Appeal Leads to Victory for the Roma in Miskolc

On 9 June 2006 the Debrecen Appeals Court overruled the first instance judgment in theMiskolc Desegregation Case. It found that by the decision that integrated seven schools without simultanously redrawing the catchment areas Miskolc upheld the segregation of Roma children, thus violating their right to equal treatment based on ethnic origin. The court ordered Miskolc to publicize the finding through the Hungarian Press Agency. CFCF is planning to shortly start proceedings against Miskolc in order to have a homogenous Roma school shut down and its pupils transferred to the nearby elite school. CFCF believes that the judgment sets a promising precedent for the Roma community that recently suffered a blow from the European Court of Human Rights in the Ostrava case.

In June 2005 the Chance for Children Foundation (CFCF) brought an actio popularis claim against the local council of Miskolc, in Northern Hungary, alleging that the council was indirectly responsible for segregation of Roma children in primary education. In 2004 Miskolc decided to «administratively and financially» merge a number of local schools. The legal action focussed on a total of seven schools that were merged into three larger administrative and economic units but continued to operate in separate buildings. The catchment areas of the schools also remained separate. Under Hungarian law, children who live in the catchment area of a particular school have an automatic right to enrol at this school. Thus, although the merger was carried out so as to administratively integrate segregated Roma schools into predominantly non-Roma, elite schools, the pupils of the former schools did not gain the right to commence or continue their studies in the latter schools.

In its claim, the CFCF argued that by omitting to integrate catchment areas the reform contributed to maintaining segregation of Roma children, and therefore was in violation of the requirement of equal treatment. Beyond requesting the court to find that Miskolc segregated Roma and socially disadvantaged children, CFCF sought an injunction in which the court would not simply order Miskolc to put an end to segregation through refraining from further breach of the law, but to actively engage in implementing a desegregation plan in accordance with the relevant decree and instructions issued by the Minister of Education. The question is: if state funding and a state program for positive action (integration measures in education) are available, does the obligation under Article 15 of the Racial Equality Directive to have effective, proportionate and dissuasive sanctions in place require that respect for the principle of equal treatment irrespective of race be interpreted so as to impose an obligation on the defendant to engage in this state program?

In its judgment delivered in November 2005, the Borsod-Abaúj-Zemplén County Court acknowledged the fact that Roma children were over-represented in some of the merged schools, but seemingly rejected the claim on three major grounds. First, the court stressed that CFCF failed to show that disparities were directlybased on race and resulted from the local council’s intentional action. It was held that the local council had in May 2005 (after enrolment had finished) introduced new catchment areas in the merged schools, which corresponded to the boundaries of the new, larger administrative school units. Second, the court stated that the local council cannot be held responsible for residential segregation and the social disadvantages of Roma which condition disparities in the present case. Third, it established that the council is not liable for the failure of individual schools to implement their pedagogical plan in light of the obligation of equal treatment, although this plan is only valid once approved by the council.

Pursuant to CFCF’ appeal the Debrecen Appeals Court (Debreceni Ítélőtábla) partially modified the first instance judgment. It found that by the decision that integrated the said schools without simultanously redrawing the catchment areas Miskolc upheld the segregation of Roma children, thus violating their right to equal treatment based on ethnic origin. Furthermore, the court ordered Miskolc to publicize its finding through the Hungarian Press Agency (MTI). The court agreed with CFCF in that not only active, but also passive conduct could lead to a breach of the obligation of equal treatment, especially of the obligation to accord similar quality service in education to all. The court noted Miskolc’s efforts at integration, but it found them belated with respect to redrawing the catchment areas.

Based on a recent judgment of the Supreme Court handed down in a case concerning refusal of service in a discotheque based on the plaintiffs’ Roma ethnicity the court observed that the legal provision regulating the reversal of the burden of proof in fact created a legal presumption to the effect that once the protected ground (Roma ethnicity) and the disadvantage suffered (separated education of lower quality) had been established, the burden to disprove discrimination automatically fell to the defendant. Responding to concerns expressed by Miskolc the court reiterated that ample evidence, including sociological studies existed to prove discrimination in the given case and that the situation in Miskolc was well known even in Debrecen where the appeal court resided. It emphasised that Roma clearly suffered disadvantage as a result of this discrimination and that evidence offered by the town could not justify it.

Finally, the court explained that it could not grant the order requested by CFCF to integrate Roma children into mainstream classes along the relevant provisions and ministerial guidance as this would amount to the enforcement of measures in public law. The court noted that in lieau of a detailed and school specific integration plan it could not render any other decision. Significantly, the first instance court’s failure to proceed correctly along provisions pertaining to the reversed burden of proof blocked CFCF from presenting evidence in this regard. This, however, could not be remedied on appeal.

CFCF believes that the judgment of the Debrecen Appeals Court represents a ground braking development in anti-discrimination litigation across the EU. Being the first decision in which a domestic court - flawlessly applying relevant Community law - found against a local government for failing to address racial segregation, it sets a promising precedent for the Roma community that recently suffered a blow from the European Court of Human Rights in the Ostrava case , where judges were not prepared to apply the notions of indirect discrimination and the reversal of the burden of proof.

CFCF has recently requested the Hungarian Equal Treatment Authority to commence ex officio proceedings against Miskolc for the segregation of Roma children in schools excluded from the lawsuit. Based on a hidden camera recording screened on TV2 and evidencing discrimination during the enrolment procedure of a Roma child, in May 2006 CFCF initiated petty offence proceedings against the headmistress of an elite school effected by the lawsuit. It is set out to put an end to discrimination in enrolment and transfer proceedings and given the extent of empty classrooms in an elite school effected by the judgment believes that the closure of the homogenous Roma school administratively integrated to it followed by the transfer of pupils is the only viable option to resolve segregation in that setting. CFCF is therefore planning to shortly start proceedings against Miskolc in order to have this homogenous Roma school shut down and its pupils transferred to the nearby elite school.