Letter Concerning Situation of Roma in Austria

28 August 2000

On August 28, 2000, the European Roma Rights Center (ERRC), a public interest law organisation which monitors the situation of Roma in Europe and provides legal defence in cases of human rights abuse, sent a letter to the "three wise persons" appointed by the President of the European Court of Human Rights to assess the Austrian government's record on the rights of minorities, refugees and immigrants, as well as the evolution of the political nature of the Freedom Party of Austria (FPÖ). In the letter, the ERRC stated concerns including:

• There are serious causes for concern that Austrian authorities failed regularly to act to combat racist abuse when the victims are Roma.
• There are serious concerns that the Austrian police itself may be infected by racism on a systematic basis.
• Individual Roma with legal status other than full citizenship in Austria have, in recent years, effectively been driven to the extreme margins of Austrian society.
• Even Austria's obligation to provide protection to Roma fleeing persecution has been affected by the present anti-foreigner mood in Austria.
• Since entering government in January 2000, members of the Freedom Part have made explicitly anti-Romani statements.

The ERRC letter to the three wise persons concludes with a series of recommendations for the improvement of the situation of Roma in Austria. The text of the ERRC letter follows:

Honourable Dr Ahtisaari, Dr Frowein, Mr Oreja,

The European Roma Rights Center (ERRC), a public interest law organisation which monitors the situation of Roma in Europe and provides legal defence in cases of human rights abuse, has learned of your mission, as the team of "three wise persons" appointed by the President of the European Court of Human Rights to assess the Austrian government's record on the rights of minorities, refugees and immigrants, as well as the evolution of the political nature of the Freedom Party of Austria (FPÖ).

The ERRC has monitored the situation of Roma in Austria since shortly after the Center opened offices in early 1996. ERRC field research in Austria resulted in the 1996 Country Report Divide and Deport: Roma and Sinti in Austria (available on the website of the European Roma Rights Center at: ERRC: Publications and the ERRC has since remained involved in the Austrian scene through close co-operation with partner organisations and the local human rights and Romani communities. In accord with its mission to advocate on behalf of Roma in Europe, the ERRC herewith respectfully submits a brief assessment of Austria's human rights record on issues affecting Roma, as well as several recommendations aimed at improving treatment of Roma in Austria.

It is estimated that approximately 30,000 Roma presently live in Austria, the overwhelming majority of whom are of foreign birth or birth to foreign parents. The ERRC's 1996 report noted that this group -- up to 25,000 people (i.e., roughly 5/6 of the local Romani population), many of whom had been in Austria for decades and some of whom were born there -- faced serious hindrances to the ability to live with dignity; the combined effect of restrictive legislation pertaining to the acquisition of work and residence permits, as well as popular hostility to dark-skinned foreigners, had rendered life for non-citizen Roma in Austria extremely difficult.

Even prior to entry into government by the Freedom Party, there were serious causes for concern that Austrian authorities failed regularly to act to combat racist abuse when the victims were Roma. In February 1995, a pipe bomb planted inside a sign reading "Roma Go Back to India", placed on the edge of the Romani settlement of Oberwart in Burgenland, Austria, exploded, killing four Romani men. In subsequent legal proceedings, Austrian courts avoided the conclusion that racial animus had played a role in the attack. Mr Franz Fuchs, the perpetrator convicted in the case in March 1999, has since committed suicide in custody.

Austrian courts have been reluctant to find police officers guilty of racially motivated crimes. On August 9, 2000, for example, an Austrian court again ruled that police officers had acted correctly when in April 1996, a riot squad stormed the flat of a Romani woman named Ms Violeta Jevremovic, physically abused her, insulted her ethnic origins and arbitrarily detained her for one night, leaving her children -- all minors -- to fend for themselves. In addition to being loath to find police officers guilty of breaches, including racist abuse, Austrian courts often place undue weight on officer testimony against Roma. According to information provided by the Vienna-based organisation Romano Centro, another Romani woman, Ms M.K., was sentenced to three months imprisonment in 1998 for resisting the police, after officers claimed that she bit them. The officers had reportedly stopped Ms M.K. from going through garbage bins in Vienna to look for food. The court evidently did not take into consideration the fact that Ms M.K., who is elderly, had no teeth.

There are, in fact, serious concerns that the Austrian police itself may be infected by racism on a systematic basis. Earlier this year it came to light that Austrian police use a system of record-keeping -- not only on persons detained on suspicion of crimes, but also reportedly on persons seeking asylum -- which lists persons according to "racial type" (Rasse/Typus), including a checklist of five categories: "Europid", "Southerner/Oriental", "East Asian + Mixed Breed (Mischling-- the old Nazi term)", "South Asian + Mixed Breed" and "Negro (Neger) + Mixed Breed". (A copy of that document, as reproduced in the newsletter of the Vienna-based non-governmental organisation Romano Centro, was included in the package sent to the three wise persons).

True levels of racially motivated crime and police abuse in Austria are unfortunately not known, since such crimes are often not reported by authorities. Members of the United Nations Committee on the Elimination of Racial Discrimination (CERD), which reviewed Austria's compliance with the International Convention on the Elimination of All Forms of Racial Discrimination in 1999 criticised the Austrian report for containing "too little factual information". Indeed, human rights violations of Roma in Austria are often not reported to authorities; Roma in Austria, perceiving that the present Austrian administration will not hear their claims fairly when their human rights have been violated, often do not pursue justice.

Concerning the ability of individual non-citizen Roma to establish themselves in Austria, local activists report that persons with legal status other than full citizenship have, since the ERRC's 1996 report, effectively been driven to the extreme margins of Austrian society. Austrian law was amended in 1997, but legal restrictions on individual establishment have not been lowered. At present, legal employment for non-EU citizens is available to those persons who have entered Austria with a permit of settlement (Niederlassungsbewilligung) issued for a particular job. Other work permits are issued only under a system of very restrictive exceptions.

The case of Ms Jovanka Gaspar, a Romani woman from Romania, is illustrative of wider trends affecting all non-citizen Roma in Austria. Like many if not most Roma who have lived in Austria for years, Ms Gaspar did not enter Austria with a permit of settlement issued for a particular job. July 14, 2000, Ms Gaspar secured a part-time job as a teachers' assistant in Vienna, through a schooling assistance project for Romani children organised by the Vienna-based non-governmental organisation Romano Centro. Ms Gaspar's salary was to have been provided by the Vienna municipal body Wiener Integrationsfond. Ms Gaspar was, however, refused a work permit by Austrian authorities. According to the official who conveyed the information that Ms Gaspar's application had been rejected, Ms Gaspar could not be issued a work permit, since she had not been in Austria for five years. He reportedly stated that in certain cases the five-year quarantine on foreigners working could be waived, but only if the job at issue was important for the economy and Ms Gaspar's teaching assistance job had not been, according to the official, deemed important for the economy.

According to Romano Centro, work permit applications for foreign Roma are now automatically refused if the individual concerned has not been in the country for five years. Work permits are generally renewed if the individual already has one, but if for some reason an individual fails to renew their work permit, authorities refuse to issue a new one. Roma in Austria face numerous other discriminatory burdens in the field of employment; as the Council of Europe's European Commission against Racism and Intolerance (ECRI) has noted, "Non-citizens [in Austria] appear to face numerous disadvantages on the labour market. As compared to Austrian citizens, non-citizens are more likely to be employed on short-term contracts, earn on average lower wages, and may have curtailed access to unemployment benefits. In addition, their rather more uncertain position on the labour market due to the system of work permits leads many non-citizens to accept working conditions that Austrian citizens would refuse, since loss of a job may imply losing a work permit and insufficient income may affect the right of residence in Austria. Such unequal conditions on the labour market for citizens and non-citizens are discriminatory and may also lead to an increase in xenophobic attitudes amongst the general public." Roma, burdened by historic prejudice in Austria, are particularly affected. In direct relation to developments throughout the 1990s in Austria, ECRI recommended that, "[...] it should be made clear that immigration policies are not the same as policies dealing with immigrants already living in a country, and politicians should at the very least engage themselves to ensuring that immigrant groups already living in Austria are treated in a fair and decent manner."

Finally, even Austria's obligation to provide protection to Roma fleeing persecution has been affected by the present anti-foreigner mood in Austria. Austrian protection of refugees in the Kosovo crisis extended only to persons selected abroad -- primarily in Albania and Macedonia -- who were then airlifted into Austria. There were reportedly very few Roma airlifted to Austria and provided protection, if indeed any at all. Such airlifts took place only during the NATO action and ceased after the entry of NATO/KFOR troops to Kosovo in mid-June 1999. As a result, Roma who were subsequently ethnically cleansed from Kosovo by ethnic Albanians after June 1999 -- such persons number over 100,000 -- have been unable to avail themselves of such protection. Nearly all of the Kosovo Roma presently in Austria have entered the country illegally, and this is especially true of Roma who have entered Austria since mid-1999. According to local organisations, none of these Roma have any legal status in Austria, in direct contravention of recommendations by the United Nations High Commissioner for Refugees (UNHCR) advocating "[...] the recognition of Kosovo Roma as refugees or persons in need of international protection [...]."

There are serious causes for concern that the unsettling trends witnessed prior to the Freedom Party's entry into government in January 2000 may be seriously exacerbated now that members of the Freedom Party exercise power in the Austrian administration. As is widely known, the Freedom Party appealed heavily during their Autumn 1999 election campaign to anti-foreigner sentiments. Pertaining to Roma, Austrian authorities have, since the Freedom Party entered the Austrian government, made anti-Romani statements. For example, according to reports on August 5, 2000, in the newspapers Salzburger Nachrichten and Oberösterreichische Nachrichten, Salzburg mayor Mr Siegfried Mitterdorfer, himself a member of the Freedom Party, had stated that he was annoyed that every summer "Gypsy clans" (Zigeunersippen) occupy parking sites in southern Salzburg. He reportedly recommended "zero tolerance". Mayor Mitterdorfer has faced no negative consequences as a result of his statements.

Honourable Mssrs Ahtisaari, Frowein and Oreja, the foundation for any successful anti-discrimination policy is political will at all levels of government. Absent moral leadership in the fight against discrimination, all other steps risk being mere window dressing. Governmental officials must frequently and publicly acknowledge that racism against Roma is a grave and pervasive problem afflicting both Roma and majority society. Governments and the public at large must first acknowledge the extent of racism in order to combat it. Austria is incapable of upholding its international commitments in the field of the fight against racial discrimination as long as public officials and political parties make anti-Romani and anti-foreigner statements with impunity.

All Roma in Austria face popular racism and anti-Romani sentiment. Beginning in the early 1990s, the centrist governments of the centre-left Socialist Party of Austria and centre-right Austrian People's Party took steps to convince the Austrian public not to vote for the Freedom Party, by indicating that the centrist coalition was prepared to be as xenophobic as the extremist challenger; restrictive laws on foreigners allowing public administrators large and arbitrary powers to reject applications for work and residence permits have been in effect from 1992. The strategy of centrist parties to pander to a growing extreme right-wing mood in Austria, evidently, was a failed one. Its legacy, however, remains: the Austrian administration has waged a bureaucratic war of attrition on foreigners -- and especially dark-skinned foreigners -- for the past ten years. Non-citizen Roma have been driven to the extreme margins of Austrian society.

There are indications that, even more than previously, Austrian authorities -- especially those in the Freedom Party -- intend to demonstrate to the international community that Austrian developments are not as dangerous as they seem, through the cultivation of so-called "autochthonous" minorities, a category not legally defined, though posited in opposition to "foreign". On July 7, 2000, the Austrian Parliament decided, during debate on minority legislation and on the initiative of a Freedom Party representative, that minority provisions in Austrian law should explicitly refer to "autochthonous" minorities, to the exclusion of any person who could not demonstrate a historical link to Austria. Austria's "autochthonous" Romani community, reduced dramatically in size due to the Holocaust, is minute. The larger part of the really existing Romani minority, that of immigrant background, is again effectively excluded from the protection enjoyed by "autochthonous" minority members.

ERRC concerns with respect to Austria may be summarised as follows: four years after its publication, the title of the 1996 ERRC report: "Divide and Deport" remains a valid formula of describing Austrian authorities' treatment of Roma. Several thousand local Roma, unsure and easily manipulated due to a legacy of historical persecution culminating with genocide during World War II, are coddled by the Austrian state, while the full bureaucratic machinery of a racist society is set against Roma of non-Austrian origin.

The ERRC considers the present European efforts to assess the Austrian government's human rights record a welcome step. We respectfully urge that the three wise persons indicate to Austrian authorities the necessity of fulfilling its international obligations by undertaking the following:

• Serious and thoroughgoing review of legislation and practice: Austrian lawmakers should review present legislation -- especially legislation pertaining to the rights of foreigners to establish themselves in Austria -- as well as its practice in implementing race-neutral laws, to ensure compliance with international standards. Laws which are shown to have discriminatory impact should be amended or struck down, or legal or administrative measures for their fair implementation should be adopted forthwith.
• Consistent and adequate enforcement of existing anti-discrimination laws: existing anti-discrimination provisions of the Austrian legal order should be rigorously applied. Such measures should include the adequate disciplining of public officials who abuse their authority.
• CERD Article 14: without delay, Austrian authorities should declare, pursuant to Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination (CERD), that Austria accepts the competence of the Committee on the Elimination of Racial Discrimination to consider communications from individuals and groups concerning violations of the Convention.
• Protocol 12 to the European Convention on Human Rights: the Austrian government should proceed with a speedy ratification of Protocol No. 12 to the European Convention on Human Rights (ECHR), adopted by the Committee of Ministers on June 26, 2000, which broadens the scope of ECHR Article 14 on non-discrimination.
• Documentation: the Austrian government can hardly comply with its international obligations to eradicate racial discrimination absent comprehensive data -- including statistics -- showing the racial impact of policies in the fields of, inter alia, employment, housing, education, and criminal justice. Concerning racially-motivated crime and human rights abuses committed by representatives of the state, Austrian authorities should develop independent, pro-active bodies to which individuals can report abuse. One possibility would be the strengthening and significant expansion of the capacity and independence of the new Human Rights Advisory Committee to the Austrian Interior Ministry (Menschenrechtsbeirat).
• Positive actions in the field of the fight against racism and racial discrimination: international law authorises and in some cases mandates affirmative action by governments to ensure equality in fact, as well as in law, for those groups including Roma who have historically suffered systematic discrimination. Among the most important measures the Austrian government can take in this regard are the active recruitment, identification and capacitation of Roma into the ranks of public employment, including the police, prosecutorial corps and the judiciary.
• Dialogue: the Austrian government should initiate programmes to facilitate dialogue and understanding between Roma and public officials, including the police, prosecutors and the judiciary.
• Anti-racism and human rights education: the Austrian government should intensify efforts at popular education about the extent of anti-Roma racism, about the contributions of Romani culture and history, and about the binding nature of international and domestic prohibitions on racism and discrimination.

We thank you for your consideration of ERRC concerns in this matter.

Sincerely,

Dimitrina Petrova
Executive Director

Persons wishing to express similar concerns to the three wise persons
are urged to contact:

Dr Martti Ahtisaari
Office of the President
Erottajankatu 11 A 4th Floor
00130 Helsinki
Finland
Fax: (358-9) 612 7759

Dr Jochen Frowein
Max-Planck-Institut für ausländisches öffentliches Recht und Völkerrecht
Im Neuenheimer Feld 535
69120 Heidelberg
Germany
Fax: (49 6221) 482 - 288

Mr Marcelino Oreja
Fomento de Construciones y Contratas, S.A.
Torre Picasso
Plaza Pablo Ruiz Picasso S/N
28020 Madrid
Spain
Fax: (34 91) 597 89 65