European Court of Human Rights Confirms Racial Discrimination

07 July 2005

European Court Affirms State's Obligation to Investigate Racially Motivated Violence; Compensation Ordered for Victims of Racist Killing

Strasbourg- The Grand Chamber of the European Court of Human Rights yesterday affirmed in substantial part its first ever finding of racial discrimination in breach of Article 14 of the European Convention of Human Rights. The Court's ruling makes clear that European states have an obligation to investigate possible racist motives behind acts of violence.

In holding that the Bulgarian government's failure to investigate the fatal police shooting of two Romani men infringed the European Convention, the Court observed:

"Racial violence is a particular affront to human dignity and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction. It is for this reason that the authorities must use all available means to combat racism and racist violence, thereby reinforcing democracy's vision of a society in which diversity is not perceived as a threat but as a source of its enrichment."

The case, Nachova and Others v. Bulgaria, concerns the July 19, 1996, fatal shooting by military police soldiers of two Roma conscripts. The victims, recently absconded from a military construction crew, were known to be unarmed and not dangerous. The killing, by automatic weapon fire, took place in daylight in a largely Roma neighborhood, where the grandmother of one of the victims lived. Immediately after the killing, a military police officer allegedly yelled at one of the town residents, "You damn Gypsies!" while pointing a gun at him.

Relatives of the victims, represented by counsel, sought redress before the European Court. In February 2004, a seven-judge panel of the Court unanimously found that both the shootings and a subsequent investigation which upheld their lawfulness were tainted by racial animus. In particular, the panel found breaches of the right to life (Article 2 of the European Convention) and non-discrimination (Article 14). The judgment, the first in the Court's history to find a violation of Article 14 on grounds of racial discrimination, made clear that, in certain cases, the Court may, when examining complaints alleging discrimination, draw negative inferences or shift the burden of proof to the respondent government.

On the request of the Bulgarian government, the Court's Grand Chamber - consisting of 17 judges - agreed to review the initial panel decision. Third party written submissions were filed by the European Roma Rights Centre, Interights, and the Open Society Justice Initiative.

The Grand Chamber upheld the February 2004 panel ruling that Bulgaria had breached the victims' right to life under Article 2 of the Convention in two ways: by failing to adequately regulate the use of firearms by military police, and by failing to properly investigate the young men's deaths.

In addition, the judgment also affirmed in part the earlier finding of racial discrimination in breach of Article 14. In doing so, it broke new ground in European human rights law.

The Grand Chamber unanimously held that the prohibition of discrimination under Article 14 has a procedural component, which required the state to investigate whether discrimination may have played a role in the killings. The failure to do so in this case, despite indications of racial motivation, amounted to discrimination. The judgment affirmed several important principles that should guide domestic authorities in future cases involving violence arguably motivated by racial hatred. These include the following:

• Acts of racially induced violence and brutality are "particularly destructive of fundamental rights."
• Where there is suspicion that violence is racially motivated, "it is particularly important that the official investigation is pursued with vigor and impartiality."
• 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 racial hatred or prejudice may have played a role in the events. "In this respect, regard should be had" 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."
• Failure to accord such incidents the investigative care required may constitute unjustified treatment at odds with Article 14 of the Convention.
• Where evidence of racist verbal abuse being uttered by law enforcement agents in connection with an operation involving the use of force against persons from an ethnic or other minority comes to light in the investigation, it must be verified and - if confirmed - a thorough examination of all the facts should be undertaken in order to uncover any possible racist motives.
• The positive duty on the authorities is to "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."

With respect to the killings themselves, the Grand Chamber, by an 11-6 vote, overturned the prior ruling that they had been motivated by racial hatred. In doing so, the Grand Chamber elaborated the following principles concerning the standard and burden of proof:

• The "beyond reasonable doubt" standard of proof for determining whether a state has violated the European Convention is distinct from standards employed in national legal systems to rule on criminal guilt or civil liability.
• In proceedings before the Court, "there are no procedural barriers to the admissibility of evidence or pre-determined formulae for its assessment." Instead, "the level of persuasion necessary for reaching a particular conclusion and, in this connection, the distribution of the burden of proof, are intrinsically linked to the specificity of the facts, the nature of the allegations made, and the Convention right at stake."
• In certain circumstances, where the events lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory explanation. In cases of discrimination, the Court 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.

However, the Grand Chamber declined to reverse the burden of proof in this case, where it was alleged that a violent act was motivated by racial prejudice. Reversing the earlier panel decision, the Grand Chamber held that the authorities' failure to carry out an effective investigation did not justify shifting to the government the burden of proof on the issue of discrimination. Six judges dissented from the majority's finding of no substantive violation of Article 14 finding that the government's conduct taken as a whole disclosed a breach of Article 14.

For more on the case of Nachova v. Bulgaria, and the text of the ruling, visit: http://www.justiceinitiative.org/advocacy/litigation.