The Right to Education: Human Rights Indicators and the Right to Education of Roma Children in Slovakia

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1 2010/ED/EFA/MRT/PI/19 Background paper prepared for the Education for All Global Monitoring Report 2010 Reaching the marginalized The Right to Education: Human Rights Indicators and the Right to Education of Roma Children in Slovakia Gauthier de Beco, Peter Hyll-Larsen and Maria Ron Balsera 2009 This paper was commissioned by the Education for All Global Monitoring Report as background information to assist in drafting the 2010 report. It has not been edited by the team. The views and opinions expressed in this paper are those of the author(s) and should not be attributed to the EFA Global Monitoring Report or to UNESCO. The papers can be cited with the following reference: Paper commissioned for the EFA Global Monitoring Report 2010, Reaching the marginalized For further information, please contact

2 The Right to Education: Human Rights Indicators and the Right to Education of Roma Children in Slovakia * This paper examines how human rights indicators can monitor the realisation of the right to education. The first part of this paper discusses the right to education indicators using the 4As framework of availability, accessibility, acceptability and adaptability, assigning also the crucial focus of participation and accountability without which human rights mean very little. The second part provides illustrations, guided by these 4As, of how the comprehensive set of right to education indicators, developed by the Right to Education Project, enables the identification of violations of the right to education of Roma children in Slovakia and may serve as a tool in proceedings before judicial mechanisms such as the European Court of Human Rights. 1. From Education Indicators to Right to Education Indicators Human rights indicators have been created to hold duty-bearers accountable for their human rights obligations. By monitoring compliance with human rights treaties, they evaluate whether States are meeting their international commitments. They also serve as a promotional and advocacy tool, providing concerned actors with a better understanding of international human rights law, including the nature of legal obligations and the relationship between duty-bearers and rights-holders. They are extremely useful in judicial proceedings, enabling accurate analysis and presentation of data.. The potential importance of human rights indicators was stressed in the 1993 Vienna Declaration and Programme of Action 1, and then followed up by UN experts as a way of aiding the UN treaty bodies charged with monitoring member state s compliance with human rights treaties. Subsequently, international organisations, NGOs, and experts took the initiative to establish sets of indicators relating to various human rights. With respect to the right to education, the UN Office for the High Commissioner for Human Rights (OHCHR) has developed a set of right to education indicators. As a response and further elaboration of these indicators, the Right to Education Project, in combining the expertise of the legal, development and education worlds, has now produced the most comprehensive set of the right to education hitherto assembled. 2 Human rights indicators differ from more traditional development indicators, in that the former aim to measure the extent to which States fulfil their human rights obligations, while the latter evaluate basic human needs against development goals. Human rights indicators therefore measure a state s failure to respect, promote and fulfil human rights (also known as the tripartite typology of human rights which requires that states do not interfere with their enjoyment, prevent third-party violations, and take steps to ensure that they are realised), which is very different than evaluating development achievements. Right-based as they are, human rights indicators place marginalised groups and non- * This paper was written by Gauthier de Beco for the Right to Education Project, as commissioned by the Global Monitoring Report See UN Document A/CONF.157/23. 2 See 1

3 discrimination at the core, aiming to create a culture of accountability by allowing such marginalised groups to question the action of governments. Development indicators on the other hand may tend to regard these groups as aid recipients, rather than rights holders per se. While right to education indicators are recent, education indicators have a longer tradition, yet they demonstrate a number of shortcomings which the more right-based focus on education must remedy. One of these shortcomings is that education indicators do not have as their principal objective to measure discrimination in education, although they do in part focus on inequalities gender inequality in particular. One of the main characteristics of human rights indicators is to precisely identify discriminations, the prohibition of which is central to international human rights law. Human rights treaties oblige states to both prohibit discrimination by law and seek to eliminate it in practice. This is not an obligation to be realised over time according to the state s available resources, as is the case with some economic, social and cultural rights obligations, but an immediate obligation. This means that any discrimination in the realisation of human rights directly results in a violation of human rights. To measure discrimination in education, the data on which the indicators rely should be disaggregated by marginalised groups as much as possible. Categories by which the data should be disaggregated include not only age, gender, rural/urban and income but also race, language, religion, origin, status, disability, sexual orientation, colour, etc. Regardless of its average result, when an indicator shows that one of these categories faces a disadvantage in education, human rights are considered to be violated. As a result, while efforts have been made to disaggregate data by gender and, to a certain extent, by age, rural/urban and income, this disaggregation should not only be continued, but also enhanced and extended to include those, often less visible, categories that have not been counted so far, remembering that being counted shows that you count and is the first step to being regarded a citizen with rights and entitlements. Another crucial aspect touches upon the relevance of what is being measured. Because education indicators mainly rely on quantitative data, they often disclose very little about the quality of the education provided, with the exception of certain skills acquired by pupils. Human rights indicators on the other hand aim to assess the conformity of education with human rights standards, by focussing on what goes on in and outside the classroom and the quality of the material and human resources that goes into the equation. Furthermore, human rights treaties deal very explicitly with the aims of education, including the full development of the human personality and the promotion of understanding among groups. Right to education indicators can therefore evaluate whether education is provided in an environment respectful of the child s dignity and development, whether it promotes respect for other groups and whether it teaches human rights and citizenship. In other words, right to education indicators measure not only the right to education but also rights in and through education. Lastly, human rights indicators examine the way in which human rights are implemented. According to international human rights law, parents, teachers, and not least children themselves have the right to participate in decisions relating to educational matters. They 2

4 must also have the possibility to hold their State accountable if they consider their right to education violated. Right to education indicators thus focus on the participation of marginalised groups in decision making and the existence of accountability mechanisms available.. At the request of the UN treaty bodies, the OHCHR created sets of indicators relating to several human rights, one of which being the right to education. It divided the indicators into structural, process and outcome indicators, thereby creating a method of human rights monitoring, which was somewhat uniform for all rights examined and with little room for teasing out the specificities of for example the right to education. This approach has proven very useful, especially from a policy making point of view. However, by trying to establish this uniform methodology for both civil and political rights and social, cultural and economics rights, it neglected the benefits of an approach such as the 4As. In a response to this, the Right to Education Project has embarked on developing an comprehensive set of right to education indicators based on a very close analysis of the international normative framework outlined in great detail in Article 13 and 14 of the International Covenant on Economic, Social and Cultural Rights and in Article 28 and 29 of the Convention on the Right of the Child (the most widely ratified human rights treaty in the world), as well as in many regional human rights conventions and national constitutions, non-binding human rights instruments, while taking onboard the 4A framework and the collective expertise of voices from both the field of law, development and education, thereby creating an extensive set of right to education indicators. Arguably the best way to classify and understand obligations relating to the right to education is to divide it into the 4A framework: availability, accessibility, acceptability and adaptability. This framework was developed by the late Katarina Tomaševski, former UN Special Rapporteur on the right to education, and subsequently used by the Committee on Economic, Social and Cultural Rights in its clarification of the normative basis for the aforementioned Article 13. The 4A framework requires that education be made generally available, that the obstacles to its access be removed, that its content be acceptable and that education be adapted to specific groups and social needs. Because the prohibition of discrimination is absolute in international human rights law, the 4 A s should be evaluated with a specific focus on marginalised groups and those most vulnerable to discrimination. States must ensure that education is available to the same extent for the whole of the population, removing physical, economic, administrative, and socio-economical barriers to make sure that marginalised groups can attend school. Their education should be of good quality and be acceptable in terms of language, participation and religion, while adapted to those categories that are particularly marginalised, such as ethnic minorities and disabled people. There are several ways of applying right to education indicators. One way is to use a complete set of indicators to monitor the right of education at the national level and across the board. This is a major undertaking, involving much expertise, time and not least the availability of almost complete sets of disaggregated data, but it can be done by for example governments themselves, or UN treaty bodies, development agencies, donors, NGOs, and national human rights institutions, either alone or in partnership with 3

5 each other, and each according to their respective mandates. Another way is to see the set of right to education indicators as a toolbox from which indicators which focus on specific issues or situations can be selected after a prioritisation process. This is probably the best way to start using the indicators, requiring less extensive expertise, time, resources and data. This is in many ways recommendable, as data availability especially, is one of the major challenges in applying human rights indicators and raises a serious dilemma for those actors who wish to use them. On the one hand, indicators must not be selected merely on the basis of available data, and if no data exists one should always aim to understand why this is this case and to challenge this fact. The importance and priority of these indicators should above all be determined in the light of international human rights law and the principle of non-discrimination. Right to education indicators must therefore first and foremost be an incentive to collect more human rights-related data and to further disaggregate the available data by marginalised groups. On the other hand, considering data availability is a necessary step to make sure that indicators can be effectively applied. Some data simply cannot be provided or will not be collected because this can only be done at an overly disproportionate cost and effort. A strategy must therefore be established to identify what data is available, what data can be made available at a reasonable cost and what data should be made available at any cost because this is necessary to evaluate the core content of the right to education. This core content includes non-discrimination of marginalised groups, which is why priority should be given to data disaggregation. It is for the above reasons that it is probably better to start by establishing a specific set of right to education indicators for monitoring the right to education of one marginalised group or one type of discrimination. This set of indicators must be elaborated with respect to rights-holders that face entrenched and historical disadvantages in their access to quality education. To do so, the indicators should be disaggregated by the category under examination (and data be disaggregated accordingly) and be complemented with indicators which are specific to this category. An illustrative example of the use of a select number of right to education indicators to monitor the right to education of a marginalised group, the Romas, is provided in the following. 2. Roma People and the Right Education in Slovakia and The Czech Republic Roma people are one of the most marginalised groups in Europe, especially in Eastern Europe. After centuries of persecution, they remain segregated in settlements where they live in poor social and economic conditions. Their access to quality education is a particular case in point. In Slovakia, for instance, Roma children are segregated and placed in Roma-only schools, in so-called special schools or in separate classes within mainstream schools, providing obviously inferior standards of schooling to that received by non-roma children. Such special schools are intended for children with physical and mental disabilities or special educational needs, but also for children who have difficulty in communicating, social development problems or come from socially disadvantages backgrounds (which has become synonymous for Roma). A 2009 report from the Council of Europe finds that Roma children are 28 times more likely to be 4

6 placed in such schools than their non-roma counterparts, that up to 50% of Roma children are erroneously placed in Special Elementary Schools or classes and that approximately 10% could be immediately reassigned to mainstream education 3. Amnesty International has campaigned on this topic and produced several reports on the right to education of Roma Children in Slovakia, for example: Still separate, still unequal: Violations of the right to education for Romani children in Slovakia (2007) 4 and A tale of two schools: Segregating Romani into special education in Slovakia (2008). 5 The following case study is inspired by the insights and conclusions of these two reports. By examining facts on the ground and analysing specific cases, they show that the assessments that form the basis for these children s transference to special schools are all but objective and that education is therefore not adapted to their needs. This, argues Amnesty International, constitutes a violation of their right to education. The right to education indicators established by the Right to Education Project lend themselves very well to monitor more closely the right to education of Roma children in Slovakia, both as indicators to be applied from a rights-based point of view, as well as a stark reminder of the need to be much more concise and comprehensive in data collection. Though the application of the 4A framework, they contribute to the establishment of a full picture of the state of the realisation of their right to education. For the present purpose, however, only part of the right to education indicators will be applied, because using the complete set (consisting of more than 100 indicators) is outside the scope of this paper and other smaller projects, and because even a select use of the indicators will suffice to provide a representative illustration of the advantages of their use.. The purpose of the exercise is therefore also to show what kind of data is further needed in order to monitor their right to education and to act as an impetus to collect such data on the right to education of Roma children, keeping in mind that the prohibition of discrimination is central to international human rights law. While for some indicators available data can be found from Amnesty International, OSI and other sources, for others the data remains unavailable or non verifiable. Although this is partly due to the fact that Roma people sometimes refuse to declare their Roma nationality out of a legitimate and often real fear of persecution, as has been pointed out recently by OSI, 6 as well as because the Slovak law stipulates that no data related to ethnical ground may be gathered without their permission, 7 this does not relieve the Slovak State of the duty to collect such data in a way that respects the rights of the Roma people. 3 Council of Europe: Report on Slovakia (fourth monitoring cycle), Published on 26 May 2009: 4 Amnesty International 2007: 5 Amnesty International 2008: Goals for Improving Access to Education for Roma (Open Society Institute, EU Monitoring and Advocacy Program, Education Support Program, Roma Initiatives, 2009). See esp. goal 1: Collect reliable, comprehensive and comparable data, p Law. No. 428/2002 on the Protection of Personal Data. 5

7 Under the following subheadings, an illustrative or thought provoking indicator for each of the 4 As have been chosen to highlight the approach, or, in the case of the third A, the lack of available data and therefore the need to act on that account. The right to education indicators developed by the Right to Education Project also place special emphasis on participation and accountability, and illustrative indicators for these two are therefore also included in the following. Availability: net enrolment ratios in primary school (which ends at age 15) combined with gross completion ratios can measure the extent to which Roma children are excluded from the formal education system. For the Slovakian population in general, the net enrolment ration for primary school was 92 percent (and the gross enrolment ratio in upper primary school 96 percent), and the survival rate to the last grade of primary school 95 percent in In comparison, for Roma children, the net enrolment ratio was 13.6 percent in 2002 according to OSI and 14.3 percent in 2005 according to RRF, and the gross completion ratio 76.8 percent in 2006 according to OSI. 8 This shows that the Slovak state fails to provide education for Roma-children, thereby violating the prohibition of non-discrimination. Accessibility: the travelling distance from house to school as well as the availability of free transportation creates physical barriers preventing access to primary school. Roma children often live in segregated settlements, located far away from municipality-based primary schools, yet no free public transportation is provided, as noted by Amnesty International. 9 Besides such physical barriers, financial costs such as pre-schooling create an economic barrier which penalises Roma children at the outset of their education, reducing their chances of reaching primary school. This malaise is further emphasised by the fact that pre-schools are funded by municipal budgets, and so municipalities often ask parents to financially contribute to their establishment, although a maximum budget defined according to the level of subsistence does exist. 10 Acceptability: the skills acquired by Roma children, including literacy rates, numerical skills and problem solving capacities, can reveal the negative impact of the educational policies of the Slovak State. As noted by OSI, 11 however, no data on this is collected, which would otherwise almost certainly point to the necessity of reviewing these policies, as it is known that the skills of Roma children lag far behind those of non-roma children. 8 OSI, Monitoring Education for Roma A Statistical Baseline for Central, Eastern, and South Eastern Europe, 2006, p. 428; Roma Education Fund, Country Assessment and the Roma Education Fund s Strategic Directions. Advancing Education of Roma in Slovakia, 2007, p. 15; OSI, Equal Access to Quality Education For Roma Slovakia From Vol. 2: Croatia, Republic of Macedonia, Montenegro, Slovakia, 2007, p Amnesty International, Still separate, still unequal: Violations of the right to education for Romani children in Slovakia, 2007, pp. 9 and OSI, Monitoring Education for Roma A Statistical Baseline for Central, Eastern, and South Eastern Europe, 2006, p. 416; OSI, Equal Access to Quality Education For Roma Slovakia From Vol. 2: Croatia, Republic of Macedonia, Montenegro, Slovakia, 2007, p OSI, Monitoring Education for Roma A Statistical Baseline for Central, Eastern, and South Eastern Europe, 2006, p. 402; OSI, Equal Access to Quality Education For Roma Slovakia From Vol. 2: Croatia, Republic of Macedonia, Montenegro, Slovakia, 2007, p

8 Adaptability: the percentage of Roma children enrolled in special schools combined with that of Roma children that are sent to these schools without objective assessments, can demonstrate the inappropriateness of their schools curricula. According to the Slovak Centre for Research on Ethnicity and Culture, up to 39 percent of Roma children attended special schools in the school year 2003/2004, 12 whereas Amnesty International believes that this group reached 80 percent in some regions in The assessments on the basis of which these children are sent to such schools remain vague (even under the new School Act 2008) and are often not applied or applied after their transfer. Participation: indicators include the absence of informed consent by Roma parents whose children are sent to special schools and the percentage of Roma teachers in mainstream schools. According to Amnesty International, Roma parents are not made aware of the consequences of sending their children to these schools, whereas financial incentives encourage them to approve this. 14 The number of Roma teachers in mainstream schools is close to zero, although the Slovak State has recently expressed its intention to promote the Roma language. 15 Accountability: indicators must focus on the protection of the right to education in domestic laws, the collection of disaggregated data and the existence of independent bodies which have the power to receive complaints on the right to education. Although the Slovak School Act 2008 prohibits the segregation of Roma children in education, it does not improve the situation in practice, especially since there is a lack of effective mechanisms to ensure this prohibition. The Slovak State is furthermore not endeavouring to collect data on the education of Roma children. There are also no independent complaints mechanisms to receive and review allegation by Roma people regarding the possible violation of their children s right to education. The Slovak National Centre for Human Rights is ineffective in this respect, since it does not have the power to receive complaints of such alleged violations. 16 If indeed, the lack of available complaints mechanisms is a fact in Slovakia, one may instead turn to the functioning of more judicial mechanisms, as well as attempting to show how right to education indicators may provide marginalised groups with useful information in instances where cases are brought before courts, in Slovakia or other European countries where Roma people are discriminated against. Extremely useful 12 Center for Research on Ethnicity and Culture, The Aspect of Culture in the Social Inclusion of Ethnic Minorities Evaluation of the Impact of Inclusion Policies under the Open Method of Co-ordination in the European Union: Assessing the Cultural Policies of Six Member States Final Report, 2006, p Amnesty International, Still separate, still unequal: Violations of the right to education for Romani children in Slovakia, 2007, p Amnesty International, A tale of two schools: Segregating Romani into special education in Slovakia, (2008), p. 13. See also OSI, Equal Access to Quality Education For Roma Slovakia From Vol. 2: Croatia, Republic of Macedonia, Montenegro, Slovakia, 2007, p OSI, Equal Access to Quality Education For Roma Slovakia From Vol. 2: Croatia, Republic of Macedonia, Montenegro, Slovakia, 2007, p. 498; OSI, Equal Access to Quality Education for Roma Slovakia, 2008, p Amnesty International, Still separate, still unequal: Violations of the right to education for Romani children in Slovakia, 2007, p

9 illustrative example are the cases of such violations that have reached the European Court of Human Rights. In the D.H. v. The Czech Republic case, ruled upon by the European Court in November 2007, Roma parents represented by the European Roma Rights Centre argued with success that the placement of their children in specials schools violated Article 14 of the European Convention on Human Rights (prohibition of discrimination) in conjunction with Article 2 of Protocol No 1 to the Convention (right to education). 17 On the basis of questionnaires, they demonstrated that 56 percent of children enrolled in special schools were Roma and that less than three percent of Roma children were enrolled in mainstream primary school in the town of Ostrava. According to the applicants, in this town, 50 percent of Roma children were attending such schools, in contrast to less than 2 percent of non-roma children. The Court considered that although such statistical data was not completely reliable, they established a presumption of indirect discrimination, by showing that the two groups were treated differently although they were in a comparable situation. This shifted the burden of proof to the defendant State, which had to show that the difference in treatment has an objective and reasonable justification unrelated to ethnic origin. The Czech State failed to demonstrate this, and the European Court ruled that the assessments following which the Roma children were transferred to special schools were erroneous and did not take the linguistic and socio-economic conditions of the Roma people into account. In another case, Sampanis and others v. Greece, ruled upon by the European Court in June 2008, Roma parents represented by the Greek Helsinki Monitor complained that they at first was not able to enrol their children in primary school in the town of Aspropyrgos, because they were not given the instructions required to do so. 18 They were eventually provided with these necessary instructions, but the children were placed in a separate building annexed to the main school building, because of the negative reactions of non-roma parents. This revealed a presumption of indirect discrimination which led the Court to decide that the Greek State violated the European Convention on Human Rights because of its failure to provide an objective and reasonable justification for this. In the Oršuš and others v. Croatia case, ruled upon by the European Court in July 2008, Roma parents represented by the European Roma Rights Centre and the Croatian Helsinki Committee complained that their children were placed in Roma-only classes where the school curriculum only covered 70 percent of the normal curriculum in the towns of Macinec, Podturen and Orehovica. 19 While the defendant State argued that this was due to their lack of knowledge of the Croatian language, the plaintiffs presented statistical data showing that their drop-out rate in primary school was 84 percent, in contrast to nine percent for non-roma children, and provided a psychological study attesting that they were willing to mix more with non-roma children. The European Court, however, found no violation of the right to education had taken place, highlighting 17 ECtHR D.H. and others v. Czech Republic, 13 November ECtHR, Sampanis and others v. Greece, 5 June ECtHR, Oršuš and others v. Croatia, 17 July

10 thereby the contentious nature of the cases (this latter case has since been referred to the Grand Chamber and awaits further ruling). As is apparent from the first and third of three cases, statistical data can albeit with a different level of success help marginalised groups to take action before judicial mechanisms at the highest level. In the second case from Greece, the availability of disaggregated data would have allowed the parents to demonstrate their case more forcefully, and thus further convince the Court there was indeed a presumption of indirect discrimination to be justified by the State. The D.H. v. The Czech Republic case especially revealed what can be achieved just with gross enrolment ratios. The right to education indicators may thus help strengthen the arguments put forward by those discriminated against, thereby crucially serving to inform the Court before deciding whether the right to education has indeed been violated and also creating an incentive for it to address discriminations in other economic, social and cultural rights in the future. Regarding the Oršuš and others v. Croatia case, data on the skills acquired by Roma children would confirm that they receive an inferior education, demonstrating that segregation prevents them from continuing their education beyond primary level. All three cases also aptly demonstrate how right to education indicators can help civil society organisations to put pressure on governments to implement the decisions of the European Court. According to several NGOs including the European Roma Rights Centre, the right to education of Roma children has not improved since the D.H. v. The Czech Republic case in the Czech Republic even though the case is still recent, 20 and the indicators can help them to demonstrate the failure of the State to abide by its obligation to execute the judgements of the European Court. Updated gross enrolment ratios could for instance show that Roma children continue to be segregated despite such clear-cut court rulings as the one against the Czech State, exposing the government s continued hiding behind vague policy statements and intentions that see no follow-up, for fear of challenging the deeply embedded prejudices against Roma people in the mainstream school system and the general population. Conclusion In conclusion, right to education indicators, as proposed both by the OHCHR and the Right to Education Project, can bring us much closer to measuring the extent to which quality education as a human right (rather than a need) is achieved. By evaluating the availability, accessibility, acceptability and adaptability of education for marginalised groups, they can help measure more accurately these group s enjoyment of their rights. This would contribute further to effectively hold States accountable for their obligation to respect, protect and fulfill the right to education and to abide by the prohibition of non- 20 Memorandum concerning the Implementation and State of General Measures in the Judgement of D.H. and others v. the Czech Republic (submitted by the European Roma Rights Centre, the Roma Education Fund, the Open Society Justice Initiative, and the Open Society Institute, pursuant to Rule 9 (2) of the Rules of the Committee of Ministers the supervision of the execution of judgments and the terms of friendly settlements),

11 discrimination. The information thus provided, allows concerned actors to put pressure on States to take steps to achieve this, both through naming and shaming in the public domain, as well as by working constructively with the government to address inequalities and patterns of discrimination. As demonstrated, right to education indicators can be a forceful advocacy tool, in supporting claims through monitoring and analysis, and before judicial mechanisms. One the one hand, they can provide a more complete picture of the state of realisation of the right to education of marginalised groups, helping to facilitate the formulation of necessary changes in laws, policies and practice. One the other hand, they can empower marginalised groups before judicial mechanisms, such as the European Court of Human Rights, and no doubt other regional and national courts as well. With respect to Roma people, indicators can help them to demonstrate how their education is of inferior quality and that the assessments on the basis of which they are transferred to special schools are in direct violation of the prohibition of non-discrimination. By examining this through right-based indicators, violated groups such as Roma people and their representatives from national and international civil society can hold States accountable for discriminations made against them, as has successfully been the case at the European level. In this way, right to education indicators can strengthen both legal accountability and social mobilisation for change and greater human dignity. 10