CEDH · CASELAW;COMMUNICATEDCASES;ENG — 4 janvier 2012

.s800EAC49 { font-size:12pt } .s523616E0 { margin-top:0pt; margin-bottom:12pt; text-align:center; font-size:14pt } .sBB9EE52A { font-family:Arial } .s8229ABDD { margin-top:0pt; margin-bottom:12pt; text-align:center } .s72EB7DC5 { margin-top:18pt; margin-bottom:0pt; text-align:center } .sC7EAD8B { font-family:Arial; font-weight:bold; text-decoration:underline } .s967D43C6 { margin-top:36pt; margin-bottom:12pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid; font-size:14pt } .s10950C61 { margin-top:0pt; margin-bottom:0pt; text-indent:14.2pt; text-align:justify } .s7EE1C8F0 { margin-top:18pt; margin-left:29.2pt; margin-bottom:12pt; text-indent:-17.6pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .s29100277 { font-family:Arial; font-weight:bold } .sC702907E { margin-top:12pt; margin-left:36.6pt; margin-bottom:6pt; text-indent:-15.05pt; text-align:justify; page-break-inside:avoid; page-break-after:avoid } .sA36B60A1 { font-family:Arial; font-style:italic } .s9D48DD53 { margin-top:6pt; margin-left:21.25pt; margin-bottom:6pt; text-indent:7.1pt; text-align:justify; font-size:10pt } .s4070A5A6 { margin-top:36pt; margin-bottom:24pt; text-align:center; page-break-after:avoid } SECOND SECTION Application no. 11146/11 István HORVÁTH and András KISS against Hungary lodged on 11 February 2011 STATEMENT OF FACTS THE FACTS The applicants, Mr István Horváth and Mr András Kiss, are Hungarian nationals who were born in 1994 and 1992 respectively and live in Nyíregyháza. They were represented before the Court by Ms L. Farkas, a lawyer practising in Budapest and acting on behalf of the European Roma Rights Centre. A.     The circumstances of the case The facts of the case, as submitted by the applicants, may be summarised as follows. The application concerns two young Romani men, who were misdiagnosed as having mental disabilities. As a result of these misdiagnoses, the applicants could not access mainstream education. Instead, they were educated in a segregated remedial school created for children with mental disabilities. Their education under a lower curriculum limited their future opportunities in secondary education and they only had the opportunity to continue their studies in special vocational secondary school, where they cannot acquire the Baccalaureate necessary for higher education and certain jobs. The first applicant, who is still in school, is unable to follow a course to become a dance teacher and follow the same career path as his father. Instead, he is currently following a special vocational training course to become a baker. The second applicant is precluded from pursuing his ambition to become a car mechanic. 1.     Mr Horváth’s assessments Mr Horváth started elementary education in the Göllesz Viktor Remedial Primary and Vocational School on the basis of the recommendation of the Expert and Rehabilitation Panel of Szabolcs-Szatmár-Bereg County (“the Expert Panel”). His examination was requested on 19 April 2001 by the nursery he was attending at that time. The nursery claimed that his mental and social abilities were lower than normal for his age, which showed in his sense of logic, drafting skills and communication. He spent very little time in the nursery, as he was sick most of the time. This, although a common cause for bad performance in tests, was not taken into account when his results were assessed. The examination requested by the nursery was performed on 17 May 2001. In its opinion, the Expert Panel diagnosed Mr Horváth with “mild mental disability”, of which the origin was declared unknown. The following IQ tests were performed on the applicant: “Budapest Binet Test” – IQ 64; “Raven Test” – IQ 83. The Expert Panel did not elaborate in its opinion on the causes of this difference. According to experts, the Raven Test is more independent culturally, while the Budapest Binet Test is more ‘biased’, for example, showing lower scores in the countryside than in the capital. The diagnosis stated that Mr Horváth was “two and a half years behind normal”, together with immature central nervous system. Therefore he was declared to have a “mild mental disability” and channelled to remedial school. According to World Health Organisation standards, an IQ of 70 represents the borderline of sound intellectual ability. According to the Ministry of National Resources, at the same time, expert panels in Hungary applied IQ 86 as a border value for mild mental disability. Mr Horváth’s parents had been told by the Expert Panel even before the examination took place that he was going to be placed in a remedial school and they had been asked to sign the expert opinion even before the examination took place. On 3 December 2002 Mr Horváth was re-examined. It was found that there was no development in his abilities; therefore the Expert Panel declared that he was still suffering from mild mental disability. On 28 April 2005 the Expert Panel again examined Mr Horváth. According to this examination, his Raven Test result was 61. Therefore the Expert Panel declared that his status had not changed and upheld its previous opinion. On 20 March 2007 another examination took place. This time, Mr   Horváth’s Raven Test value was 71. The Expert Panel noted that he had better knowledge than this test score reflected, had good results at school in 2006 and 2007, was integrated in the school system and able to study individually, had no impediment in speech and only needed some reassurance. In addition, it noted that he was active in classes, hard-working and complied with all the requirements of the curriculum. Noting that Mr   Horváth studied in a segregated school, the Expert Panel again diagnosed him with mild mental disability and special educational needs. Therefore it upheld his placement in remedial school. Mr Horváth’s parents were not allowed to participate in the diagnostic assessments. His father signed only the opinion of 17 May 2001. It is unclear if the parents were provided with information about the procedure and their respective rights, including a right to appeal, or if a copy of the opinion was given to them. His father accompanied Mr Horváth to the first examination but was not allowed to attend the examination itself. The parents were told the result but no explanation about the consequences was given. On 26 September and 2 October 2008 the applicant was re-examined by the National Expert and Rehabilitation Committee as ordered by the first instance court (see below). This opinion stated that the applicant had “mild mental disability” although the causes of the disability could not be established. 2.     Mr Kiss’s assessments After spending seven months in nursery, Mr Kiss started elementary education in 1998 in a mainstream school, Primary School No. 13 located in a Roma settlement of the town of Nyíregyháza. In its decision of 4 January 1999, the local pedagogical advisory committee noted that he had learning difficulties “deriving from his disadvantaged social and cultural background” and advised him to be educated under a special programme but in a mainstream school. On 14 December 1999 the school requested an expert diagnosis based on his results in the first quarter of the school year, claiming that he had poor results, was often tired, his attention was volatile and his vocabulary poor. His IQ measured 73 (falling in the “normal” rate by national standards). On 15 May 2000 the Expert Panel diagnosed Mr Kiss with “mild mental disability” caused by genetic reasons. According to the Budapest Binet Test, his IQ was 63, and he scored IQ 83 in the Raven Test. Relying on the results, the Expert Panel arranged for Mr Kiss to be placed at a school for children with mild mental disabilities. As rehabilitation, the Expert Panel proposed that his concentration and analytical-synthetical ability should be developed. The Panel’s opinion did not contain any explanation for the discrepancies between Mr Kiss’s IQ results in the various tests. Mr Kiss’s parents objected to the placement of their child in the remedial school and insisted that he should be educated in a mainstream school, but in vain. They were not informed of their right to appeal against the Panel’s decision. Mr Kiss was then placed in Göllesz Viktor Remedial School. The Expert Panel subsequently re-assessed Mr Kiss twice, on 14   December 2002 and 27 April 2005. On the latter occasion the Expert Panel noted that, despite the fact that he had achieved good results at school, his analytical thinking was underdeveloped. His IQ based on the Raven Test scored 71, yet the Expert Panel stated that he needed to be educated further at the remedial school. During the court procedure in the case, the first-instance court ordered that Mr Kiss be examined by the National Expert and Rehabilitation Committee. According to the expert opinion of 20 November 2008, his mental capacity was normal, he was not mentally disabled and his SQ (social quotient) score was 90, which excluded mental disability. However, the expert opinion stated that he had learning difficulties as a result of the lower curriculum under which he had been educated in the special school and because of his disadvantaged social and cultural background. Therefore he had significant deficiencies with regard to acquired knowledge. During his studies, Mr Kiss won numerous competitions, including a poetry reading contest and sports competitions, and he was an A student until 7th grade. However, his teacher told him that he could not continue his studies to become a car mechanic as he intended to, because as a remedial school pupil, he could only choose between training courses offered by a special vocational school. 3.     Review of the applicants’ intellectual ability by independent experts In August 2005 both applicants participated in a summer camp where the testing of 61 children with ‘special educational needs’ took place. The testing was carried out by independent experts. Both applicants were assessed with various tests. With regard to Mr   Horváth, the experts noted that his Raven Test (IQ 83) was under the average, but did not correspond to the “mentally disabled” score; therefore he was not mentally disabled. His “Bender B Test” referred to immature nervous system potentially causing behavioural problems and problems in studying but he was not considered mentally disabled or unfit for an integrated mainstream class. Mr Kiss’s Raven Test score was IQ 90, his “MAVGYI-R Test” score was IQ 79, and his verbal intelligence was 91. According to the assessment, he suffered from immaturity of the nervous system and dyslexia. The experts noted that he was sound of mind and could be educated in a school with a normal curriculum. They suggested immediate intervention by the authorities in order to place him into a mainstream school and to provide him with appropriate education. The experts also suggested a thorough pedagogical examination and the development of a subsequent individual learning plan with pedagogical and psychological help. They noted that the he had to catch up with his studies in order to reduce the deficiencies he had as a result of studying under a lower curriculum. The experts noted that the diagnostic methods applied should be reviewed, and that Romani children could have performed better in the tests if those had not been designed for children belonging to the ethnic majority. They stressed that the Raven Test measured intelligence only in a narrow margin and therefore provided less data with regard to intelligence. The experts further recommended that the MAVGYI-R child intelligence test should be reviewed and updated as it was outmoded and because oral tests were culturally biased and poorly compatible with the present lifestyle and knowledge of children. The experts also noted that the intelligence tests had a tight correlation with school qualification; therefore education in a remedial class might significantly influence the results of an intelligence test of a 13/14-year-old child. 4.     First-instance court proceedings On 13 November 2006 the applicants filed a claim for damages with the Szabolcs-Szatmár-Bereg County Court, asking the court to establish a violation of the principle of equal treatment amounting to a violation of their personal rights under section 76 of the Civil Code and section 77(3) of the Public Education Act. The applicants claimed that the Expert Panel had discriminated against them and misdiagnosed them as being “mildly mentally disabled” on the basis of their ethnicity, social and economic background, and had subsequently ordered them to be educated in special school, although they had normal abilities. In addition, and in violation of the respective rules of procedure, their parents had not been informed of the Panel’s procedure or its consequences or of their rights to be participate and to appeal against the decision, so that their constitutional right to a remedy was violated. They claimed that the Expert Panel had not acted according to international standards when using diagnostic methods standardised for children belonging to the majority, thereby ignoring the ethnic and social characteristics of Romani children. This systemic error originated in the flawed diagnostic system itself, which did not take into account the social or cultural background of Romani children, was as such culturally biased, and therefore led to the misdiagnosis of Romani children. The applicants also claimed that the Szabolcs-Szatmár-Bereg County Council had failed effectively to control the Expert Panel. They also claimed that the teachers working at Göllesz Viktor Remedial School should have noted that they were of normal abilities. The applicants made reference to the case of D.H. and Others v. the Czech Republic ([GC], no. 57325/00, ECHR 2007 ‑ IV). The Regional Court ordered the applicants to be examined by the National Expert and Rehabilitation Committee. On 27 May 2009 the Regional Court found (in decision no.   3.P.20.035/2008/20.) that the respondents had violated the applicants’ rights to equal treatment and education and therefore ordered them to pay 1,000,000 Hungarian forints (HUF) to each applicant. It explained that it was called on to investigate whether the respondents had complied with the Constitution and the Public Education Act, that is, ensured the applicants’ civil rights without any discrimination, promoted the realisation of equality before the law with positive measures aiming to eliminate their inequalities of opportunity, and provided them with education in accordance with their abilities. It reasoned that – while the statutory definition of “special needs” had been amended several times during the procedure – the relevant regulations clearly stipulated that the expert panels should individualise each case, decide on possible special needs in each case according to the needs and circumstances of the individual child, identify the reasons underlying any special needs, and establish specific support services which a child needed according to the extent of disability. The court held that this kind of individualisation was lacking with regard to the applicants’ diagnoses and the Expert Panel had failed to identify those specific professional services that would help the applicants in their education. It had failed to establish during the applicants’ examination and re-examination the reasons for which they were in need of special education, and whether they needed that as a result of their behaviour or of organic or non-organic reasons. The court emphasised that the principle of equal treatment required that the Expert Panel decide whether children reaching school age may study in school with a standard curriculum or in remedial schools with a special one. The County Council had failed to perform effective control over the Expert Panel and therefore to note that the panel had not informed the parents appropriately. In addition, the County Council had not ensured that the expert decisions were individualised according to the law. Therefore the respondents had violated the applicants’ right to equal treatment. 5.     Appeal procedure 39.     The Expert Panel itself did not appeal and so the above decision became final and enforceable with regard to the Panel. On appeal by the Remedial School and the County Council, the Debrecen Appeal Court (in judgment no .Pf. II.20.509/2009/10. of 5 November 2009) reversed the first ‑ instance judgment and dismissed the applicants’ claims against the Remedial School and the County Council. The Appeal Court accepted the Remedial School’s defence, namely that it had done no more than enrol the applicants according to the Expert Panel’s decision. It held that it was for the County Council to perform effective control over the lawful operation of the Remedial School and the Expert Panel. An omission in this regard might establish the County Council’s liability, in particular because the parents’ participatory rights had not been respected. The Appeal Court further noted that, in order to prevent the misdiagnosis and consequent segregation of Romani children into remedial schools, there was a need, unfulfilled as yet, for the development of a new diagnostic testing system which should take into account the cultural, linguistic and social background of children. However, it held that the lack of appropriate diagnostic tools and the subsequent placement of the applicants into remedial schools did not have any connection to their ethnic origin, and therefore found no discrimination against the applicants, concluding that their personal rights had not been violated. In its view, the applicants had not suffered any damage as a result of the unlawful conduct of the respondents, since, according to the court-appointed experts’ opinion, they had been educated in accordance with their mental abilities. That opinion effectively confirmed the Expert Panel’s decisions. 6.     Review proceedings The applicants submitted a claim for judicial review to the Supreme Court. They argued that there was no national professional standard established with regard to the diagnostic system in Hungary, contrary to what was stated in the second-instance judgment. The well-known systemic errors of the diagnostic system, together with the disregard of the socially, culturally and linguistically disadvantaged background, had resulted in a disproportionately high number of Romani children diagnosed as having “mild mental disability”. The applicants requested the Supreme Court to establish, as an analogy with the case of D.H. and Others , the misdiagnosis of Romani children, that is, that the channelling of Romani children with normal mental abilities into remedial schools constituted discrimination. Such misdiagnosis constituted direct – or alternatively indirect – discrimination, based on the ethnic, social and economic background of the applicants. The applicants claimed that the Appeal Court had wrongly concluded that there was no connection between the lack of appropriate diagnostic tools and the ethnic origin of the applicants. The fact that the tests themselves had no indication of ethnicity did not preclude that they forced a disproportionately high number of Romani children into a disadvantaged position in comparison with majority children. This practice amounted to a violation of section 9 of the Equal Treatment Act (indirect discrimination). In addition, the fact that the experts had disregarded the specific social, cultural and language components when assessing the test results had led to direct discrimination in breach of section 8 of the Equal Treatment Act. The applicants asserted that the respondents had not acted with due diligence in the circumstances, when – aware of the systemic error of the diagnostic system – they had failed to act according to international standards. In addition, Mr Kiss had been placed in a remedial school not only despite the fact that it was not professionally substantiated, but despite the explicit objection of the parents. The Supreme Court reviewed the second-instance judgment and found it partly unfounded. It stated as follows: “Considering the relevant provisions of the Equal Treatment Act and the Public Education Act ... the Supreme Court has to decide whether the respondents discriminated against the plaintiffs on the basis of their ethnic, social, economic and cultural background, which resulted in the deprivation of their rights to be educated in accordance with their abilities and therefore their rights to equal treatment, and subsequently whether their personal rights have been violated.” The Supreme Court upheld the second-instance judgment with regard to the finding that the respondents’ conduct had not violated the applicants’ right to equal treatment, either in terms of direct or indirect discrimination, since the court expert had approved the Expert Panel’s opinion. Therefore it found that the applicants had not suffered any disadvantage on account of not being able to attend a mainstream school. The Supreme Court further noted: “The systemic errors of the diagnostic system leading to misdiagnosis – regardless of its impact on the applicants – could not establish the respondents’ liability ... The creation of an appropriate professional protocol which considers the special disadvantaged situation of Romani children and alleviates the systemic errors of the diagnostic system is the duty of the State.” The Supreme Court noted, however, that: “[T]he failure of the State to create such a professional protocol and [an eventual] violation of the applicants’ human rights as a result of these systemic errors exceed the competence of the Supreme Court ... the applicants may seek to have a violation of their human rights established before the European Court of Human Rights. Therefore the Supreme Court has not decided on the merit of this issue.” The Supreme Court further examined whether the respondents’ liability could be established under the general rules of tort liability regardless of the fact that it had not established a violation of the applicants’ personal rights. It found no such liability in respect of the Remedial School. However, it observed that the Expert Panel’s handling of the parental rights had violated the relevant law (Ministerial Decree no. 14/1994 (VI.24.)). It consequently upheld the first-instance judgment with regard to the payment of HUF   1,000,000 in damages to each applicant by the Expert Panel, out of which sum the County Council was obliged to pay HUF 300,000, on account of its deficient control. This decision was served on 11 August 2010. COMPLAINT The applicants complain under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention that their education in a remedial school amounted to direct and/or indirect discrimination in the enjoyment of their right to education, on the basis of their Romani origin, in that their schooling assessments were paper-based and culturally biased, their parents could not exercise their participatory rights, they were placed in schools designed for the mentally disabled whose curriculum was limited, and they have been stigmatised in consequence. QUESTION TO THE PARTIES Has there been a breach of the applicants’ rights under Article 2 of Protocol No. 1 read in conjunction with Article 14 of the Convention to have education free of discrimination? In particular, was their education channelled into a remedial school on the basis of assessments made with culturally unbiased tests and methods (cf. D.H. and Others v.   the   Czech   Republic [GC], no. 57325/00, ECHR 2007 ‑ IV)?