it makes all possible efforts to formulate the acfc Opinions in such a way that they are consistent with the established jurisprudence of the ECtHR. There is not only a mutual influence between different organs at the Council of Europe level (the Framework Convention and its acfc vis-à-vis the echr with the ECtHR) but there has also been an influence of EU equality law, more concretely of the provisions of the Racial Equality Directive, on the jurisprudence of the ECtHR. The Racial Equality Directive has been a source of inspiration for the ECtHR in developing the notion of indirect discrimination in its jurisprudence. It should be welcomed that the ECtHR ‘imported’ the concept of indirect discrimination from the EU and is currently further developing it. Both the Racial Equality Directive and the Framework Convention with its monitoring mechanism (State Reports, acfc Opinions and State Comments) are referred to by the ECtHR in its jurisprudence on the segregation of Roma children in education. Hereby the ECtHR does not only take into account the information figuring in the State Reports and the acfc Opinions, but also the content of the State Comments. The information contained in these documents is used in favour of the applicants in their establishment of a prima facie case which reverses the burden of proof on the defendant state. It is regrettable that the ECtHR has never taken a clear stance on the fact that segregation (be it in the sphere of

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education or in any other public field) is a particularly condemnable form of racial discrimination. Positive about the evolution of the Court’s case law in respect of Roma segregation in education is that the Court itself gains a growing acceptance for its own case law: what was achieved in D.H. and in Oršuš at the appeal level of the Grand Chamber with a divided vote, was later consolidated in Horvath and Kiss and in Lavida in a first instance with a unanimous vote. As demonstrated in Chapter 10, empirical research shows that, in spite of the ECtHR judgment of D.H. and Others v. Czech Republic clearly condemning the relegation of Roma children into special schools, and in spite of more than a decade of monitoring of the implementation of the Framework Convention in the field of equality and education on the one hand and of the Racial Equality Directive on the other hand, Roma children throughout both Western and Eastern Europe are still disproportionately relegated to special schools with an inferior curriculum and an inferior infrastructure. When it comes to the implementation of the Racial Equality Directive, Roma segregation in education constitutes a good example of the serious challenges faced by several states in terms of both implementation and effective enforcement. Chapter 11 has shown that the controversial expulsions of Roma of Romanian and Bulgarian origin by France in August and September 2010 worked as a catalyst for increased policy initiatives in the field of Roma inclusion, both at EU and at Council of Europe level. At EU level, the European Commission endeavoured to develop a targeted approach for a more effective response to Roma exclusion with its EU Framework for National Roma Integration Strategies up to 2020, by setting EU-wide goals for integrating the Roma in the 4 key areas of education, employment, health and housing. The Framework required Member States to submit national Roma integration strategies to the Commission by the end of 2011, specifying how they would contribute to achieving the overall EU level integration goals. The EU Framework for nris was criticized by civil society for a lack of ambition related to the goals formulated, among others, in the field of education, for a lack of action on combating racism and discrimination, and for the absence of a robust monitoring mechanism. Regarding the latter, the fra plays a strong role, but the Member States themselves seem not sufficiently committed to the collection of ethnically disaggregated data which would allow progress to be measured. The Council Recommendation on effective Roma integration measures in the Member States, adopted last December 2013, has to a great extent envisaged the critiques by ngos and civil society after the adoption of the EU Framework for nris. It formulates more ambitious goals in the field of education and recognizes the interdependence of inclusion and anti-discrimination

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strategies and also the importance of empowerment and active involvement of the Roma community, which is a precondition for mutual cooperation and reciprocal recognition. At Council of Europe level, the High-Level Meeting on Roma has created a strong dynamic in the role and action of the Council of Europe regarding the Roma. The initiatives that have been set in motion, such as the romed programme, the setting up of cahrom, and the creation of the function of srsg generated positive change in the way Roma issues are addressed at European, national, regional and local level. The srsg had competences in the field of capacity building and awareness raising, exchange of policies and good practices of the Roma in Member States, co-operation and coordination with third parties, and advise and support to Member States. He increased the visibility and centralized the work of the Council of Europe on Roma inclusion. The cooperation regarding policies in the field of Roma education between the EU and the Council of Europe has been enhanced, among others by a series of jointly implemented programmes, such as romed, romact, romacted, justrom and ‘Inclusive Schools.’ However, more could be done to ensure that the two organizations are not duplicating but rather supplementing each other’s work in the field of Roma inclusion in general. In August 2017, the Commission published a midterm review of the EU Framework for National Roma Integration Strategies. The main findings of this review were that the EU Framework has brought the issue of Roma integration higher up on the political agendas and has set up the necessary structures and funding to improve Roma inclusion. However, as regards real change in the situation of the Roma between 2011 and 2016, it is clear that five years is too short a period to undo centuries of discrimination and deprivation. Segregation in education was identified as one of the remaining main challenges. Chapters 12 and 13 have discussed the ‘added value’ of the Framework Convention­and of the Racial Equality Directive respectively. The Framework Convention presents a clear added value at different levels. First, it is the only comprehensive and legally binding document concerning the rights of national minorities with a holistic approach. Second, the specific nature of the monitoring procedure based on a far-going constructive dialogue with the states parties presents an added value compared to the monitoring procedures under other international instruments. And finally, the Framework Convention and its monitoring procedure as a source of information for the ECtHR positively contributed to the development of the ECtHR jurisprudence in the field of Roma educational rights. However, as the effectiveness of the monitoring mechanism of the Framework Convention largely depends on the constructive

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dialogue between all the actors involved−which are the states, the Advisory Committee, the Committee of Ministers, other international bodies, minorities and individuals−the added value of the Framework Convention only remains intact as long as all these actors wish to continue to reconfirm their support. A legal instrument can only be effective if it is adhered to by a large enough number of states parties, and if the beneficiaries, in casu the Roma, are not ­excluded from its scope of application. With 39 States having ratified the instrument, the Framework Convention is truly pan-European. Regarding the personal scope of the application of the Framework Convention, the acfc adopts a pragmatic approach which is Article-based and not Conventionbased, defining on an Article-by-Article basis which Articles apply to which minority groups. By doing so it gradually increases the personal scope of the application of the Framework Convention in a covert way. Even though the Framework Convention and the Racial Equality Directive should primarily be considered as complementary instruments, the Framework Convention has a certain added value vis-à-vis the Racial Equality Directive: it has even more to offer as it also covers issues of ‘protection of existence’ and of minority identity in the form of special measures, and not only issues of ‘protection from discrimination.’ It promotes the principle of minority identity, and thus also Roma identity, which is of paramount importance in the context of inclusive education. The integration and social inclusion of the Roma and the realization of Roma educational rights is unlikely to be achieved when adopting a strong anti-discrimination agenda without granting concrete minority rights. It is obvious that the will to integrate is higher and the scepticism towards the majority educational system lower if the minority is reassured that it is not to renounce its own language and culture. (see Chapter 12) The Racial Equality Directive presents an added value compared to other international human rights instruments on non-discrimination due to its concrete enforcement provisions. The Commission has recently opened infringement procedures against the Czech Republic, Slovakia and Hungary on the basis­ of the Racial Equality Directive. It is of the opinion that the disproportionate and systemic placing of Roma children in separate schools for disabled pupils is not compliant with the prohibition of discrimination on account of racial and ­ethnic origin as protected by the Racial Equality Directive. These infringement procedures are likely to prompt the respective governments to implement a thorough reform of their educational systems, and all the necessary accompanying measures due already since the ECtHR rendered judgment in the D.H. case. Even though the Treaty of Lisbon introduced an explicit reference to the rights of persons belonging to minorities as one of the values on which the

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Union is founded, the EU still does not hold an overall legislative competence to rule on the protection of national minorities, or racial or ethnic minorities such as the Roma. One can agree with Olivier De Schutter, that the effectiveness of already existing provisions, which indirectly promote minority rights, can be enhanced by, among others, a clearer understanding of what the concept of ‘minorities’ refers to in the context of EU law; a shared commitment of the EU Member States to improve their monitoring of the situation of minorities under their jurisdiction in areas such as housing, employment, health and education; and a working relationship to be established between the competent institutions of the EU and the Secretariat of the Framework Convention for the Protection of National Minorities. More cross-references and synergies between the Framework Convention’s monitoring system and the monitoring of the Racial Equality Directive could be established. The experts reporting on the implementation of the Racial Equality Directive for the European Network of Legal Experts in the Non-discrimination Field, commissioned by the European Commission, do not refer to the Framework Convention or the work of the Advisory Committee in their country reports. The Commission could request them to establish these cross-references, in order to improve the quality of the monitoring. The Advisory Committee for its part does refer to the Racial Equality Directive in its Opinions, which is to be welcomed. Areas where the Racial Equality Directive falls short of providing full protection are the fact that it does not oblige the Member States to adopt positive measures to achieve substantial equality, but rather formulates this as an option, and the lack of a reference to segregation as a severe form of discrimination. In May 2004 the EU Network of Independent Experts in Fundamental Rights had launched the idea of adopting a directive specifically aimed at encouraging the integration of the Roma. A decade later, the time is still not ripe enough to propose a legally binding instrument focusing on Roma integration. Instead, an EU Framework for National Roma Integration Strategies up to 2020 was adopted in 2011, which was complemented by a Council Recommendation on effective Roma integration measures in the Member States of December 2013. The Council Recommendation explicitly refers to the Racial Equality Directive, and to the need to implement de-segregation measures and measures to actively combat discrimination and prejudice against the Roma in all areas of society. (see Chapter 13). The last chapter was dedicated to the question of how a more effective monitoring and implementation of the Framework Convention and of the Racial Equality Directive can be achieved. First, regarding the monitoring and implementation of the Framework Convention, a difference should be made between the substantive provisions of

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the Framework Convention on the one hand and the procedural aspects of the monitoring on the other hand. As to the substantive provisions of the Framework Convention, a clearer distinction between segregation measures and positive action measures aiming at the integration of Roma children in education could be made. This can also serve as guidance for the ECtHR in its jurisprudence on Roma segregation in education. Furthermore, increased attention could be paid to the importance of early childhood education and care for a successful educational path later on. As to the procedural aspects of the monitoring itself, a timely adoption and publication of the AC Opinions and especially of the Committee of Ministers’ Resolutions would contribute to an increased transparency of the monitoring process. A systematic translation of the AC Opinions into the Romani language would also increase the transparency of the monitoring process, and create better awareness of the potential of the Framework Convention as an instrument for Roma rights advocacy among Roma civil society. Furthermore, the 3 suggestions launched by Rainer Hofmann on the occasion of the 15th anniversary of the Framework Convention, which include the setting up of a collective complaints mechanism comparable to the one under the European Social Charter, the Committee of Ministers making use of the possibility to request states to report on urgent issues, and the setting up of a database as a tool for dialogue between states, civil society and the Framework Convention secretariat, are valuable suggestions as to how the procedural aspects of the monitoring can be improved. Apart from that, ratification by that Council of Europe Member States who have not ratified so far would allow for the monitoring of Framework Convention in those states as well. The monitoring of the Framework Convention can also be improved through an enhanced cooperation of the Framework Convention secretariat with ­other departments and organs/bodies within the Council of Europe, such as the Language Charter, the ecri, the Commissioner for Human Rights, the Venice Commission, the cahrom and the Roma and Travellers team. Second, regarding the monitoring and implementation of the Racial Equality Directive, here as well a difference should be made between the substantive provisions of the Racial Equality Directive on the one hand and the procedural aspects of the monitoring on the other hand. As to the substantive provisions of the Racial Equality Directive, a ‘multifacetted’ definition of the concept of ‘racial and ethnic origin’ has the potential to increase the level of protection of the Roma against discrimination under the Racial Equality Directive. In the absence of a provision on the reasonable

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accommodation of the specific needs of the members of certain ethnic groups, such as the Roma, in the Racial Equality Directive, an interpretation of the concept of ‘discrimination’ as covering also the failure to provide reasonable accommodation can increase the level of protection of ethnic minorities, especially the Roma, under the Racial Equality Directive. And in the absence of any explicit positive, pro-active duties on the member States, the cjeu could become more active in the identification of duties to promote equality, inter alia through a progressive interpretation of the prohibition of indirect discrimination. As to the procedural aspects of promoting a better implementation of the Racial Equality Directive, access to a legal remedy for victims of discrimination should be better ensured. Moreover, the dissemination of information on antidiscrimination laws and a better accessibility and visibility of the specialized equality bodies can lead to a better awareness by potential victims of their rights. Regarding the monitoring of concrete progress in the field, the importance of the collection of ethnically disaggregated data cannot be stressed enough. There is a need for the establishment of EU-wide indicators. Exchange of data and information and regular dialogue between the National Contact Point for Roma Integration and the national bodies for the promotion of equal treatment in the Member States should be promoted. The European Commission could follow the example of the sgsr of the Council of Europe and appoint a high-level ‘Roma coordinator.’ This would allow the work which is now done by different Directorates General to be centralized in one support team covering all Roma related policies and actions at EU level. Finally, closer legal ties between the Council of Europe and the EU in the field of Roma inclusion with regularized inter-institutional meetings should be promoted to encourage cooperation in programming, efficient use of resources and to avoid duplication.

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Index acceptability 31n2, 33, 68, 144 adaptability 31n2, 33, 68, 144 anti-Gypsyism 11, 106–109, 111, 360, 391–392, 404, 465, 501 assimilation 47–48, 82, 87, 91, 101, 113–114, 220, 221, 232, 235, 239, 454, 458, 507 Belilos case 173 Brown case 30, 44, 57–63, 83, 292n99, 455 Cahrom 18, 397–398, 404–406, 482, 486–487, 505, 513, 516 case study Czech Republic 336–352 Germany 353–362 Commissioner for Human Rights (CoE) 128n44, 274, 282, 315, 482, 484 Council Recommendation on Effective Roma Integration Measures 76, 203, 368–369, 384–385, 392–395, 410, 463–464, 466, 501, 512, 515 data collection 5, 240–241, 382–383, 388, 436–439, 465, 498–499, 505, 512, 517 ethnically disaggregated 5, 33n9, 37n23, 241, 383, 389, 410, 436–439, 465, 498–499, 505, 512, 517 Decade of Roma Inclusion 391n72 D.H. case 28, 40n30, 273–289, 290, 293, 303–304, 308, 310, 315, 333, 336, 341–342, 348–349, 352, 353, 355, 426, 512, 514 disability 1, 37–39, 42, 141, 242, 258n22, 260, 261, 273, 274, 286, 312, 314, 315, 334n2, 347, 442, 514 discrimination direct v indirect 138n84, 196, 207n45, 249–259, 261, 263n1, 268–271, 280n57, 284, 287, 288, 292–294, 313–315, 326–330, 436, 447, 511 multiple 105, 401, 493–494 structural 23n70, 107, 143, 249, 253, 264, 310, 329, 349, 358, 452–453, 494 ecri 17n55, 106–107, 265, 276, 282, 288, 294, 310, 315, 348, 398, 405, 483–484

education early childhood education 230n109, 369, 378–379, 389–390, 406, 468–469, 504, 516 intercultural 50–53, 211–214, 217, 416 multicultural 34, 50–53, 211–214, 217, 416 ethnoclass 85, 95, 101, 113 eu framework for national Roma integration strategies 19n59, 77, 111, 202, 364, 368–370, 377–386, 388–392, 410, 462–463, 463–465, 498, 512, 513, 515 equality formal 291n96, 454, 494 substantive 65, 89, 291n96, 313, 415, 454, 494 Framework Convention for the Protection of National Minorities advisory committee 69, 115, 123–126, 129, 152–154, 158, 159, 166–168, 173–187, 189–190, 193–194, 217–220, 223, 229, 231, 233, 238, 265, 286, 315, 337–339, 348, 356–358, 360, 407, 415–427, 430, 446, 448–449, 451–452, 457, 466, 468–469, 476, 478–480, 482–489, 509, 514–515 Article 12 179, 190, 191, 194, 211–221, 315, 348, 354, 356, 418 Article 13 221–225 Article 14 179, 225–234 article-by-article approach 121–124, 152–154, 167–168 claw-back clauses 119–120, 413 collective complaints mechanism 480– 481, 504, 516 continuity 17, 217, 374, 384, 424, 427 declarations 150n15, 151, 154–170, 173–187, 187–189, 191–192, 210, 448, 509 Denmark 155, 168, 171–174, 175–180, 188, 193–194, 364, 509 dialogue 51–56, 82, 109, 112, 114, 119, 124, 126, 167, 176–187, 194, 211, 214–215, 235–236, 247, 267–268, 326, 338, 373–374, 376, 414, 416–422, 424, 427, 434, 471, 476–478, 480, 488, 490, 501, 505, 508, 514, 516

557

Index enhanced cooperation 467, 478, 482, 488, 502, 505, 516 holistic approach 413–414, 416, 427, 434, 513 Netherlands 155, 168, 171–173, 174, 180–188, 193–194, 328, 364, 509 reservations 146, 155–156, 166n48, 166n49, 168–170, 173–174, 180, 191, 193, 509 thematic commentary on education 69, 208, 241–245, 246, 301, 331, 510 thematic commentary on the scope of application 111–112, 114, 123–124, 151, 153–154, 167, 191, 194 four A scheme 68–69, 144n107 Fundamental Rights Agency 172n66, 270, 364n82, 379, 382–385, 451, 471 Gypsy 10–11, 15–19, 29, 41, 97, 99, 106–108, 111, 337, 360–362, 391, 465, 501 homeland 7, 154n28 homogeneity 7, 12–13 Horvath and Kiss case 310–315, 318, 332, 334, 512 human rights 3, 22, 30, 49, 57, 64, 69, 71, 77, 81, 84–87, 99, 102, 107, 126, 130, 145, 212, 431, 454 identity politics 3, 81, 85, 101–104, 106, 108, 110, 114, 508 indicators 33, 382, 384–386, 390, 438–439, 498, 505, 517 indigenous 16, 50, 70, 89, 152 International Convention on the Elimination of All Forms of Racial Discrimination 64, 71, 144, 461 International Covenant on Civil and Political Rights 64, 66 International Covenant on Economic, Social and Cultural Rights 49, 64, 67, 144 Language Charter 72–73, 222, 483–484, 505, 516 Lavida case 272, 316–318, 332, 470, 512 migration 5, 7–10, 14, 41, 172, 193 minority definition international law 19–20 ethnic 85, 96, 149, 188, 195, 201, 204–205, 454, 496

national 21, 22, 29, 72, 85, 87, 95–97, 99, 116, 134, 146, 148–150, 169–171, 187–188, 192–194, 201 non-territorial 73, 85, 95, 98–101, 113, 149, 508 rights 3, 24, 29–30, 53, 57, 65–66, 69, 72–73, 81, 84–91, 94, 106 rights discourse 105, 111, 113–114, 508 rights model 93, 95 group 6, 9, 13, 21, 24, 26, 29, 45, 86, 97 pan-European 54, 118, 126, 434, 514 misconceptions 12, 30, 44, 498 non-discrimination European non-discrimination law 270, 326 rights 86–87, 105, 109–110, 130, 430 nomadism 7, 12–13 origins of Roma 7–11 Oršuš case 204, 243, 291, 298–310, 312, 329, 468 osce 22, 71, 73–75, 100, 128, 242, 352, 405–406 Platform against Poverty and Social Exclusion 370, 375 Platform on Roma inclusion 370–372, 383, 410 poverty 25, 35, 40, 49, 53–54, 376, 386, 439 Racial Equality Directive equality bodies 75, 202, 352, 379–380, 439, 462, 495–496, 499–501, 505, 517 harassment 40, 190, 249, 259–261 infringement procedure 129, 139–141, 203, 261–263, 325n160, 352, 365, 374, 436, 440–441, 456, 465, 514 victimization 44n38, 249, 259–260, 297n114, 496n92 reasonable accommodation 458, 491, 505, 517 Romact 398–400, 408–409, 411, 504, 513 Romed 398–399, 401, 408–409, 411, 433, 487, 504 school placement procedures 31–32, 273 lower curricular standards 33–34

558 Sampanis case 289–291, 293–295, 297, 303, 310, 314–316 Segregation 1, 4, 24, 30–31, 36–38, 43–44, 57–64, 71, 82, 248, 253, 258–260, 268–271 self-designation 7, 15 self-identification 15, 112, 124, 199, 240 separate but equal 30, 57–59, 61, 83, 455 Special Representative of the Secretary General for Roma Issues 367, 369, 397 state obligations 73, 226 statistical evidence 269, 276, 278, 281, 284, 289, 311, 426, 456 social inclusion 30, 53, 74, 78, 80, 82, 369, 375–376, 387, 391, 396, 419

Index Travellers 9, 12, 13, 16–18 un Convention on the Rights of the Child 242, 278 unesco Convention against Discrimination in Education 49, 64–65 Universal Declaration of Human Rights 49, 64, 144 Venice Commission 117, 482, 486, 505, 516 Vienna Convention on the Law of Treaties 151, 169–170, 175, 180, 193, 509 vulnerability 3, 27, 206, 313, 325, 507