The case of Elmazova and others V. North Macedonia

INTRODUCTION

This ruling marked an evolution in the jurisprudence of the ECtHR, with which the Court declared against the segregation of Roma in education. In a unanimous and well-reasoned ruling, the Court condemns existing segregation and clarifies that states have a positive obligation to implement desegregation measures that will "ensure the end of segregation."

Facts

The applicants (that is, the persons who submitted an application) to the European Court of Human Rights) are Roma parents and their children who live in Bitola and Shtip, two cities in North Macedonia. The children attended two primary schools, Gjorgji Sugarev in Bitola and Gotse Delchev in Shtip. Parents' names are provided, while child applicants are anonymized to protect their privacy. This is especially important because the case involves children.
Children from the majority Roma settlement of Bair, Bitola, have been studying in increasingly segregated classes for several years. In the 2021-2022 school year, for the first time, every child enrolled in the new class at OU "Gjorgi Sugarev" (GS) was of Roma origin, despite the fact that another primary school just 600 meters away has almost all of them students, ethnic Macedonians. In OU "Goce Delchev" (G.D.) in Shtip, Roma students made up 67% of the students in the 2018-2019 school year, but some students from the first grade were placed in 100% Roma classes. In both cases, segregation was largely due to non-Roma parents removing their children and enrolling them in schools with fewer Roma students present (a phenomenon known as white flight). Furthermore, parents felt that the quality of education offered to children in schools with a Roma majority had declined. The process of "white flight" was aided by school authorities preventing Roma parents from doing the same as non-Roma parents from enrolling their children somewhere where they could get a better education.

Proceedings before the Constitutional Court and other relevant information

In 2015 and 2016, the reports of the National Ombudsman of North Macedonia and ECRR respectively concluded that there was segregation in G.S. and G.D. largely due to the refusal of ethnic Macedonian parents to enroll their children in schools with predominantly Roma pupils. On November 12, 2018, a group of Roma parents and children from G.S. submitted a request for the protection of freedoms and rights before the Constitutional Court as victims of segregation and discrimination in exercising the right to education. Although the court concluded that "children in the Bair area attend two ethnically segregated schools," it dismissed the appeal and refused to find that the students at G.S. experienced different or unequal treatment in their right to education.
Also, towards the end of 2018, a group of Roma parents and children from G.D. submitted a similar request to the Constitutional Court stating that due to segregation and discrimination, they do not have the same opportunities as non-Roma students in their further education, employment and integration into society. In this case too, the court refused to determine that segregated students were treated differently from students in mixed classes.
In 2021 and 2022, ECRR (European Center for Roma Rights) submitted complaints to the Commission for Prevention and Protection from Discrimination regarding the segregation of Roma students in G.S. and G.D. in the academic year 2021/2022. They resulted in positive decisions in which the Commission determined that discrimination is a systemic problem in the education system in these areas and confirmed the long-term negative consequences that segregation can have on children. The commission issued a general recommendation to the relevant state and local authorities as well as to the administration of the affected schools to ensure a stricter and more consistent application of the rezoning decisions that would reduce the segregation of the Roma.

The application to the ECtHR for an alleged violation of their rights from Article 1 of Protocol no. 12 of the Convention and Article 14 of the Convention

ECRR supported the Roma families to submit their cases to the European Court of Human Rights and complained that the segregation in G.S. and G.D. was without any objective and reasonable justification, since the non-Roma parents' decisions to engage in "white flight" were not a legitimate justification. This resulted in discrimination that violated the applicants' rights to protection against discrimination under Article 14 of the Convention read in conjunction with Article 2 of Protocol No. 1, which guarantees the right to education. Everyone in North Macedonia is protected from discrimination based on race, ethnic origin or color by any public authority or in relation to any right, including the right to education. It was pointed out to the European Court that this creates particularly strong obligations for North Macedonia to end segregation in schools and other forms of discrimination.

Judgment of the ECtHR

On December 13, 2022, the ECtHR issued a verdict that determined that the Roma children in the two schools were discriminated against and that they deserve fair compensation. After reiterating the general principles that apply to Roma segregation cases, the ECtHR begins by finding that the two schools offered a program that was the same, or at least similar, to that of other public elementary schools.
Regarding G.S., the Court noted that this school was mostly attended by Roma children (83.5%), while T.A. was almost exclusively visited by ethnic Macedonians (95.1%). He pointed out that there is a big disproportion between the distribution of Roma and non-Roma in G.S. Moreover, he accepted that the main reason for this was the way in which the regulatory framework for the admission and transfer of pupils was applied in practice, which was due to the refusal of non-Roma parents to enroll their children in GS. .
The court considers that the ethnic structure of the residents in the area cannot, in the given circumstances, be sufficient to objectively justify the segregation of the Roma in G.S. The court notes that the ethnic composition of the students in T.A. was completely different from G.S., despite the fact that T.A. is located at a distance of 600 meters from GS and belongs to the same area .
The Court does not consider that the applicants should be held responsible for the situation due to their failure to request transfers to other schools. First of all, their choice to enroll in G.S., as a school for their compulsory admission, was in accordance with the main rule for enrollment of students according to articles 46 and 50 of the Law on Basic Education. Second, and more importantly, it is primary for the state to take positive and effective measures to correct the actual inequality of the applicants and to avoid continuing the discrimination that resulted from their overrepresentation in the GS, thus breaking the cycle of marginalization and they were allowed to live as equal citizens from the early stages of their lives
Regarding the second school, G.D. the facts show that in the school year 2017/2018, Roma students represented 64% of all students in the first grade, and in the school year 2018/2019 they represented 67%. In each of the considered school years, there were three classes in the first grade, two of which were mixed, and in one all the students were Roma. According to this, it cannot be said that it was a general policy to automatically assign Roma students to separate classes in the school in question .
At the same time, in the 2017-2018 academic year, the Roma-only class had only 18 students (compared to 31 and 32 in the mixed classes), which means fewer students than the minimum threshold established by law - 24 students . The school acknowledged the existence of segregation and took some measures to deal with the problem. These measures failed mainly due to the opposition of parents of non-Roma children.
The court unanimously concluded that the segregation of Roma children in GS (overrepresentation) and G.D. (Roma class only) represented discrimination, due to the failure of the state to implement the necessary positive measures (desegregation). According to Article 46 of the ECHR, "the coexistence of members of society free from racial segregation is a basic value of democratic societies and that inclusive education is the most appropriate means of guaranteeing the basic principles of universality and non-discrimination in the realization of the right to education". Therefore, measures should be taken to ensure the end of the segregation of Roma students in G.S. and G.D., as recommended by the European Commission against Racism and Intolerance, the National Commission for Prevention and Protection from Discrimination and the Ombudsman.

Conclusion

The unanimous verdict in Elmazova and others v. North Macedonia marks another huge step forward in banning segregation and guaranteeing equality for all students in education. This judgment proved the change in the focus of the ECHR from assessing whether the conditions of segregation are discriminatory according to the Convention, to a focus on the positive obligations arising from the measures for segregation and desegregation. This ruling made it easier to prove segregation, accepting that a mere showing of greater representation sufficed to shift the burden of proof. This judgment can be further applauded for its realism in assessing the existence of segregation, comparing the overrepresentation of Roma students in one school with the very homogeneous ethnic composition of the majority school in the same area. Finally, the judgment clearly orders the government to ensure an end to existing segregation, while referring the member state to specialized international and national institutions for guidance on how to achieve this result. This judgment shows that the Court has truly understood the harm of segregation and will take a strong stand in the fight against it, while also guiding member states struggling with this complex issue.