Kovács and others v Hungary (third-party intervention, 2019)

28 March 2018

Facts

The applicants were four Romani men who claimed that on the night of 3 September 2013, police officers in Hungary violently assaulted them while shouting racist abuse at them. They claimed that they were arrested at a petrol station for no reason and very badly beaten during the arrest, during the ride to the station, and at the station itself. They said the police racially abused them throughout the incident and threatened to kill them. A medical report they got after their release confirmed that they were injured. The Hungarian Government claimed that the applicants were arrested at the petrol station when the police recognised their car, based on a call about people involved in an altercation at a nightclub. The Government denied that police had subjected the applicants to ill-treatment or racial abuse.

Hungary’s Independent Police Complaints Board investigated and found that the applicants should not have been handcuffed, and that they were detained for too long; but they did not find any other violations.

The applicants also filed criminal complaints against the police officers. Those complaints were dismissed for lack of evidence. The decision to dismiss the complaints was upheld by the Attorney General’s Office.

The ERRC’s Third-Party Intervention

We told the Court that such cases should not be treated as repetitive; when similar cases of police brutality against Roma come before the Court from the same State, this represents an exacerbating situation which should be treated as such. We also said the time had come for the Court to recognise “antigypsyism” and “institutional racism” and use these terms in its case law. We set out the evidence of antigypsyism among police in Europe in general, noting that Roma face higher rates of crime and do not trust the police to protect them or investigate. We set out the evidence of antigypsyism among police in Hungary in particular, characterising it as evidence of institutional antigypsyism. This included materials from the United Nations, the EU Fundamental Rights Agency, the Council of Europe Commissioner for Human Rights, and a national NGO. We concluded by asking how the Court should respond to police violence against Roma when there was already established case law on the matter concerning a particular State. One response, which we rejected, was to treat such cases as repetitive and turn them over to three-judge committees (under Article 28 § 1(b) of the European Convention on Human Rights, which allows smaller committees of judges to deal with repetitive cases). This, we submitted, would result in an ever-increasing number of cases coming to the European Court. Instead, we encouraged the Court to take into account the evidence of institutional antigypsyism. We reiterated our long-standing view that the Court should not apply a “beyond reasonable doubt” test to determine whether there was discrimination in such cases; the burden of proof should shift to the Respondent State. We also submitted that where there was a failure to carry out an effective investigation into such incidents, and there was evidence of institutional antigypsyism, the failure to investigate should be characterised as a form of discrimination in itself. We pointed to Opuz v Turkey (a judgment where the Court found what we described as institutional sexism among police) and submitted that the Court should not hesitate to make a similar finding here: that there is an institutional failure in Hungary to deal with police brutality against Roma.

The European Court’s Judgment

On 29 January 2019, a three-judge committee of the European Court of Human Rights delivered a judgment finding that the applicants were subjected to degrading treatment by police, a violation of Article 3 of the Convention. The European Court found that Hungary did not furnish “any convincing or credible arguments which would provide a basis to explain or justify the degree of force used during the operation”. The Court also noted that the police officers were not at all injured and had not alleged anything other than verbal aggression by the applicants. Such verbal aggression could not justify the kind of physical force the police used.

However, the Court rejected the approach we suggested in two respects.

First, the Court treated this as a repetitive case. A three-judge committee can only deliver a judgment in a case when the case is the subject of “well-established case law”. That means that the case is very similar to many other cases that have been decided in the past, so it is straightforward for three judges to find unanimously that there has been a violation. In our submission, we urged the Court not to proceed in this way.

Second, the European Court dismissed the complaint of discrimination as “manifestly ill-founded”, saying there was no evidence for it, instead of looking at the evidence of institutional antigypsyism in Hungarian policing, as we said the Court should. While one officer had said at one point that “four young Roma men kicked up a fuss at the petrol station”, this was not enough for the Court to conclude that there was discrimination, the judges ruled. The Court relied on the fact that the investigations carried out by the Hungarian authorities had addressed the issue and did not find that there was any indication of discrimination.

The Court awarded a total of €36,000 (€9,000 to each applicant).

The European Court’s judgment is available here.

Our third-party intervention is available here.