Lingurar v Romania (third party intervention, 2019)

07 May 2019

Facts

The four applicants (that is, the people who made a complaint to the European Court of Human Rights) are a Romani family in Romania. The applicants were badly beaten by police officers and gendarmes who forced their way into the applicants’ home. The applicants filed criminal charges against the officers. The prosecutor initially decided not to bring charges, but was ordered by a court to reconsider the case. After a second set of investigations, the prosecutor again decided not to prosecute those responsible, on the basis that there was insufficient evidence that the incident occurred as the applicants described. This second decision was upheld by the domestic courts in Romania. The applicants then made a complaint to the European Court of Human Rights.

The ERRC’s Intervention

The ERRC was not involved in the case before it reached the European Court of Human Rights. When we learned about the case, we asked the European Court to let us “intervene” as a “third party”. A third-party intervener is someone who is not already involved in the case and who makes written submissions to help the European Court come to the right judgment. The European Court granted us permission to intervene in the case and we submitted our third-party intervention – a ten-page written document. 

We urged the Court explicitly to acknowledge the phenomenon of antigypsyism as underlying the problem of racist violence against Roma. We stressed that the definition of antigypsyism encompasses institutional racism. We then set out the scope of the problem of racist violence against Roma in Europe. We relied on a widely-recognised definition of institutional racism (“the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin”) and surveyed recent evidence that the national bodies in Romania responsible for protecting Roma against violence suffer from institutional racism. We urged the Court to integrate the notion of institutional antigypsyism into its analysis of whether there has been a violation of Article 14 of the European Convention on Human Rights taken with Article 2 or 3 in cases concerning violence against Roma. Article 14 is the prohibition on discriminating against people in relation to their human rights. Article 2 is the right to life and Article 3 is the right to be free from inhuman and degrading treatment and the prohibition on torture. In addition to or instead of addressing the question of whether an investigation failed to unmask racist motives, we argued that the Court should ask whether an investigation into anti-Roma violence was ineffective due to institutional racism (i.e. due to a failure to provide an appropriate and professional service to Roma) and, if so, find a violation on that broader basis. We encouraged the Court to consider both the absence of appropriate mechanisms for monitoring hate crimes, and the implicit or explicit adoption of anti-Roma stereotypes by the authorities, when considering these kinds of cases in Romania.

The European Court’s Judgment

On 16 April 2019, a three-judge Committee of the European Court of Human Rights delivered a judgment. The Court condemned Romania for violating the applicants’ human rights. Specifically, the Court found that Romania had violated the “substantive limb” of Article 3, meaning that the officers had subjected the applicants to ill-treatment. So the Court found that the beatings actually happened and were very serious. The Court also found a violation of Article 14 read with Article 3, which means that the officers’ conduct was discriminatory. Lastly, the Court found a violation of Article 14 read with what is called the “procedural limb” of Article 3. What this means is that Romania violated its human rights obligations by failing to investigate what had happened.

Three-judge committees decide cases that come up and that are the subject of “well-established case law”. That means that there are no new legal principles that need to be applied. And indeed it is very clear from previous cases that Romania violated the applicants’ human rights.

But the Court did use some new language, very much in line with our third-party intervention. In particular, for the first time ever in its case law, the Court used the term “institutionalised racism”, saying: “Roma communities are often confronted with institutionalised racism and are prone to excessive use of force by the law-enforcement authorities”. This is what we asked in our third-party intervention: for the European Court to describe what Roma face from police in Romania as institutional racism. The Court also used the term “ethnic profiling” for the first time in its case law, noting that “the domestic courts did not censure what seems to be a discriminatory use of ethnic profiling by the authorities”. Unfortunately, the Court did not go so far as to describe what is happening in Romania as “institutional antigypsyism”, or use the term “antigypsyism” when condemning Romania. We will continue to push for this. 

This judgment is a damning account of how law enforcement in Romania treat Romani people. As the Court said, “the decisions to organise the police raid and to use force against the applicants were made on considerations based on the applicants’ ethnic origin. The authorities automatically connected ethnicity to criminal behaviour, thus their ethnic profiling of the applicants was discriminatory”.

It is now up to a body called the Committee of Ministers of the Council of Europe, with representatives from all 47 Council of Europe countries, to ensure that Romania takes the steps necessary to give effect to the judgment. 

Romania will have to pay each applicant €11,700 (so a total of €46,800 to the four applicants). 

The Court’s judgment can be found here.

The ERRC’s third-party intervention can be found here.

On 4 March 2020 we made a submission to the Committee of Ministers of the Council of Europe (a "Rule 9" submission), setting out what steps Romania needs to take to implement the judgment. The submission can be found here.