Launch event for the Handbook on European Non-Discrimination Law

Speech given by Morten Kjaerum Director, European Union Agency for Fundamental Rights at the launch for Handbook on European Non-Discrimination, Strasbourg.
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Speech by Morten Kjaerum on the launch of th European non-discrimination handbook

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Mr. President, Ladies and gentlemen, it is a pleasure to be here before you
today to launch the Handbook on European Non-Discrimination Law.

I would like to thank the Court for the excellent collaboration that we have enjoyed
during the production of the handbook, and for hosting this event.
Allow me to begin by recounting a true story. In 1999, a group of Roma parents
lodged an appeal before the Czech Constitutional Court concerning the
decision of the Ostrava Education Authority to send their children to special
schools, which were designed for children with learning difficulties. According
to some estimates, at the time up to 70% of pupils enrolled in special schools
were Roma. The decision to send these Roma children there was based on a test
that supposedly measured their intellectual capacity.
The parents argued that in practice the assessments were designed with children
from the majority population in mind. And so Roma children were inherently
more likely to perform badly. They argued that this resulted in de facto or
indirect discrimination.
The Constitutional Court dismissed the appeal, in part on grounds that it was
manifestly unfounded. In 2007 – eight years later – the Grand Chamber of the
European Court of Human Rights made a finding that discrimination had in
fact occurred. As you may have realised, this was the landmark case of D.H
and Others v. the Czech Republic, which went some way towards clarifying the
meaning and application of indirect discrimination as a legal concept, as well as
confirming the important role that statistical evidence can play.
And here is my question to you: what would have happened if the lawyers and
the judges involved in the case before the national courts, and the Education
Authority’s legal advisers had had a better knowledge of discrimination law?
Could it have made a positive difference to those children? Could the denial of
their right to education – and the right to education of many others – have been
avoided?
I am convinced that yes - it would have made a difference. And that is one of
the reasons why the European Court of Human Rights and the European Union
Agency for Fundamental Rights have worked together to produce this
Handbook, that we are jointly presenting today. The handbook is a practical
tool to help in the implementation of rights at the national level – because, after
all, this is where rights are actually enforced.
The national human rights architecture is the first recourse for victims. Judges,
lawyers, national human rights institutions, equality bodies, legal advice
centres, trade unions and NGOs who support litigants need to have a good
grasp of this complicated area of law so that it is applied properly. Resolving
disputes at the level closest to the litigants has several advantages – it is less
costly, less timely and less distressing for the parties. But also, when disputes
that could be resolved nationally move up to the European level, they risk
placing further pressure on an already over-stretched Court, and they risk
drawing out justice for longer than necessary.
The Fundamental Rights Agency has the task of advising the EU institutions
and Member States on human rights issues, on the basis of the research and
evidence it collects. Another of its tasks is to raise awareness about
fundamental rights in Europe.
The Council of Europe is an indispensable partner in this regard and the
Handbook is the fruit of a growing collaboration between the Agency and the
European Court of Human Rights. The European Court of Human Rights has
played an extremely important role in the development of the law in this area,
influencing the evolution of EU law and of the national law of the member
states of the Council of Europe.

The Agency also works with other bodies within the Council of Europe - such
as the Commissioner for Human Rights on the issue of homophobia and
transphobia, and the European Commission against Racism and Intolerance on
racial discrimination, for example in our work with the Roma.
The usability of the Handbook is an important practical issue. This is why we
have taken the very practical step of ensuring that over the course of 2011 it
will become available in 21 of the EU’s official languages as well as Croatian.
There will also be web space dedicated to the handbook where it can be
downloaded and where additional resources will be available. Part of the
purpose of today’s sessions is to give you the opportunity to express your views
on its strengths and weaknesses. Did we get it right? As the law develops there
will be opportunities to update the Handbook and your feedback would be
valued on this. At the same time, your views will also be used to guide our
upcoming work. We are intending to begin work in 2012 on another joint
project to produce a handbook on asylum law. On this we plan to work closely
with the Court of Justice of the European Union, as well as the European Court
of Human Rights.
We believe that one of the strengths of the current Handbook is its innovative
approach to non-discrimination law. Rather than treating Convention Law and
EU Law totally separately, it deals with them as overlapping systems with
shared concepts that draw on each other. Of course there are differences
between the two legal systems, but as a practical matter, many situations are
such that practitioners can – and should – rely on both sources of law.
In this sense the Handbook is also forward-looking in anticipating the
progressive convergence of EU Law and Convention Law. The Convention
already holds privileged status in EU Law as the source of inspiration for the
‘general principles’ and the rights guaranteed in the Convention also feature in
the EU Charter of Fundamental Rights, which is now legally binding. If we
look to the accession of the EU to the Convention, then it is clear that the two
systems are becoming increasingly interlinked.
Ladies and gentlemen, I present this handbook to you as the first of many
practical tools that can help to deliver quicker and more effective access to
justice for victims. And as decision makers and their legal advisers become
better acquainted with non-discrimination law, we can avoid and prevent the
kind of lengthy and costly court battles that faced the Roma children and their
parents, whose story I began with.
Thank you for your attention.