Misdiagnosed Roma children: children’s rights and non- discrimination Attorney Lilla Farkas

Basic facts I. Vladimír Špidla, EU Commissioner for Employment, Social affairs and Equal Opportunities on 24 April 2009: Vladimír Špidla, EU Commissioner for Employment, Social affairs and Equal Opportunities on 24 April 2009: "The current economic crisis increases the risk that the Roma – who are often living at the margins of society – will be totally excluded." "The current economic crisis increases the risk that the Roma – who are often living at the margins of society – will be totally excluded."

Basic facts II. The EU Agency for Fundamental Rights (FRA) first ever EU-wide survey reveals that discrimination, harassment and racially motivated violence are far more widespread than recorded in official statistics. The EU Agency for Fundamental Rights (FRA) first ever EU-wide survey reveals that discrimination, harassment and racially motivated violence are far more widespread than recorded in official statistics. Roma reported the highest levels of discrimination, with one in two respondents saying that they were discriminated against in the last 12 months. Roma reported the highest levels of discrimination, with one in two respondents saying that they were discriminated against in the last 12 months.

Basic facts III. In 2008 the Italian government took discriminatory measures (fingerprints) against migrant Roma allegedly in order to take positive action (ensure education and basic vaccination). When first challenged in court, the measures were upheld. In 2008 the Italian government took discriminatory measures (fingerprints) against migrant Roma allegedly in order to take positive action (ensure education and basic vaccination). When first challenged in court, the measures were upheld. Why is this the only case where the target group complained against positive action measures and not those left out? Why is this the only case where the target group complained against positive action measures and not those left out?

Violation of Roma rights In all fields covered by EC Directive 43/2000 In all fields covered by EC Directive 43/2000 Health, education, social provisions, housing Health, education, social provisions, housing Extreme forms of discrimination: segregation = direct discrimination in RED Extreme forms of discrimination: segregation = direct discrimination in RED Often perpetrated by state authorities and agents (local governments, schools) Often perpetrated by state authorities and agents (local governments, schools) Structural and institutional discrimination Structural and institutional discrimination

Bodies protecting Roma rights European Roma Rights Center since 1996 ( European Roma Rights Center since 1996 ( Domestic NGOs include: Domestic NGOs include: Romani CrissRomani Criss NEKINEKI PoradnaPoradna Human Rights ProjectHuman Rights Project National equality bodies, eg. HALDE in France National equality bodies, eg. HALDE in France State financed networks, eg in Hungary State financed networks, eg in Hungary

Roma cases I. ECtHR – individual petitions ECtHR – individual petitions Traveller accommodation cases (UK)Traveller accommodation cases (UK) Death and ill-treatment (Nachova, Assenov – Stoica)Death and ill-treatment (Nachova, Assenov – Stoica) Right to education (DH, Sampanis, Orsus)Right to education (DH, Sampanis, Orsus) Coercive sterilisation (pending v SK)Coercive sterilisation (pending v SK) ECeeSR – collective complaints ECeeSR – collective complaints Right to housing (Greece)Right to housing (Greece) Right to health care (Bulgaria)Right to health care (Bulgaria)

Roma cases II. CeeERD CeeERD Access to public services (Laczko v SK)Access to public services (Laczko v SK) Housing (Koptova v SK)Housing (Koptova v SK) Domestic courts Domestic courts Mainly employment, education and access to serviceMainly employment, education and access to service Art 13 RED equality bodies (EQUINET) Art 13 RED equality bodies (EQUINET) All fields covered in REDAll fields covered in RED ECJ ECJ None (preliminary referral not granted in Hajdúhadház desegregation case)None (preliminary referral not granted in Hajdúhadház desegregation case)

ECHR case law I. Minority rights approach (FCNM) v non-discrim (Art 14 ECHR + Protocol 12) Minority rights approach (FCNM) v non-discrim (Art 14 ECHR + Protocol 12) Eg in Connors v the UK: vulnerable position of Gypsies warrants special consideration of their needs arising from Gypsy way of life, and imposes positive obligation on States under Article 8Eg in Connors v the UK: vulnerable position of Gypsies warrants special consideration of their needs arising from Gypsy way of life, and imposes positive obligation on States under Article 8 Constraints of ECHR: covers mainly civil and political rights v RED material scope Constraints of ECHR: covers mainly civil and political rights v RED material scope ECtHR test of unequal treatment (likes alike, unalikes unalike) v RED concepts ECtHR test of unequal treatment (likes alike, unalikes unalike) v RED concepts

ECHR case law II. D.H. et al v Czech Rep II, 2007: D.H. et al v Czech Rep II, 2007: Case generated by ERRC in 1999, domestic constitutional complaints failedCase generated by ERRC in 1999, domestic constitutional complaints failed Applications: misdiagnoses of 18 Roma children as intellectually disabled in the town of Ostrava amounts to in/direct discriminationApplications: misdiagnoses of 18 Roma children as intellectually disabled in the town of Ostrava amounts to in/direct discrimination Finding: legislation and implementation led to de facto (indirect) discriminationFinding: legislation and implementation led to de facto (indirect) discrimination

ECHR case law III. Minority rights based argument: necessarily focussed on ethnic minority group Minority rights based argument: necessarily focussed on ethnic minority group at the very least, there is 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. In these circumstances, the tests in question cannot serve as justification for difference in treatment at the very least, there is 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. In these circumstances, the tests in question cannot serve as justification for difference in treatment the relevant legislation as applied in practice at the material time had a disproportionately prejudicial effect on the Roma community, the Court considers that the applicants as members of that community necessarily suffered the same discriminatory treatment. Accordingly, it does not need to examine their individual cases. the relevant legislation as applied in practice at the material time had a disproportionately prejudicial effect on the Roma community, the Court considers that the applicants as members of that community necessarily suffered the same discriminatory treatment. Accordingly, it does not need to examine their individual cases.

ECHR case law IV. It also appears indisputable that the Roma parents were faced with a dilemma: a choice between ordinary schools that were ill-equipped to cater for their children's social and cultural differences and in which their children risked isolation and ostracism and special schools where the majority of the pupils were Roma It also appears indisputable that the Roma parents were faced with a dilemma: a choice between ordinary schools that were ill-equipped to cater for their children's social and cultural differences and in which their children risked isolation and ostracism and special schools where the majority of the pupils were Roma the schooling arrangements for Roma children were not attended by safeguards that would ensure that … the State took into account their special needs as members of a disadvantaged class the schooling arrangements for Roma children were not attended by safeguards that would ensure that … the State took into account their special needs as members of a disadvantaged class

ECHR case law V. In DH II the Grand Chamber in effect transformed the claim of 18 individual applicants into a collective complaint. In DH II the Grand Chamber in effect transformed the claim of 18 individual applicants into a collective complaint. It responded to 12 years of NGO lobbying and pressure from other CoE bodies to remedy first instance judgment. It responded to 12 years of NGO lobbying and pressure from other CoE bodies to remedy first instance judgment. However, the ECtHR failed to accord adequate remedies that reaching beyond the individual applicants would address structural problems. However, the ECtHR failed to accord adequate remedies that reaching beyond the individual applicants would address structural problems. Would DH argument stand in cases beyond Roma or ethnic minority group rights? Would DH argument stand in cases beyond Roma or ethnic minority group rights? In domestic (constitutional) courts? In domestic (constitutional) courts? Before the ECJ? Before the ECJ? In action for damages (eg Hungarian misdiagnoses cases)? In action for damages (eg Hungarian misdiagnoses cases)?

ECHR case law VI Sampanis et al v Greece – similar to DH, element of coersion Sampanis et al v Greece – similar to DH, element of coersion Orsus et al v Croatia – no violation found: no coersion, messy argument, pending appeal before Grand Chamber Orsus et al v Croatia – no violation found: no coersion, messy argument, pending appeal before Grand Chamber

Procedural aspects of group justice Ask for structural remedies Ask for structural remedies Collect and use existing data on discriminatory trends: Collect and use existing data on discriminatory trends: ethnic data from schools, local governments etcethnic data from schools, local governments etc data from CoE monitoring bodies (FCNM AC, ECRI)data from CoE monitoring bodies (FCNM AC, ECRI) sociological research datasociological research data NGO dataNGO data Litigate in NGO’s own right: Litigate in NGO’s own right: actio popularis claims: BG, HU, ROactio popularis claims: BG, HU, RO administrative and criminal proceedingsadministrative and criminal proceedings specialised body’s formal investigationspecialised body’s formal investigation constitutional complaint alleging discriminatory effect of lawsconstitutional complaint alleging discriminatory effect of laws Collective complaints to ECeeSR – though domestic judgments in actio pop claims of higher qualityCollective complaints to ECeeSR – though domestic judgments in actio pop claims of higher quality