Race discrimination litigation in Europe: problems and prospects

05 January 1999

James A. Goldston¹

Lawyers are not normally revered for their imagination. The men and women in gray suits and often grayer faces who fill courtrooms and corporate offices are, almost by definition, focused on practical considerations: finding paying clients, lowering overhead costs, and maximising billable hours. When we look for inspiration, we turn to artists, philosophers, maybe priests. But lawyers? It may seem absurd to talk about visionary lawyers or prophetic litigation. Nonetheless, as we think about how the law might address the "general rise of intolerance to foreigners and minorities that is sweeping Europe"² — and especially the human rights crisis facing Roma — we must look for lawyers willing to break the mold.

Social change litigation - legal action in court aimed at achieving concrete and lasting transformation in structures of injustice and/or inequality — can take place only when people are willing to take risks. Clients, of course, risk more than anyone else — their security, their homes, their jobs, their lives. The much-heralded strategic litigation campaign to strike down legalized racial segregation in American public schools would not have been possible absent the courageous acts of numerous persons willing to place themselves and their loved ones in real jeopardy by making formal complaints.³ But others must risk too. Expert witnesses risk ostracism, loss of prestige, and retaliatory punishment from their professional colleagues and superiors. Political and community allies who help build a case risk the time and energy that might have otherwise gone to potentially more productive ends. And even lawyers must take risks too. Among these is the risk that a lawyer will develop a theory of a case — a way of articulating the wrong done and the remedy required — so new, so at odds with conventional ideas in the profession, as to be misunderstood, ignored or even laughed at by her colleagues. It is a risk worth taking.

For one of the principal contributions a social change lawyer can make is to strive by example to change the way that law is thought about and practiced. This means acting as if judges were independent, did know and relied on comparative and international caselaw, and had the courage to vindicate individual rights in the face of public criticism and state authority. It means citing cases from the European Court of Human Rights in domestic courts, seeking remedies judges have the power — but not the custom — to sanction, and exploiting the positive effects of litigation outside the courtroom — in educating the public, focusing attention on injustice, and mobilizing support for constructive action. In short, it means acting as if the rule of law already existed, and by doing so, challenging others — lawyers, judges, and citizens — to do so as well.

By creatively mediating the tension between the law as it is and the law as it ought to be, the lawyer may serve as a positive and inspirational role model for others. As one scholar has aptly observed, such a lawyer may be "both a fool and a genius, with only history's thin line separating the two. A fool differs from his fellow humans in that 'he sees or believes what they do not, and consequently undertakes what they never attempt.' However, social acceptance of the fool's vision alters his status: 'It is success alone that transforms the credulity of folly into acknowledged prophetic prevision.'"⁴

In other ways as well, a lawyer bringing litigation aimed at transforming social structures may make significant contributions to the process of change, regardless of the success of the case. Thus, social change litigation may challenge conventional means of conceptualising an issue or problem, and thereby inspire political activity, spur public debate, and lead to re-examination of underlying assumptions. Indeed, one of the greatest contributions a litigator can make is not filing the suit, or even (in those rarest of instances) winning, but rather, simply articulating what all agree is a "problem" in new ways which have the potential to galvanise social movements and alter modes of understanding. Thus, for example, the over-representation of Romani children in "special schools" or "special classes" for the intellectually or behaviorally "deficient" — long considered a "problem" of (depending on one's viewpoint) Romani parents ("they don't place sufficient value on the education of their children"), Romani children ("they are stupid"), poverty, the "differentness" of Romani "culture", or even intractable social prejudice — may be seen anew, through the lens of the "prophetic" litigator, as a violation of legal rights — the right not to suffer racial discrimination, the right to equal educational opportunity, the right to respect for the dignity of each human being.

Though the entire rights discourse has come under criticism in recent years, particularly in the United States,⁵ there can be little doubt that, in areas (such as much of Eastern Europe) where the rule of law rests on fragile foundations, the framing of a social problem in terms of legal rights may itself be revolutionary. For reasons I need not belabor here, the notion that equal educational opportunity, for example, is a right to which all are entitled now, rather than a social problem to be addressed through attitudinal change lasting generations, has potentially revolutionary implications, outside the courtroom as well as within.

Of course, there are other objectives social change litigation seeks to achieve. In those cases where victories are won, the substantive law may be altered, with potentially far-reaching effects. Under certain circumstances, judicial decisions may have more moral authority than purely political decisions, precisely because — however true it is — the law is seen by many to rest on more neutral considerations of justice and right than the crass or petty concerns which motivate hand-slapping politicking in smoke-filled rooms.

Similarly, judicial decisions wrought through litigation may be more permanent than the political decisions of legislative or executive branches, which — under democratic governments — may flip or flop with the next election or voter survey.

Finally, of course, for members of minority groups in particular, strategic litigation aimed at politically independent judges may be the only means of vindicating fundamental rights in societies where numerical majorities retain the political power to deny those rights at will.⁶

In spite of these advantages afforded by social change litigation, in much of continental Europe, where ethnic, national and racial minorities proliferate, one of the principal forms of defending minority rights — anti-discrimination litigation — is not well developed. One year before the start of a new millenium, domestic race discrimination litigation in most countries in continental Europe is still quite rare. At the regional level, before the Strasbourg organs, a leading observer has noted that "the number of applications invoking differential treatment on grounds of race is surprisingly small".⁷ And internationally, during the four years, inclusive, from 1994 through 1997, only seven individual communications were filed with the United Nations Committee for the Elimination of Racial Discrimination, pursuant to Article 14 of the Convention on the Elimination of All Forms of Racial Discrimination.⁸

Why is litigation to challenge discrimination based on race or ethnicity so rare in Europe? There are surely several reasons.

First, race discrimination litigation is a specific subset of public interest litigation, which in itself is relatively undeveloped, at least as compared to the innovative ways law has been used in, say, the United States, South Africa and India. Particularly in Central and Eastern Europe, the legacy of Communism, the fragility of post-Communism, and the legal tradition of civil law systems have combined to frustrate the growth of public interest litigation as it is known in parts of the West.⁹

Second, in Europe, much more so than in the United States for example, the problem of racial and ethnic difference, in particular, has been framed more as a political, rather than a legal, question. There are, of course, many underlying causes. But on a continent which has witnessed in this decade the resurgence of ethnic cleansing, the systematic use of rape targeting ethnic minority women as a weapon of war, and the diplomatically sanctioned redrawing of a country along ethnic lines, the notion of race discrimination litigation may seem as fanciful as asking why lawyers in Hitler's Germany did not obtain a court injunction to halt the Nazi genocide.

Third, the applicable legal norms are not clear. Thus, notwithstanding the large number of constitutional norms prohibiting racial or ethnic discrimination, or affirming the binding character of ratified international treaties (a number of which bar racial discrimination), governments in continental Europe have adopted surprisingly little implementing legislation which specifically prohibits race discrimination in different spheres of public life. In Central and Eastern Europe, in particular, "there is little legislation specifically designed to combat racism".¹⁰ This is so, even though a number of countries have adopted legislative provisions to protect the political, cultural and/or linguistic rights of national and ethnic minorities. In fact, particularly in Central and Eastern Europe, legislation outlawing racist speech and racially-motivated offenses is more common than legal provisions which expressly provide remedies for discriminatory — even if non-criminal or non-violent — acts. And caselaw in the region reflects this.

Finally, although international law in general contains several express prohibitions against racial discrimination,¹¹ European regional law is relatively weak. Moreover, for understandable reasons, even among the pool of lawyers and judges in continental Europe — especially Central and Eastern Europe — who are aware of supra-national human rights standards, those norms which receive by far the most attention are those of the Council of Europe. Accordingly, notwithstanding the United Nations' more abundant arsenal of anti-discrimination measures, the relatively limited supply of tools at the regional European level has hampered the growth of race discrimination litigation, even among those lawyers who might have been expected to try.

Thus, the principal non-discrimination norm in European law — Article 14 of the European Convention of Human Rights - has merely an accessory nature, meaning that, unlike, for example, Article 26 of the International Covenant on Civil and Political Rights, it cannot be relied upon autonomously and does not apply to claims of discrimination in areas not covered by the substantive provisions of the Convention.¹²

This inherent limitation in the law is compounded by the practice of the Strasbourg organs in Article 14 cases. Generally, when faced with a claim of violation of Article 14 in conjunction with another Article of the Convention, the Strasbourg organs will first ascertain whether there has been a violation of the principal provision raised in conjunction with Article 14, and only then examine whether Article 14 itself has been violated. In cases where a violation of the substantive provision is found, the Strasbourg organs tend not to proceed to examine whether the treatment complained of is also discriminatory, unless it is clear that the inequality of treatment is a central aspect of the case.¹³

Furthermore, much racial discrimination takes place between private parties, in the spheres of employment, access to restaurants and pubs, or even crime (i.e., racially-motivated violence). Although the Strasbourg organs have given the European Convention a third party effect in certain fields — which may entail certain positive obligations on states to protect persons against infringements of their rights by private parties — this effect is limited. Accordingly, Article 14's non-discrimination guarantee applies only to a limited range of discriminatory actions.

And too, many cases of racial discrimination involve not direct discrimination — where a law in its text expressly provides for different and less satisfactory treatment for a named racial group — but indirect discrimination, where the application of a rule neutral on its face has a disparate effect on a particular racial group. Although the question has not been conclusively decided, the European Court of Human Rights has implied that such indirect effect cases may not amount to racial discrimination for the purposes of Article 14.¹⁴

If race discrimination law is rather limited in Strasbourg, it has been virtually non-existent in the framework of the European Union. As two commentators have noted, to talk about race discrimination within the European Union "legal landscape" was, until recently, like "entering a transparent house through its walls and hanging up pictures in the air".¹⁵ Thus, the only binding EC Treaty provisions expressly addressing questions of discrimination at all have been Article 6, outlawing discrimination on grounds of nationality — which has generally been interpreted as limited to discrimination between nationals of EU Member States — and Article 119, mandating equal pay for men and women who perform equal work.¹⁶ Other, declarative norms addressing racial discrimination have until now lacked legal force.¹⁷

Change may be on the way, but it is likely to be slow in coming. The Treaty of Amsterdam, when ratified, will add a new Article 13 to the EC Treaty which would authorise the European Council to take "appropriate action to combat discrimination" based on, inter alia, "racial or ethnic origin". This provision does not prohibit racial discrimination, nor does it oblige Member States to enact legislation containing such prohibition. Rather, it simply allows the European Council to undertake whatever action it may deem "appropriate".

I. Recent examples of litigation to challenge discrimination against Roma

If the field of race discrimination litigation in continental Europe to date has been small, it is growing. Over the past two years, legal actions on behalf of Romani victims of discrimination have increased in number. It is still difficult, but no longer impossible in some countries, to find lawyers to take as clients Romani victims of racial discrimination.

In recent years, particularly in Central and Eastern Europe, the widespread absence of adequate implementing legislation to combat non-violent discriminatory treatment has been accompanied by a relative abundance of racially-motivated crimes provisions and laws which criminalise racist speech.¹⁸ As a result, all too often, victims, lawyers and government authorities do two things which commonly impede the adequacy of anti-discrimination law enforcement. First, they often rely only on criminal law to address claims of discrimination where civil remedies would be more suitable. Second, they misconstrue discriminatory acts as racist speech.

Four recent judicial decisions in cases of discrimination against Roma illustrate the different approaches lawyers and judges in Europe have taken in addressing racial discrimination in one particular field — access to, or treatment in, public accommodations.¹⁹

In June 1996, the Deputy Mayor of the town of Kladno, Czech Republic, barred all Romani children under the age of 15 from entering the town swimming pool.²⁰ The Deputy Mayor acted in the face of a rise of reported cases of viral hepatitis and certain information which suggested that Romani children were disproportionately represented among those infected with the disease. The Czech Republic has no law which expressly prohibits racial discrimination per se, let alone, discrimination in access to public facilities such as a swimming pool.²¹ Instead, the Deputy Mayor was criminally prosecuted under Article 198(a) of the Penal Code, which punishes incitement of ethnic or racial hatred. In April 1998, the Regional Court in Prague upheld the Deputy Mayor's conviction under this provision, and affirmed imposition of a fine in the amount of 14,000 Czech crowns (approximately 500 USD).

The verdict has been celebrated in some quarters as a victory for racial tolerance. To be sure, official repudiation of racial exclusion of a kind as blatant as that at issue in Kladno is to be lauded. Moreover, the case reaffirmed that racial discrimination is not to be tolerated, even where allegedly motivated by what, in the view of some, are "benevolent" considerations. Thus, the Deputy Mayor's claim to have been acting in the "larger interest" of public health was rejected on, inter alia, the ground that, even assuming the existence of a genuine threat to public health, other, non-discriminatory measures could have been employed.

However, in its very success, the Kladno prosecution also reflects the weakness of Czech — and, by extension, much of Central and Eastern European — anti-discrimination law. Punishing the Deputy Mayor for "expression" which may be said to incite racial hatred²² seems to miss the point. For what was objectionable was surely not what the Deputy Mayor "said"; it was what he "did" — prohibit Romani children from entering the swimming pool. The principal danger implicit in the Deputy Mayor's racist prohibition order was not that it might inspire — or, to use the legal lexicon, incite — others to act in violation of the law, but rather that, as an order, it carried legal consequences (i.e., to exclude Roma from the swimming pool). It was not racist speech, but racist action, which was at issue here. But Czech law had — and still has — no means of addressing non-violent acts of racial discrimination.²³ Accordingly, the Czech authorities, politically compelled to reverse the Deputy Mayor's embarrassingly racist order, used the only tool at hand.

The decision to characterise as "incitement" certain actions which might more properly be considered simply "discrimination" is more than a matter of semantics. First of all, as suggested above, the approach is conceptually misguided. It does not make sense. Insofar as the law derives legitimacy from the extent to which it gives expression to notions of right and wrong which are plainly understood, calling discrimination mere incitement deprives anti-discrimination law of its moral force.

In addition, in addressing racial discrimination, incitement laws are both under-inclusive and over-inclusive. On the one hand, many acts which discriminate against racial and ethnic minorities can not plausibly be characterised as speech which incites others to racial hatred. Hence, racial incitement laws leave unaddressed a broad range of acts which discriminate on the basis of race or ethnicity. The most obvious example is the category of actions which some refer to as "indirect discrimination" — i.e., laws or acts which, though neutral as to race or ethnicity on their face, generate results which negatively and disproportionately impact racial minorities.

Indeed, an alleged discriminator may say nothing at all having to do with race, yet act in a way which is clearly motivated by racial bias. Thus, an employer who says only, "you're hired", or, "you're not what we're looking for", in response to 1,000 job applicants could hardly be guilty of incitement to racial hatred, even if all 500 non-Romani applicants who apply are hired, and none of 500 Romani applicants is given a job. Limiting the universe of anti-discrimination legislation to racial incitement laws virtually immunizes from punishment those discriminatory actors crafty enough to hide their discriminatory motives. In this sense, laws criminalising incitement of racial hatred "under-include" much racial discrimination.

On the other hand, many would argue that racial incitement laws are over-inclusive, in that they may be applied to much speech which is not also a discriminatory act, and which ought not be criminalised. Thus, returning to the Kladno case, were a private citizen to state publicly that Roma should be barred from a swimming pool, the speaker would be equally eligible for criminal prosecution under section 198(a), notwithstanding that such a statement by a private citizen would (unlike the Deputy Mayor's order) constitute mere opinion; it would have no legal effect. The reality is that the Kladno Deputy Mayor's order that Romani children were to be barred from the pool would hardly have constituted incitement — and would almost surely not have been prosecuted — had it not been uttered by a government official whose status gave his written order the effect of law. And yet, the terms of Article 198(a) of the Czech Penal Code and similar incitement provisions are so broad that they may potentially apply to this and other examples of publicly expressed disagreeable racist opinions. One may argue about whether such speech should be criminalised,²⁴ but to limit the arsenal of anti-discrimination measures to racial incitement laws is to leave untouched a vast array of discriminatory practices which degrade and humiliate Roma and other minorities on a daily basis in many spheres of public life.

Another case which illustrates the common tendency to construe as speech claims of discriminatory action is the Goman case from Hungary.²⁵ Here, though, the Romani victim's lawyer did not limit himself to criminal procedure. Moreover, he creatively used a broad provision of the Hungarian Civil Code to obtain a remedy, not only for offensive speech, but for racial exclusion from a restaurant.

In September 1995, Gyula Goman, a Romani man, was refused service in a pub in the town of Pécs in southern Hungary. The owner's explanation was unabashed: "no Gypsy is allowed to eat, drink or enjoy himself in [this] pub". Subsequently, the owner was quoted by a national newspaper calling Goman a "troublemaker".

Two days after the denial of service, Goman, through his attorney, filed a criminal complaint against the pub owner with the local authorities for defamation. As in the Kladno case, the complaint alleged that the owner had harmed Goman, not by the act of excluding him from the pub on the grounds of race, but rather through his speech. Once again, offensive speech rather than discriminatory action was the focus of the complaint. The courts followed suit, ultimately convicting Goman of the petty offence of slander and sentencing him to one year of probation.

While the criminal proceeding was ongoing, Goman's attorney filed two additional complaints. One, an administrative action directed to the mayor's office, obtained a nominal remedy (a fine of about 10 dollars) for refusing to register Goman's complaint in the pub's complaint book. However, as to the heart of the matter — the racial exclusion — the mayor's office flatly rejected the claim, stating, "The entrepreneur's refusal to serve you unfortunately cannot be sanctioned for there is no legal regulation providing for it."

Undeterred, Goman's attorney filed a civil action based principally on Article 76 of the Civil Code, which condemns as a "violation of inherent rights" "discrimination against private persons on the grounds of race, ancestry, national origin." Here the case broke new legal ground. First of all, there was no known precedent for the attorney's novel attempt to apply Article 76 — a broad provision protecting human dignity — to claims of racial discrimination. Second, the attorney asked for unusual remedies, claiming not only costs and damages, but also an order (i) forbidding the owner from again committing a similar act of exclusion, and (ii) compelling the owner to pay for an apology worded by the victim, approved by the court, and published in the largest-selling Hungarian daily newspaper. The court agreed, finding, among other things, that the owner had violated Goman's civil rights by refusing to serve him because of his ethnic origin. Furthermore, the court adopted the remedies sought by the plaintiff, and also awarded payment of damages in the amount of 150,000 HUF (approximately 690 USD). The judgment of violation and the specific remedies were all upheld on appeal. As a result, Hungarian lawyers in future cases may rely on the Goman ruling in arguing that the Civil Code bars acts of racial discrimination by private parties, and authorises effective remedies.

The Goman case illustrates the value of civil (and administrative) anti-discrimination provisions to supplement the criminal law. Criminal law, of course, expresses society's moral outrage that racial discrimination is not merely a wrong against the victim; it is an offense against the entire community. As a practical matter, criminal penalties are often more severe. Still, civil proceedings may be more flexible (among other things, standards of proof may be lower than in criminal court) and may permit the victim to exercise more control over the gathering and presentation of evidence. As Goman showed, the range of available remedies in civil law may be greater, offering opportunities for creative litigators to tailor remedies to the facts at issue.

In contrast to the cases from Czech Republic and Hungary, in two recent cases from Western Europe involving claims of racial discrimination by Roma, the courts do not appear²⁶ to have entertained any claim that speech was involved. Rather, violations in both cases were for acts of racial discrimination.

In one case from Ireland, according to the Irish Times,²⁷ on 19 November, 1997, the bartender in a bar in Ennis, County Claire, refused a drink to David McDonagh, a (settled) traveler. When McDonagh complained, the bar owner bolted the front door, shouted abusive language, and made it clear that McDonagh would not be served. The Ennis District Court in County Claire appears to have considered the issue as one of discriminatory exclusion, and concluded that McDonagh had been refused alcohol for no reason other than that he is a traveller. Accordingly, the court stripped the bar owner of his license to operate, finding him "not a suitable or fit person to hold a licence". ²⁸

In a recent case involving the denial of service to a Romani woman in a small department store in Sweden, the Court of Appeal found the two store owners guilty of unlawful discrimination, fined each SEK 1,800 (approximately 225 USD), and ordered payment of 5,000 SEK damages to the victim.²⁹ At issue was a prohibition against entry into the store by women wearing long loose skirts. As in the Irish case, although the court could have addressed this as a question of offensive speech — the "communication" of the owners' prohibition to the Romani woman complainant surely involved expression — the decision properly treated the claim as one of discriminatory action. The case combined both criminal and civil aspects.

The complaint was brought by Ritva Berg, a Finnish Romani woman, who, according to the decision of the Court of Appeals, wore clothing "characteristic" of Finnish Roma — "consisting of, for example, a long, loose velvet skirt". The decision to wear this "special dress" is, in the Court's words, "a choice for life". A Romani woman who subsequently dresses in another way "disgraces her family". It was "not disputed" that Ms Berg "had been denied access" to the department store "and that the reason was the prohibition" maintained by the store "against persons dressed in long loose skirts". On these facts, the Court found that the exclusion order amounted to "unlawful discrimination".

The decision of the Swedish Court of Appeal is significant for a number of reasons. First, the Court made clear that intent to discriminate is not a requirement for a finding of unlawful discrimination. In this regard, the Court accepted the store owners' contention that the purpose of the prohibition — adopted only after the prosecution authorities had refused to charge other women in long dresses accused of theft — was to prevent stealing, not to harm or humiliate Roma. "A business," the Court affirmed, "has the right to refuse somebody, Gypsy [sic] or otherwise, access to his store for that reason." Indeed, the Court acknowledged that the store owners had permitted Romani men and women into the shop on prior occasions. However, whatever the motivation which underlay its issuance, the ban on long dresses was not an individualised determination that a particular person was likely to steal. Rather, it reflected an unwarranted and improper assumption: that persons who wear long, loose dresses pose a greater danger of theft than do others. In the Court's view, the store owners "must have realized" that the effect of such a rule would be to exclude Romani women. The absence of discriminatory motive was not sufficient to shield a rule which led to such a clearly discriminatory result.

Second, and closely related, the Court's ruling affirmed that indirect discrimination resulting from application of a rule neutral (as to race) on its face may be unlawful discrimination. Thus, a rule which nowhere mentions "Gypsy" or "Roma" is improper if, as in this case, it has been formulated and applied in such a way as to result in the exclusion from the store of one group of persons (Romani women) "exclusively and generally".

Finally, it is no defense to a charge of discrimination that other members of the same group as the alleged victim did not feel discriminated against, or were willing to undergo discriminatory treatment without protest. The Court's finding of unlawful discrimination was "not changed by the fact that certain women have accepted to change skirts whereupon they have been allowed to enter". Rights of non-discriminatory treatment — like all human rights — are individual. One person does not give them up simply because others have chosen not to exercise them.³⁰

II. The Assenov case

As noted above, cases of violence against Roma are commonly included among the category of cases involving racial discrimination. In fact, the most significant Roma rights case decided in the past year — Assenov and others v. Bulgaria, handed down by the European Court of Human Rights in October — has the potential to bridge the gap still further between cases of violence against Roma and those involving non-violent acts of racial discrimination. Assenov is a case of unremedied police violence against Roma. However, Assenov has potentially significant implications for cases of non-violent race discrimination as well.

Assenov concerned allegations of police ill-treatment following the arrest on September 19, 1992 of 14-year-old Anton Assenov, a Romani boy, for gambling in the market square in the provincial town of Shoumen. Assenov was taken to a nearby bus station, then handcuffed and, along with his father, brought to the police station, where the two were detained for approximately two hours before being released without charge. Assenov alleged that during this time, the police struck him with truncheons and pummeled him in the stomach. A medical certificate issued two days after his release documented large purple-bluish bruises on the boy's head, chest, and right arm, which the examining physician viewed as consistent with the alleged police mistreatment.

Over the next two years, Assenov and his parents filed complaints with every available criminal investigative authority — up to and including the Chief General Prosecutor. None of the investigative bodies initiated criminal proceedings against the police. Assenov was subsequently arrested on other charges and held in pretrial detention for two years. Assenov filed an application with the European Commission of Human Rights in September 1993. After ruling on the matter, the Commission referred the case to the European Court in September 1997.

In its ruling of 28 October, 1998, the Court unanimously found that the Government had violated the following Convention provisions:

• Article 3 (right not to be subjected to torture or inhuman and degrading treatment or punishment), by failing to undertake an effective official investigation even though Assenov had raised an arguable claim to have been mistreated by the police;
• Article 5 (right to liberty and security of the person), by failing, following Assenov's subsequent, 1995 arrest, a) to bring Assenov promptly before a judge or other officer, b) to bring him to trial within a reasonable time or to release him pending trial, and c) to enable him to have the lawfulness of his pre-trial detention determined by a court;
• Article 13 (right to an effective remedy), by failing not only to conduct a thorough and effective investigation, but also to provide effective access for Assenov to the investigatory procedure and payment of compensation, notwithstanding his arguable claim of police ill-treatment; and
• Article 25 (obligation of State not to interfere with the right to petition the Strasbourg organs), by pressuring two of the applicants into denying having made an application at a time when Assenov was being held in detention.

The Court ordered payment of damages and the applicants' costs and expenses in full.

On the one hand, the Assenov case represents an important vindication of the potential for creative litigation to help shape and transform the law. On the other, the decision provides a significant legal tool which litigators representing future Romani victims of alleged police abuse may utilize in seeking effective remedies. Finally, Assenov offers potential aid to lawyers seeking to challenge non-violent acts of racial discrimination.

Although the Court in Assenov found violations of several different provisions of the Convention, the decision's most significant "law-making" contribution was its extension of the protection afforded by Article 3 of the Convention. On its face Article 3 contains no procedural requirement. Rather, it states simply, "No one shall be subjected to torture or to inhuman or degrading treatment or punishment." Notwithstanding the absence of an explicit textual command, the Court in Assenov held that Article 3 not only prohibits certain misconduct, it also obliges states to enforce that prohibition by carrying out adequate investigations under specified circumstances. Specifically, the Court held that, "where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms in [the] Convention', requires by implication that there should be an effective official investigation".³¹ The Court went on to specify that "[t]his obligation ... should be capable of leading to the identification and punishment of those responsible".³² The Court further explained why it was willing to read into the text of the Convention words which are not obviously apparent on its face — and, in the process, impose on States an additional obligation above and beyond the clear textual prohibition against torture and inhuman or degrading treatment or punishment. Absent such a procedural obligation to investigate, the Court reasoned, "the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance ... would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity".³³

The implications of the Court's reasoning are potentially far-reaching for lawyers seeking to expand the protection the Convention affords to victims of racial discrimination. Lawyers who try to apply Assenov's "procedural" right to claims of racial discrimination may work on two parallel fronts, one passing through Article 3 of the Convention, the other through Article 14.

On the one hand, a quarter of a century ago, the European Commission recognised that, under certain circumstances, racially discriminatory policies may amount to degrading treatment violative of Article 3. In East African Asians v. United Kingdom³⁴, applicants — "citizens of the United Kingdom and colonies" - challenged British immigration legislation which effectively singled out UK passport holders of Asian origin and resident in East Africa, and denied them admission to the United Kingdom.³⁵ Finding that the legislation discriminated against the affected persons on "grounds of their colour or race",³⁶ the Commission ruled that Article 3 had been violated.

In reaching its decision, the Commission affirmed that "a special importance should be attached to discrimination based on race",³⁷ and furthermore that "discrimination based on race could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention".³⁸ The Commission reasoned that "differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when differential treatment on some other ground would raise no such question".³⁹ It thus held that, on the facts of the case, the challenged immigration legislation had "publicly subjected" the applicants to "racial discrimination", and "constitute[d] an interference with their human dignity" amounting to "'degrading treatment' in the sense of Article 3 of the Convention".⁴⁰

The European Court of Human Rights has not yet had an opportunity to consider squarely the holding of East African Asians, in part because of the above-noted paucity of race discrimination litigation before the Strasbourg organs. However, in the 25 years that East African Asians has endured, its reasoning has been affirmed by the Commission more than once.⁴¹ Until declared otherwise, East African Asians is alive, if not exactly thriving.⁴² Accordingly, litigators challenging racially discriminatory policies and practices should rely on Article 3 in the future, as well as — where possible — on the more obvious Article 14.

In this regard, the Article 3 finding of the European Court in Assenov may be helpful. Thus, a Romani victim of certain forms of alleged discrimination by public officials which rise to the East African Asians standard, may be said to "raise[] an arguable claim that he has been seriously ill-treated by ... agents of the State unlawfully and in breach of Article 3". In Assenov, the Court made reference to a number of factors which, in its view, gave rise to a "reasonable suspicion" of police misconduct triggering the obligation to investigate: the medical evidence of Assenov's injuries, the applicant's claim to have been beaten by the police, the fact of his two-hour police detention (which, presumably, would have provided the "opportunity" for the alleged mistreatment), and the "lack" of an alternative explanation of the resulting injuries.⁴³ Although the Strasbourg organs have yet to address the point in the context of Article 3 jurisprudence, other courts have suggested that a similar set of factors — a detailed allegation of discriminatory treatment, "independent" evidence of discriminatory effect (equivalent, in the realm of claims of discrimination, to medical proof that injuries exist, though not of who caused them), objective circumstances offering the opportunity for discrimination to have taken place, and the apparent absence of a race-neutral explanation for the discriminatory effect — may give rise to what amounts to a prima facie case of discrimination, which the alleged discriminator must then rebut in order to avoid liability.

The European Court of Justice has applied an analogous test in addressing claims of indirect gender discrimination in employment under Article 119 of the EC Treaty.⁴⁴

In the United States, the concept of a prima facie case of discrimination — which effectively shifts the burden to the alleged discriminator to justify the discriminatory impact — is employed, inter alia, in cases involving challenges to jury selection procedures,⁴⁵ employment discrimination,⁴⁶ and educational discrimination.⁴⁷

In the United Kingdom, the Race Relations Act of 1976 similarly provides that, once a claimant of indirect indiscrimination has shown that she has (1) suffered a detriment by (2) having been subjected to a requirement or condition which has been applied equally to persons not of the same racial group, and that (3) the proportion of persons of the same racial group who can comply with the requirement or condition is considerably smaller than the proportion not of that racial group, then (4) the alleged discriminator may escape liability only by showing the requirement or condition to be justifiable on race-neutral grounds.⁴⁸

As applied to claims of racial discrimination rising to the level of degrading treatment under Article 3, the Assenov rule would effectively require that the alleged State Party discriminator conduct an effective and thorough investigation to rebut the inference of discrimination suggested by the petitioner's prima facie case. Thus, after Assenov (as interpreted herein), in order to prevail under Article 3, the applicant no longer must prove definitively the existence of racial discrimination amounting to degrading treatment. Rather, the State's failure to conduct such an investigation in the face of a prima facie case of racial discrimination amounting to degrading treatment, would in itself constitute a violation of Article 3.

And yet, though perhaps the most obvious, Article 3 is not the only Convention provision to which Assenov's procedural rule may be applied. Alternatively, lawyers representing victims who allege racial discrimination in the enjoyment of Convention rights and freedoms might argue, not only that their clients have been subjected to inhuman and degrading treatment under Article 3, but also that, like Article 3, Article 14 carries an Assenov-like obligation of effective official investigation in the face of arguable claims of discriminatory treatment. To date, the utility of Article 14 as a means of combating discrimination has remained, in the words of one commentator, "greatly under-exploited."⁴⁹ Nonetheless, the following thoughts are offered in the hope that this Article, like the Convention as a whole, may one day live up to its potential as a tool to combat racism and intolerance.

In seeking to extend to Article 14 the procedural requirement which the Court in McCann first grafted onto Article 2⁵⁰ and Assenov has now divined in Article 3, anti-discrimination litigators will have to demonstrate two principal things: first, that the prohibition against discrimination in Article 14, like the right to life in Article 2 and the prohibition against torture and inhuman and degrading treatment in Article 3, is of "fundamental importance";⁵¹ and second, that, absent such a procedural requirement, Article 14's prohibition " ... would be ineffective in practice and it would be possible in some cases for agents of the State to [practice racial discrimination] with virtual impunity."⁵² Lawyers arguing the first point will have to overcome the obvious objection that Article 14 offers mere "subsidiary" protection, by pointing, not only to Strasbourg jurisprudence, but to legal sources beyond, which make clear that, throughout the world, the prohibition against racial discrimination is, in itself, of universal standing and fundamental importance. As to the second condition, one might simply recall the difficulty which claimants have had in substantiating claims of racial discrimination to show that, absent a requirement that states investigate arguable claims, the prohibition against such discrimination will be ineffective in practice.

Lawyers striving to persuade Strasbourg judges that the ban against racial discrimination contained in Article 14 is of "fundamental importance" will have an uphill struggle, to say the least. First of all, as noted above, it is black-letter law that the non-discrimination guarantee in Article 14 has an accessory nature. This means that, even if the Assenov procedural requirement were applied to Article 14, it would be of limited reach. It would not alter the fact that, by definition, Article 14 does not apply to a range of discriminatory practices and policies which are outside the scope of the Convention.

Second, unlike Articles 2 and 3, as to which the caselaw does not recognise a margin of appreciation,⁵³ the Strasbourg organs have afforded states a margin of appreciation in ensuring that the rights and freedoms are secured to all on a non-discriminatory basis.⁵⁴ Accordingly, the very scheme of the European Convention seems to suggest that non-discrimination is simply not as "important" as the rights to life and protection from torture.

Third, while the rights set forth in Articles 2 and 3 are non-derogable,⁵⁵ derogation from the non-discrimination norm of Article 14 (like that of most of the substantive clauses of the Convention and of Protocols Nos. 1 and 4) is permissible under Article 15 in the event of a public emergency threatening the life of the nation.

Notwithstanding these formidable hurdles, the notion that Article 14's ban on racial discrimination embodies a norm of "fundamental importance" is far from fanciful. Lawyers seeking to convince the European Court of Human Rights will have to rely both on Strasbourg caselaw and on international and comparative law more generally.

As to Strasbourg caselaw, a litigator might begin, once again, with East African Asians. In that decision, even though the Commission did not find a violation under Article 14, it found that special importance should be attached to discrimination based on race. If, as the Commission therein held, differential treatment based on race might constitute degrading treatment under Article 3 even though differential treatment based on other grounds might not, then why should not Article 14 as well take account of the singular evil of differences based on race?

Indeed, although the Court has allowed states a margin of appreciation in effectuating Article 14's guarantees, it seems clear that, as one observer has suggested, "certain grounds for making distinctions are a priori 'suspect' and, therefore call for a particularly close scrutiny".⁵⁶ Thus, the Court has reasoned that, "[n]otwithstanding any possible arguments to the contrary, a distinction based essentially on religion alone is not acceptable".⁵⁷ Similarly, the Court has indicated that the doctrine of margin of appreciation has little or no place when it comes to distinctions based upon legitimacy,⁵⁸ nationality,⁵⁹ or sex.⁶⁰ "In view of the above," one commentator has opined, "it seems highly plausible that the margin of appreciation will play little or no role in cases concerning a difference of treatment essentially or only on the ground of race."⁶¹

Legal developments beyond Strasbourg offer further support for the notion that prohibitions against racial discrimination are of fundamental importance. Thus, the constitutions of virtually all Council of Europe member states contain bans on discrimination on the grounds of race and/or ethnic origin. And too, the European Union Consultative Commission on Racism and Xenophobia has made clear that the principles of non-discrimination and tolerance lie at the foundation of the Union itself.⁶² Indeed, legal efforts to sanction and eradicate racial prejudice and discrimination have manifested in numerous binding international legal instruments⁶³ which today make the general prohibition against race discrimination one of the elements of jus cogens, a peremptory rule of international law.⁶⁴

If lawyers seeking to apply Assenov's procedural obligation to Article 14 can show that prohibiting racial discrimination is of fundamental importance, they will then have to demonstrate that, absent such a procedural requirement, Article 14's prohibition " ... would be ineffective in practice and it would be possible in some cases for agents of the State to [practice racial discrimination] with virtual impunity". To do so, one might first note the "short shrift" which the Court has given to claims seeking to attribute hidden racial motivations to government actions.⁶⁵

Additionally, a principal factor which makes many Article 3 claims unprovable in practice absent an official State inquiry — namely, the difficulty claimants have in getting access to evidence of custodial police abuse — places similar obstacles in the path of claims of racial discrimination under Article 14. As the Court noted in Assenov, Strasbourg jurisprudence under Article 3 effectively shifts the burden of persuasion in cases where injuries are alleged to have been incurred while in police custody. Thus, "where an individual alleges to have been injured by ill-treatment in custody, the Government are under an obligation to provide a complete and sufficient explanation as to how the injuries were caused."⁶⁶

Similarly, in many cases, the evidence of discriminatory treatment remains within the exclusive province of the alleged discriminator. Where agents of the State are alleged to have engaged in racial discrimination, the State itself will likely control the evidence necessary to address the claim. In the absence of an official investigation, the claimant can not easily prove discriminatory treatment. Thus, the prohibition against discrimination contained in Article 14 is often "ineffective in practice."⁶⁷

Finally, other international instruments already recognise the special obligations States bear to investigate and sanction racial discrimination and racially-motivated violence. Article 6 of the International Convention on the Elimination of All Forms of Racial Discrimination requires that states "assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other State institutions, against" acts of racial discrimination.

III. Prospects for the future: a cautionary note

Amidst the backdrop of unrelenting racial hostility and violence against Roma and other racial minorities in much of Europe, a few glimmering lights in the legal landscape suggest that anti-discrimination litigation is a phenomenon whose time may be about to arrive. The increased number of legal challenges to discriminatory laws and practices, heightened attention to racial discrepancies in judgments and sentences for racially-motivated violence, and the discernible — if incremental — growth in the number of lawyers willing and able to deploy creative arguments on behalf of victims of racial discrimination, all provide reason for hope.

Still, narrow thinking continues to pervade legal discourse and judicial rulings. There are numerous issues which must be confronted within the legal profession. Among them are the following: How can anti-discrimination lawyers infuse international and comparative jurisprudence — the decisions of Strasbourg, Luxembourg, and countless domestic and international courts both within and without Europe — into the thinking and argument of their colleagues in the bench and bar? How might judges be persuaded to give life to broad constitutional anti-discrimination provisions in concrete cases where violations are alleged? What procedural mechanisms may be adopted in the civil law systems which predominate in continental Europe to ensure that judicial decisions which vindicate minority interests have a lasting impact? How can the use of statistical and sociological evidence in court — so essential for litigation which seeks to challenge discriminatory practices — be encouraged? And, in Central and Eastern Europe, how can the negative views of law, lawyers, and the legal process — the legacy, in part, of a Communist system which fused law and politics to the everlasting detriment of many societies — be overcome?

These and many other challenges will have to be addressed if the law is to become an effective tool in the fight against racial discrimination in Europe. And yet, even as committed lawyers strive for change, they must recognise that the struggle for racial equality extends beyond the courtroom, to the legislature, the executive and the street. Urgent and necessary as they are, effective anti-discrimination laws, lawyers, and litigation are far from sufficient.

In this regard, even cautious optimism about the prospects for change must be tempered by the experience of other societies outside of Europe, including those with more comprehensive anti-discrimination law but which, for all that effort, are still plagued by systematic racism and discrimination. In the United States, for example, the failure of several decades of legislation and litigation to end the disproportionate representation of African Americans among the poor, the unemployed, and the under-educated has led some to question "whether African Americans — and since civil rights affect all minorities, all people of colour — will ever gain real racial equality through the workings of traditional civil rights laws and judicial decisions."⁶⁸

In reconsidering the trajectory of the civil rights movement in the United States over the past forty years, some scholars have sought to explain the persistence of racial discrimination by arguing that racism is not simply an "anomaly" in a society committed to equality.⁶⁹ Rather, "liberal democracy and racism in the United States are historically, even inherently reinforcing; American society as we know it exists only because of its foundation in racially-based slavery, and it thrives only because racial discrimination continues. The apparent anomaly is an actual symbiosis."⁷⁰

On this view, all efforts to achieve racial equality must take account of the entrenched rootedness of racism in the political culture of the nation and the individual identity of its citizens. In the words of one prominent scholar, "beliefs in white dominance, reinforced by policies that subordinate black interest to those of whites," help explain why many whites consistently support social policies which operate to their own detriment, so long as they also work to the detriment of racial minorities.⁷¹

Furthermore, momentous gains in the long march to racial justice — for example, the Emancipation Proclamation of 1863 or Brown v. Board of Education, the Supreme Court's landmark 1954 desegregation decision⁷² — may be understood, not as the products of black struggle or white benevolence. Rather, it is argued, they happened because many whites viewed these developments as in their own self-interest: "[P]ast gains in the courts and in Congress came during periods when policy-makers [including the judiciary] deemed that the interests of whites would be advanced or at least would not be harmed by recognising the claims of African Americans for racial justice."⁷³ It has been suggested that the Supreme Court which decided Brown — during the early Cold War years, when anti-Communist fever was at its pitch — was well aware of the diplomatic benefits which might accrue to the U.S. from ending officially sanctioned racism.⁷⁴

One need not overlook the differences between America and Europe — by no means limited to the field of race relations — to inquire whether this view of the American experience might be of relevance to the struggle for racial equality on the other side of the Atlantic. At a minimum, if in the U.S. "race consciousness makes it difficult — at least for whites — to imagine the world differently" and "provides a powerful explanation of why [many poor whites] fail to challenge the current social order," one might ask whether, at different times and in different places, national and/or ethnic consciousness has not played an analogous role in Europe. Repeatedly throughout this century, politically-manipulated appeals to "national," "ethnic" or "racial" solidarity have led one people after another down self-destructive courses of action premised, in part, on the subordination of an "inferior" and "different" minority group. Indeed, since the end of Communism, national, ethnic and racial allegiances have been cynically exploited both East and West as a means of diverting popular discontent with difficult and controversial economic adjustments. The raising of immigration walls in the West and the surge in anti-Roma violence and hostility in the former Communist countries are both troubling manifestations of this phenomenon.

So, even as we strive to expand the law's reach on behalf of racial and ethnic minorities, we must acknowledge that law alone is not enough. Lawyers who think the unthinkable are essential —but only one piece in a vast puzzle. The tenacious endurance of racial prejudice and discrimination in societies far afield should give pause to those struggling for change. But no more than that. Though a long way off, racial justice is worth the fight.

Endnotes:

1. James A. Goldston, a graduate of Harvard Law School and former Assistant United States Attorney, has been Legal Director of the ERRC since January 1997.
2. Ministry of Social Affairs and Health, Government of Finland, "Socius Finland," No.3 (1998), pp.20-22.
3. See, e.g., R. Kluger, Simple Justice (1975) (passim). For a somewhat different portrait of the role of clients in litigation to challenge racial discrimination, see M.F. Greene, Praying for Sheetrock (1991) (passim).
4. J. Lobel,"Losers, Fools and Prophets: Justice as Struggle", 80 Cornell Law Review 1331, 1335-36 (citations omitted) (quoting from Albion W. Tourgee, A Fool's Errand (J.H. Franklin, ed., 1961)). Lobel provocatively analogises the role of the social change lawyer to that of a prophet, and suggests that "prophetic litigation" — resting on an Old Testament vision of justice as "a fighting challenge, a restless drive" — "reflects and articulates the aspirations and demands of significant political or social movements" and "locates justice not merely in certain substantive goals, but more importantly in the history of struggle against oppression and injustice." Id., pp.1333, 1336. 1337 (citations omitted).
5. See, e.g., D. Kairys, ed., The Politics of Law: A Progressive Critique, 2nd ed. (1990) (collection of essays on the role of law and rights in social change); M. Tushnet, "An Essay on Rights," 62 Texas Law Review 1363 (1984) (questioning whether rights claims in fact spur social activism).
6. In United States v. Carolene Products, 304 U.S. 144 (1938), the U.S. Supreme Court observed that "prejudice against discrete and insular minorities ... tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities."
7. J. Dinsdale, Deputy Director of Human Rights, Council of Europe, "Combating Discrimination: A View from the Council of Europe," 26 April 1996, Address to the Conference on Developments in Discrimination Law in Ireland and Europe, Irish Centre for European Law, p.6.
8. See webpage http://www.unhchr.ch/html/menu2/8/frcomcm.htm (visited 24 August 1998).
9. See, e.g., D. Petrova , "Political and Legal Limitations to the Development of Public Interest Law in Post-Communist Societies," Parker Journal of East European Law (1997) (identifying as "obstacles", inter alia, the fusion of law and politics under Communism, the tradition of excessive state power, the fragility of the rule of law post-1989, the absence of a tradition of judicial review, insufficient access to legal aid, the outsized role of the procuracy, the nascent state of constitutional and rights discourse, and the absence of a tradition of independent thinking among the bar).
10. European Commission against Racism and Intolerance, "Legal Measures to Combat Racism and Intolerance in the Member States of the Council of Europe" (1998), p.9.
11. See international legal instruments cited infra at note 62.
12. See J. Dinsdale, Deputy Director of Human Rights, Council of Europe, "Combating Discrimination: A View from the Council of Europe," 26 April 1996, Address to the Conference on Developments in Discrimination Law in Ireland and Europe, Irish Centre for European Law, p.17 ("the main weakness deriving from the auxiliary nature of Article 14 is that it cannot be applied to areas falling outside the scope of the ECHR, espcially those areas of civil society where racism is most common").
13. In Airey v. Ireland, A-32 (1980), the Court said that, once it has found a breach of another Convention provision, it will go on to decide the Article 14 point where "a clear inequality of treatment in the enjoyment of the right in question is a fundamental aspect of the case." Ibid., para. 30. Nonetheless, "[t]here appears to be a strong inclination to avoid the Article 14 question where another violation has been established (and even to consider that the other violation precludes the Article 14 question)." D. Harris, M. O'Boyle, C. Warbrick, Law of the European Convention on Human Rights (1995), p.468.
14. See Abdulaziz, Cabales, and Balkandali v. UK