Salay v. Slovakia: How Equinet’s TPI Helped Strengthen European Case Law on Indirect Discrimination and Segregation

Jone Elizondo-Urrestarazu
Senior Legal and Policy Officer, Equinet

On 27 February 2025, the European Court of Human Rights (ECtHR) delivered its landmark judgment in Salay v. Slovakia (29359/22), recognising that the disproportionate placement of Roma children in segregated special education constitutes indirect discrimination in violation of Article 14 (non-discrimination) in conjunction with Article 2 of Protocol No. 1 (right to education). This judgement became final on the 27 May 2025. 

Equinet, more concretely its Equality Law Working Group, together with colleagues from the Slovak National Centre for Human Rights, intervened as a third party to support the Court’s deliberations by informing the ECtHR about the European and Slovak legal framework and practice; national reports regarding the over-representation in special education, the systematic deficiencies in the special education placement process, as well as to showcase the systemic and structural issues that arise with this practice and information related to diagnosing and testing of pupils and their special needs in education. An amicus curiae intervention (also known and referred to in this blogpost as third-party intervention) before the European Court of Human Rights (ECtHR) is a written submission provided by an individual, organisation, or institution that is not a party to a case, but has expertise or a relevant perspective that can assist the Court in its decision-making. Literally meaning “friend of the court,” this intervention offers legal, factual, or contextual analysis on the issues at stake, without commenting on or disputing the specific facts of the case. The ECtHR may invite such interventions or accept them upon request, particularly in cases raising questions of public importance, complex human rights standards, or emerging legal challenges. While these submissions do not determine the outcome directly, they can influence the Court’s interpretation of the European Convention on Human Rights by providing comparative law insights, highlighting international standards, or illustrating the potential impact on specific groups or society at large. This was the second TPI for Equinet. The Public Defender of Rights of the Slovak Republic and Validity Foundation also submitted amicus curiae briefs to the Court to help it support its decision.  

We are proud that the Court’s reasoning closely mirrors several of the key points raised in our intervention — contributing to stronger European standards for tackling systemic segregation, not only as regards to education, but as to the long lasting effects and influence of such discrimination.

A Persistent Issue: Segregation of Roma Children

The facts were stark but, unfortunately, familiar: Mr Salay, of Roma origin represented by the European Roma Rights Centre (ERRC), was placed in a “special” primary school for children with intellectual disabilities based on a flawed assessment of his maturity and intellectual capacity. The result was de facto segregation — a practice the Court had already condemned in D.H. and Others v. Czech Republic (57325/00), Oršuš and Others v. Croatia 15766/03, and other cases., and other cases. 

Equinet’s intervention emphasised that the problem lies not only in individual placement decisions but in systemic biases in testing, lack of safeguards, and entrenched patterns of segregation. 

In paragraph 80 of the decision the Court notes: 

Where the Court supported its decision with Equinet’s and SNCHR intervention

In its judgment, the Court recognised a prima facie discrimination claim and shifted the burden of proof to the State. In its decision, the Court’s conclusions aligned with key aspects of our amicus curiae intervention: 

Recognition of Indirect Discrimination: 

Equinet, without commenting on the facts of the concrete case, shared evidence as regards to how the placement in “special” schools, when it disproportionately affects Roma children due to flawed or culturally biased tests, is a textbook example of indirect discrimination. The Court accepted this framing, confirming that neutral measures can produce discriminatory effects if they disproportionately impact a protected group without sufficient justification. 

Emphasis on States’ Positive Obligations: 

Our TPI strongly urged the Court to reaffirm that States have positive obligations to detect and prevent indirect discrimination, not merely to avoid direct discrimination. The Court explicitly found that Slovakia failed to put in place adequate safeguards to prevent indirect discrimination in school placements — echoing the TPI’s emphasis on the duty to monitor, review, and adapt testing practices. 

Safeguarding Against Bias in Educational Assessment:  

A key point underscored by the Salay judgment is the urgent need for States to ensure that any testing or assessment methods used in school placement are culturally appropriate, scientifically sound, and safeguarded against bias. Far too often, outdated or culturally blind tests continue to funnel minority children, particularly Roma pupils, into separate or substandard educational tracks — entrenching disadvantage rather than addressing individual needs. It is essential that States regularly review and adapt these tools to reflect cultural and linguistic diversity, and that clear safeguards are in place to detect and correct discriminatory outcomes.  

Structural Focus: 

Equinet’s intervention highlighted that segregation should be assessed in light of its systemic nature, not just as an isolated administrative error. The Court’s reasoning reflects this approach, as it considered the wider pattern of Roma overrepresentation in special schools and the absence of measures to counteract this trend. 

Role of Effective Remedies (and in that of Equality Bodies): 

Our TPI underlined the importance of effective remedies. While the Court did not directly address equality bodies’ procedural role, its emphasis on the need for safeguards and systemic oversight resonates with the role and power assigned to Equality bodies under the Standards Directives and Equality Bodies in exposing structural forms of discrimination and ensuring that victims have the tools (EBs) at their disposal, and with the required independence, resources and powers to effectively support them holistically at no cost.  

Why This Matters for European Equality Law

By embracing these arguments, the Salay judgment reinforces and develops the Court’s jurisprudence on indirect discrimination and segregation: 

• It sends a clear signal that States cannot rely on formal neutrality when systemic patterns show discriminatory effects. 

• It confirms that tackling segregation implies a positive obligation for states, requiring proactive monitoring and safeguards, not just individual litigation. 

• It underlines the importance of enforcement and implementation as a key part of the equality and anti-discrimination legal framework.  

• It adds momentum to the recognition that equality bodies play a vital role in preventing and remedying structural discrimination — a key principle behind Equinet’s ongoing work to strengthen Standards for Equality Bodies across Europe. 

A Direct Impact on the CJEU Case Against Slovakia

The Salay judgment and its reasoning are also highly relevant for the ongoing infringement proceedings before the Court of Justice of the European Union (CJEU) in European Commission v. Slovakia (C-799/23) concerning Roma segregation in education under the Racial Equality Directive (RED). The open infringement case was explicitly referenced in our amicus curiae briefing to the ECtHR, highlighting the parallel legal issues at stake. 

While the CJEU has yet to deliver its judgment, the Advocate General has issued an opinion finding a systematic and persistent breach of Slovakia’s obligations under Article 2(1), read in conjunction with Article 2(2)(b) and Article 3(1)(g) of the RED, due to the disproportionate placement of Roma children in special schools or classes with simplified curricula and their segregation in separate classes or schools. Notably, the AG cites the ECtHR’s judgment in Salay, particularly its finding that parental consent cannot legitimise segregation — a point emphasised in Equinet’s TPI — thereby directly strengthening the Commission’s case before the CJEU. 

This interplay creates a reinforcing loop between Strasbourg and Luxembourg jurisprudence, making it increasingly difficult for Member States to justify systemic segregation under EU equality law and underscoring the cross-cutting obligation to proactively dismantle discriminatory structures. Crucially, it also strengthens the interpretation of “positive obligations” under the RED as requiring not only the prohibition of segregation in law, but its active prevention, monitoring, and remediation in practice. 

Finally, this convergence of case law illustrates both the power of amicus curiae interventions and the mutual reinforcement of equality law across Europe. As a reminder, the Equality Bodies Standards Directives — which must be transposed into national law by June 2026 — explicitly recognise this role, with Article 10 empowering all equality bodies to submit expert opinions in discrimination cases, cementing their status as legal specialists in the fight against structural discrimination. 

From Litigation to Implementation: What Comes Next

The ruling in Salay v. Slovakia must now be implemented in national policy and practice — in Slovakia and anywhere else where similar patterns persist.  

Ensuring and actively monitoring the implementation of ECtHR judgments is vital, particularly in cases involving Article 14 (prohibition of discrimination), where structural problems often persist despite clear legal rulings. Too many landmark cases condemning systemic discrimination remain only partially implemented — for example, in D.H. and Others v. Czech Republic, the Court found widespread discrimination against Roma children in education back in 2007, yet reports still highlight disproportionate placement of Roma pupils in separate or substandard schools. Similarly, in Sejdić and Finci v. Bosnia and Herzegovina (applications nos. 27996/06 and 34836/06), the Court ruled that constitutional rules excluding minorities from running for the presidency breach Article 14, but Bosnia and Herzegovina has yet to amend its constitution accordingly. Without robust follow-up, these judgments risk becoming symbolic victories rather than drivers of real change. The CoE Department for the Execution of Judgments of the European Court of Human Rights and the European Implementation Network, among others, work tirelessly to make sure that the rulings are effectively implemented at the national level. Effective enforcement — supported by equality bodies, civil society, and international monitoring — is therefore essential to translate Court decisions into tangible improvements in people’s daily lives. 

Read More

• Judgment: Salay v. Slovakia (ECtHR) 
• Strasbourg Observers: Blogpost about the Salay case 
• Equinet & SNCHR TPI: Full Text of the Third-Party Intervention 
• Equinet: Equinet Compendium: Article 14 Cases from the European Court of Human Rights 
• Equinet: Standards for Equality Bodies 

The views on this blog are always the authors’ and they do not necessarily reflect Equinet’s position.