Seminar on human rights litigation

05 January 1999

Branimir Pleše

On October 3-4, 1998, in Belgrade, the European Roma Rights Center and the Humanitarian Law Center, a leading Yugoslav human rights non-governmental organisation¹, co-organised a seminar on Roma-related human rights litigation. The event brought together more than 30 lawyers and human rights advocates for Roma. Three major issues were discussed: (i) international and regional human rights instruments providing for individual complaints proceedings, (ii) main legal problems facing Roma in the Former Republic of Yugoslavia, and (iii) civil and criminal remedies in cases of human rights violations — legal provisions and practice in the FRY².

The opening presentations addressed individual complaints proceedings before United Nations treaty-based bodies in cases involving allegations of discrimination. Professor Milan Paunović of the Belgrade Law School gave a general overview of existing United Nations individual complaints proceedings — referring specifically to the Committee Against Torture, the Committee on the Elimination of All Forms of Racial Discrimination, and the Human Rights Committee. Professor Paunović told the audience that currently the United Nations' Committee Against Torture is the only international human rights monitoring body whose competence in individual complaints proceedings is recognised by the Yugoslav authorities. As a member of the Yugoslav Federal Parliament, professor Paunović said that there were indications that the FRY will soon ratify the Optional Protocol to the International Covenant on Civil and Political Rights. This should provide a new venue for individual complaints proceedings in cases of human rights violations.

Milan Milojević from the Belgrade Center for Human Rights discussed the evolution of the standards of the United Nations Human Rights Committee with particular emphasis on Article 26 of the International Covenant mentioned above. Mr Milojević also addressed the issue of human rights violations in the private sphere — i.e. between individuals — and cited a number of decisions of the Human Rights Committee in which the Committee had found states also responsible for such "individual" abuses.

The Humanitarian Law Center shared some relevant experience, presented by its Legal Director Olivera Purić. The HLC has been filing communications with the United Nations Committee Against Torture. She picked out two of their communications to the UN CAT: an individual complaint in a police brutality murder case and a general allegation of systematic practice of police brutality in the FRY. The Committee received a response from the state authorities.

James A. Goldston, Legal Director of the European Roma Rights Center, briefed on the role of the ERRC in a number of discrimination cases at international and domestic fora. He explained why the current policy of the ERRC is to focus on combating discrimination of Roma in education and employment and pointed out the typical obstacles in proving discrimination before the courts — particularly when dealing with de facto discrimination. (De facto discrimination results from legal provisions which in themselves are neutral as to race and race-related matters, but which generate disproportionate negative effects for ethnic minorities.) Goldston further argued that lawyers in Central and Eastern Europe must develop creative techniques for gathering evidence of discriminatory patterns and practices if they want to successfully substantiate their legal claims.

Yonko Grozev, Staff Attorney at the Bulgarian Helsinki Committee, and Navtej Singh Ahluwalia, Assistant Director of the London-based Advice on Individual Rights in Europe, presented different perspectives on litigating before the Strasbourg organs. Grozev stressed the importance of adequate selection of impact cases, good communication with the media and the legal staff of the Commission Secretariat and Court Registry, and intellectual imagination on the part of the litigator. He also emphasised that Strasbourg applications should be well documented, with all relevant provisions of domestic law elaborated comprehensively. N. S. Ahluwalia offered a survey of the relevant admissibility decisions of the European Commission on Human Rights and related his own experiences as litigator at Strasbourg. He corroborated Grozev on communication with the legal staff of the Strasbourg organs, especially for new states parties to the European Convention on Human Rights. Understandably, there is little Strasbourg case-law concerning the effectiveness of domestic remedies of such states, so good direct communication is vital.

Branimir Pleše, ERRC Staff Attorney, discussed the role of the ERRC in litigating cases on behalf of Roma on the national and international levels. He informed on how the ERRC selects cases and co-operates with local attorneys and non-governmental organisations, and described the venues through which the ERRC provides legal assistance to Romani victims of human rights abuse. Pleše also presented a summary of a major skinhead violence case from Slovakia in which skinheads murdered Mario Goral, an underage Romani boy by setting him on fire. In civil proceedings initiated by the victim's mother, the ERRC in co-operation with a local attorney and a Romani public interest law organisation filed an informal amucus curiae brief with the Slovak first instance court setting out relevant international and comparative law standards governing compensation for non-pecuniary damages. Currently the case is pending; given the usual pace of procedure, there is a long way to go before there is a verdict.

A discussion of the main legal problems facing Roma in Yugoslavia was initiated by Miroslav Jovanović, President of the Committee for the Protection of Human Rights of Roma in the FRY. Mr Jovanović also addressed issues such as participation of Roma in government, discrimination of Roma in education and employment, and the extent of their assimilation by Yugoslav society. He concluded by stressing the need for Roma in Yugoslavia to be constitutionally recognised as a national minority.

Dragan Stanković, President of the Belgrade Roma Association, gave examples of Roma who had been made victims to police brutality and harassment. On the other hand, Mr Stanković said, prosecutors do not take seriously the criminal complaints of police abuse submitted by Roma. Systematic neglect in turn creates an atmosphere of impunity and gravely undermines the rule of law.

Dragoljub Acković, President of the Roma Congress Party, offered a detailed and comprehensive analysis of the constitutional status of Roma in Yugoslavia in the past and at present. He said that although Roma fulfil all the requirements for achieving national minority status, it is highly unlikely for them to get it under the present government.

Dragan Prelević, attorney at law from Podgorica, Montenegro, opened the session on civil remedies for human rights violations. He was personally engaged in litigating on behalf of Roma in a notorious incident of community violence³. In his account Mr Prelevic focused on the inactivity of the state in providing redress to the victims. Both civil proceedings for damages and the case for wrongful termination of employment (the Roma having also been sacked) are still pending before the courts with no chances for a speedy conclusion. With respect to criminal proceedings, Mr Prelevic explained that initially the Prosecutor's office had brought charges against only one of many non-Roma individuals involved in the incident but that eventually even these were dropped.

Professor Vesna Rakić-Vodinelić, of the Belgrade Law School, analyzed the legal requirements for granting Yugoslav Roma national minority status. She concluded that the Romani population in Yugoslavia satisfies most conditions normally used to define the concept of a national minority; moreover, she said that from a strictly legal point of view Roma in Yugoslavia should be regarded as a national minority. Professor Rakić-Vodinelić stressed, however, that satisfaction of legal criteria may not be sufficient to ensure that the Yugoslav government in fact grants Roma national minority status. She further explained that the Yugoslav legal system provides for no specific remedies tailored to human rights violations. Victims of human rights abuses may employ only those civil remedies, which would otherwise be used in ordinary civil lawsuits. This makes it very difficult for human rights abuse victims to effectively seek redress before the courts. Besides, it should be noted that since constitutional complaints were introduced in Yugoslavia in 1992, every complaint filed with the Federal Constitutional Court has been declared inadmissible, and none of them being decided on their merit — thus rendering this legal remedy ineffective.

The seminar concluded with a discussion of criminal remedies for human rights violations under Yugoslav law. Professor Momcilo Grubač of the Novi Sad Law School said that in theory the Yugoslav criminal justice system provides for adequate redress for victims of human rights violations. However, there are recurring and numerous allegations of "discrimination" against Roma and other minorities. To date no research on this topic has been undertaken in the FRY. Grubač identified the aspects of the criminal justice system which affect Roma in particular, namely police detention, non-existence of Romanes language court interpreters, and the restrictive conditions under which indigent defendants are granted legal assistance. According to Yugoslav law, free legal assistance is available only for defendants charged with a limited number of more serious crimes; thus Romani defendants, who are most often accused of less serious (i.e., non-qualifying) criminal offences yet are usually indigent, suffer disproportionately.

Aleksandar Cvejić, Humanitarian Law Center staff attorney focused on the inaction of public prosecutors when addressed by police brutality victims. Inaction includes failure to investigate criminal complaints, failure to inform victims of the dismissal of complaints, and failure to meet time limits set by the law for initiating further action — all of which deprive the victim of his or her formal right to proceed as private prosecutor him- or herself. Cvejić then spoke of the numerous problems facing victims even if their cases reach the trial stage. He concluded with two recent cases of police brutality against Roma represented by his Humanitarian Law Center; these cases suggest that public prosecutors can, despite all obstacles, legal and non-legal, be made to fulfil their legal duties in prosecuting police officers suspected of violent crimes.

The seminar was significant for a number of reasons. First, as pointed out by Nataša Kandić, Executive Director of the Humanitarian Law Center, it was the most extensive discussion ever held in the FRY of European human rights standards and their use in litigation. Second, by bringing together diverse but overlapping groups of persons sharing the common goal of improving the human rights situation of Roma — Roma and non-Roma activists, lawyers and non-lawyers — the event provided a framework for fruitful discussion of legal and other strategies. Finally, the seminar provided a rich interchange of perspectives among Yugoslav and foreign participants on the use of regional and international human rights law to achieve social change.

Endnotes:

1. The HLC investigates human rights abuses in the Federal Republic of Yugoslavia and provides legal assistance to victims of human rights violations. It advocates and defends freedom of thought and expression, the right to life and physical integrity, due process and equal protection of the law, and other values of a civil society. Since its founding in 1992, the HLC has also been active in the investigation of killings, disappearances, rape and other breaches of international humanitarian law committed during the armed conflicts in former Yugoslavia. One of its major projects is aimed at providing legal assistance to Romani victims of human rights violations.
2. It should be noted that by denying them entry visas the Yugoslav authorities prevented two international participants from taking part in the workshop: Milan Blasko from the Secretariat of the European Commission on Human Rights and Marcia Rooker from the Center for Migration Law, Nijmegen, Netherlands.
3. On April 14, 1995, in Danilovgrad, Montenegro, a 15-year old Romani boy allegedly raped a non-Roma girl. The very next day, on April 15, several hundred non-Roma attacked the local Roma settlement. In the presence of police, which simply stepped back and watched as the violence unfolded, the non-Roma destroyed houses, cars, and personal possessions of the Roma. As a result of this savagery 74 Roma persons, among them 19 women and 37 children, were left homeless. Following the incident eight Romani men were sacked by their employers for allegedly not reporting to work for five consecutive days without proper justification. More then three years later, all of the homeless Roma still live in conditions of abject poverty in the outskirts of Podgorica, the Montenegrin capital.