Today is the fifth anniversary of the European Court of Human Rights (ECtHR) decision on the case DH vs Czech Republic concerning school segregation of Roma children by placement in schools for mentally disabled. Five years ago, many human rights activists thought that the DH would be the Brown vs Board of Education case of Roma. Today, the enthusiasm and optimism from 2007 vanished and were replaced by disappointment and sadness in many Roma rights activists. Instead of celebrating a victory for human rights we rather “celebrate” a failure of the Czech authorities to respect the human rights of Roma.
From a legal point of view, DH was a breakthrough case as it defines legal standards on the prohibition against discrimination. To cite the lawyer that build the case – James Goldston – “the D.H. judgment clarifies for the first time that the Article 14 prohibition against discrimination applies not only to specific acts, but to systemic practices; that racial segregation which disadvantages members of a particular racial or ethnic group amounts to discrimination in breach of the Convention; that Article 14 bars the “indirect discrimination” of a general policy or measure which, though couched in neutral terms, generates disproportionately prejudicial effects; that the intent to discriminate is not an essential element of a claim of discrimination; that while they are not required, statistics can be used to establish discrimination; and that, where an applicant alleging indirect discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden then shifts to the respondent State to show that the difference in treatment is not discriminatory.”
Some Roma rights activists perceived the ECtHR decision as the beginning of the end of school segregation. Limited attention was paid to the follow up and even less on how to use the ECtHR decision to desegregate the schools in other countries. In the book I edited –Ten Years After: A History of Roma School Desegregation in Central and Eastern Europe – in the chapter I wrote on judicial power making I analyzed not only the decisions of the ECtHR in school segregation cases but also the impact and the changes these decisions brought on the ground where they originated and also in other countries.
There are a number of factors that explains the dissatisfaction of human rights activists with the implementation of the ECtHR decision in DH but also in Sampanis and Orsus. First, it is the position of the ECtHR regarding segregation. In no decision ECtHR uses the word segregation to describe the situation of Roma children within the educational systems in spite of the references to research and reports prepared by NGOs and international organizations throughout the decisions. Thus, ECtHR send a message to the authorities that the facts alleged by the applicants do not equate segregation, although they breach the convention provisions. The inconsistencies in applying the reasoning tests in the five decisions on the three school segregation cases over the four years since the first judgment are difficult to comprehend. In the end neither decision clarified the position of the ECtHR on segregation nor did the Court clarify what exactly constitutes racial segregation. Even the understanding and consequences of this phenomenon seems to be misunderstood by the ECtHR as the compensations awarded by the victims are not at the level to have a deterrent effect on the perpetrators.
And here comes the second factor: the compensations awarded to the victims do not have a deterrent effect, an important principle in the anti-discrimination law theory. It is obvious that the victims and people on the ground did not receive just satisfaction for their suffering. Four thousand Euros could not compensate also for the failure prepare the victims as good citizens and the competences they acquired to be competitive on the labor market. Thus, one should not be surprised that the DH victims are out of school, without jobs and living in poverty. The authorities did not receive a message that segregation is something serious that has to end.
The third factor has to do with the message authorities received from the ECtHR judgments. Not only that the fines imposed lack a deterrent effect but also the ECtHR did not require the authorities to bring an end to school segregation. Thus, should one be surprised that almost nothing happened on the ground? Looking at the changes on the ground in the five countries under investigation and analyzing the role the ECtHR decision had on the jurisprudence in Bulgaria, Hungary and Romania, I concluded that the impact of the ECtHR decisions was very limited. A detailed account could be found in Ten Years After.
This is one of the bitter lessons Roma rights activists learnt to date: the changes do not occur at international level but on the ground where ordinary people live and struggle with human rights violations. Litigation will bring changes only if it makes sense to the people on the ground.
Let’s see the positive side: in US the changes did not come immediately after the decision of the Supreme Court in spite of the Brown II injunction on desegregating the schools” with all deliberate speed”. Not even the Little Rock 9 action brought an end to school segregation. It took some time to desegregate the schools in US and it was a combined action of authorities, civil society and top politicians. Let’s hope that in a decade the results would be visible
PS It seems that November 13 will become the Roma rights day of the European Court of Human Rights. ECtHR just issued its decision in the case IG vs Slovakia on forced sterilization of Roma women.
 James Goldston, Ending Racial Segregation in Schools: The Promise of D.H., Roma Rights, No 1/2008, p. 4.
 The compensation awarded by the ECtHR to each plaintiff varied: 4000 Euro in DH, 4500 Euro in Orsus, and 8,000 Euro in Sampanis.