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Roma Rights, Racial Discrimination and ESC Rights
Claude Cahn
August 2005
Roma constitute Europe’s most excluded and marginalized ethnic group.
Significant segments of the Romani community live mired in poverty or
extreme poverty. Substandard living conditions ensure exposure to a range of
contagious diseases. Adequate health care and adequate schooling are
frequently unavailable, and where these are available, they are frequently
racially segregated. In addition, Roma have in recent years frequently
endured physical attack as racism has once again become acceptable in
European societies, and as movements with explicitly racist agenda have
grown, often with “Gypsies” as a named target group.
Beginning in the 1990s, advocates began challenging the practices to which
Roma are habitually subjected, including by pressing for expanded legal
norms banning racial discrimination, as well as by using these once they had
been secured. As a result, the recent period has been characterized by a
steady trickle of positive rulings by domestic and international tribunals
in cases involving racially motivated treatment of Roma. Some of these have
significantly reshaped domestic and international jurisprudence in matters
related to the extreme harm of racial discrimination.
These positive developments reignite fundamental questions as to the
relationship between the ban on discrimination – including the extreme harm
of racial discrimination – on the one hand, and the establishment and
advancement of economic and social rights on the other. This paper aims to
explore superficially this dilemma and to sketch the current state of
affairs, with the aim of pointing advocates toward possible future action.
The Justiciability of Roma Rights
A string of recent decisions brought by international tribunals in Roma
rights cases involve matters first brought in the mid-1990s which are now
reaching final decision.
These include decisions in matters such as Nachova and Others v. Bulgaria,
in which military police shot and killed two unarmed Romani men in
circumstances giving rise to concerns that the killings were infected with
racial animus. In a July 2005 ruling, the Grand Chamber of the European
Court of Human Rights partially upheld an earlier decision at first instance
that the killings and related failure to investigate implicated Article 14 –
the European Convention ban on discrimination. Although the decision is the
fourth in which the European Court has found Bulgaria in violation of the
Convention in matters related to the abuse of Roma by police, it is the
Court’s first ever finding of an Article 14 violation in a racial
discrimination case.
Similarly, in Hajrizi Dzemajl et al. v. the Federal Republic of Yugoslavia,
the UN Committee Against Torture (CAT) found Montenegro in violation of the
Torture Convention. The case involves the failure of the Montenegrin
government to remedy harms arising from the destruction by pogrom of a
Romani settlement in 1995 in the town of Podgorica. Following the UN CAT
ruling, the government of Montenegro awarded 74 victims a total of 985,000
Euro damages.
It will be seen that these cases and other, similar ones brought
domestically and then to international tribunals involve episodes of massive
community violence against Romani communities or other forms of very extreme
violence against Roma. Reasons why such cases in particular have reached
international tribunals are numerous, but two are worth noting in
particular. In the first place, the circumstances of these cases were so
extreme that they evidently required just settlement; since the governments
concerned had failed to provide this, international tribunals were willing
to weigh in to correct matters. A second noteworthy issue involves the
nature of international justice: it is at present particularly suited to
address matters involving violence and other extremes of human interaction.
It is not (yet) as adept at confronting matters not as picturesque as
pogroms and killings by law enforcement officials, despite the fact that
these less graphic harms may have an equally pernicious impact on the lives
of the marginalized poor.
In keeping with the spirit of narrowing the concerns of international
justice to the most constricted possible range, in ruling on these cases,
there has been a determined effort to exclude economic and social concerns
from the matters at issue, as well as to keep considerations such as the
influence of racial discrimination, to a bare minimum. Thus, for example, in
the European Court of Human Rights Grand Chamber ruling in Nachova, the
Court describes an approach whereunder states may only have particular
obligations to examine racial discrimination matters if a person dies in the
custody of the state, or in similarly extreme circumstances:
The Grand Chamber reiterates that in certain circumstances, where the events
lie wholly, or in large part, within the exclusive knowledge of the
authorities, as in the case of death of a person within their control in
custody, the burden of proof may be regarded as resting on the authorities
to provide a satisfactory and convincing explanation of, in particular, the
causes of the detained person's death (see Salman v. Turkey [GC], no.
21986/93, § 100, ECHR 2000-VII). The Grand Chamber cannot exclude the
possibility that in certain cases of alleged discrimination it may require
the respondent Government to disprove an arguable allegation of
discrimination and – if they fail to do so – find a violation of Article 14
of the Convention on that basis.
In so ruling, the Grand Chamber reboiled the approach of the European
Court’s first instance ruling, which seemed to suggest even more that states
may only have particular obligations related to racial discrimination when
someone dies violently at the hands of a representative of the state:
157. That obligation must be discharged without discrimination, as required
by Article 14 of the Convention. The Court reiterates that where there is
suspicion that racial attitudes induced a violent act it is particularly
important that the official investigation is pursued with vigour and
impartiality, having regard to the need to reassert continuously society's
condemnation of racism and ethnic hatred and to maintain the confidence of
minorities in the ability of the authorities to protect them from the threat
of racist violence. Compliance with the State's positive obligations under
Article 2 of the Convention requires that the domestic legal system must
demonstrate its capacity to enforce criminal law against those who
unlawfully took the life of another, irrespective of the victim's racial or
ethnic origin (see Menson and Others v. the United Kingdom (dec.), no.
47916/99, ECHR 2003-V).
158. The Court considers that when investigating violent incidents and, in
particular, deaths at the hands of State agents, State authorities have the
additional duty to take all reasonable steps to unmask any racist motive and
to establish whether or not ethnic hatred or prejudice may have played a
role in the events. Failing to do so and treating racially induced violence
and brutality on an equal footing with cases that have no racist overtones
would be to turn a blind eye to the specific nature of acts that are
particularly destructive of fundamental rights. A failure to make a
distinction in the way in which situations that are essentially different
are handled may constitute unjustified treatment irreconcilable with Article
14 of the Convention (see, mutatis mutandis, Thlimmenos v. Greece [GC], no.
34369/97, § 44, ECHR 2000 IV). In order to maintain public confidence in
their law enforcement machinery, contracting States must ensure that in the
investigation of incidents involving the use of force a distinction is made
both in their legal systems and in practice between cases of excessive use
of force and of racist killing.
159. Admittedly, proving racial motivation will often be extremely difficult
in practice. The respondent State's obligation to investigate possible
racist overtones to a violent act is an obligation to use best endeavours
and not absolute (see, mutatis mutandis, Shanaghan v. the United Kingdom,
no. 37715/97, § 90, ECHR 2001 III, setting out the same standard with regard
to the general obligation to investigate). The authorities must do what is
reasonable in the circumstances to collect and secure the evidence, explore
all practical means of discovering the truth and deliver fully reasoned,
impartial and objective decisions, without omitting suspicious facts that
may be indicative of a racially induced violence.
Left begging are what criteria are required of a state with respect to
investigating, for example, an employment discrimination case, despite the
fact that discrimination in the field of employment might be a type of harm
with much farther reaching implications for long-term exclusion of certain
categories of person. It is hard to see how the resulting codification of an
approach whereunder an international tribunal affirms that racial
discrimination matters are only particularly compelling in circumstances in
which someone dies violently would be anything other than a significant
degradation of the system of international human rights justice. On the
contrary, it would seem to reaffirm the most problematic elements of
international justice: until the European Court of Human Rights first
instance ruling in Nachova and Others v. Bulgaria in February 2004, the
Court had never once managed to find a violation of Article 14 in a racial
discrimination case.
The effort to limit racial discrimination matters and to exclude social and
economic matters from international human rights justice notwithstanding,
these issues cannot be excluded from international justice, and so
persistently invade rulings by tribunals which seem determined to keep them
out, or which are by mandate designed to exclude them. Thus, for example,
among primary compelling details heard by UN Committee Against Torture in
Hajrizi Dzemajl et al. v. the Federal Republic of Yugoslavia, noted above,
was the fact that as a result of being hounded from the town, all of the
Romani men in the settlement had failed to come to work, and had then been
dismissed from their place of employment -- a local factory -- and in the
eight years following the pogrom had not been provided with due remedy,
despite civil complaints for unfair dismissal. Thus, although UN CAT has no
mandate in matters related to employment, the ludicrous circumstances of the
dismissals of the Romani men concerned from their place of employment, as
well as the failure to provide justice in these cases, weighed significantly
in the finding of degrading treatment related to the pogrom.
No recent decisions better exemplify the phenomenon in which social and
economic rights matters haunt the margins of civil and political rights
decisions, acting as the repressed agents forcing forward positive
decisions, than the two recent excellent decisions in the matter of Moldovan
and Others v. Romania, the official name of the case generally referred to
as “Hadareni”. Hadareni is a village on the road between the towns of Cluj
and Tirgu Mures, in the Transylvania region of Romania. There, on September
20, 1993, following the stabbing of a non-Romani man by local Roma,
villagers killed three Romani men and then set upon the Romani settlement
itself, burning 14 houses to the ground. The event was one of a series of
major anti-Romani mob violence incidents which took place in Romania in the
period 1990-1993, in which locals killed Roma, burnt their settlements to
the ground, and expelled them from localities. Following the near-complete
failure of justice in the case before local courts, in January 2001, the
case was brought to the European Court of Human Rights.
In a first ruling on the merits of the case, issued on July 5, 2005, the
Court confirmed a friendly settlement between the Romanian government and 18
victims, in which a total of 262,000 Euro would be paid in damages. Amounts
awarded range between 11,000 and 28,000 Euros per in dividual or couple. The
July 5 decision also commits the Romanian government to a range of measures
aimed at ameliorating the situation of the Roma locally, as well as
dampening the continuing high degrees of anti-Romani hatred in the area. In
an unusual move, the decision of July 5 includes a detailed recital of the
case. The Court evidently decided that the facts of the case should be part
of the public record.
The Court issued decision on the merits of the case on July 12, 2005,
delivering judgment on matters concerning seven applicants who refused
friendly settlement with the government. In the ruling, the Court found
violations of Article 3 (prohibition of inhuman or degrading treatment),
Article 6(1) (right to a fair hearing) on account of the length of the
proceedings, Article 8 (right to respect for private and family life), and
Article 14 (prohibition of discrimination) taken in conjunction with
Articles 6(1) and 8. In a very rare move, the Court held that the
discrimination in the proceedings of the case had been so intense, that it
amounted to degrading treatment as banned under Article 3. Damages totaling
238,000 Euro were awarded to the victims, including one award of 95,000
Euros to one of the victims, a very high award by European Court standards.
There are many striking features of the two Hadareni decisions, and it is
not the purpose of this article to examine the decisions in detail. One
aspect of the decisions is relevant for the purposes of this article: for
formal reasons, the Court could not hear complaints relating to the pogrom
itself, because the episode had taken place before Romania entered the
Council of Europe, and therefore before it was bound by the European
Convention on Human Rights, the law the European Court is charged with
enforcing. Nevertheless, in a landmark admissibility ruling in June 2003,
the Court agreed to hear the case, on the basis of the fact that a vacuum of
justice in the case, and the continuing degrading conditions in which the
victims lived once Romania was bound by the Convention might constitute
continuing violations of the Convention.
Thus, one of two sluice gates through which the Court approaches ruling on
the matter of the pogrom was in fact the living conditions of the persons
concerned following the episode. Indeed, the reasoning in relation to these
aspects of the ruling is among the most detailed parts of the Court’s ruling
on the merits of the case. After deliberating on matters such as “three
houses have not to date been rebuilt and, as can be seen from the
photographs submitted by the applicants, the houses rebuilt by the
authorities are uninhabitable, with large gaps between the windows and the
walls and incomplete roofs; …”, the Court held:
108. In the Court’s view, the above elements taken together disclose a
general attitude of the authorities – prosecutors, criminal and civil
courts, Government and local authorities – which perpetuated the applicants’
feelings of insecurity after June 1994 and constituted in itself a hindrance
of the applicants’ rights to respect for their private and family life and
their homes (see, mutatis mutandis, Akdivar v. Turkey, judgment of 16
September 1996, Reports 1996-IV, p. 1215, § 88).
109. The Court concludes that the above hindrance and the repeated failure
of the authorities to put a stop to breaches of the applicants’ rights,
amount to a serious violation of Article 8 of the Convention of a continuing
nature.
110. It furthermore considers that the applicants’ living conditions in the
last ten years, in particular the severely overcrowded and unsanitary
environment and its detrimental effect on the applicants’ health and
well-being, combined with the length of the period during which the
applicants have had to live in such conditions and the general attitude of
the authorities, must have caused them considerable mental suffering, thus
diminishing their human dignity and arousing in them such feelings as to
cause humiliation and debasement.
After further recital of facts, the Court proceeds to find a violation of
Article 3 of the Convention for reasons including racial discrimination,
thus ruling that Romania had breached the ban on cruel and degrading
treatment.
The foregoing however begs the question of how these facts might differ from
those of persons compelled to live in extremely substandard conditions, but
who had not previously been subjected to community violence (or at least not
in the very immediate past), and why exactly the State’s obligations toward
such persons might be different from its obligations toward persons
subjected to pogrom. How would the feelings of “humiliation and debasement”
differ in the two cases? Having proceeded to develop an approach whereby the
Court recognizes that “severely overcrowded and unsanitary environment and
its detrimental effect on the applicants’ health and well-being, combined
with the length of the period during which the applicants have had to live
in such conditions and the general attitude of the authorities,” might give
rise to “considerable mental suffering”, it is very unclear why a person
would additionally have to demonstrate that she had been subjected to
community violence in order to secure some sort of remedy from the condition
by the State.
These subversive elements of the Court’s jurisprudence remain, however, at
present, just that: subversive elements. Economic and social matters tend to
weigh in as supporting material, but the focus of the Court and similar
international tribunals are civil and political matters: death, torture,
exclusion from political and justice processes. Thus, the European Court’s
most significant ruling on environmental harms to date -- Oneryildiz v.
Turkey – makes very important law surrounding issues related to the
treatment of slum dwellers and a state’s obligations toward them. The Court
heard a range of evidence in the instant case indicating that local
officials were aware of environmental threats posed to slum dwellers by a
local dump, and not only failed to take steps to remove the dangers, but
actually facilitated the continued presence of the slum dwellers on the
site, including by providing rudimentary services and taxing the dwellings.
However, the Court’s ruling in the matter came only after 39 persons died as
a result of the explosion of the facility.
The Ban on Discrimination
The tendency of international human rights justice to concentrate on civil
and political rights issues has been at least in part behind moves to bring
social and economic issues into international justice through a focus on
discrimination matters. Discrimination is banned under both Covenants.
Famously, in the cases Broeks v. the Netherlands and Zwaan de Vries v. the
Netherlands , both cases relating to discrimination in connection with the
right to draw social security benefits, the UN Human Rights Committee ruled
that the Article 26 ban on discrimination of the International Covenant on
Civil and Political Rights (ICCPR) covered issues outside the rights
contained in ICCPR and therefore constituted a freestanding right for the
purposes of the ICCPR. Even persons and entities opposed to the idea that
social and economic rights exist as fundamental rights on the same footing
as civil and political rights have been willing to recognise – and indeed
have encouraged the idea – that economic and social exclusion matters be
addressed within the framework of a ban on discrimination. Thus a degree of
consensus has emerged on the ban on discrimination, which has not yet been
secured on the existence – let alone the justiciability – of social and
economic rights.
In recent years, in particular in response to the very disturbing return of
visceral and explicit racism to the European public space, European
authorities have responded by considerably elaborating the ban on racial
discrimination law in Europe, both in the framework of European Union law
and therefore in the Member States of the European Union, as well as in the
Council of Europe system. This article is not the place to discuss the scope
and nature of the very rich and manifold concepts at issue in the ban on
discrimination. A brief overview suggests that at minimum a number of
matters are implicated in the ban on discrimination for the purposes of the
legal systems of Europe, as well as under the international law systems
binding European states. These include but are not necessarily limited to
bans on:
• Direct discrimination, or treating similarly situated persons differently
in similar situations, for arbitrary reasons including race, ethnicity,
nationality, gender, political conviction, sexual orientation, social
status, birth or other reasons;
• Following the European Court of Human Rights ruling in Thlimmenos v.
Greece, “The right not to be discriminated against in the enjoyment of the
rights guaranteed under the Convention is also violated when States without
an objective and reasonable justification fail to treat differently persons
whose situations are significantly different.”
• Indirect discrimination, meaning where persons are placed at a particular
disadvantage as a result of an apparently neutral rule, criterion or
practice, provided there is no objective justification for the disadvantage;
• Failure to progressively realize the rights included in the International
Covenant on Economic, Social and Cultural Rights, for reasons of any of the
criteria set out under Article 2(2) of the Covenant;
• “Harassment”, meaning “unwanted conduct related to racial or ethnic origin
takes place with the purpose or effect of violating the dignity of a person
and of creating an intimidating, hostile, degrading, humiliating or
offensive environment”;
• An instruction to discriminate against persons on grounds of racial or
ethnic origin;
• Any adverse treatment or adverse consequences as a reaction to a complaint
or to proceedings aimed at enforcing compliance with the principle of equal
treatment.
Even though these are still early days, the implications for Roma of these
expanded norms have already been significant. For example, in the period
since December 2003, when Bulgaria adopted its first comprehensive
anti-discrimination law as a result of the requirements of the EU Race
Directive, Bulgarian courts have on at least eight occasions ordered
compensatory damages for Romani victims of racial discrimination, in cases
including bans on services in shops and restaurants, discriminatory refusals
to hire, and the arbitrary refusal of equal treatment in the provision of
state-provided electricity services.
At international level, quasi-judicial bodies have been persuaded that Roma
suffer systemic discrimination. For example, in December 2004, the European
Committee of Social Rights, ruling in the matter of European Roma Rights
Center v. Greece, held that Greece had violated Article 16 of the European
Social Charter in three different aspects by systematically denying Roma the
right to adequate housing, due to:
- The insufficient number of dwellings of an acceptable quality to meet the
needs of settled Roma;
- The insufficient number of stopping places for Roma who choose to follow
an itinerant lifestyle or who are forced to do so;
- The systemic eviction of Roma from sites or dwellings unlawfully occupied
by them.
Similar complaints are currently pending before the Committee against Italy
and Bulgaria. However, because of the nature of the European Social Charter
mechanism, no compensation flows directly to victims of practices.
Implications for the Development of ESC Rights
The foregoing developments of anti-discrimination law are to be welcomed
without qualification; for the first time, Romani and other victims of the
severe harms of discrimination have access to justice, and perpetrators of
injustice are being punished. In many cases, these perpetrators were acting
out practices so casually and habitually indulged in, that it is only now,
for the first time, that discriminators are becoming aware of the harms they
have undertaken. Governments are now acutely aware that they must undertake
and implement policies to improve the situation of Roma and roll back the
effects of widespread if not systemic discrimination, or risk being held
accountable by intergovernmental bodies, or by international or domestic
tribunals. These facts notwithstanding, it is unclear whether, absent
further measures, they significantly advance economic and social rights.
Indeed, it is unclear whether or not these advances in the scope, depth and
range of the ban on discrimination, may not have paradoxically come at the
price of an erosion of social and economic rights, or at least masked some
ongoing erosions.
This dilemma is perhaps best illustrated with respect to the current state
of affairs in the field of housing in Hungary. Hungary is a party to the
International Covenant on Economic, Social and Cultural Rights, and
therefore in principle the Article 11 guarantee of a right to adequate
housing binds Hungary. However, the Hungarian Constitution does not
establish a right to adequate housing and to date, all efforts to establish
a right to adequate housing under domestic law have failed. Also, Hungary
has to date avoided joining the Revised European Social Charter, which
provides explicitly for a right to housing under the Council of Europe
system, in addition to providing a collective complaint mechanism for
petition where such rights have been violated.
Indeed, since the collapse of Communism, both in fact and in law, Hungarian
authorities have significantly eroded rights associated with the right to
adequate housing, and policies aimed at securing adequate housing for all.
For example, Hungary already has among the lowest public housing stocks in
Europe, and as a result of diminishing resources, local authorities have,
since the early 1990s, been progressively selling off what public housing
stocks do exist, a fact which national lawmakers have done nothing to check.
At the same time, Hungarian lawmakers have knocked out previously existing
protections against forced evictions; since 2000, the notary – an assistant
to the mayor – may order eviction, against which no appeals are suspensive.
Previously only a court could do so. Police must implement notary-ordered
evictions within eight days. Although there is a requirement to re-house
evicted furniture, there is no requirement to re-house evicted persons.
These developments, combined with rising prices in Hungary, have given rise
to new armies of homelessness in Hungary. The Hungarian Ministry of Social
Affairs estimates a homeless population of approximately 30,000 in the
country. Due to pressure on public housing stocks, increasingly bizarre
responses to this crisis are reported, such as the adoption in some
municipalities of practices auctioning off social housing to the highest
bidder (!), to name only one example. In early 2005, the Hungarian
Constitutional Court declared a number of local practices in this area
unconstitutional, and review of all local practices in this area has been
ordered, as yet without significant impact.
There are clear indications that practices of forced evictions and
concomitant homelessness are disproportionately falling against Hungary’s
Romani community. Indeed, it was Hungary’s Parliamentary Commissioner on
National and Ethnic Minority Rights who recommended review of local rules on
the provision of social housing in the wake of the Constitutional Court
rulings, primarily because their impact is disproportionately experienced by
Roma. It should be noted that the foregoing is by no means unique to
Hungary; to a greater of lesser degree, similar dynamics are afoot in the
Czech Republic, Slovakia, Bulgaria and Romania. Indeed, in all of these
countries, there are concerns that housing is increasingly racially
segregated.
Since December 2003, as a result of Hungary’s European Union obligations,
Hungary has had a comprehensive law banning discrimination, including in the
area of housing. As such, one can now bring challenge before a court of law
or before Hungary’s recently established anti-discrimination authority to an
act of discrimination – including racial discrimination -- in the field of
housing. Thus, if one is able to demonstrate that a refusal to provide
housing, or some other decision in relation to housing, was influenced by
arbitrary matters of race, it should be struck down by a court or other
authority. This is clearly an advance, particularly for persons excluded
from housing for arbitrary reasons such as race. This importantly remedies a
massive lacuna in Hungarian law – the failure until recently to provide a
useable and effective ban on discrimination, among other things to shelter
pariah groups such as Roma. However, it goes nowhere toward resolving major
components of the underlying problem, namely the near complete evisceration
in recent years of a previously existing housing rights framework.
Conclusion
Important advances in recent years in anti-discrimination law have crucially
provided excluded, pariah and marginalized groups with chances for redress
when fundamental rights are violated, including fundamental social and
economic rights. However, absent a strengthening of the social and economic
rights regime per se, these advances will be only partial, and may
additionally have pernicious side effects, such as for example aggravated
social tensions and resentment against “Gypsies who receive special
treatment”. International tribunals are already dragged in the direction of
ruling on social and economic rights matters, but at present, due to limited
mandates, these matters are often held at the margins of jurisprudence. The
absence of a clear and unequivocal justice framework on social and economic
rights matters threatens further to distort international justice in the
coming years, as tribunals bend and warp their own mandates in order to rule
on matters in need of just remedy. At domestic and international level, a
clear and established framework for hearing and redressing social and
economic rights violations, is the need of the day. Indeed all indications
are that in order to ensure effective protection for all persons, including
pariah minorities such as Roma, both a strong social and economic rights
protection mechanism and a strong anti-discrimination framework are
required.
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