DH v Czech Republic Six Years Later: On the Power of an International Human Rights Court to Push Through Systemic Change
| Date | 01 September 2014 |
| Published date | 01 September 2014 |
| Author | Hubert Smekal,Katarína Šipulová |
| DOI | 10.1177/016934411403200305 |
| Subject Matter | Part A: Article |
Netherlands Qu arterly of Human Ri ghts, Vol. 32/3, 288–321, 2014.
288 © Netherlands I nstitute of Human Rig hts (SIM), Printed in the Net herlands.
DH v CZECH REPUBLIC SIX YEARS LATER:
ON THE POWER OF AN INTERNATIONAL
HUMAN RIGHTS COURT TO PUSH
THROUGH SYSTEMIC CHANGE
H S and K Š*
Abstract
e European Court of Human Rights (ECtHR) is o en portrayed as the most developed
regional human rights court, one which wields the power to in uence practices in its
Member States. In 2007, the Grand Chamber of the Court issued a famous ruling in
the case DH v Czech Republic, which condemned discrimination of Roma children in
education. e problem criticized in the DH case is of a sys temic character; in order to
comply with the ECtHR’s judgment, the Czech Republic would have to change its whol e
system of primary education. In our article, we discuss the ability of an international
human rights body to push through a signi cant change in one of its Contracting Par ties.
We seek to draw more general propositions from the case study of DH v Czech Republic
which can be tested by further studies – we try to identify factors and circumstances
which support or hinder an international human rights court in its e ort of pushing
through a systemic change.
Keywords: Czech Republic, discrimination, European Court of Human Rights,
judgment implementation, right to education, Roma, specia l schools
Mots-clés: Cour européenne des droits de l’homme, discrimination, droit à
l’éducation, la mise en œuvre d’un arrêt, la République tchèque, les écoles spéciales,
Roma
* Hubert Smekal (hsmekal@fss.muni.cz) – Assistant Professor at the Faculty of Social Studies,
Masaryk University, Brno; and Katar ína Šipulová (katarina.sipu lova@nsoud.cz) – Head of the
International De partment at the Supreme Court of the Czech Republic. We would like to t hank
the three an onymous reviewers for thei r valuable suggest ions, and also the pa rticipants of the 2 012
Berkeley Comparat ive Anti-Discrim ination Law Conference , particula rly David Oppenheimer a nd
Alvaro Olivei ra, for excellent comments. We express our grat itude to the inter viewees for their
openness and to Ľubom ír Majerčík for his critica l insights. e article wa s written as a part of t he
‘Aktuální otá zky evropské a mezi národní politi ky (MUNI/A/0754/2012)’ project.
DH v Czech Republi c Six Years Later
Netherlands Qu arterly of Human Ri ghts, Vol. 32/3 (2014) 289
1. INTRODUCTION
e academic and public debate on the political power of courts has been active,
especially in the United States, for many decades.1 Courts, particularly supreme
or constitutional, have successfully challenged practices which they perceived as
contravening constitutional rights. ese courts have been proven to be particularly
important in multilevel polities (typically federations) when trying to impose a
single norm on all of their constitutive parts. Many authors have criticized activist
courts, which lack direct democratic legitimation from the people,2 but so far the
discussion has been predominantly led within State boundaries. However, with the
rise of international cour ts, endowed with the authority to ru le on the legality of State
practices, the ti me might be ripe for inclusion of their activities into t he debate. In our
study, we seek to address the problem of implementation of an international court’s
judgment by a Member State in a complicated case which requ ires, in order to comply
with the judgment, fa r-reaching changes to its domest ic practices.
e European Court of Human Rights (ECtHR) is o en portrayed as the most
developed and e ective regional human rights court,3 one which wields the power
to signi cantly in uence pract ices in Member States. In 2007, the Grand Chamber of
the Court issued a f amous ruling in the ca se DH v Czech Republic4 which condemned
discrimination of Roma children in education. e ruling has attracted considerable
attention throughout Europe due to its novelty and because of the prevalence of the
phenomenon of discrimination of Roma in various European countries. More than
six years on, the question of the discrimination of Roma children in Czech schools
and the correct implementation of the judg ment is continuing to be an issue – a nd a
highly c ontroversial one.
e problem criticized in the DH case is of a systemic character; in order to
fully comply with the ECtHR’s judgment, the Czech Republic would likely have
to modify its entire system of primary education. It is also worth noting that on
its way to the nal judgment, the ECtHR contested the judgment of the Czech
Constitutional Court, which expressed some reservations towards the system of
primary education, but did not nd it unconstitutional overall. As indicated, we
seek to discuss the ability of an international human rights body to push through
a signi cant change in one of its Member States. e article is therefore divided
1 For an excellent over view of the eld se e Keith E. Whitti ngton, R. Daniel Kelemen and G regory A.
Caldeira (eds), e Ox ford Handbook of Law and Politic s (OUP 20 08).
2 Probably the most used term for this strand of courts’ critique is ‘counter majoritarian di culty’,
elaborated presumably rs t by Alexander Bickel in his book e Leas t Dangerous Branch (Bobbs-
Merrill Educ ational Publishi ng 1962).
3 is view i s shared across a ll the books dea ling with re gional human r ights’ protection mec hanisms;
see, for example, Hen ry Steiner and Phi lip Alston and Rya n Goodman, Inte rnational Human Rig hts
in Context: Law, Politi cs, Morals (3rd edn, OUP, 2007) 933.
4 DH and Others v Cze ch Republic App no 57325/00 (GC ECtHR , 13November 2007).
Hubert Smekal a nd Katarína Šipulová
290 Intersentia
into three main parts. First, a er a short introduction in which we provide
contextual information on the recently emerged idea of the ECtHR perceived as a
constitutional court, and on the speci cities of the situat ion of Roma in the Czech
Republic (Sections 2 and 3), we summariz e the whole DH saga in t hree court rooms
– the Czech Constitut ional Court, the Second Section of the ECt HR, and nally the
Grand Chamber of the ECtH R – and identify the key systemic problems perceived
by the ECtHR in the Czech educational system (Section 4). e second part of
the article is then focused on the implementation of the judgment in the Czech
Republic. We present information on the state of play (discrimin ation in education
against Roma child ren) si x years a er the judg ment (Section 5). We determine the
key actors involved in the implementation of the ECtHR’s judgments, both on the
national (various branches of government, domestic NGOs and interest groups)
and the international level (Council of Eu rope, international NGOs), and trace how
they have pursued their str ategies in order to induce the Czech Republic to comply.
Finally, the last part of the article (Section 6) follows the interplay between the
aforementioned actors and responsible Czech authorities (especially the Ministry
of Education, but also national courts and the O ce of the Public Defender of
Rights).
e i nferences are based on data which were collected from the o cial materials
of vario us bodies (repor ts, judgment s, and so on), inter views wit h stakeholde rs and
from secondary sources. e single-case study builds on a deep comprehension of
the issue which enables drawing “the whole picture,” with understanding who the
main actors are, what their main motivations are, and why they hold them. We
proceed with a presentation of the interactions and views of the relevant actors on
selected issues – their preferences concerning the education of Roma children; the
means of how to achieve them; and mai n allies and opponents in the endeavour. e
article draws more genera l propositions from the case of DH v Czech Republic which
can be tested by further studies. We try to establish under what circumstances
the ECtHR is capable of pushing through systemic change and which powers are
typically opposed to these e orts. In other words, we attempt to determine which
conditions contribute to timely compliance with the Court’s judgments, and
conversely, which factors inhibit the introduc tion of ideas by European judges into
practice. We do not perceive the identi ed conditions in terms of ‘necessity’ and
‘su ciency’; our claim follows from the fact that the Czech Republic belongs to
a broad family of European liberal democracies which share basic principles of
functioning. When factors identi ed as detrimental to the implementation of the
judgment exist in such a standard case as the Czech Republic, we can expect that
their presence in similar cases (that is in any European liberal democracy) will
also complicate introducing an ECtHR judgment requiring a systemic change of
practice on the national level.
To continue reading
Request your trial