Kósa v Hungary (third-party intervention, 2017)

19 December 2017

Facts

The case concerns the segregation of Romani children in a school operated by the Greek Catholic Church in Nyíregyháza (Hungary). The case started when the Chance for Children Foundation (CFCF), a Hungarian NGO, took actio popularis litigation (i.e. litigation in its own name as an NGO) challenging the segregation.

The Court’s Decision

In November 2017, the Court ruled that the complaint was inadmissible. Before someone can apply to the European Court of Human Rights, she must “exhaust domestic remedies”. In this case, the person who brought the case did not exhaust domestic remedies – she never took her own case. CFCF took a case in their own name in the national courts in Hungary to establish that there was school segregation, and the Hungarian Supreme Court ruled that there was no violation of the law. The applicant argued that this was enough – she should not have to bring a separate case in her own name before going to the European Court of Human Rights. The European Court disagreed. The judges said that, in principle, it might be possible to exhaust domestic remedies this way – that is, by bringing a case to the European Court after an NGO has complained unsuccessfully in the national courts about discrimination that affected you. But in this particular case, the applicant had raised issues that were very specific to her – including the fact that her parents had not been able to make a voluntary and informed decision to send her to the school, and that she received an inferior education at the school. In other words, the Court found that had this applicant brought her own case about her own situation in the courts in Hungary, those courts might have found a violation of her rights, even though they did not find in favour of CFCF that there was an overall situation of segregation. So she should have litigated her own case before going to the European Court.  

The ERRC’s Third-Party Intervention

The ERRC made three points in its intervention. The first was that school segregation is a persistent manifestation of anti-Gypsyism throughout Europe and appears in many perversely creative forms. In connection with this first point, the ERRC submitted that the Court had to use the term anti-Gypsyism to describe the significance, under the Convention, of the separation of Romani pupils into different schools, school buildings, or classrooms. The ERRC then gave a non-exhaustive overview of various ways in which Romani children are segregated in schools throughout Europe, with a particular focus on Hungary. The ERRC’s second point was that the domestic courts in Hungary have failed to provide effective sanctions against school segregation. In order to support this point, the ERRC provided an overview of school segregation cases litigated in Hungary and the consistent findings of the civil courts (before which anti-discrimination cases must be brought) that they lacked jurisdiction to impose specific remedies on the public bodies responsible for school segregation. The ERRC’s last point was that actio popularis litigation is a uniquely important means of challenging discrimination against Roma in Europe. In this respect, the ERRC pointed to the very low number of cases concerning discrimination against Roma that have reached the Court, as well as the Court of Justice of the European Union and domestic courts, despite widespread discrimination against Roma. The ERRC attributed this to anti-Gypsyism, and in particular, the effects of anti-Gypsyism on access to justice for Roma. The ERRC noted that in this bleak context, the ability of NGOs to take anti-discrimination “actio popularis” claims in their own name was a precious resource. Indeed, according to the ERRC, such procedures might provide the only possibility for discrimination issues to be aired properly at domestic level. The ERRC noted that in individual cases (such as V.C. v Slovakia (2011)), the Court had difficulty establishing a violation of Article 14, because the complaint was tied to the individual circumstances of a particular case. Actio popularis cases allowed the Court and applicants to avoid this dilemma by ensuring that the full range of issues arising under anti-discrimination legislation were considered at domestic level before reaching the Court. Allowing individual victims of discriminatory practices to apply to the Court following the exhaustion of actio popularis proceedings concerning those practices was essential for guaranteeing the development of the Court’s case law under Article 14 and Protocol 12.

The Court’s statement of facts can be found here.

The Chance for Children Foundation has a more detailed summary of the facts of the case, which can be found here.

The ERRC’s third-party intervention can be found here.

The decision of the Court finding that the case was inadmissible can be found here.