MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1514/H46-27

5 December 2024

1514th meeting, 3-5 December 2024 (DH) Human rights   H46-27 Elmazova and Others v. North Macedonia (Application No. 11811/20) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2024)1098, DH-DD(2024)1099

 

Application	Case	Judgment of	Final on	Indicator for the classification
11811/20	ELMAZOVA AND OTHERS	13/12/2022	13/03/2023	Complex problem

·  Quality Education for All - North Macedonia ·  Cooperation project and expertise provided by the Council of Europe Roma and Travellers Division

Case description

This case concerns discrimination of Roma[1] pupils due to their segregation between 2017-2019 in two
State-run primary schools in Bitola and Shtip which were attended predominantly by Roma children and with Roma-only classes (violation of Article 14 in conjunction with Article 2 of Protocol No. 1).

The Court noted that it was primarily for the respondent State to take positive effective measures to correct the applicants’ factual inequality and avoid the perpetuation of the discrimination that resulted from their over-representation at school. No explanation was provided as to why no measure has been taken to correct the imbalance in the ethnic composition of the two schools in question, or to redistrict the school district map, or why no other appropriate desegregating measure has been taken, notwithstanding the repeated recommendations by the Ombudsman in this regard (§ 74).

Under Article 46, the Court considered that measures to be taken in the context of the present case must ensure the end of the segregation of Roma pupils in the two State-run primary schools, as recommended by the European Commission against Racism and Intolerance, the national Commission for Prevention and Protection against Discrimination, and the Ombudsman (§ 89).

Status of execution

In their action plans of 14 September 2023 (DH-DD(2023)1098) and 30 September 2024
(DH-DD(2024)1099), the authorities provided the following information:

Individual measures: The just satisfaction awarded was paid within the deadline.

As regards the primary school in Bitola: in the school year 2023/24, six applicants had finished school, while 19 of school age were still enrolled (nine of whom however were not regularly attending school). As regards the primary school in Shtip: in the school year 2023/24, all 20 applicants of school age were still enrolled in the school (four of whom were not regularly attending it). Four pupils were allocated to mixed classes, five to Roma-only classes, and the remaining 11 continued in the same classes as before.[2]

General measures: On 16 May 2023, shortly after the judgment became final, the government adopted a decision on the execution of this judgment, setting out a roadmap of envisaged activities, consisting of: (a) the establishment of a working group to coordinate the execution process; (b) legislative changes; (c) the preparation of a desegregation plan; and (d) an analysis of possible segregation in other schools across the country.

Working group to coordinate the execution process

The working group includes the Government Agent, the Advisor for Roma Inclusion within the Cabinet of the Prime Minister, representatives from the Ministry of Justice, the Ministry of Education and Science, the Ministry of Labour and Social Policy, the Municipalities of Shtip and Bitola, and the two schools. Representatives from the Ombudsman and Commission on Prevention and Protection against Discrimination (“the CPPD”) were also invited to take part, as well as representatives of the Council of Europe as observers. At its first meeting on 7 June 2023, the working group expressed commitment to close cooperation with the experts contracted by the Council of Europe (see below for further details).

Legislative changes

On 4 April 2023 the Ministry of Education and Science established a working group to prepare amendments to the Law on Primary Education in accordance with the present judgment, the recommendations of the Ombudsman and the CPPD, and in close cooperation with an expert contracted by the Roma and Travellers Team of the Council of Europe. Draft amendments were prepared and then published in November 2023. Following consultations with the relevant stakeholders, as well as intervening general election held in June 2024, revised draft amendments were published on 18 September 2024. Their key features, as reported by the Government, are as follows:

-       prohibition of discrimination and “physical separation of students on discriminatory grounds”[3] in enrollment and class formation in primary schools without a legitimate or objective purpose, as well as a duty for balanced distribution of pupils in enrolment and class formation for the same purpose;

-       expansion of the affirmative measures for all children belonging to marginalised communities according to the Anti-Discrimination Act;

-       strengthening the procedures for school transfers by expanding the responsibilities of municipalities;

-       obligation for the municipalities to determine the catchment areas of the schools in a way that will prevent and overcome physical separation of Roma pupils;

-       envisaging that a primary school can enrol pupils from other catchment areas only if pupil does not have the possibility to learn in his/her mother tongue in his/her catchment area.

Desegregation plan

The working group entrusted the preparation of the draft desegregation plan to an expert engaged by the Roma and Travellers Division of the Council of Europe, after consultations with the relevant stakeholders. On 17 April 2024 the draft desegregation plan was sent for comments to the competent institutions. Only the Municipality of Bitola submitted its suggestions. Although the plan focuses on the two schools at issue, its applicability extends to all municipalities across the country. The key features of the draft desegregation plan, as reported by the Government are as follows:

-       the adoption of annual local action plans and enactment of local level regulations and procedures to ensure that the enrolment of non-Roma students, class formation and the process of defining the school catchment areas are conducted in a manner that prevents segregation of students and promotes inclusive education for all pupils;

-       possibility for the central government, mainly the Ministry of Education and Science and other relevant institutions, to develop complementary measures;

-       development of mechanisms to assess the level of vulnerability of Roma children and identify appropriate measures that will respond to their needs for additional support in the education process;

-       measures to help Roma children and their families in the context of social protection, aiming to ensure social and educational inclusion as well as awareness raising activities aimed at non-Roma families for developing an inclusive culture in the school and the broader community.

Analysis of possible segregation in other schools

On 16 May 2023 the government adopted a decision instructing the Ministry of Education and Science to prepare an analysis of possible segregation in other schools in North Macedonia, in light of the recommendations of the Ombudsman and the CPPD.

Council of Europe support

In February 2023 the Government Agent took part in the stakeholder’s coordination meeting in Albania on the action plan for the execution of a similar judgment, X and Others v. Albania. In January 2024, the Education Department of the Council of Europe organised a round table in Skopje, gathering relevant stakeholders and experts to discuss the implementation of this case. In June 2024, the Education Department organised a study visit to Croatia for the key domestic stakeholders to identify good practices adopted by Croatia within the framework of the execution the case of Oršuš and Others v. Croatia. The Education Department, alongside their work with the two schools, has also prepared an analysis, focusing specifically on the municipalities of Bitola and Shtip, which presents recommendations aimed at facilitating the de-segregation of schools within these municipalities.

Current situation at the two schools

As regards the primary school in Bitola: according to the authorities in the school year 2022/23 out of 659 pupils enrolled in all grades, 590 (89,53%) were Roma, 67 (10,11%) Macedonians, and two Turks. Of the newly formed first grade classes, three were mixed, and one was Roma-only. In the school year 2023/24 out of 609 pupils enrolled in all grades, 550 (89,98%) were Roma, 56 (9,19%) were Macedonians, two Albanians and one Turkish. Of the newly formed first grade classes, one was mixed and three were Roma-only. Most of the requests granted by the school directors for transfer to another school were made by Macedonian pupils.[4]

As regards the primary school in Shtip: according to the authorities, in the school year 2022/23 out of 590 pupils enrolled in all grades, 362 (61,36%) were Roma, 206 (34,92%) were Macedonians, 16 Turkish and six Vlachs. Of the newly formed first grade classes, two were mixed and one was Roma-only. In the school year 2023/24 out of 573 pupils enrolled in all grades, 341 (60%) were Roma, 201 (35%) were Macedonian, 23 Turkish, and eight Vlachs. Of the newly formed first grade classes three were mixed and one was Roma-only. Most of the requests granted by school directors for transfer to another school were made by Macedonian pupils.[5]

On 3 April 2023 the Municipality of Shtip adopted an action plan to resolve the issue of segregation of Roma pupils, followed by a new decision on the catchment area of the primary school in question. It also adopted amendments to the Rules for Enrolling Children in First Grade in the municipality, including a number of measures aimed at elimination of segregation. The action plan also envisages different awareness raising measures.  

Rule 9.2 communication: In their detailed joint communication dated 16 October 2024 (DH-DD(2024)1234) European Roma Rights Centre and the CPPD noted, inter alia, that despite the authorities’ commitment to desegregation in the two schools, the problems persist, while cases of segregation of Roma pupils continue to happen across the country.

They proposed further changes to the draft amendments to the Law on Primary Education, amendments to the Law on Education Inspection relating to enforcement of anti-discrimination laws, as well as adoption of by-laws clarifying the duties of the authorities. While highlighting that the draft legislative amendments are insufficient to tackle the problem of segregation alone, they underlined the importance of facilitating dialogue between the relevant stakeholders, including Roma communities, ensuring that their voices are heard in decision-making processes concerning discrimination.

Analysis of the Secretariat

As regards individual measures: Despite the activities taken so far, including the positive action plan of the Municipality of Shtip, most of the applicant pupils still enrolled in the two schools in Bitola and Shtip continue to be subject to school segregation. In addition, the statistics provided by the authorities for the school years 2022/23 and 2023/24[6] show concerning trends regarding irregular attendance of school by a number of applicants. The Committee might note that individual measures in this case are closely linked to the general measures aimed at ending of segregation in the two schools. In the interim, pending the finalisation of the general measures, given the need for positive effective measures to correct the applicants’ factual inequality and avoid the perpetuation of the discrimination, the authorities should clarify if they will seek the applicant pupils’ enrolment in other schools or consider taking any specific interim desegregation measures for them.

As regards general measures: As evidenced above, the authorities rapidly reacted to the present judgment with a view to ending school segregation and actively engaged with the relevant cooperation activities and projects of both the Education Department and the Roma and Travellers Division of the Council of Europe. A meeting between the Minister of Education of North Macedonia and the Department for the Execution of Judgments on this judgment is also scheduled for 21 November 2024. The close cooperation with the Council of Europe might be welcomed by the Committee of Ministers who may wish to encourage the authorities to sustain this dialogue.

It seems however, from the statistics, that class formation practices for new first grades in two schools have not still addressed the problem of segregation, but may have in fact worsened, notably in Bitola. The information provided under the Rule 9.2 communication further indicates that predominantly Roma and Roma-only classes also exist in higher grades of these schools. It is very important that the authorities take concrete and decisive measures to obtain results and rapidly end the segregation of Roma pupils in education. To this end, the Committee might also encourage the authorities to pursue an effective dialogue with all stakeholders including from across communities with a view to promoting inclusive education and combating prejudices.

            Legal changes

It is welcome that the authorities have pursued amendments to the Law on Primary Education to address the major shortcomings identified by the Court. It is recalled that reasons for de facto segregation found in the present case include the manner in which the regulatory framework on admission and transfer of pupils was applied in practice, owing to the opposition of non-Roma parents to enrolling their children in the two schools at issue (“white flight”),[7] as well as problematic practices of uneven distribution of pupils in formation of classes, which often also have fewer pupils than the minimum threshold set by law.[8] While the authorities should be encouraged to finalise the legislative process, they could be invited to carefully consider the following features of the proposed amendments.

General principles and affirmative measures: the draft amendments prohibit “physical separation” in enrolment and class formation. The decision not to use the term “segregation” is unfortunate, since that terminology would be in line with the Council of Europe recommendations to member States to combat all forms of school segregation towards Roma pupils, the present judgment, as well as existing domestic anti-discrimination legislation. The authorities might also consider strengthening the reporting and enforcement mechanisms to ensure that these principles are effectively upheld in practice.[9]

The draft amendments also provide that the school inclusion team shall ensure equal access to primary education for all children through the implementation of measures for the prevention of discrimination in accordance with the Law on the Prevention and Protection of Discrimination. The scope and form of such measures remains however unclear, and it would appear useful to further elaborate this issue through by-laws.

Balanced distribution: the proposal provides an obligation for the school principal to take into account the balanced distribution of pupils in the formation of classes in order to avoid segregation “unless only one class is formed in the school”. The notion of “balanced distribution”, as well as the exception, may require further clarification in order to avoid unjustified cases of de facto segregation.    

Admission and transfer: the draft amendments provide for obligations for parents and schools to enrol pupils in the district of their residence, with the only exception if a pupil from the other district or municipality is unable to attend instruction in his or her native language in his or her district, or municipality and there is a vacancy in the school. It would be helpful to provide for a monitoring or sanctioning mechanism to ensure that these duties are upheld in practice, in view of the realities on the ground, reported by the CPPD, indicating the abusive use of transfer requests.[10]   

Catchment areas: it is notable that the draft amendments provide for the duty of the municipality to determine these areas in such a way as to prevent segregation of Roma students. Nevertheless, such an obligation would not apply “in municipalities in which the majority of the population are members of the Roma community”. The latter exception appears problematic and if adopted could undermine the ongoing efforts aimed at addressing the instances of school segregation. In this respect it is recalled that any execution measures should be compatible with the conclusion and spirit of the Court’s judgment.

Desegregation plan

The draft desegregation plan, based on the first text of the draft amendments to the Law on Primary Education, may be subject to further revisions. It is necessary for this process to progress swiftly in order to form the basis for concrete measures aimed at ending segregation in the two schools, as well as to tackle related  issues, such as those of irregular school attendance.[11] The actions taken by individual municipalities, although commendable, have reportedly faced their own difficulties and may suffer from lack of a coordinated approach and so the finalisation of the plan is key.[12] The authorities could also take inspiration from the targeted desegregation measures commended by the Committee in other similar cases.[13]   

Analysis of possible segregation in other schools

 

The authorities have not reported any progress in the preparation of this analysis. In view of the reports of other examples of school segregation of Roma in North Macedonia,[14] it is important for this analysis to be prepared without further delay. 

Conclusion

The Committee might note with interest the above-mentioned measures aimed at ending segregation of Roma pupils. Nevertheless, given the need for concrete results, the Committee may wish to encourage the authorities to intensify their efforts and, if possible, speed up the adoption of all these measures, while pursuing an effective dialogue with all stakeholders. In this process, the authorities should be guided by the recommendations of ECRI, the CPPD and the Ombudsman, as stressed by the Court. The Committee might also encourage the authorities to further pursue their close cooperation with the Secretariat while finalising (and then implementing) the legislation and the desegregation plan to address any outstanding issues identified in the analysis above.

The Committee might also invite the authorities to keep it regularly updated of all developments in this respect, including on the most recent statistics concerning the distribution of pupils in classes in the two schools as well as those concerning the entire country within the context of the authorities’ planned analysis of school segregation across the country.

Financing assured: YES