Quick answer
In D.H. and Others v. the Czech Republic (Grand Chamber, 13 November 2007, application no. 57325/00), the European Court of Human Rights held — by thirteen votes to four — that the disproportionate placement of Roma children in “special schools” for children with learning difficulties amounted to indirect discrimination in the enjoyment of the right to education, in violation of Article 14 read with Article 2 of Protocol No. 1. It is the Court’s landmark judgment on indirect discrimination and the use of statistics to prove it.
Background and facts
The eighteen applicants were Roma children from Ostrava who had been placed in “special schools” — schools intended for children with mental disabilities — on the basis of psychological tests and their parents’ consent. Statistical evidence showed that Roma children in the region were placed in such schools at vastly higher rates than non-Roma children, and that a Roma child was many times more likely to be so placed. The special-school curriculum was more basic, limiting the children’s education and future opportunities.
The complaint
The applicants complained under Article 14 (prohibition of discrimination) taken with Article 2 of Protocol No. 1 (right to education) that they had been discriminated against on the ground of their Roma ethnic origin.
The Court’s reasoning
The Grand Chamber accepted, for the first time in such clear terms, that a general policy or measure that is neutral on its face but has disproportionately prejudicial effects on a particular group may amount to discrimination, even where it is not specifically aimed at that group and there is no discriminatory intent. This is the concept of indirect discrimination.
The Court held that reliable and significant statistics can be sufficient to establish a presumption of indirect discrimination, shifting the burden of proof to the respondent State to show that the difference in treatment is objectively and reasonably justified. The statistics here disclosed a dominant tendency that, at the relevant time, the schooling arrangements for Roma children were not attended by safeguards ensuring that the State took into account their special needs as members of a disadvantaged group; the tests and parental consent could not justify the difference. As the placements were not objectively and reasonably justified, there had been a violation of Article 14 taken with Article 2 of Protocol No. 1.
The judgment
- by thirteen votes to four, a violation of Article 14 taken with Article 2 of Protocol No. 1.
Legacy and subsequent case law
D.H. is the foundational Convention authority on indirect discrimination. Its recognition that statistics can shift the burden of proof has been applied in a substantial line of cases on the schooling of Roma children — including Oršuš and Others v. Croatia and Horváth and Kiss v. Hungary — and more broadly in discrimination law. It is a cornerstone of the protection of minorities and of substantive equality under the Convention.
What this means for applicants
- Neutral rules with disproportionate effects on a protected group can breach Article 14, without any need to prove discriminatory intent.
- Statistics can prove discrimination, shifting the burden to the State to justify the difference in treatment.
- Very weighty reasons are needed to justify differences based on ethnic origin.
This page summarises a leading judgment and is not legal advice on any individual case.
Frequently Asked Questions
What did D.H. and Others v. Czech Republic decide?
The Grand Chamber held that the disproportionate placement of Roma children in special schools amounted to indirect discrimination in the right to education, violating Article 14 with Article 2 of Protocol No. 1.
What is indirect discrimination?
It is where a rule or measure that is neutral on its face has disproportionately prejudicial effects on a particular group; it can amount to discrimination even without discriminatory intent.
Can statistics prove discrimination?
Yes. The Court held that reliable and significant statistics can establish a presumption of indirect discrimination and shift the burden of proof to the State to justify the difference in treatment.
Convention Articles engaged
Cases against this state
Related ECHR cases
- Biao v. Denmark
- Nachova and Others v. Bulgaria
- Marckx v. Belgium
- Dudgeon v. the United Kingdom
- S. and Marper v. the United Kingdom
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