Case Watch: How Kosa v. Hungary Is Challenging a Gap in Europe’s Antidiscrimination Protections

Discrimination doesn’t only happen against individuals, but against groups. The very characteristic that forms the basis of the discriminatory treatment (such as race, gender, or sexual orientation) can apply with equal effect to large numbers of persons. Often it is difficult to prove broad reaching patterns and practices of discrimination, particularly if the discrimination is informal or indirect, which may hide its effects, its victims or its perpetrators. Thus, the European Court of Human Rights has recognized the importance of both using statistical evidence to demonstrate discrimination, and also reversing the burden of proof (so that governments must demonstrate why there isn’t discrimination in the face of evidence pointing otherwise). 

In such situations of systemic or group discrimination, is it reasonable to expect every individual affected to have to go to court for a remedy? There are reasons why this may not be feasible: the very fact that the group are a discriminated class may lead them to be marginalized and unaware that discriminatory treatment is occurring, let alone have the capacity to seek a remedy. Large numbers of individual claims may be both prohibitively costly and difficult to administer. Individual claims may mask the systemic or group nature of the discrimination, so the full scope and effect of the discriminatory treatment is not understood.

For this reason, a growing number of European countries have established collective redress procedures which allow Non Governmental Organizations (NGOs) to make claims on behalf of a distinct but indeterminate class of discrimination victims. However, this type of mechanism has proven problematic for the European Court of Human Rights, as the organization making the claim is not a “direct victim”.

It was under this type of collective redress procedures that the Hungarian NGO Chance for Children Foundation brought a legal action for education discrimination in 2008, after the discontinuation of a bus service to a local integrated school forced students in Huszar-telep, a predominantly Roma district of the town of  Nyíregyháza, into a Roma-only school. Whilst CFCF convinced lower Hungarian courts that discrimination occurred, they were denied a remedy to terminate the unlawful actions. Both at Hungary’s Supreme Court—the Kuria—and the European Court of Human Rights, CFCF’s claim was rejected on grounds of standing, because the organization itself was not “directly affected” by the measures leading to segregated Roma education.

The issue with these types of claims is that individuals or organizations are often construed as taking the case “actio popularis”. These claims—sometimes termed “busybody claims”— are where unaffected persons make claims for violations of human rights in the public interest. These, however, should be seen to be distinct from the type of claim made by CFCF, which, unlike actio claims, are a much more limited form of collective redress, requiring an intimate connection between the substance of the claim and the organization making the claim.

Unfortunately, in its very short decision, the court did not recognise such a difference.This has created a situation where a domestic claim seeking to address instances of systemic discrimination, under a valid and justified mechanism, has no recourse to the Strasbourg court. How can the European human rights convention protection against discrimination be practical and effective in such circumstances?

One method is for an individual, who was of the victim class that was to benefit from the collective claim, to approach the court directly. It is precisely this situation that has occurred in the upcoming case of Kósa v Hungary: Amanda Kósa is one of the students affected by the decision to create the school and cancel the local bus service. This case will therefore not only be about education discrimination, but whether this individual can approach the court when they did not directly participate in domestic proceedings (only CFCF did).  In this situation, one argument, and presumably an argument made by the Hungarian government, is that Amanda Kósa has not taken any domestic proceedings in her own name, and has therefore not exhausted domestic remedies, an admissibility requirement under Art. 35 of the European convention.

It is on this latter issue that, on October 20, 2016, the Justice Initiative submitted a third-party intervention that, as a beneficiary of CFCF’s collective claim, Amanda Kósa should be able to directly approach the court.