Case X and others v. Albania
On 31 May 2022, the European Court of Human Rights published the decision in case X and others against Albania which was invested in this Court through a request filed by the non-governmental organization European Center for Roma Rights (“ERRC”), an organization non-governmental organization based in Brussels. This organization represented six Albanian families of Roma and Egyptian ethnic origin, whose children were found to suffer from indirect discrimination in the primary school “Naim Frashëri” in Korça.
During the 2012/19 academic year, the school was attended almost exclusively by Roma and Egyptian minority children. Since 2012, the Government has implemented a food support program, where food packages are provided to Roma and Egyptian students attending that school in order to increase school attendance for children of those communities. Complaints of secession from the European Center for Roma Rights (“ERRC”) and another organization resulted in a binding decision by the Commissioner against Discrimination on 22 September 2015, finding that Roma and Egyptian children at that school were suffering indirect discrimination. due to their over-representation in the school and ordered the competent bodies requesting the Government to take desegregation measures. The applicants complained that the authorities had not implemented such measures.
- Court assessment
With regard to the exhaustion of domestic remedies, the applicants were not required to file a complaint of discrimination in the domestic courts, which would have essentially the same objective as the ERRC’s action before the Commissioner and which, in any case, , would not have been shown to be an effective tool in the present case. In the absence of an appeal by the authorities against the Commissioner’s decision, that decision became final and enforceable.
The right to inclusive education, in the enjoyment of which the applicants claimed to have been treated differently, was provided for by Albanian domestic law. It was not disputed in domestic proceedings or before the Court that the applicants’ situation was tantamount to segregation and that desegregation measures had been sought. Nor did the complainants object to the Government’s position that the situation had been unintentional. Notwithstanding the discrimination which was potentially contrary to the Convention may result from a de facto situation and does not necessarily require a discriminatory intent.
Although two measures were taken by the authorities to address the separation of applicants, these were implemented late and were incompatible with both the time sensitivity of a situation where children were separated and the Commissioner’s decision that measures be taken “immediately”.
More specifically, the decision to remove the criterion of ethnicity for students benefiting from the food support program, in an effort to attract students of all ethnicities to school, was approved almost a year and a half after the decision of the Commissioner, while the renovation of the facility of school had ended four years after that decision. Furthermore, the Government had not submitted any objective reasons for non-implementation of the measures discussed by the competent Ministry, namely the expansion of the food support program to four other schools in the area, which could have apparently encouraged some Roma students. / Egyptians of the school to be transferred to other schools and the merger of the school “Naim Frashëri” with three other inseparable schools. Both of these measures were likely to have a more immediate positive effect on Roma and Egyptian children.
In this regard, the Court could not accept the justification of the authorities that the merger was not implemented due to the reconstruction of the school “Naim Frashëri”, as the reconstruction work had lasted only for a limited period of time. Indeed, the merger seemed a very appropriate solution and could have contributed to the creation of schools where the ratio between Roma / Egyptians and other students would have been reasonably proportional to the city-wide ratio of primary schools.
Authorities had already implemented similar solutions in relation to schools set up elsewhere in the country, where in addition they had also provided transportation for students. Although it was not up to the Court to indicate the specific measures to be taken to remedy the situation of school segregation, it was nevertheless difficult to understand the reasons why this approach was not applied in the present case.
At the end of the case, the European Court:
• Finds violation of Article 1 of Protocol no. 12 of the Convention “Reaffirming that the principle of non-discrimination does not prevent States Parties from taking measures with a view to promoting full and effective equality, provided that such measures have a reasonable and objective justification”.
• Referring to Article 46 of the ECHR, it considers that the measures to be taken must ensure the end of discrimination against Roma and Egyptian students of the school “Naim Frashëri”, as ordered by the decision of the Commissioner dated 22 September 2015.
• Orders the respondent Albanian State to pay to each of the applicants’s families, within three months from the date on which the decision becomes final, in accordance with Article 44 § 2 of the Convention, compensation of EUR 4,500.