The Basic Civil Court determined segregation of Roma children in education

The Basic Civil Court in Skopje ruled that the Government of the Republic of North Macedonia, along with the Ministry of Education and Science (MES), the Ministry of Labor and Social Policy (MLSP), the Ministry of Health (MH), the State Education Inspectorate (SEI), the Municipality of Bitola, and the Municipality of Shtip, were found responsible for discriminating against Roma children in education through segregation practices.

The Court found that they segregated Roma children by not acting, i.e., failing to act and undertake appropriate measures:

– to arrange the rezoning methods to prevent segregation (Government, MES, Municipality of Bitola, Municipality of Shtip)

– to control rezoning decisions made by the Municipality of Bitola and the Municipality of Shtip or ensure proper implementation and enrollment methods for Roma children (Government, MES, SEI)

– they did not ensure an equitable distribution of Roma students among classes or continue the desegregation process in schools with segregated classes (Government, MES, SEI, Municipality of Bitola, Municipality of Shtip)

– to adopt legislation for regulating in detail the categorization of children with special needs, especially Roma children; to adopt legislation for detailed regulation of the composition of the Commissions and the procedure for revising their decisions; to re-categorize inappropriately categorized Roma children studying in special schools (Government, MES, MLSP, MH)

– to educate all stakeholders in the educational system and the parents of the children in order to facilitate the recognition and fight against acts of discrimination (Government, MES, MLSP, MH, SEI, Municipality of Bitola, Municipality of Shtip)

The Court mandated that all defendants must take immediate action to desegregate Roma children in the educational system and to re-categorize those inappropriately placed in special schools. Additionally, the Court imposed an obligation for the defendants to publish in the media and in an appropriate format, the judgment, no later than 15 days after receiving it.

Helsinki Committee for Human Rights filed the(actio popularis) on February 1, 2021 and in the court proceedings was represented by the Lawyer Pavlina Zefikj. The whole process was realized with support of the OSCE Mission to Skopje, as part of the implementation of the project “Supporting North Macedonia in advancing Rule of Law and Human Rights” in 2020.

Action for Protection against Discrimination of Public Interest (actio popularis)

One of the crucial novelties in the new Law on Prevention and Protection against Discrimination (LPPD) was the introduction of the action for protection against discrimination of public interest (actio popularis) – Article 35. Under this provision, civic society organizations which pursue a justified interest in the protection of the interests of a particular group or within their activity they also deal with protection against

discrimination, may file a lawsuit, if they render it plausible that the conduct of the plaintiff led to the discrimination of a large number of people. The Helsinki Committee

Segregation of Roma children in education

The Helsinki Committee for Human Rights identifies systemic discrimination and segregation of Roma children in education as a critical issue based on our collected data. As early as 2009, we alerted the public through a monthly report to instances of ethnic community segregation within the educational system in Struga. Additionally, we took initial legal action before the Commission for Protection against Discrimination concerning the segregation of Roma children at the “Gjorgi Sugarev” elementary school in Bitola. In 2017, we reported on a disturbing case of hate speech at the “Gjorgji Sugarev” elementary school in Bitola, where Roma students were isolated into separate classes. The school building was defaced with graffiti containing alarming messages such as “Death to Gypsies” and “Die Gypsies.” Consequently, we urged the school to remove the graffiti and called upon the relevant authorities to initiate appropriate criminal proceedings.

Numerous studies, reports, and documents over the years have documented segregation as a form of discrimination against Roma children in the educational process, particularly in the municipalities of Shtip and Bitola. These findings are detailed in our action for protection against discrimination of public interest:

– In 2010, the Ombudsman found that Roma children were often enrolled in special schools primarily at their parents’ insistence, to ensure they remained within the educational system. Additionally, there is a notable deficiency in the categorization of these children, as it is not conducted in collaboration with the teams from schools for children with disabilities. As a result, there is a need for proper evaluation by a professional team, including a psychologist, social worker, and special education teacher. The Ombudsman strongly recommends measures to prevent the segregation of Roma children by placing them in special schools for children with disabilities, particularly when these children do not have intellectual disabilities. One key recommendation is the establishment of a special commission to assess and provide opinions on children’s disabilities. Furthermore, the Ombudsman suggests creating a higher-level commission to review the initial findings and recommendations issued by the first-level commission.

– In 2014, the Commission for Prevention and Protection against Discrimination conducted a “Research on the Segregation of Roma Children in the Educational Process (Research Report).” This report highlights the disproportionately high percentage of Roma children enrolled in special schools, special classes within regular schools, or regular school classes following special programs.

– The Foundation Open Society Macedonia, in its research “Segregation of Roma in Education in the Republic of Macedonia,” identifies the primary cause of Roma children’s segregation in the educational process as the failure to implement rezoning decisions. This failure leads to the withdrawal of students from other ethnic communities from schools with a high percentage of Roma students, further contributing to the ghettoization of Roma children. The research also highlights another form of segregation: the enrollment of Roma children in specialized schools despite the absence of intellectual disabilities.

– In 2015, the Ombudsman reported the existence of ethnically segregated classes of Roma children at the “Gjorgi Sugarev” primary school in Bitola. The Ombudsman also noted that in the Municipality of Shtip, most Roma first graders were enrolled in the “Goce Delchev” primary school. The Ombudsman pointed out an issue with the formation of first-grade classes, specifically the uneven distribution of Roma students and students from other ethnic communities. In certain schools, purely ethnic classes of Roma children were created because non-Roma parents refused to enroll their children in schools according to the rezoning decision.

– In October 2016, the citizens’ association “Institute for Human Rights” and the European Center for Roma Rights from Budapest conducted research on the segregation of Roma in primary education. This empirical study covered the municipalities of Bitola, Shtip, Gazi Baba, Gjorche Petrov, and Kumanovo. The researchers concluded that the most significant segregation issues in primary education for Roma children were found in the municipalities of Bitola and Shtip. According to the study, segregation is a systemic problem resulting from the abuse of rezoning decisions, entrenched prejudices and stereotypes about the Roma community, and the failure to recognize this form of discrimination. This lack of recognition hinders efforts to prevent segregation. The research indicated that segregation is a persistent issue, particularly in Bitola and Shtip.

The actions, i.e., failing to act and undertake appropriate measures by the defendants contributed to systemic discrimination, leading to the segregation of Roma children in the educational process.

Based on the evidence provided by the Helsinki Committee for Human Rights, the Court determined that segregation of Roma children occurred in the way classes were formed at “Gjorgji Sugarev” Primary School in Bitola and “Goce Delchev” Primary School in Shtip. Additionally, there was inappropriate referral of Roma children to institutions meant for students with intellectual disabilities.

This exact situation was also examined by the European Court of Human Rights in the case “Elmazova and Others v. Republic of North Macedonia” (App.No.11811/20 and App.No.13550/20). During these proceedings, the Office for Representation of the Republic of North Macedonia before the ECtHR submitted the judgment to the Basic Civil Court in Skopje.

The Court determined that the evidence presented by the Helsinki Committee for Human Rights substantiated the claim of segregation against Roma children in the educational process. Furthermore, the segregation was confirmed by a final judgment of the European Court of Human Rights. Consequently, the Basic Civil Court in Skopje is required to adhere to the principles established in the final judgments of the ECtHR. The Basic Civil Court recognizes that the defendants have an obligation to take proactive measures to eliminate and prevent the segregation of Roma children within the educational system. This includes undertaking all necessary actions/measures for the desegregation and proper categorization of Roma children. The Court concurs with the ECtHR’s position that the ethnic composition of the local population cannot, under the circumstances, justify the segregation of Roma children at “Gjorgji Sugarev” Primary School in Bitola and “Goce Delchev” Primary School in Shtip.

Burden of proof

The Basic Civil Court in Skopje, in its verdict, correctly applied the burden of proof in discrimination proceedings in accordance with the Law on Prevention and Protection against Discrimination. The court noted that the plaintiff, the Helsinki Committee for Human Rights, provided sufficient evidence to support the claim that segregation as a distinct form of discrimination against Roma children is happening in the educational process in the Republic of North Macedonia.

The court found that the defendant state authorities failed to present relevant evidence showing that they had taken actions within their legally prescribed competencies in primary education to prevent the segregation of Roma students. Although the two defendant municipalities submitted material evidence and had witnesses testify on their behalf, this evidence did not demonstrate that they had taken effective actions within their legally prescribed competencies to prevent the segregation of Roma students. The court concluded that the actions purportedly taken by the municipalities were insufficient to effectively prevent segregation.

Third party participation

According to the LPPD, on request by the party or on its own initiative may request the court to allow the Commission for Prevention and Protection of Discrimination (CPPD) to act as a friend of the court (amicus curiae). Considering this competence of the Commission, the Helsinki Committee requested the Commission to exercise it. Considering these competencies, the Commission promptly sought inclusion in the procedure following the public interest lawsuit. The Commission exercised its legal authority by requesting the Basic Civil Court in Skopje to permit it to act as amicus curiae in this judicial proceeding for protection against discrimination. Amicus curiae or a friend of the court is a professional person, organization or body that is not a party in court proceedings, but with its expertise, experience and information in a certain area can advise the court on a certain legal matter, which is the subject of court proceedings.

As a professional body for equality, the Commission offered an interpretation of relevant international standards and reviewed reports from international institutions on our country, such as the European Commission against Racism and Intolerance at the Council of Europe and the European Commission of the EU. In its submission, the Commission highlighted that the working document on measures for the inclusion of Roma, within the framework of the European Union for the National Strategies for the Integration of Roma, identifies the segregation of Roma children and the unjustified enrollment of Roma children in special educational institutions for children with special needs as significant barriers to their inclusion.