Czech Yearbook Vol. 4 2013

HARALD CHRISTIAN SCHEU

CYIL 4 ȍ2013Ȏ

showing the discriminatory nature of a neutrally worded regulation,

the respondent

Government shall demonstrate objective factors which preclude discrimination. In

the

Hoogendijk

case the Court justified the reversal of the burden of proof with the

argument that without such shifting of the burden of proof it would be very difficult

for the complainant to prove indirect discrimination.

In the case of

D.H. and Others v. the Czech Republic

the Grand Chamber did

not miss the opportunity to quote from EU anti-discrimination directives and

subsequent ECJ case-law according to which statistics are admissible as evidence and

establish a rebuttable presumption of discrimination. The Grand Chamber further

referred to the practice of a number of national courts.

In light of these considerations, the Grand Chamber considered that the evidence

submitted by the complainants was sufficiently credible, and it noted that there

was a presumption of indirect discrimination. According to the Court the burden

of proof shifted to the Czech government, which had to show that the impacts of

national legislation on different groups of children were the result of objective factors

and did not relate to the ethnic origin of the complainants.

So, in case of

D. H. And Others v. The Czech Republic

, the Grand Chamber of the

ECtHR constructed and cascade of arguments based upon EU law and the practice

of national courts in order to establish the reversal-of-evidence rule as part of ECHR

law. Here is not the place for a more thorough critique of the judgment and the

adventurous arguments used by the Court. We will not join the enthusiasm within

the human rights community that followed the adoption of the judgment.

Nor

will we comment on the ongoing debate on the implementation of the judgment in

Czech practice.

In the context of this study, it is most important to show how the

reversal of the burden of proof as part of European anti-discrimination law expands

to cases concerning the alleged violation of the equality principle by state action. This

In the Hoogendijk case it was proven that a specific amendment to the national social legislation

affected 3,300 women and 1,800 men. According to the ECtHR the Dutch government explained

this difference in an objective and reasonable manner, because the measure aimed at eliminating the

discrimination of unmarried women at work.

Grand Chamber Judgment, para. 187.

The UN High Commissioner for Human Rights, Louise Arbour, in her speech at the opening of the

judicial year 2008 of the ECHR literally said: “I particularly welcomed the recent decision in November

of this year of the Grand Chamber of the Court in D.H. v. Czech Republic, which held that the systém

of Roma schools established in that country breached the right to education, read in conjunction with

the prohibition of discrimination. The course marked by the Court in this landmark case will be of

great importance to national judiciaries and regional courts increasingly dealing with economic, social and

cultural issues”. See the text of the speech in Roma Rights Journal, 1/2008, 25-29, 29.

See

e.g.

the Joint NGO Submission sent by the European Roma Rights Centre, Open Society Justice

Initiative, Amnesty International, Česká Odborná Společnost Pro Inkluzivní Vzdělávání (COSIV)

[Czech Professional Society for Inclusive Education] and the League of Human Rights [Czech

Republic] (LIGA) to the Council of Europe Execution of Judgments Department on the lack of

implementation of the ECtHR judgment on D.H. and others v. the Czech Republic, for appreciation

by the Committee of Ministers in its December Human Rights Meeting, November 2012 (DH-DD

[2012] 1137E).