Elmazova and Others v North Macedonia (2022)
15 June 2023
Facts
The applicants (that is, the people who made the complaint to the European Court of Human Rights) are Romani parents and their children living in Bitola and Štip, two cities in North Macedonia. The children attended two primary schools, Gjorgji Sugarev in Bitola and Goce Delchev in Štip. The names of the parents are given, while the child applicants are anonymized to protect their privacy. This is especially important as the case concerns children.
Children from the Roma-majority neighbourhood of Bair, in Bitola, have been taught in increasingly segregated classes for several years. In the 2021-2022 school year, for the first time, every single child enrolled in the new class at Gjorgji Sugarev Primary School (G.S.) was of Romani ethnicity, despite another primary school only 600 metres away having almost all ethnic Macedonian students. In the Goce Delchev Primary School (G.D.) in Štip, Romani pupils accounted for 67% of students in the 2018-2019 school year, but some first-grade students were put in 100% Roma classes. In both cases, the segregation was largely due to non-Romani parents removing their children and enrolling them in schools with lower numbers of Romani students in attendance (a phenomenon known as white flight). Furthermore, parents felt that the quality of education offered to children in the Roma-majority schools declined. The process of "white flight" was aided by school authorities who made it difficult, if not impossible, for Romani parents to do the same as non-Roma and enrol their children somewhere where they could receive a better education.
Domestic Proceedings
In 2015 and 2016, reports from the North Macedonia National Ombudsman and the ERRC respectively concluded that segregation existed at G.S. and G.D. largely due to the refusal of ethnic Macedonian parents to enrol their children in schools with mostly Romani students. On 12 November 2018, a group of Romani parents and children from G.S. lodged a complaint to the Constitutional Court of North Macedonia alleging discrimination and segregation obstructing their rights to education. Although the court concluded that “children in the Bair district attend two ethnically divided schools,” it rejected the complaint and refused to find that G.S. students experienced different or unequal treatment in their right to education.
Also in late 2018, a group of Romani parents and children from G.D. lodged a similar complaint before the Constitutional Court alleging segregation and discrimination, stating that they did not have the same opportunities as non-Romani students in their future education, employment, and integration into society. The court in this case, too, refused to find that segregated students had been treated differently to students in mixed classes.
On 2021 and 2022, the ERRC lodged complaints with the North Macedonian Equality Body (Commission for Prevention and Protection against Discrimination) regarding the segregation of Romani students in G.S. and G.D. in the 2021/2022 academic year. They resulted in positive decisions in which the Commission found discrimination to be a systemic problem in the education system in these areas and confirmed the long-term negative consequences that segregation can have on children. They instructed the municipalities to ensure more consistent applications of geographic catchment areas for schools, meaning that schools be enrolled by students based on geographic area, not whether non-Romani parents want their children in school with Roma.
The Complaint to the European Court of Human Rights
The ERRC supported the Romani families to take the cases to the European Court of Human Rights and complained that segregation in G.S. and G.D. was without any objective and reasonable justification, since the decisions of non-Romani parents to engage in “white flight” was not a legitimate justification. We argued that this resulted in discrimination that violated the applicants’ rights to protection from discrimination under Article 14 of the Convention taken in conjunction with Article 2 of Protocol no. 1, which guarantees a right to education. Article 14 and Protocol no. 1 are human rights guarantees that North Macedonia signed up for. Everyone in North Macedonia is protected from discrimination based on race, ethnic origin, or colour by any public authority or in relation to any right, including the right to education. We told the European Court that this creates particularly strong obligations for North Macedonia to end school segregation and other forms of discrimination.
The Court’s Judgment
On 13 December 2022, the European Court issued a judgment mostly agreeing with the ERRC. The Court found that the Romani children in both schools were discriminated against and deserved compensation.
The Court decided that Article 14, the children's right to non-discrimination, was violated in conjunction with Article 2 of Protocol No. 1 to the Convention, the right not to be denied education and the right of parents to ensure their children's education "in conformity with their own religious and philosophical convictions." In other words, North Macedonia discriminated against the Roma of these two towns by segregating them, creating fundamentally unequal circumstances for their education, and not taking steps to correct the situation.
Although the Court did not find that the North Macedonian Government intentionally discriminated against the Roma, they affirmed that "discrimination potentially contrary to the Convention may result from a de facto situation." This means that it does not matter if a government intends to discriminate against people. What matters is whether the Government’s policies or actions have the effect of discrimination, and in this case they did.
In the case of G.S., the Court stated that "there is no doubt" that it was a majority-Roma school in stark contrast to another school, only 600 meters away from G.S., being 95% ethnic Macedonian. There was no reason for two schools in the same area to have such differences, other than the practices of non-Romani parents and the Government's failure to prevent the segregation.
The Court found a similar situation in G.D., where "white flight" also contributed to high proportion of Romani students. And there was no legitimate reason for keeping Roma-only classes in the mixed student population.
The Court considered that the Roma have a special history in Europe that has made them a particularly disadvantaged minority group. Segregation continues a "circle of marginalization” and prevents Romani children from living as equal citizens early in life. Thus, these unjustified segregations amounted to discrimination in violation of Article 14 and Protocol No. 1 to the Convention. The Romani communities’ marginalization should afford them special consideration, as the Court noted, not more discrimination.
Unfortunately, the Court dismissed the complaints of two children and their parents from G.D. who were not placed in Roma-only classes, as the Court said they were not harmed by the human rights violation in the same way as other applicants.
For most applicants, though, the Court awarded compensation of €1,200 EUR, totalling €45,600 across both schools. And under Art. 46 of the Convention, North Macedonia must ensure the end of the segregation of Roma students in G.S. and G.D by taking measures to desegregate the two schools.
On 13 March 2023, 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.
Rule 9 Intervention (2024)
Despite government efforts, desegregation has not occurred in the concerned schools, and new cases of segregation have arisen. The ERRC and the North Macedonian Equality Body (the Commission on Prevention and Protection Against Discrimination) made a joint submission in accordance with Rule 9.2 of the Rules of the Committee of Ministers for the supervision of the execution of judgments. The submission commends the North Macedonian Government's efforts to implement the Elmazova and Others v. North Macedonia judgment, as documented in the action plans submitted on 14/09/2023 (DH-DD(2023)1098) and 30/09/2024(DH-DD(2024)1099) and address the identified issues, however notes that desegregation in the two concerned schools has yet to occur.
The submission to the Committee of Ministers is available here.
