Statement of the European Roma Rights Center on the Occasion of the Fiftieth Anniversary of the European Convention on Human Rights

02 November 2000

The European Roma Rights Center is an international public interest law organisation which monitors the situation of Roma and provides legal defence in cases of human rights abuse. On the occasion of the fiftieth anniversary of the European Convention on Human Rights, ERRC notes the outstanding accomplishments of the European Court and the former European Commission of Human Rights in propounding human rights in Europe. At the same time, we urge the Court to reinforce its commitment to the protection of the rights of the Roma. ERRC is concerned by the weakness of anti-discrimination jurisprudence and by racially-motivated violence, which is the daily reality of the Roma community.

Examples of the far-reaching effects of the Court's decisions are many: the introduction of new rules governing the treatment of detainees following the Ireland v. United Kingdom decision, [1] the passage of a new law on telephone surveillance in conformity with the convention following Huvig v. France [2], and the outlawing of corporal punishment in schools after the Court found the practice to violate the Article 3 prohibition against inhuman or degrading treatment. [3]

Notwithstanding the Court's and Commission's remarkable achievements in many areas, however, jurisprudence relating to discrimination--in particular, discrimination based on race--has not progressed as quickly as we may have hoped. The European Commission's far-sighted ruling in the East African Asians Case [4] in 1973 has yet to be embraced by the Court. That case involved a challenge to British immigration legislation which singled out U.K. passport holders of Asian origin and resident in East Africa, and denied them admission to the United Kingdom. The Commission affirmed that "a special importance should be attached to discrimination based on race" [5] and that such discrimination "could, in certain circumstances, of itself amount to degrading treatment within the meaning of Article 3 of the Convention." [6] Unfortunately, this principle has not been further developed by the Court.

The Court has an important role to play in cases relating to Romani applicants, which often are brought in reaction to the pervasive and systemic discrimination in many of the countries where they live. Of the handful of decisions involving Roma to date, the results have been mixed. The first case initiated by a Roma applicant to ever reach the Court was Buckley v. the United Kingdom [7], decided on September 25, 1996. That case involved a Roma woman who tried to station the three caravans in which she had been living with her children and mother on a piece of land she owned in South Cambridgeshire, England. District authorities claimed that the presence of caravans on the site harmed the character and appearance of the countryside, and ordered them removed. Ms. Buckley argued that the refusal to grant permission to live on her own land violated her right to respect for home and family life, as protected by Article 8 of the Convention, and that British planning policy was discriminatory in character by not taking account of the traditional lifestyle of the Roma. The Court acknowledged that the measures taken had interfered with Ms. Buckley's right to respect for her home, but ultimately rejected her claim, concluding that a due balance had been struck between the interests of the general community and the applicant's right to establish a home on her land. In a powerful dissenting opinion, Judge Pettiti agreed with the Commission's original decision in the case, finding that the British authorities had placed a disproportionate burden on Ms. Buckley by not fully taking into account the traditional lifestyle of Roma as an inherent element in their right to family life.

The first case involving a Roma applicant from Central and Eastern Europe was more successful. That case, Assenov and others v. Bulgaria [8], began with the arrest of a 14-year-old Romani boy for gambling in the market square. While he was in custody, the police struck him with truncheons and punched him repeatedly in the stomach. He 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. He was subsequently arrested on other charges and held in pretrial detention for two years. The Court found that the Bulgarian government violated Article 3 (right not to be subjected to torture or inhuman and degrading treatment or punishment) by failing to adequately investigate the allegations of mistreatment, Article 5 (right to liberty) by failing, following the subsequent arrest, to have a court determine the lawfulness of his pre-trial detention and to bring him to trial within a reasonable time, Article 13 (right to an effective remedy) by failing to conduct an investigation into the claims of mistreatment, and Article 25 (obligation not to interfere with the right to petition) by pressuring two applicants into denying having made an application.

A subsequent case decided in May 2000, Velikova v. Bulgaria [9], involved the death of a Romani man, Slavtcho Tsonchev, who was brutally beaten while in police custody and died. The Court held that Bulgaria had violated Article 2 (right to life) and Article 13 (right to an effective remedy). The failure to conduct an effective investigation into Mr. Tsonchev's death undermined the effectiveness of any other remedy which might have existed. His widow was awarded damages for pain and suffering as well as pecuniary damages.

A number of other cases brought by Roma applicants are currently pending before the Court, providing ample evidence that the rights guaranteed under the Convention are not always guaranteed in practice for Roma by the Member States of the Council of Europe. The Court thus will have real opportunities in the coming years to send a clear signal that discrimination and violations of Roma rights will not be tolerated.

Governments also will have an opportunity to reaffirm their commitment to the struggle against racism and discrimination. Article 14 of the Convention prohibits discrimination with respect to the rights and freedoms set forth in the Convention, but does not extend such protection with respect to other rights and freedoms that may exist under domestic laws or other international instruments. ERRC urges the prompt and unequivocal ratification by all Council of Europe Member States of the recently adopted Protocol No. 12, which creates a general guarantee of the fundamental human right to equal treatment without discrimination and which opens for signature in connection with the 50th anniversary commemorative events on November 4, 2000.

Endnotes:
[1] 2 EHRR 25 (1978)
[2] A-176-B, Judgment of 24 April, 1990
[3] Campbell and Cosans v. United Kingdom, 2 EHRR 293 (1982)
[4] 3 EHRR 76 (1973)
[5] ibid, para. 207
[6] ibid, para. 196
[7] 23/1995/529/615, September 25 1996, Reports 1996-IV, No.16
[8] 90/1997/874/1086, October 28 1998, Reports 1998-VIII
[9] App. 00041488/98, Judgment of 18 May, 2000