Discriminări

A Top-Down Approach to Roma Discrimination
International Litigation as a solution for Human Rights Redress against Violations
 

RALUCA RADESCU¹
[National School of Political and Administrative Studies]

Abstract:
Law and international relations are interrelated areas. In this framework, by using the decisions taken in cases on discrimination brought by Romanian nationals of Roma origin before the European Court of Human Rights, I plan to asses whether litigation can impact the issue of discrimination against Roma and whether positive obligations imposed to the state have any power to challenge and minimize the racist discourse in Romania. From this perspective the discourse goes beyond the two contrasting ideological positions that dominate the contemporary world debate on minorities – assimilation or integration and sees how minorities use international litigation as an instrument of self-empowerment.

Keywords: Roma discrimination; minority; soft balancing; international organizations; litigation

Human Rights for Roma minority have been the bone of contention in Romania’s accessi on process to the European Union(EU)².The article is making the argument that by becoming an internationally acknowledged minority, Roma rights litigation has done much more for influencing domestic policies on discrimination rather than the rest. Political lobby-ism, advocacy and awareness rising in international and national institutions are strategies Roma minority use to claim international attention for their human rights concerns.

Human rights (HR) and international relations are interrelated fields. In the aftermath of 1989 and moreover after 9/11, the International Relations shifted from a bipolar system to one controlled by a hegemonic state³. The emergence of international organizations and cooperation pacts have changed the world order. One of the aims under the European Union/United Nations/North Atlantic Treaty Organization frameworks of peace and stability is to create new levels of cooperation so that conflicts/ common projects could be solved/ achieved in a diplomatic manner, appealing only to diplomatic, economic, symbolic incentives/ sanctions and to avoid the use of military power. Although some may disagree⁴, the power of international institutions contributed to giving voices to new entities in world politics: minority groups, indigenous people, migrants etc. „From this perspective, the UN not only provides a forum for states to resolve their disputes, it also serves as a medium through which state and non-state actors promote their often competing interests”⁵.

Minorities in Europe are emerging in international relations as new actors of the world politics. Many have fought for recognition/ special rights/ acknowledgment before international organizations and such as the United Nations(U.N), the Council of Europe (CoE)⁶. There are ten to twelve million Roma people living on the European Continent, making Roma Europe’s largest ethnic minority group, visible in all European Union (EU) member states⁷. According to the United Nations High Commissioner on National Minorities⁸ Roma population represents the most marginalized and discriminated ethnic group in the EU. The Decade of Roma Inclusion 2005 -2015 represents the international community’s devotion to combat social eof Europe’s Roma minorities.

International Framework

The human rights system is a value-based and oriented system aimed at ensuring the protection of human life, autonomy and dignity of all people through international standards and procedural rules⁹. When fundamental rights belonging to an individual/ group are not respected and justice has not been found at the level of national courts, it falls into the responsibility of the international community to take the case into account, as the situation touches upon the universality and indivisibility of human rights.

Minority¹⁰ protection can appear at three levels: under the international umbrella offered by the UN Treaties and additional Covenants, the regional level represented by the European Convention of Human Rights and its additional protocols and the national layer provided by the domestic law in Romania. Under the prospective for EU accession, the state has signed and ratified a number of important legal instruments in the field of combating racism and xenophobia and has made progress in adapting its internal legislation to the situation of discrimination against different minorities living in the country¹¹. However, Romania did not adhere willingly to 2 fundamental legal instruments: the Framework Convention on the Protection of National Minorities and Protocol 12 for the Elimination of All Forms of Discrimination, until it was imposed to do it by the ECtHR in a 2005 judgment. Roma minority statute within the EU states must be understood in the light of their history. They face discrimination at multiple levels that is why they experience mistrust in state institutions. Many of them are marginalized with little chances of having access to education, health care, housing, employment, social services, judicial services and so on. In its Regular Report on Romania’s progress towards Accession of 8 November 2000, the European Commission stated, that „Roma remain subject to widespread discrimination throughout Romanian society. However, the Government’s commitment to addressing this situation remains low and there has been little substantial progress in this area since the last regular report”¹².

Let me now proceed to the core of the paper, which touches on the issue of ethnic discrimination in the Romanian justice system and the anti-Roma biases used by police forces. Racially motivated violence on Roma people and property perpetrated by police officers and non-state actors are very frequent offenses. To be more precise, there have been 16 cases brought before the ECtHR on accusations of discrimination (Article 14). 12 of these cases were brought against Romania by Roma people. 10 of the cases refereed to ethnic discrimination in the legal system and in police assaults. I will analyze just two case studies. The following cases taken into discussion have greatly contributed to Roma Rights in Romania and Europe and they are: Nachova and Others . Bulgaria, D.H. and Others v. Czech Republic,Moldovan and Others v. Romania and Cabarulea v. Romania.

This is a study about how patterns of racial discrimination used by some Romanian Public Prosecutors, Police Officers and Judges in the ten law-cases involving Roma people and communities can claim international recognition and bring institutional change at domestic levels.

Briefly, I will make a presentation of the international protection against discrimination. As of December the 1st 2009 and the entry into force of the Lisbon Treaty human rights gained more weight in the Europe. The legally binding treaty gives power to the European Charter of Fundamental Rights and incorporates the values of the European Convention on Human Rights and the jurisprudence of the European Court of Human Rights. The Additional Protocol 12 to the European Convention on Human Rights prohibits all forms of discrimination so that to cover discrimination in any legal right, even when that legal right is not protected under the Convention, so long as it is provided for in national law¹³. That is why I will work on the HR framework provided by the Council of Europe, as it is the oldest and richest in jurisprudence at the European level.

To begin with, ethnic discrimination can take the form of different actions, statutes, executive orders and court decisions. It can be practiced by all categories of the social actors, but for the present paper we are interested only in state authorities, by the legislative, executive and judicial branches. It is worth mentioning that Article 14 against discrimination does not give a free-standing right to pursue a case on Article 14 grounds alone. No cases can be brought before the ECtHR on the basis of discrimination alone. In the cases selected for this study, Article 14 of the European Convention of Human Rights has been accessed in collaboration with other articles, such as the right to life (Art. 2), the right not to be subjected to torture or to human and degrading treatment/ punishment (Art. 3), the right to private life, family life, home and correspondence (Art. 8), the right to effective remedy before a national court (Art. 13). In order to see how international litigation can change the domestic affairs of a state, I will tackle this issue formally, by analyzing how the European Protection of this right functions and them I will address the substance of the right and the cases.

Article 14 enforces two obligations that the states have to respect: the negative state obligation refers to everyone’s right not to be discriminated against on the basis of sex, race, ethnic background and so on; the positive one requires the state to protect and intervene in order to prevent/ stop cases of discrimination of which the state is aware. This also implies the procedural obligation of the state to investigate possible racist acts or the motivation behind violent acts¹⁴. This interpretation of the Article developed through the judgment in the case of Nachova and Others v. Bulgaria.

Two Roma men, Mr. Angelov and Mr. Petkov were hiding from the police after escaping a Construction Force. The police went looking for them with a warranty for their arrest and were told to act „in accordance with the rules”. When the police arrived at their hiding place, the two men started to run, without being armed, and were shot to death by the police. The Bulgarian state believed that the police officers acted in accordance with the law, however the judges unanimously believed that the authorities used „grossly excessive force”¹⁵ and that the rights to life and the right to be free from discrimination have been violated. The daring part of the ruling comes last, when the Court decided that it was in the state’s responsibility to investigate the deprivation of life, which led to the death of the two men. Moreover, the judges reached the conclusion that racist attitudes on the behalf of the authorities lead to the death of the Roma men. Nachova and Others v. Bulgaria is a Grand Chamber decision of 2005 and concludes that racist motives may play a role in the events of a crime and it is the positive obligation of the state officials to investigate whether racist motives played a role in the events or not. The recollection of the facts by one of the witnesses to the incident mentioned that one of the policeman who shot the Roma was screeming: „You damn Gypsies!”¹⁶

The second landmark case is that of D.H. and Others v. Czech Republic. It refers to a systematic discrimination of Roma children, who were sent in a large number in schools for mentally disabled children. After examining the facts: statistics (the percentages of Roma pupils in these schools compared to other ethnicities), the fact that the children did not present any symptoms related to the alleged condition, nor did the parents approved for their institutionalization; the Court decided that it was no longer the responsibility of the applicants to prove the case of discrimination and that it was the state responsibility to produce evidence against the accusations. The impact of this decision went further in the sense that it decided that under flagrant situations of possible discrimination, the burden of proof is inverted and states are the ones that should start looking for proofs to show their innocence. Therefore, once the presumption of discrimination is established, the hardest part of the case falls in the responsibility of the state to prove the opposite.

The third case selected is that of Moldovan and Others v. Romania. The decision of the Court was given in 2005, with reflection to the facts that took place in September 1993 in the Romanian village of Hadareni (Targu-Mures County). The accusations bought to the Romanian state are that of violating Art. 3 – prohibition of torture, Art. 6 – right to a fair trial, Art. 8 – respect for private and family life, Art. 14 – prohibition of discrimination. As Romania ratified the European Convention in 1994, the Court could not judge the events of September 1993 but only the facts after 1994, and respectively the lack of effective remedies to the Roma victims: the right to a fair trial, prohibition of discrimination and right to family, home and correspondence.

On September the 20, 1993, a quarell broke in a bar of Hadareni (Mures district). Three Roma men began to argue with a non-Roma man and the fight ended up with the death of another non-Roma person. The three Roma left the bar and ran to find a hiding place in a house nearby. Soon after the villagers heard about the incident they organized in teams to find the Roma and get revenge. The majority of the villagers participated and went to the house where the three Roma people were hiding. They asked the three men to come out of the house and when they did not, they set the house on fire. It is important at this point to mention that even though the police was present, they did not do anything to prevent the violence to escalate¹⁷. One Roma man died in the fire and the other two who wanted to get out were beaten to death by the villagers. After that all all Roma property in the village were destroyed. Following that night the applicants lost everything and had to live in precarious conditions. The members of the Roma community in Hadareni filled a criminal complaint to the Prosecutor’s office. In 2000, after 7 years of waiting the result of the criminal investigation in Romania , 11 defendants were convicted, 4 people condemned for murder and 7 for arson. Two of the people condemned with murder were granted presidential pardon and liberated. The same year the European Roma Rights Center filled a complaint against Romania on behalf of the 25 Hadareni victims. This lead  to a friendly settlement between the Romanian Government and 18 of the 25 victims. The other seven applicants refused to settled and complained at the ECtHR that the Romanian state violated their right to be free from inhuman and degrading treatment, from discrimination and to have access to effective remedy in court. The Court found that it was the positive obligation of the state to protect its citizens and that the Public Prosecutors’ Office failed to institute criminal proceedings against the people guilty of the aggressions, and thus prevented the domestic courts from establishing the gravity of the facts and punish them in accordance. It furthermore considers that the victims were living in bad conditions and the state did not offer any redress in any way for their situation for a great number of years so the state’s inaction was considered wrongful. Also it must have caused them considerable mental suffering, thus diminishing their human dignity and arousing in them such feelings as to cause humiliation and debasement. In the testimonies of the Romanian authorities the Court found sufficient  evidence of racial discrimination against Roma and therefore ruled that a violation of the right to non-discrimination has been done. The remarks concerning the applicants’ honesty and way of life made by some Romanian authorities dealing with the applicants’ grievances were considered by the Court purely discriminatory¹⁸. The applicants submitted that, on account of their ethnicity, they were victims of discrimination by judicial bodies and officials. The Court  agrees that the attacks were directed against the applicants because of their Roma origin and therefore a violation of Article 14 took place. „It appears that the police officers present did nothing to stop these attacks. The applicants alleged that, on the contrary, the police also called for and allowed the destruction of all Roma property.”¹⁹

According to Luke Clements²⁰, the Moldovan case represented „a judgment that challenges the perception that Roma are powerless to confront the indifference and hostility of the police and state officials to their plight.”

Execution of the ECtHR judgments

The states which are parties to the Council of Europe framework are obliged under the provisions of the treaties to comply with the decisions of the Court. The Committee of Ministers has the role to supervise the execution of the judgments, which takes the form of just satisfaction, individual and general measures. I will offer a general explanation for each of them.

In cases of failure to execute a decision of the Court, the Commission of Ministers has some powers to pressure the state to fulfill its obligation. However, these powers are based more on notifications and monthly reminders, but they can go so far as to push for the withdrawal or the suspension of the membership²¹.

Individual measures suppose to try to put the „victim/ group of victims” in the situation he/she/they were before the violation took place. This differs from one situation to another, but in cases of discrimination the Court is entitled to ask for re-opening investigations or repairing measures. The general measures have the property of being a precaution of the Court for the same situation not to happen again in the future. General measures touch on the legal system of the national country and can imply changing the law or adopting new legislation. Once the Committee of Ministers decides how the decision of the Court will be implemented, it informs the state of the necessary steps to be taken. When the country is ready to implement them, it answers back to the Committee of Ministers and the Monitoring Department in order to be acquitted of the charge. If the plan is effective, then the committee of Ministers writes a resolution for the case. Although the implementation of the judgments can take too long or they can even fail, until now no state has lost its membership for the Council of Europe.

In the case of Moldovan and Others v. Romania, the Court decided to offer to the seven applicants pecuniary damages. As general measures, Romania had to pick up on different programs for fighting discrimination in the schools from the Hadareni neighborhoods, so to prevent further discrimination situations. The Government helped to rebuild the destroyed houses. Also, it was advised to improve the implementation of the Romanian Strategy for Improving the Situation of Roma. More importantly, Romania ratified the additional Protocol 12 on the European Convention on Human Rights, on discrimination. However, the way in which Romania complied to the ruling of the Court was considered unsatisfactory in a European Roma Rights Center²² Report.

The last case I am referring to is Carabulea v. Romania, about violations during police arrest in 1996, but decided by the Chamber in July 2010. The facts of the case, as explained in paragraph 7 of the final decision state that „On 3 May 1996 his brother, Gabriel Carabulea, aged 27, died in police custody in Bucharest following his arrest on suspicion of robbery. The ensuing investigations conducted by the prosecution authorities ended with the conclusion that Gabriel Carabulea died of natural causes, against a background of pre-existing ailments.”²³ Viorel Carabulea, a Romanian citizen of Roma origin and the brother of the deceased, contested the police report, by stating that his brother was perfectly healthy before being taken by the police. The Court reminded the fact that people in police custody are in a particularly vulnerable position and that they are under the responsibility of the authorities. Explicitly, when somebody is taken in custody it is the responsibility of the state to take care of him or her. The judges observed that in this case, when Mr. Carabulea was taken in by the police and later died it is the responsibility of the State to give plausible explanations about what happened. The Court observed that Romania was in accordance with the standard procedures in these cases, so it decided that „the failure to carry out a medical examination of Mr. Carabulea at the commencement of his detention was, therefore, unlawful”²⁴. Moreover, the Court found a violation of the right to life as the police did not offer a plausible explanation for his death. Thirdly, regarding the alleged accusation of torture and inhuman and degrading treatment during police arrest, the Court decided that there was a violation as the victim ended up in the hospital without any reasonable explanation. The Court goes farther and states that probably the pain inflicted to the victim were intended to make him confess to the police the offense he was taken in for. In this respect, the Court undoubtedly found a violation of Article 3²⁵. Because of the seriousness of the violation, the Court stops at this point, without proceeding in examining the rest of the accusations, such as the one on discrimination. However, in the opinions offered by Judges Power and Gyulumyan, there is enough material to see how they would have proceeded in the matter of the racial discrimination. The two of them disagree with the opinions of the rest of the judges of not looking at the discrimination accusation, taking into consideration Romania’s record on racial profiling and anti-Roma biases by the police. They went further and observed that the authorities were under a positive obligation to investigate whether racist motives were behind the ill-treatment and death of Gabriel Carabulea. They put it plain and simple in paragraph 3 of their joint-dissenting-opinion: „Consequently, we consider that where a state is the subject of persistent criticism from international quarters for the manner in which it treats an ethnic minority, justice may require that the burden shifts to such a state to show that discrimination formed no part of the events in respect of which complaints are made. In other words, as part of its overall obligation to respond to and investigate claims of discrimination against Roma in custody, the Romanian state ought to be in a position to answer the applicant’s allegations by reference to relevant and reliable information which shows that members of the Roma community who enter police custody are treated no differently than other members of Romanian society.²⁶” The judges recall the fact that both the UN Committee on the Elimination of Racial Discrimination and ECRI, the European Commission against Racism and Intolerance, appealed for the Romanian state to intensify the training in the administration of justice targeting, teachers in military and police academies. ECRI reports attest that violations are still taking place as regards to police attitudes and behaviour towards Roma members of the community²⁷. More specifically, it deplored that cases of police violence against members of the Roma community continued to occur and had led to serious and sometimes lethal injuries and it advocated an independent and investigative mechanism to inquire into police abuses. Whilst, admittedly, its 2005 report noted a decrease in the level of police violence against members of the Roma community it nevertheless stressed that the Roma community continued to be discriminated against in all areas.

Conclusions

The article points out one way in which minorities can claim international recognition and support for their issues through litigation. The case studies on Roma Minority before the ECtHR identified situations when the right to non-discrimination was infringed and showed how international litigation paved the way to policy reforms and raising international awareness. So, in the broader context of international accountability for human rights violations, I examined what international recognition for Roma minority can do in the Romania’s domestic affairs. In order to asses how justiciability impacted the substance of discrimination against Roma, I looked at the positive obligations the state had to fulfill in order to improve Roma conditions in Romania and to see how these judgments paved the way for institutional change.

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RALUCA RADESCU – Drd., Facultatea de Ştiinţe Politice, SNSPA.

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