Information Note on the Court’s case-law 244
Ádám and Others v. Romania – 81114/17, 49716/18, 50913/18 et al.
Judgment 13.10.2020 [Section IV]
Article 1 of Protocol No. 12
General prohibition of discrimination
Alleged discrimination in final high school exams of pupils belonging to national minorities studying in their mother tongue: no violation
Facts – The applicants are ethnic Hungarians who attended school in their mother tongue in Romania. All of them had failed to obtain their baccalaureate (school-leaving) qualification. They complained that they had less time than their Romanian peers to prepare for the exams, or simply to rest between them, and less chance of success in the baccalaureate.
Preliminary remark – While the importance for national minorities to study the official language of the State had not been called into question in the present applications, the Court stressed that the relevant Council of Europe instruments expressly recognised that the protection and encouragement of minority languages should not be to the detriment of official languages and the need to learn them.
Article 1 of Protocol No. 12: In principle, the same standards developed by the Court in its case-law concerning the protection afforded by Article 14 were applicable to cases brought under Article 1 of Protocol No. 12, including those regarding positive obligations for the Contracting States to make necessary distinctions between persons or groups whose circumstances are relevantly and significantly different. In that context, relevance was measured in relation to what is at stake, whereas a certain threshold was required in order for the Court to find that the difference in the circumstances was significant. For that threshold to be reached, a measure must produce a particularly prejudicial impact on certain persons as a result of a protected ground, attaching to their situation and in light of the ground of discrimination invoked (J.D. and A v. the United Kingdom, 32949/17 and 34614/17, 24 October 2019, Information Note 233).
The applicants had had to sit the same exams as their Romanian peers. In addition, they also had had to sit, in the same time period, two additional exams, to test their knowledge of Hungarian language and literature, in order to pass the baccalaureate. It could be inferred that the scheduling of the baccalaureate had placed the applicants at a disadvantage. They had thus been treated in the same manner as Romanian pupils sitting it, even though their situation had been different. It remained to be determined whether the difference had been sufficiently significant to reach the threshold implied by Article 1 of Protocol No. 12 and whether the State had a positive obligation under that provision to take specific measures to alleviate the applicants’ additional burden.
a) The content of the curriculum
In the setting and planning of the school curriculum, which mainly involves questions of expediency, a certain margin of appreciation must, inevitably, be left to the national authorities. Nevertheless, there was an emerging international consensus among the Contracting States of the Council of Europe recognising the special needs of minorities and an obligation to protect their security, identity and lifestyle, as well as the development of minority languages.
In line with the domestic legislative requirements and international obligations, the aim of the policy concerning education of people belonging to a national minority, in particular the National Education Act (NEA), had been to create equal opportunities for all pupils to obtain education in their mother tongue. It had thus been designed to provide education in the applicants’ mother tongue while at the same time ensuring sufficient command and knowledge of Romanian language and literature. The manner in which the authorities had chosen to test that knowledge and the level of difficulty of the exam, which the applicants submitted had been high not only for them but also for their Romanian peers, fell undoubtedly within the scope of the margin of appreciation of each State.
Although it had taken the authorities some time to start implementing the measures set out in the NEA, and they might have not yet fully explored all the possibilities provided for by law and pointed out by the National Council for Combatting Discrimination, progress had already been made. Moreover, while delays in the implementation of some measures might have had a certain impact on the applicants’ situation, bearing in mind the margin of appreciation in the matter, these setbacks alone could not allow the Court to find, and the applicants had not provided any evidence in this respect, that the content of the curriculum in itself had imposed an excessive burden on them for the purposes of Article 1 of Protocol No. 12.
b) The sequence of baccalaureate exams
Pupils in the applicants’ situation had to pass two more exams than pupils studying in Romanian. That was however the direct and inevitable consequence of the applicants’ conscious and voluntary choice to study in a different language and the State offering them such an opportunity.
Moreover, the timetable for the baccalaureate exams was set by order of the Ministry of Education at the beginning of each school year and did not seem to differ significantly from one year to another. The pupils concerned thus had sufficient time to prepare both academically and mentally for the exams. In addition, the schedule of the baccalaureate, viewed as a whole, had not imposed an excessive burden on the applicants. In the reference years when the applicants had sat the baccalaureate, the period allotted for the exams had varied from eight to twenty-five days. Moreover, the timetable for the June to July 2018 exam session had created less pressure for the applicants sitting the baccalaureate at that time, as the oral exams were scheduled to take place four months before the written ones. It could not be inferred that the applicants had on average significantly less time to rest than their Romanian peers. The same conclusion remained valid even when the alleged imbalance was regarded exclusively from the standpoint of the exams that the applicants had to take over consecutive days, unlike their Romanian peers, who had a day of rest in between. The inconvenience suffered by the applicants had not been so significant as to reach the threshold of Article 1 of Protocol No. 12. On this note, statistics provided by the Government had indicated, for the period 2013 to 2018, similar success rates in the final baccalaureate exams for all pupils.
The consequences for the applicants of the choice of language of study and the authorities’ organisation of the education in a minority language and baccalaureate exams, albeit relevant to the alleged difference in treatment they experienced vis-à-vis their Romanian peers, had not placed them in a different situation that was sufficiently significant for the purposes of Article 1 of Protocol No. 12. Therefore, there was no need to assess the justification provided by the State in this regard.
Conclusion: no violation (five votes to two)
(See also Sejdić and Finci v. Bosnia and Herzegovina [GC], 27996/06 and 34836/06, 22 December 2009, Information Note 125; Guide on Article 14 of the European Convention on Human Rights and on Article 1 of Protocol No. 12 to the Convention)