In contrast, the UN HRC, a quasi-judicial body established under the ICCPR, was hesitant to make such finding in its early jurisprudence. Thus, in Ballantyne, Davidson, McIntyre v Canada34 the applicants argued that permitting advertising in French only in Quebec constituted discrimination against English-speakers. The HRC noted that domestic law requiring the use of French only in commercial advertising outdoors affected equally French- and English-speakers. Therefore, there was no discrimination on the ground of language under Article 26 ICCPR.35 The HRC’s more recent jurisprudence reveals a notable change in approach towards indirect discrimination. In Diergaardt v Namibia36 the authors, members of the Rehoboth Basters community, claimed that by denying them the use of their own language in administration, justice, education and public life, Namibia violated their rights under Articles 26 and 27 ICCPR. In particular, the state instructed civil servants not to reply to the authors’ written or oral communications with the authorities in the Afrikaans language; public authorities had to follow this instruction even when they were perfectly capable of speaking the tribal language, because under Article 3 of the Constitution English was the only official language in Namibia.37 Taking into account the effects of this practice on Afrikaans speakers and in the absence of any response from the state, the HRC found a violation of Article 26 ICCPR without elaborating on the concept of indirect discrimination.38 The HRC explicitly acknowledged indirect discrimination in its later communications, such as Althammer v Austria39 and Derksen v the Netherlands,40 by noting that ‘a violation of article 26 can also result from the discriminatory effect of a rule or measure that is neutral at face value or without intent to discriminate’.41 Furthermore, the HRC emphasized that such indirect discrimination should be based on the grounds listed in Article 26 ICCPR; also, a measure will not be indirectly discriminatory if it can be objectively and reasonably justified. Effectively, the HRC used the same test to find indirect discrimination as in the assessment of direct discrimination. A similar trend can be discerned from the jurisprudence of the ECtHR. Only in 2001 the ECtHR explicitly recognized the principle of indirect discrimination. For example, in Kelly v the United Kingdom 42 concerning an allegation of discriminatory treatment: the applicants claimed that ‘between 1969 and March 1994, 357 people had been killed by members of the security forces, the overwhelming majority of whom were young men from the Catholic or nationalist community’.43 In its assessment the ECtHR noted that ‘[w]here a general policy or measure has disproportionately prejudicial effects on a particular group, it is not excluded that this may be considered as discriminatory notwithstanding that it is not specifically aimed or directed at that group’.44 The ECtHR, however, promptly added that statistics in themselves are not sufficient to determine a violation of Article 14 in this case.45 Case study: D.H. et al. v Czech Republic The ECtHR’s initial reluctance to give full effect to the concept of indirect discrimination is also evident from the Chamber’s decision in D.H. et al. v Czech Republic46 where the applicants – members of the Roma minority – complained that in 1996–9 they had been discriminated against by being placed in special schools. Because a significantly higher number of Roma children was affected, the applicants claimed indirect discrimination in access to ordinary schools in the Czech Republic. The second Chamber of the ECtHR considered the compatibility of placing Roma children in special schools with Article 14 ECHR in conjunction with Article 2 of Protocol 1 (P1-2) ECHR. In the Chamber’s view the government successfully established that special schools were not created to cater for Roma children; neither did placement rules refer to a pupil’s ethnic origin.47 Therefore, special schools pursued the ‘legitimate aim of adapting the education system to the needs and aptitudes or disabilities of the children’.48 As a result, the Chamber found no violation of Article 14 in conjunction with P1-2 ECHR. However, this finding ignored the concept of indirect discrimination. Indirect discrimination occurs where a neutral rule has a disproportionately adverse impact on members of a certain group. Intention to discriminate is irrelevant for finding indirect discrimination: it is the actual effect of a measure which matters. Although the applicants maintained that the effects of placing Roma children in special schools were discriminatory and statistical evidence could support this claim, the Chamber did not find indirect discrimination.49 On appeal, the Grand Chamber of the ECtHR rightly found a violation of Article 14 in conjunction with P1-2.50 In assessing the claim of indirect discrimination, the ECtHR first clarified that the case did not concern the Czech Republic’s failure to ensure positive action to protect Roma minority in educational matters; rather, all that had to be established in the applicants’ submission was that, ‘without objective and reasonable justification, they were treated less favourably than non-Roma children in a comparable situation and that this amounted in their case to indirect discrimination’.51 In the Grand Chamber’s view ‘a difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, MINORITY GROUPS AND LITIGATION: A REVIEW OF DEVELOPMENTS IN INTERNATIONAL AND REGIONAL JURISPRUDENCE 7