SECOND SECTION
DECISION
AS TO THE ADMISSIBILITY OF
Application no. 2351/06
by Tibor HORVÁTH and Géza VADÁSZI
against Hungary
The European Court of Human Rights (Second Section), sitting on 9 November 2010 as a Chamber composed of:
	Françoise Tulkens, President,
	Ireneu Cabral Barreto,
	Danutė Jočienė,
	András Sajó,
	Nona Tsotsoria,
	Kristina Pardalos,
	Guido Raimondi, judges,
and Françoise Elens-Passos, Deputy Section Registrar,
Having regard to the above application lodged on 30 December 2005,
Having regard to the observations submitted by the respondent Government and the observations in reply submitted by the applicants,
Having deliberated, decides as follows:
THE FACTS
The applicants, Mr Tibor Horváth and Mr Géza Vadászi, are Hungarian nationals who were born on 14 August and 3 November 1987 respectively, and live in Kesznyéten. They were represented before the Court by Ms L. Farkas, a lawyer practising in Budapest. The Hungarian Government (“the Government”) were represented by Mr L. Höltzl, Ministry of Public Administration and Justice.
A.  The circumstances of the case
The facts of the case, as submitted by the parties, may be summarised as follows.
1.  Background of the case
The applicants are of Roma origin. Following their qualification in 1994 by the Borsod-Abaúj-Zemplén County Expert and Rehabilitation Panel (which consisted of a paediatrician, a psychologist and a specialist in therapeutic pedagogy) as having mild intellectual disabilities (enyhe fokban értelmi fogyatékos), they were placed in a special class of the Kesznyéten School, as from the academic year 1994/95. This remedial class was taught physically segregated. The teacher, who was in charge of this class from 1996 until 2000, did not have a degree in special pedagogy.
The applicants' intellectual ability was reviewed in November 2000. This examination corroborated the findings of 1994.
2.  Criminal proceedings against unknown perpetrators
On 21 June 2004 the applicants' lawyer filed a criminal complaint against unknown perpetrators on charges of forging public documents and endangering minors. She alleged in essence that the school certificates issued in respect of the applicants and other pupils did not reflect their real situation in the special class, that the allegedly reduced curriculum jeopardised their intellectual progress, in particular because the teacher in charge did not have the appropriate qualification, and that the assignment of the applicants to the special class served the purpose of their physical segregation.
In the course of the ensuing investigation conducted by the Tiszaújváros Police Department, a public education expert was appointed. Furthermore, a forensic psychologist examined the applicants in October 2004. The findings of this expert were identical to those established in 1994 and 2000. He found that Mr Vadászi was mentally challenged (értelmi sérült) while Mr Horváth represented a borderline case of mental retardation (mentálisan retardált határeset). He concluded that their placement in the special class could not jeopardise their mental development in view of their original disabilities.
On 2 December 2004 the Miskolc District Public Prosecutor's Office discontinued the investigation. It observed that the legal hypothesis of the offence of endangerment of minors was only met if a grave breach of duty had been committed by the school officials, into which category lesser educational irregularities did not fall.
On 18 January 2005 the Borsod-Abaúj-Zemplén County Public Prosecutor's Office finally dismissed a complaint lodged by the applicant's lawyer. It observed that a scrutiny of the documentation of the school had revealed only minor irregularities, rather than a forgery of documents. It also held that the testimonies given by the applicants and other pupils of the school contradicted the documents and the findings of the education expert and, given their subjective nature, were unsuitable for the establishment of a grave breach of duty on the part of the school's officials. It moreover drew the applicants' attention to the possibility of pursuing a civil action in respect of their allegations.
3.  Private prosecution against the director of the school and the pedagogical expert
Subsequently, the applicants' lawyer retained a private expert in clinical psychology and public education. In that expert's opinion, established in February 2005, the applicants' placement in the special class had endangered their mental and psychological development, because they had not suffered from the kind of serious mental disability which would justify their separate education.
Relying on that opinion, on 28 February 2005 the applicants' lawyer preferred a private bill of indictment, on the charge of endangering minors, against both the director of the school and the pedagogical expert responsible for the review of the applicants' intellectual ability in 2000. In the indictment it was alleged that their placement in the special class endangered the applicants' mental, psychological and educational development. No mention of their ethnic origin or assertion of discrimination was made in the motion.
On 30 June 2005 the Miskolc District Court dismissed the motion without an examination on the merits. It observed that the charge in respect of the expert was incompatible ratione personae with section 195(1) of the Criminal Code and as such could not be retained, since she had never been under any obligation to educate, survey or take care of the applicants. Moreover, the charge in respect of the director was time-barred, since more than five years had elapsed between her last relevant act in the case in September 1999 – namely, when she had assigned an unqualified teacher to the special class – and the introduction of the motion by the applicants on 28 February 2005.
B.  Relevant domestic law
Section 77(3) of the Public Education Act provides as relevant:
“The ... school is fully liable, irrespective of its culpability, for any damage caused to ... a pupil in respect of ... [his/her] education ... (tanulói jogviszonnyal ... összefüggésben okozott). The provisions of the ... Civil Code shall be applicable to compensation [for such damage], with the proviso that the institution ... can only be exempted from its liability if it proves that the damage was caused by force majeure...”
Since 2004, compensation on this ground has been awarded by civil courts in several cases concerning allegations similar to those in the present application.
Section 195(1) of the Criminal Code provides that any person under the obligation to educate, survey or take care of a minor, who commits a grave breach of duty flowing from this task, which results in the endangerment of the minor's bodily, mental or moral development, shall be punishable with imprisonment of from one to five years.
According to the Commentary to the Criminal Code, a breach of duty is considered 'grave' if the offender neglected his or her duty to such an extent that not even the minimum requirements of society were met.
C.  Report of the European Commission against Racism and Intolerance (ECRI) on Hungary (fourth monitoring cycle), adopted on 20 June 2008
Disproportionate representation of Roma children in special schools for children with mental disabilities
“77. In its third report, ECRI urged the Hungarian authorities urgently to take further steps to end the over-representation of Roma children in special schools [and] recommended that measures be taken to facilitate the integration of Roma children then in special schools into the mainstream school system.
78. ... According to information provided by the authorities, 2100 children who had been classified as having mental disabilities were reassessed by independent medical experts.
82. ECRI notes that the efforts made to date to combat the disproportionate representation of Roma children in special schools for children with mental disabilities, though they have had some positive effects, cannot be said to have had a major impact in practice so far. It stresses that, in parallel to assisting wrongly diagnosed children already in the special school system to return to the mainstream system, putting an end to this form of segregation also implies ensuring that children are not wrongly streamed into special schools.”
COMPLAINTS
Relying on Article 3 of the Convention and Article 2 of Protocol No. 1, alone and read in conjunction with Articles 13 and 14 of the Convention, the applicants complained about their placement in a special class which in their view had been a discriminatory measure due to their Roma origin.
THE LAW
The applicants argued that their placement in a special class amounted to racial segregation at school. They relied on Article 3 of the Convention and Article 2 of Protocol No. 1, alone and read in conjunction with Articles 13 and 14 of the Convention.
The Government submitted that the applicants had not exhausted all domestic remedies available to them.
Article 35 § 1 of the Convention provides:
“The Court may only deal with the matter after all domestic remedies have been exhausted, according to the generally recognised rules of international law, and within a period of six months from the date on which the final decision was taken.”
The Government pointed out at the outset that an adequate remedy for the applicants' alleged grievance would have been a civil claim under section 77 of the Public Education Act, a legal avenue which the applicants had, on their own admission, not availed themselves of. Instead, they had pursued a criminal case, inappropriate in the circumstances, since the Criminal Code does not contain an offence corresponding to the allegations at hand. In any event, the application had been lodged out of time, since the final domestic decision was given by the County Public Prosecutor's Office on 18 January 2005, that is, more than six months before the introduction of the application on 30 December 2005. The applicants' private prosecution, inadmissible ratione personae in respect of the expert and statute-barred in respect of the director, was not an effective remedy in the circumstances and did not interrupt the running of the six-month time-limit. Additionally, the Government also disputed the applicants' allegations on the merits.
The applicants disagreed with these views. They admitted the availability of civil remedies which they were going to make use of. However, they have not provided the Court with any information about launching such a procedure.
At the outset, the Court emphasises that where there is a doubt about the effectiveness of a remedy, the issue should be tested before the courts (Roseiro Bento v. Portugal (dec.), no. 29288/02, ECHR 2004-XII (extracts)). In the present case, the applicants submitted that they had not availed themselves of a civil remedy in pursuit of section 77 of the Public Education Act in regard to their complaint under Article 2 of Protocol No. 1, although they stated that they intended to do so. In the absence of any information as to whether such proceedings have actually taken place, the Court considers, without prejudging the effectiveness of this remedy, that the applicants have failed to exhaust domestic remedies in that respect as required by Article 35 § 1 of the Convention.
Moreover, the Court reiterates that where an applicant alleging discrimination establishes a rebuttable presumption that the effect of a measure or practice is discriminatory, the burden shifts to the respondent State, which must show that the difference in treatment is not discriminatory (D.H. and Others v. the Czech Republic [GC], no. 57325/00, § 189, ECHR 2007–...). It further recalls that “quite apart from any consideration of Article 14, discrimination based on race could, in certain circumstances, of itself amount to 'degrading treatment' within the meaning of Article 3” (East African Asians (25 applications) v. the United Kingdom, Commission decision of 10 October 1970, Yearbook 13, pp. 928, 994).
For the Court, the placement of Roma children in special remedial classes, physically segregated, creates a rebuttable presumption of discrimination of a type which of itself may amount to degrading treatment. It is not ready to accept the Government's assertion that such a measure is a priori excluded from the scope of section 195(1) of the Criminal Code. However, even assuming that the applicants made a permissible choice between domestic remedies by initiating criminal, rather than civil, proceedings – alleging that their compulsory education in a special class was in fact a measure of racial segregation amounting to the offence of endangering minors – in order to obtain redress and that criminal prosecution constituted an effective remedy in the circumstances, the Court considers that the very nature of the alleged discrimination cannot be scrutinised in the present case because it is in any event inadmissible for the following reasons. In so far as that part of the impugned proceedings is concerned which culminated in the rejection by the County Public Prosecutor's Office of the applicants' criminal report filed against unknown perpetrators, the Court observes that this decision was adopted on 18 January 2005, that is, more than six months before the date of introduction of the application, i.e. 30 December 2005. This part of the application is therefore inadmissible for non-compliance with the six-month rule in Article 35 § 1 of the Convention.
As to the remainder of the proceedings, namely the private prosecution against the expert and the director, the Court notes that the applicants' motion did not make any reference, express or in substance, to the complaints submitted to the Court. In particular, no allegations of racially motivated segregation or discrimination can be deciphered in the motion in question (cf. Fressoz and Roire v. France [GC], no. 29183/95, § 37, ECHR 1999‑I; Cardot v. France, 19 March 1991, § 34, Series A no. 200). In these circumstances, the Court cannot but conclude that this part of the application must likewise be declared inadmissible for non-exhaustion of domestic remedies for the purposes of Article 35 § 1 of the Convention.
It follows that the application must be rejected, pursuant to Article 35 §§ 1 and 4 of the Convention.
For these reasons, the Court unanimously
Declares the application inadmissible.
	Françoise Elens-Passos	Françoise Tulkens
	Deputy Registrar	President