On 16 March, 2010 the Grand Chamber of the European Court of Human Rights reviewed the case Orsus and Others v. Croatia, Application No. 15766/03 and ascertained that violations against children’s right to education had taken place.
The case was concerned with the placing of Roma children in special classes, ostensibly due to their poor command of the Croatian language. The level of education in the Roma classes was much lower than in common classes so the Roma children had no real opportunity to integrate into common classes and complete their education.
The Orsus case is the third occasion, along with the cases of D.H. and Others v. Czech Republic and Sampanis v. Greece, when the European Court showed its readiness to struggle against discrimination against Roma children in schools. The decisions of the two previous cases were cited in the Orsus case. Noted as a positive factor was the absence of, for example, such glaring violations as in the Sampanis case, where the school administration refused to accept Roma children on the grounds that the relevant ministry did not instruct them to do so. In addition, the court outlined as a positive sign that the Roma children in the Orsus case were able to finish their education in the evening school.
We must say that if such cases were to be brought against Russia, the Russian officials would hold a guilty silence, as in our country the Roma children are not accepted to school without special instructions from the administration, and very often they cannot finish their education in the evening school.
The Russian school educational system is constructed in such a way to be as integral and united. The current law “On education” shows this system as one consisting of two sets of educational programmes – general and professional ones. Basic general programmes include programmes of preschool education, primary general education, junior general education and senior (complete) general education. The professional programmes include primary, intermediate, higher and postgraduate professional programmes. The most common educational institution in the country – the school – provides education usually for programmes of primary (1-4 forms), secondary general (5-9 forms) and high full (10-11 forms) educations, i.e. three levels of school education.
The system is supposed to provide continuing education to a child, from one programme to another, from one level to another, starting with primary education and ending with higher professional education. According to Article 43 of the Constitution, school education is compulsory and universal. The system of Russian education is supposed to cover the children maximally with school education. In other words, school is supposed to be accessible and compulsory for all, and the system of school education guarantees free entry to schools. This is also confirmed in the Letter of the Ministry of Education of the Russian Federation on the 21st of March, 2003 No. 03-51-57ин/13-03 “Recommendations on the organisation of admittance to 1st form” and the Letter of the Federal Service of Control in the Sphere of Education and Science on the 24th of July, 2006 No. 01-678/07-01 “On children’s right to education in the Russian Federation”. They guarantee access to the first form regardless of the level of abilities, of place of residence and citizenship, with or without registration documents. The prescribed age of the first formers (6-8 years) can be changed by the decision of the school representative. The inner standard acts of the Ministry of Education regarding the structure of school education (general compulsory education) require employees of schools to find children who do not go to school and take all possible measures to involve them into education.
Thus, the system of school education in Russia aims to cover all residents of the country. But what happens if someone for some reason is excluded from this system? For these children there are extra opportunities, filling the gaps in education – home education, external studies and evening education. It seems that someone must try very hard to be excluded from such a system.
However, the observations made by the Anti-Discrimination Centre “Memorial” lead to another conclusion: the system only poses as continuous and flexible. In fact, outcast ethnic minorities such as Roma people do not get any guarantees offered by the educational system.
A Roma child who for some reason missed the age of entering school would not be allowed to start school at a later date. The school representatives (usually the local committees of education) consider the norm of the “Recommendations on organization of admittance to the 1st form” imperative and unchangeable. The prescribed guarantees in these two documents do not work for the children who missed the right age. The school representative may allow a child into the school, but equally, they may refuse. Even if a child did not enter the first form, they could catch up with their peers by studying at home or through external studies: the parents and people around usually help the child to follow the programme and not to get excluded from the system.
The other way out could be evening education, but according to the “Model statement on evening (part-time) general education”, evening schools can teach only programmes of the 2nd and 3rd levels. Without receiving primary education alongside others or filling the gap on their own, the children are deprived of any opportunity to ever receive education: all because of a refusal to accept children of the “wrong” age.
The system does not support children whose wish to get an education is not encouraged in their family. The educational system which is supposed to be unified and allow everyone to study is, in fact, absolutely helpless regarding socially vulnerable groups. The gaps in the law cause corruption and discrimination.
In the Orsus case the European Court demonstrated again that because of their history Roma people are a vulnerable group and that they should be protected. As for the right to education, this protection is especially important, as has been outlined by the Court, the services of the Council of Europe and numerous international organizations. As the Court explained in the Orsus case, the vulnerable status of the Roma requires countries to take into account their needs and special way of life while creating new laws and conducting law enforcement.
Croatia’s violation arose from the absence of such attitudes towards Roma children, i.e. the absence of a special programme which would take into consideration the special problems of these children and would help them to overcome educational difficulties.
Unfortunately, it is not only about the absence of a special programme, but also about the absence of a full and comprehensive law system which would provide access to primary education for every child. There are some juridical gaps in the law system. Once Pushkin noted that the only salvation from Russia’s inadequate laws is in their even worse observance. Only the measured practice of non-formal attitudes to procedures – and sometimes corruption – allow children from vulnerable groups to receive school education. There is no doubt that the system as well as the practice of school education urgently need to be improved to provide the right to education to all children. It is strange and shameful that such a problem still is topical, in the beginning of the 21st century