CYIL Vol. 4, 2013

THE BURDEN OF PROOF IN EUROPEAN ANTIǧDISCRIMINATION LAW Grand Chamber of the ECtHR, by a surprisingly clear majority of 13 to 4 votes, ruled that the prohibition of discrimination had been violated in this case. 19 The complainants had already claimed before the Chamber that if they manage to present prima facie evidence, the burden of proof shifts to the respondent, i.e. the government of the Czech Republic. 20 With reference to the aforementioned EU anti-discrimination legislation intervening NGOs also supported the reversal of the burden of proof. 21 In a crucial passage of its judgment, the Chamber of the ECtHR concluded that statistics were not, as such, sufficient evidence of discriminatory practices, although the Chamber actually admitted that statistics concerning the education of Roma children in the Czech Republic were worrying. But, according to the Chamber, general statistics do not prove discrimination in individual cases. 22 Therefore, the applicants’ placement in special schools was not considered to be a violation of the prohibition of discrimination. Before the Grand Chamber of the ECtHR the applicants and intervening NGOs reiterated a substantial part of their arguments on the reversal of the burden of proof. 23 Human Rights Watch and Interights explicitly asked the ECtHR to specify the conditions under which the reversal of the burden of proof will be admitted. At the same time, they polemicized with an ECtHR verdict from 2001 in which the Court rejected statistics as sufficient evidence of discrimination within the meaning of Article 14 of the ECHR, 24 and they indicated that the approach of the ECtHR was inconsistent with international practice and the experience of European countries. The NGOs pointed out that, according to EU Directives, statistics have to be regarded as the main method of proving indirect discrimination and sometimes even as the only effective means to detect the discriminatory impact of apparently neutral measures. 25 In its judgment the Grand Chamber addressed the issue of whether statistics may serve as prima facie evidence in anti-discrimination cases very broadly. The Grand Chamber first literally quoted from the judgment in the case of Hoogendijk v. the Netherlands, 26 in which the ECtHR had dealt with the impact of a concrete national measure on men and women. The Court then stated that if the complainant is able, on the basis of undisputed official statistics, to produce indirect evidence

19 Grand Chamber Judgment of 13 November 2007. 20 Chamber Judgment, para. 38. 21 Chamber Judgment, para. 43. 22 Chamber Judgment, para. 46 and 52. 23 Grand Chamber Judgment, para. 130 and 163.

24 See Hugh Jordan v. the United Kingdom (Application No. 24746/94), judgment of 4 May 2001, para. 154: “However, even though statistically it appears that the majority of people shot by the security forces were from the Catholic or nationalist community, the Court does not consider that statistics can in themselves disclose a practice which could be classified as discriminatory within the meaning of Article 14”. 25 Grand Chamber Judgment, para. 164. 26 G. W. E. Hoogendijk v. the Netherlands (application No. 58641/00), Chamber Decision of 6 January 2005.