Public Interest Lawyers
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This letter was sent to:
Romano Prodi, President,
Gunter Verheugen, Commissioner for Enlargement
and David O'Sullivan, Secretary-General
at:
European Commission
Rue de la Loi 200
1049 B
Brussels
Fax : 00 32 2 295 6336
17 February 2004
Your ref:
Our ref: PS/SA/ROMA/10090
Dear Sir
COMPLAINT TO EUROPEAN COMMISSION – INSTITUTIONALISED DISCRIMINATION AGAINST THE ROMA IN EDUCATION SYSTEMS IN THE CZECH REPUBLIC, HUNGARY AND SLOVAKIA
1. We are acting for the European Committee on Romani Emancipation (ECRE). ECRE is a voluntary and non-profit making organisation formed under the terms of European Council Regulation 2137/85 (European Union) and registered under UK Statutory Instrument 1989/638 on the European Economic Interest Grouping Regulations and registered at the Registrar of Companies in the United Kingdom. It has been established to improve the conditions of the Roma within the European Union, and specifically accession countries, by working to eliminate social exclusion and poverty amongst the Roma, and to advocate on their behalf for equal opportunities within all relevant state systems.
2. Our client’s complaint is that since at least November 1999 the European Commission has failed to act to end the systematic process whereby a large number of Roma children are subjected to discrimination in the field of education. This discrimination operates through a segregated education system established by state representatives in the Czech Republic, Hungary and Slovakia.
3. The institutionalised and systematic nature of this discrimination is in clear violation of European human rights provisions and other legislation within the Treaty of the Economic Union (TEU). It is our client’s view that the discrimination is such that all three countries have clearly failed to satisfy requirements of pre-accession criteria.
4. Despite having clear knowledge of the institutionalised discrimination referred to above the European Commission has
- failed to report on the true nature and extent of this human rights abuse to the European Parliament, European Council and the public
- failed to insist that these countries meet several pre-accession criteria as required and set out in various Council decisions
A short history of discrimination against the Roma
6. In the mid-fourteenth Century Roma were enslaved in Romania only to be released in mid-nineteenth Century, representing the longest record of enslavement of a single group in Europe and indeed in the world. In other countries conditions were also harsh with the Roma suffering from various forms of discrimination throughout history on an interpersonal basis. In former times laws were enacted to discriminate against the Roma from restricting their travel to banishment, branding and execution.
7. The worst period came during the Second World War with Roma being the first victims of the Holocaust. At that time the Third Reich created co-called Special Schools in which Roma and Jewish children were placed to segregate them from the mainstream, where they received no education and were the subject of studies by "psychologists" and experiments by "doctors". Many of these children and their parents perished in the Holocaust.
8. During the Communist era the very small contingent of Roma who were still travellers were settled. The vast majority of Roma, for example in Hungary, were settled more than a century ago largely in rural areas having been in Hungary for over 650 years.
9. During the last half of the 20th Century, most of Europe was subject to structural changes with concomitant supporting legislation which helped to remove institutionalised discrimination against the Roma and other minorities, and to bring those European Countries into line with basic provisions of human rights and in particular the European Convention on Human Rights.
10. However, in the Czech Republic, Hungary and Slovakia there has been a failure to take necessary action to remove institutional discrimination against the Roma. This is particularly so in the field of the segregated education systems in these three countries. During the pre-accession period, and particularly pursuant to the Madrid conditions, these countries were required to ensure that their administrative structures could give effect to transposed EU legislation and human rights provisions. In our client’s view there has been a manifest failure to make those adjustments and state policy in all three countries continues to directly and deliberately discriminate against the Roma.
Discrimination in segregated education systems in the Czech Republic, Hungary and Slovakia
11. In our client’s view there is overt and institutionalised discrimination against the Roma by way of the deliberate establishment of a segregated education system for the Roma in these three countries. Since 1989 the governments of the three countries have demonstrably increased the amount of state funding to local authorities to support the numbers of Roma children placed in so called “special schools.” These special schools are mainly housed in old buildings formerly used as remedial schools for educationally subnormal children. Until 1989 the numbers of Roma children affected was approximately 35,000 children in the three countries. These numbers have expanded by some 425% in the next 14 years to become 150,000 affected in 2003. By comparison with the rest of Europe which has worked to improve the standards of basic education for all children these three countries, as a direct result of state policy, have produced the highest rates of decline in educational standards in Europe as measured by the numbers of children being denied a useful education. The funding regime in these three countries has facilitated this discrimination through the segregated education systems. There is an annual payment of around Euro 2000 for each child placed in a special school. As a result although Roma make up less than 10% of the population in these three countries, Roma children account for approximately 98% of the children in special schools. Our client raises questions as to whether the funds transferred into this segregated education system are in fact being spent on the provision of education within these special schools. It is apparent that not all the funds transferred into this segregated education system are spent on the provision of education within these special schools.
12. The aggregate value of the incentive state funding which has contributed directly to the expansion of numbers of Roma in the special school system has increased from around Euro 42 million in 1989 to approximately Euro 300 million in 2003. Our client’s estimate is that during the last decade more than Euro 2 billion has been spent on this incentive for segregation in the education system.
13. It is our client’s view that the vast majority of the Roma children selected for, and placed within, special schools are of normal intelligence and not in need of remedial education, even less the deficient provisions of the special schools and are in fact seriously impaired in their right to a proper education by being segregated in this manner. We have seen nothing to justify the vast disparities between the high percentage of Roma children in special schools, compared with the low percentage of non-Roma children in these schools.
14. Sometimes attempts are made to justify selection decisions on the basis that Roma children do not speak mainstream languages. This is not the case. The Romungro in Hungary, for example, make up 78% of the Hungarian Roma and they ceased to speak Romani over a century ago because of laws banning the use of Romani and now only speak Hungarian. A significant number of Slovakian Roma are Romungro, having been separated from Hungary as a result of the post-war Trianon accord in 1920. Current statistics show that some 6% of Central European Roma speak "some" Romani but all speak mainstream languages. By way of comparison Hungary has a school age Roma population of the special school age range of some 120,000 children. This would be expected to result in a group requiring remedial education of no more than 4,200 children. The number of Roma children in the Special Schools is some 50,000, almost twelve times more than could be explained by selection errors. This seems to represent a clear selection of Roma children for other reasons than factors based on education.
15. Our client is aware of many examples of selection psychologists writing their justification for selection of children for the Special School as being "Roma" with no further elaboration. It is also widely reported that the reason psychologists select the children is because the local state has instructed them to do so with the justification being the funding received from central government under the funding regimes for education in the three countries.
16. If Roma children were sent to normal schools they would receive an education based on a curriculum, agreed educational standards and with an expectation of a leaving certificate on completion. By comparison the special schools provide little useful education, no basic curriculum and no leaving certificate.
17. It would appear that the Czech Republic, Hungary and Slovakia are three countries who consider that what amounts in essence to the non-provision of education meets with requirements of the human right to access to education.
18. In each of the three countries there are basic structural adjustments required immediately in order that all three can meet pre-accession criteria. In line with the TEU and human rights provisions the overall objective is to support a free and non-discriminatory access to basic public education within an integrated system. This requires, amongst others, the following adjustments:
- a fundamental review of the education systems in all three countries to ensure that only those children with an objective need for remedial education receive this with appropriate provisions
- the elimination of special schools and their replacement with adequate remedial provisions for those children in need of such support
- the restructuring of funding regimes so as to inhibit, not encourage, the diversion of Roma children into special schools or any other institution or provision which is separate from a fully integrated normal system
- the restructuring of school entry selection procedures to remove all implicit or explicit racial discrimination
- the removal of all systems causing the physical segregation of Roma children
- the immediate provision of proper education for all Roma children
- the immediate cessation of the diversion of financial resources from the Roma population to the rest of the population of these three countries
- necessary and appropriate adjustments to reverse the effects of social exclusion caused by the special school system for the Roma population.
19. It is apparent that special schools have a distinct social stigma attached to them. For most Roma children the experience of being selected for special schools is a traumatic one. From the age of seven or thereabouts the segregated system subjects them to an education system that lacks stimulation. Most receive little, if anything, by way of basic education and leave without any formal qualification. Most Roma are consequently unable to secure post-school training or entry into higher education. As a result a large majority of Roma children fail to secure work to earn an adequate income to support themselves and their families.
The effect on the free market
20. Roma children leaving special schools have not had 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.
Effect on the economy
21. The above factors lead to the Roma, on average, earning something like 20% of the average, and this translates into detrimental impact in terms of family life, poor diet and health. This combination of factors, largely created as a result of the segregated education system complained of, 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%. By comparison unemployment rates for the Roma are around 65% with some communities experiencing unemployment of 100%.
22. 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 gives rise to a significant and increasing underperformance of the economies of these three countries, which will continue until the necessary structural changes to reverse this discrimination are introduced. In the case of Hungary our client estimates that the cost of the underperformance of the economy related to these factors, amounts to over Euro 3 billion per year.
The history of complaints by the ECRE
Action with Commission
23. On 13 November 1999 the directorate of the Agricultural Development Foundation wrote to the European Commissioner for Enlargement outlining the issue of Special Schools and in particular emphasising the
- unacceptable discrimination against Roma children
- the broader economic impacts on these economies resulting from this discrimination
25. During 2000 through 2002 the European Committee on Romani Emancipation organized field work with Roma and non-Roma volunteers living in rural regions to analyse the nature and measure the size of the special school system and identify the mechanisms for its support. The results of this work were published in a report in February 2003 and a copy sent immediately to Gunter Verheugen. The receipt of this report was acknowledged by an official at Enlargement. Although the ECRE report contained proposals for the termination of this policy, a promised letter of response, from the Commissioner, addressing the substantive issues raised, failed to materialize and, as far as could be ascertained, the Commission failed to act.
Action with Parliament
26. On the publication of the above-mentioned report, ECRE also sent a petition to the European Parliament on 26 February 2003. This described the special schools, how they worked and were funded and the number of children affected, based upon the ECRE field work, with a request that the Petitions Committee review the situation and, in particular, suggesting a suspension of EU funding to the governments concerned. The petition had the secondary objective of calling attention to the failure of these countries to meet accession criteria and therefore alert the Parliament before their accession votes. When this petition was sent ECRE was not aware of what the Commission was communicating, if anything, concerning these matters to the European Parliament and the Council. ECRE assumed that since the scale of this human rights abuse had been found to be so widespread and systematic it was a serious political issue and assumed that the Commission would be negotiating with the countries concerned in the light of accession criteria. Therefore the lack of immediate response by the Commission did not feature as a specific issue in the ECRE Petition to the Parliament. Unfortunately the Petitions Committee took almost a year to decide that the Petition was admissible, well after the accession vote and the outcome of the deliberations of the Petitions Committee is awaited.
27. When the Parliamentary and Council accession votes took place in 9 April, 2003, with no discussion or reference in the debates to the special schools issue, it became evident that the Commission had failed to act. On inspection of the Commission's regular country reports on accession it was found that the Commission had not reported the full facts of the extent of this form of discrimination nor the direct government sponsored mechanisms involved. The Commission had also failed to report the fundamental failure of these governments to adjust their administrative structures to satisfy accession criteria. An additional concern was that this non-disclosure before accession voting took place meant that the accession votes of the Parliament and the Council were flawed.
Action with Ombudsman
28. As a result of these considerations ECRE sent a letter of complain to the EU Parliamentary Ombudsman. Although the Ombudsman considered this to be a matter worthy of investigation he advised ECRE that under the terms of the TEU relating to the scope of responsibilities of the Ombudsman, he was unable to act on issues covering accession countries. The Ombudsman referred ECRE to the relevant TEU sections wherein it is stated that the responsibility for taking action on any failure to act on the part of the Commission, with respect to the accession countries, rests with the European Court of Justice.
29. The record to date shows that the Commission has consistently failed to respond to advice and warnings on this matter since November 1999, that is, during the whole of the mandate of this Commission. Indeed, today, the situation of the special schools in these countries is worse than when the Commission initiated pre-accession negotiations with these countries. The most recent country reports produced by the European Commission make no reference to this issue.
30. A chronology of correspondence is provided as Appendix 1. The petition, the complaint to the Ombudsman and the ECRE report is Appendix 2.
The Human Right to Education
31. There are two aspects to this: first, the right to education as a right in itself; second, the right to education as a means to broader participation into society. Koch notes: “the right to education has an important role to play as a linkage and as a key to the unlocking of other human rights. Education is an indispensable means of realising human rights in general.” (Ida Elizabeth Koch, 2001, The Right to Education as a Means and End in itself – the Indivisibility, Interdependence and Interrelation of Human Rights, referring to General Comment No.13 para.1 of the Right to Education from the Committee on Economic, Social and Cultural Right). It is noted that education has a key impact on participation rights in general. Again as Koch notes:
“Illiterate persons are rarely – if ever – elected to political bodies, and the elected representatives usually belong to the best-educated part of the population. Furthermore, a minimum level of education including literacy is necessary for the seeking and receiving of information and for the freedom of expression, assembly and association. These rights have little substance and meaning for the illiterate. However the illiterate persons and persons without basic education make up a regrettably large percentage of the prison population thereby proving the intimate link between the right to education and the right to personal liberty.”
32. As far as the right to education itself goes it is a building block of any human rights based democracy. We refer in particular to the following:
1. EUROPEAN CONVENTION ON HUMAN RIGHTS
First Protocol, Article 2
“Article 2
Right to Education
No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the rights of parents to ensure such education and teaching in conformity with their own religious and philosophical convictions.”
This article must be read with Article 14:
“Article 14
Prohibition of Discrimination
The enjoyments of the rights and freedoms set forth in this Convention shall be secured without discrimination on any grounds 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.”
2. INTERNATIONAL COVENANT ON CIVIL AND POLITICAL RIGHTS
“Article 18
1. Everyone shall have the right to freedom of thought, conscience, and religion. This right shall include freedom to have or to adopt a religion or belief of his choice, and freedom, either individually or in community with others and in public or private, to manifest his religion or belief in worship, observance, practice and teaching....
4. The States Parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to ensure the religious and moral education of the children in conformity with their own convictions.
3. INTERNATIONAL COVENANT ON ECONOMIC, SOCIAL AND CULTURAL RIGHTS
“Article 13
1. The States Parties to the present Covenant recognise the right of everyone to education. They agree that education shall be directed to the full development of the human personality and the sense of its dignity, and shall strengthen the respect for human rights and fundamental freedoms. They further agree that education shall enable all persons to participate effectively in a free society, promote understanding, tolerance and friendship among all nations and all racial, ethnic or religious groups, and further the activities of the United Nations for the maintenance of peace....
3. The States parties to the present Covenant undertake to have respect for the liberty of parents and, when applicable, legal guardians to chose for their children schools, other than those established by the public authorities, which conform to such minimum education standards as may be laid down or approved by the State and to ensure the religious and moral education of their children in conformity with their own convictions ....
4. CONVENTIONS ON THE RIGHTS OF THE CHILD
The main provisions are Article 28 and 29 to be read alongside Articles 2, 3 and 4 which we do not set out here. Articles 28 and 29 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 drop-out 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.
“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 a 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.”
33. There is no doubt that a segregated state education system in any accession country which is in any way tainted by discrimination based on race or nationality is repugnant, and a complaint that such a discriminatory education system might exist requires the highest degree of anxious scrutiny. This is particularly so in circumstances where the numbers affected are so great, and where the discrimination appears to be state sponsored, with the implicit agreement of the European Union acting through the European Commission. In terms of anxious scrutiny we note the apparent failure of the European Commission to take any, or any effective, action to end this discrimination against the Romani children following our client’s complaint summarised in this letter and annex.
34. We should make clear that we have not sought to proceed at this stage to the European Court of Human Rights. This is because the matters of which our client complains are structural in foundation and require a collective, not individual response. Until such time as our client’s remedies with the European Union and European Court of Justice are exhausted we do not consider it appropriate to submit a complaint to the European Court of Human Rights. However, in due course if satisfaction is not obtained, our client reserves the right to do so. At this stage, however, our client requires an appropriate and immediate review leading to far reaching and structural changes to reverse this discrimination, and it takes the view that it is the European Commission who has the primary legal duties in this regard.
Accession Criteria
35. Our client’s position is that it is the European Commission who is responsible to ensure that each of the three countries meet accession criteria. There are many relevant criteria which our client submits have been flagrantly disregarded in this case of segregated education for Romani children. Further, it is our client’s case that the European Commission knew that these criteria were being breached pre-accession not least because our client put the European Commission on notice by the complaints the details of which are set out in this letter and attached annex. For the avoidance of doubt our client submits that relevant criteria include:
Political Criteria - Democracy and the rule of law, human rights and the protection of minorities)
Under the political criteria, including democracy and the rule of law, human rights and the protection of minorities a general failure to provide equal opportunities in education and access to training and a significant failure in the rule of law to protect minorities in the current practice of physical segregation of Roma school children within state institutions.
Economic criteria - Copenhagen criteria relating to the existence of a functioning market economy
Sustained and serious distortions in the labour market result directly from the lack of training of a growing proportion of the workforce, the Roma. The resulting Roma-specific unemployment, or underemployment, causes a structural economic under performance of the economies limiting the functioning of the market economy, the capacity to cope with competitive pressure and market forces within the Union.
Chapters of the acquis including the free movement of persons
· Free movement of persons
Current government policies sustain and contribute to the inability of Roma to move freely in response to demand for professional services and work as a result of denial of education and training; free movement is distorted by a structural failure in the provision of equal access to training and attainment of skills.
· Social policy and employment
A significantly reduced feasible attainment in policy resulting directly from the erosion in manpower training and professional capabilities and a significant negative cross ethnic-gender impact of racial discrimination upon the status of equality between men and women.
· Education and training
Sustained totally inadequate education and training provisions resulting from current policies of segregated educational denial founded on:
- inappropriate professional standards and practice of selection
- diversion of financial resources away from areas with most need
Failure to prevent segregation on ethnic grounds within public institutions; failure to uphold the rule of law within public administrations and in particular in the application of duties in central educational funding and local administrations
· Financial control and financial and budgetary provisions (including anti-corruption efforts)
A failure to terminate the illicit diversion of public funds from areas of need created by associated actions of removal of Roma children from normal educational provisions and not funding compensatory provisions for removal of the children from adequate schooling. Besides admission that some of these funds go to supplement salaries of teachers the lack of transparency on the use of the bulk of these funds raises questions under the anti-corruption strand of financial control and budgetary provisions relating to national resources.
In all cases above, there has been a significant failure to bring about the required administrative structural changes under each criterion listed so as to support transposed legislation. This failure remains evident in the ongoing and large scale segregation and educational denial facing Roma children which is managed entirely by state and local government staff within state and local government administrative structures.
36. If it is the European Commission's case that it take the view that all relevant accession criteria have been met, and that accordingly no discrimination against Romani within the field of education now exists, you will no doubt make that clear in your response. We would require strict factual proof to support that position, and would doubt the rationality of such a position given the proven facts on the ground about the existence of special schools, and the identity of those within that system.
Our client’s demands
37. Our client’s position is, as we say, that the European Commission is responsible for policing accession criteria, and for allowing the segregated system to continue pre-accession. Accordingly, it is responsible for its removal and must now make the adjustments set out in paragraph 18 above. We ask that the European Commission responds to this complaint within two months making clear that it intends to take immediate steps to remove this discrimination including taking any necessary ancillary actions under the Accession Treaties with each of the three countries involved. We should make clear that given the history of complaints about this matter to the European Commission by our client, and giving the pending date for accession of 1 May 2004, there is some urgency in resolving this matter. We expect to receive an unequivocal and clearly worded commitment from the Commission to take all appropriate steps to remove this state sponsored discrimination within an acceptable timescale (to our client), such commitment including all the adjustments referred to in paragraph 18 above. A failure to respond or an unsatisfactory response within 2 months will be interpreted by our clients as a failure to act. In that event we will be advising our client as to appropriate legal remedies.
We look forward to your response within two months
Yours faithfully
Phil Shiner (signed)
Public Interest Lawyers