Judgment III. ÚS 1136/13 – Placement of the Roma gypsy pupil in a “special” school

26 August 2015

On 26 August 2015 the Constitutional Court dismissed the petition of J. S. who was placed in a “special school” in 1985 at the age of 7. The applicant alleged that the placement was due to his Roma gypsy origin. Only because he decided to attend one year supplementary class he was able to finish secondary education in 2005.

In 2008 the applicant brought an action for the protection of his personality seeking the apology and compensation for the non-pecuniary damage on account of his placement to the special school allegedly due to his Roma origin. The discriminatory treatment resulting in a disproportionate high number of Roma pupils in schools for children with mental disabilities where a more basic curriculum was followed was found in violation of the European Convention on Human Rights by the European Court of Human Rights in D.H. and Others v. the Czech Republic in 2007. The applicant’s action was dismissed by the Prague Municipal Court, the High Court and the Supreme Court which maintained that the applicant’s placement in the special school was justified by his intellectual capacity and not by his Roma origin; his financial claims were statute barred. The applicant could not have been a victim of psychological testing that had not taken Roma specifics into consideration as he had been brought up in a children’s home, not in a Roma community.

The Constitutional Court considered that had the applicant been discriminated against on account of his ethnic origin, such approach would have been in violation of the Czech constitutional order and international human rights obligations. This kind of discriminatory treatment would harm pupils in multiple ways. Not only their future study prospects and career would be affected but also their sense of self-worth and perception by the whole society. 

Although the reasoning of the lower courts was not without certain faults, the Constitutional Court dismissed the applicant’s constitutional petition. Applying the standards adopted by the European Court of Human Rights, the Constitutional Court concluded that sufficient safeguards against the discrimination were in place in the applicant’s case. His intellectual abilities were tested on numerous occasions by different experts throughout his studies. His placement in a special school thus was not a result of a single, routine examination.

The judgment will be translated and published in English shortly.