X and others v Albania (2022)

15 June 2023

Facts

The applicants (that is, the people who made the complaint to the European Court of Human Rights) are Romani families living in Korça, a city in Albania. Their children attend Naim Frasheri Primary School. The case is registered under the name “X and others” to protect their privacy. This is especially important as the case concerns children.

Naim Frasheri School used to be a racially integrated school, with ethnic Albanian, Romani, and Egyptian pupils. That started to change in 2012, after a programme was put in place to encourage attendance by Romani and Egyptian pupils. Because Romani and Egyptian families are poorer than ethnic Albanians due to centuries of discrimination, families sometimes could not provide their children with school supplies and adequate clothing. The authorities responded by providing children at Naim Frasheri School with extra support. This provoked “white flight” as more Romani and Egyptian children started to attend, and now Roma and Egyptians make up 99% of the school’s student population.

The ERRC met with community members and in 2015, we made a complaint in our own name to Albania’s Equality Commissioner, who agreed that the situation amounted to unlawful racial segregation and that the Roma and Egyptian children at Naim Frasheri School were suffering from discrimination. The Commissioner ordered the Ministry of Education to take “immediate” action to end the discrimination. In December 2015 and again in April 2017, the Ministry of Education wrote letters setting out the steps that they would take to desegregate the local school. But they did not take all the steps they outlined.

The Case

The applicants met with the ERRC team in late 2017, after another school year began in the segregated school. They were unhappy that the authorities had not done what they said they would do to desegregate the school. We advised them that they could go straight to the European Court of Human Rights. This is unusual: normally you must take a case through the national courts before you can go to the European Court. But we advised the applicants that there was no point in doing that here – the authorities had already recognised the problem and promised to desegregate. There was nothing to be gained by going to the national courts.

The applicants agreed and asked us to go straight to the European Court. We sent off the complaint in October 2017.

We complained that school segregation was discrimination contrary to Protocol No.12 to the European Convention on Human Rights. Protocol No.12 is a human rights guarantee that Albania signed up to. Everyone in Albania is protected from discrimination based on race, ethnic origin, or colour by any public authority or in relation to any right protected by law. Not all European countries have agreed to be bound by Protocol no.12, but Albania has. We told the European Court that this creates particularly strong obligations for Albania to end school segregation and other forms of discrimination. 

On 3 April 2019, the European Court decided to communicate the case to the Albanian Government, meaning that there was a case to answer and need for an exchange of arguments. We represented the applicants in those exchanges.

The Court’s Judgment

After arguments were exchanged between the Parties, on 31 May 2022, the European Court issued a judgment largely agreeing with ERRC. They held that Albania had violated Article 1 of Protocol no. 12 to the Convention and that the applicants are owed compensation.

The Court agreed with ERRC that, in this case, the standard rule that would normally require applicants to go their domestic courts did not apply. The Albanian Equality Commissioner has similar power under domestic law to a court in that it can issue binding decisions like its 2015 conclusion that discrimination was occurring at Naim Frasheri School and its order for action.

The Court affirmed that “discrimination means treating differently, without an objective and reasonable justification, persons in relevantly similar situations,” although in some circumstances different treatment is necessary to correct inequalities. Racial segregation, though, is not the kind of differential treatment that corrects inequalities – it instead violates a “fundamental value of democratic societ[y].” The Court cited previous cases it had decided finding school segregation to violate the Convention’s prohibition against discrimination.

In this case, as the conclusion of the Equality Commissioner displays, the Albanian Government did not dispute that segregation was occurring and needed to stop. Albania simply argued that it was unintentional. However, the Court in the past had held “that discrimination that is potentially contrary to the Convention may result from a de facto situation… and does not necessarily require discriminatory intent.” This means that it does not matter if a government means to discriminate against a population. What matters is whether the Government’s policies or action have the effect of discrimination, which the Albanian Government had already essentially admitted.

Although the Court noted that the Government had taken some steps to desegregate, those steps were quite delayed and “incompatible with the time sensitivity of a situation where children were segregated.” Furthermore, the Government failed to implement two measures discussed by the Equality Commissioner in 2015 and 2017: extending the food programme to additional schools in the area and merging Naim Frasheri School with three other schools. These measures were likely to have “immediate beneficial effect” for the Roma and Egyptian children at Naim Frasheri School. The delays and the failure to undertake those two measures amounted to a violation of Article 1 of Protocol no. 12 of the Convention. Thus, under Art. 46 of the Convention, Albania must undertake to implement the desegregation measures originally ordered by the Equality Commissioner. And as reparation to the applicants, the Court awarded EUR 4,500 per household.

One of the novelties of the case is that this is the first Roma segregation case in education that have been brought under the alone-standing prohibition of discrimination of Article 1 of Protocol No. 12. Also, this is the first time when the Court clearly held that the discrimination of the applicants ‘resulted from their over-representation in the school’. Previously the Court had consistently required evidence of another negative consequence aside from the overrepresentation.

On 8 August 2022, the judgment became final under Article 44, Section 2 of the Convention, meaning that it is no longer open to appeal.

The Court’s judgment can be found here.

The European Court’s statement of facts in the cases can be found here and here. 

You can find a film here made by Romani activists about segregation at Naim Frasheri school. The film is in Albanian with English subtitles.

Rule 9 Submission

On 21st October 2024, the ERRC submitted a Rule 9 request to the Committee of Ministers to oversee the Albanian government's compliance with the X and Others judgment. Despite the government’s expressed commitment, as outlined in action plans submitted on 1 June 2023 and 17 October 2024, desegregation at Naim Frasheri School has not been fully realized. Furthermore, new instances of segregation involving Romani and Egyptian students have emerged in Korça and across Albania, highlighting the need for continued and intensified efforts.

Key recommendations include:

• Developing and implementing a comprehensive action plan to combat segregation.
• Establishing a standardized system for collecting data on school enrollments.
• Amending the legal framework to address school segregation specifically.
• Promoting inclusion through zoning policies that take ethnic diversity into account in school assignments.
• Ensuring the active participation of Romani and Egyptian communities in developing and implementing education policies.

In light of these ongoing challenges, the ERRC respectfully urges the Committee of Ministers to continue examining the execution of the X and Others judgment under the enhanced procedure. This submission is made in accordance with Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments. The ERRC acknowledges Albania's commitment to implementing the judgment but emphasizes that complete desegregation remains elusive, and new segregation cases continue to surface.

The ERRC’s Rule 9 Submission can be downloaded here.