Recognizing Formal and Substantive Equality in the Oršuš Case

Abstract

On 16 March 2010 the ECtHR, in a second-instance judgement in the case of Orsus v. Croatia (hereinafter: the Orsus case), found that the policy of Croatian elementary schools distinguishing among students based on their grasp of Croatian language resulted in discriminatory segregation of Roma students what constitutes a violation of the European Convention on Human Rights. This judgment was overwhelmingly accepted by the Roma rights activists across Europe, because it represents a continuum in the ECtHR jurisprudence that condemns the segregation of Roma through education. Namely, in advance to this judgment there was a couple of cases where the ECtHR had established violation of the prohibition of discrimination, that came as a consequence of segregation of Roma children in primary education. All those cases underline the on-going practice of segregation of Roma children in separate classes that is present in several European countries, based either explicitly on their ethnic origin and alleged mental disabilities, or - as it was the case in Croatia - on grounds of their inadequate official language skills. This article examines differing approaches to equality towards the Roma taken by the Croatian Constitutional Court, First Section of the ECtHR and the ECtHR’s Grand Chamber in the Orsus case. We argue that different approaches to equality can provide a useful framework to explain substantially different judgements in this case.