ERRC Strategic Litigation Secures Victories for Roma Victims of Torture, Racially-Motivated Crime and Discrimination
21 July 2005
Since the beginning of 2005, ERRC strategic litigation secured a number of decisions of domestic and international judicial bodies challenging long-standing patterns of human rights violations against Roma. In this issue of Roma Rights the ERRC presents a selection of the most important rulings over the period:
Court Punishes Disco for Denying Entrance to Roma on Racist Grounds
In one of the first Roma rights decisions issued under Hungary's comprehensive anti-discrimination law in June 2005, a discotheque in the town of Nagyhalász, in northeastern Hungary, has been fined the Hungarian forint equivalent of approximately 2400 Euros for discriminating against Roma.
The facts of the case are as follows:
On 10 April 2004, Ms. Agnes Rado and three other young people, two of whom were, like Ms. Rado, Romani, were turned away by guards at the door of the Julia Central Discobar in the town of Nagyhalasz, for the stated reason that they were not "regular guests". Non-Roma coming after them managed to enter without any identification or having questions asked of them. In the framework of a joint litigation project with the ERRC, the Budapest-based NGO Legal Defence Bureau for National and Ethnic Minorities (NEKI) conducted a test of the disco on 12 June 2004, to determine whether the establishment was racially discriminating or not. The tests ascertained that Roma were banned from entering the bar, while non-Roma were allowed entrance.
On the basis of the evidence gathered, a lawsuit was filed in which violations of personal rights, based on the infringement of the right to equal treatment, as regulated by Article 76 of the Hungarian Civil Code, as well as by Articles 8 and 30(1) of Hungary's new anti-discrimination law, were alleged. It was also noted in submissions that under Hungary's anti-discrimination law, adopted to comply with EU rules banning discrimination, where it has been established that discrimination has taken place, the burden of proof shifts to the respondent.
On 13 June 2005, the Szabolcs-Szatmár-Bereg County Court held that the Julia Central Ltd., operating the Julia Central Discobar in Nagyhalasz, violated the plaintiff's right to dignity and infringed the requirement of equal treatment. The court awarded 150,000 Hungarian forints each (approximately 600 EUR) in non-pecuniary damages to Ms. Rado and to the other three persons concerned. The Julia Central Ltd. was further ordered to refrain from further violations, and was ordered to post the court's decision at the discotheque for two months.
The ruling is among the first to date issued by courts under Hungary's comprehensive anti-discrimination law, adopted in December 2003, and is part of an important developing anti-discrimination jurisprudence on Roma rights matters in Europe. The decision may still be appealed. The plaintiffs have been represented by Erika Muhi, an attorney based at the Legal Defence Bureau for National and Ethnic Minorities (NEKI), as part of a joint litigation project with the European Roma Rights Centre.
UN Committee Against Torture Condemns Extreme Abuse in Custody
In June 2005, the United Nations Committee Against Torture has ruled that Serbia and Montenegro (successors to the Federal Republic of Yugoslavia against which the original complaint was filed) violated the Convention Against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment. The decision involves the arbitrary detention and extreme physical abuse of Mr. Jovica Dimitrov, a Romani man, as well as the failure by Serbian authorities to provide justice in the case.
In the early morning hours of 5 February 1996, Mr. Jovica Dimitrov, a Romani man, was arrested at his home in Stanka Paunovica Street 15, Novi Sad, and taken to the police station in Kraljevica Marka Street. The arresting officer presented no arrest warrant nor did he inform the author as to why he was being taken into custody.
On arrival at the police station, Mr. Dimitrov was taken to the Homicide Division. During the ensuing interrogation, the arresting officer struck Dimitrov repeatedly with a baseball bat and a steel cable, and kicked and punched him all over the body. At times Dimitrov lost consciousness. With brief breaks on several occasions, the ill-treatment lasted from 6.30 a.m. to 7.30 p.m., leaving Dimitrov with numerous injuries on his buttocks and left shoulder. Sometime after 7.30 p.m., he was released, again without being given an arrest warrant or a release order, or being told of the reason for his arrest and detention.
On 7 November 1996, Dimitrov filed a criminal complaint with the Novi Sad Municipal Public Prosecutor's Office, alleging that in the incident at issue an unidentified police officer had committed the violence. It was only on 17 September 1999, more than three and a half years (43 months) following the incident at issue, and 34 months since the criminal complaint was filed, that the Novi Sad Municipal Public Prosecutors Office requested the investigating judge of the Novi Sad Municipal Court to undertake certain preliminary "investigatory actions".
The investigating judge of the Novi Sad Municipal Court accepted the public prosecutor's request and opened a separate case file (Ki 393/99). However, eleven months after the investigating judge opened the case file, and four and a half years after the original incident occurred, the local authorities still had not identified the perpetrators. The European Roma Rights Centre and the Humanitarian Law Center therefore brought the case to the UN Commitee Against Torture on 29 August 2000.
In its decision, the Committee held that the allegations constitute torture within the meaning of Article 1 of the Convention. The Committee also found that the State party violated Article 12 and 13 in failing to carry out a prompt and impartial criminal investigation and ensuring that the applicant has a right to complaint and his allegations promptly examined by competent authorities. Mr. Dimitrov was also prevented from any possibility of filing a civil suit for compensation, which violates Article 14. The State party was urged to conduct a proper investigation and to inform the Committee with 90 days of the decision and next steps.
United Nations Committee on the Elimination of Racial Discrimination finds Slovakia in Violation of International Law for Failing to Remedy Racial Exclusion of Roma
In a decision of March 2005, the United Nations Committee on the Elimination of Racial Discrimination found that Slovakia had violated three provisions in the International Convention on the Elimination of all forms of Racial Discrimination (ICERD) in a housing discrimination case. The ruling clarifies unequivocally that policies aiming to keep Roma in substandard slum settlements or resulting in such severe discrimination violate international law, and tolerance of such acts by public officials cannot stand.
On 20 March 2002 the councillors of the Dobsina municipality approved a plan to construct low-cost housing for the Romani inhabitants of the town. About 1,800 Roma live in Dobsina, many in appalling conditions without drinking water, raw sewage removal or drainage, and in very poor quality huts. The Dobsina chairman of the Real Slovak National Party, one of several political parties in Slovakia with tacit or explicit anti-Romani platforms, together with four other nationalists, organised a petition aimed at stopping the housing plan as they did not want any more Roma living in Dobsina. They presented this petition to the municipal council, which proceeded to vote to cancel the earlier decision to build social housing and agreed a resolution that included an explicit reference to the racist petition.
Roma from Dobsina asked the District Prosecutor to investigate the legality of the municipal council's actions. The Prosecutor refused. They applied to the Slovak Constitutional Court, which also refused to consider the merits of their claim. A number of Romani individuals from Dobsina, together with their legal representatives, the European Roma Rights Centre and the Slovak NGO League of Human Rights Advocates, then brought their claim before the UN Committee on the Elimination of Racial Discrimination (CERD).
In its Opinion on the case, the CERD held that "in complex contemporary societies the practical realization of, in particular, many economic, social and cultural rights, including those related to housing, will initially depend on and indeed require a series of administrative and policy-making steps by the State party's competent relevant authorities ... The Committee considers that the council resolutions in question, taking initially an important policy and practical step towards realization of the right to housing followed by its revocation and replacement with a weaker measure, taken together, do indeed amount to the impairment of the recognition or exercise on an equal basis of the human right to housing".
The Committee found Slovakia in breach of its obligations under international law not to engage in any act of racial discrimination and to ensure that all public authorities act in conformity with this obligation. It also found Slovakia in breach of its obligation to guarantee the right to everyone of equality before the law in the enjoyment of the right to housing. In addition, "…having established the existence of an act of racial discrimination, it must follow that the failure of the [Slovak] courts to provide an effective remedy discloses a consequential violation of the Convention". The CERD held that Slovakia must provide the Roma from Dobsina with an effective remedy, in particular, it must take measures to ensure that the Roma from Dobsina "are placed in the same position that they were in upon adoption of the first resolution by the municipal council [to build low-cost housing]."
Ruling Reverses Local Rules Precluding Roma from Access to Social Housing
In a decision of February 22, 2005 the Hungarian Constitutional Court struck down as unconstitutional provisions of a Budapest 3rd District Local Government decree regulating social housing. The ERRC had challenged the decree on a number of grounds, including the fact of its having a disproportionate, negative impact on Roma. The ERRC motion among other things tested Hungary's new anti-discrimination law, adopted in December 2003 to comply with European Union rules.
Roma currently face crisis conditions in the field of housing in Hungary. As the international community has strengthened its commitments to the right to adequate housing and the need to provide housing to the most vulnerable sectors of society, Hungary has dramatically weakened protections available to tenants. In particular, in May 2000, legislation entered into effect allowing the notary -- an employee of the municipality -- powers to order evictions absent a court procedure. A notary decision ordering eviction must be implemented within eight days, and appeals are not suspensive.
Local authorities in Hungary have in recent years also sold off significant amounts of the public (including social) housing stocks, creating a situation in which Hungary may not be able in practice to meet the housing needs of the poor and/or extremely poor. Owing to widespread anti-Romani sentiment existing in Hungary, allegations of racial discrimination in the allocation of public housing are often plausible.
In its February 22 decision, the Constitutional Court found illegal provisions of the Budapest 3rd District Local Government housing decree excluding from eligibility for social housing persons who previously occupied apartments or other premises in violation of the owners' property rights or without legal entitlement. The Court held that this decree was in conflict with the Hungarian Housing Act, as it interferes with the requirement that local governments provide housing to the socially weak. The Court reaffirmed that criteria for social housing must be social in nature.
The decision is particularly important in developing the right to adequate housing under Hungarian domestic law. Similar complaints brought by the ERRC in November 2004 challenging the local housing regulations of four other Hungarian municipalities are currently pending with the Hungarian Constitutional Court.
Slovak Regional Court Awards Moral Damages in Racist Killing
In a ruling of 19 January 2005, the Regional Court in Banska Bystrica delivered a
binding final decision, awarding for the first time in Slovak judicial history compensation for moral suffering to the next-of-kin of a victim of racially motivated crime.
The case involves the 1995 killing by skinheads of a 17-year-old Romani youth named Mario Goral, in the town of Ziar nad Hronom. On 21 July 1995, Mr. Goral was chased through the streets of the town by a group of skinheads, stabbed with knives, beaten to a state of unconsciousness, doused in a flammable substance, and then set on fire. He suffered second and third degree burns over 63% of his body and died in hospital ten days later, on July 31. Although at least seventeen persons were initially charged by police in connection with the killing, only two persons were ultimately convicted.
The ERRC has been involved in the case since the organisation was founded in 1996. This and similar crimes were at the center of advocacy efforts for justice in the matter of systemic racist violence against Roma in Slovakia, such as the ERRC's 1996 Country Report Time of the Skinheads: Denial and Exclusion of Roma in Slovakia.
As part of efforts to seek due remedy for the family of Mario Goral, in 1998 the ERRC supported local counsel Dr. Bohumir Blaha in filing a civil action seeking financial compensation for mental anguish suffered by the victim and his mother. In September 1998, the ERRC filed an informal amicus curiae brief, as a supplement to the action of the mother's lawyer. The brief provided international and comparative legal authority with respect to the claim for non-pecuniary damages raised in the submission of Dr. Blaha. The ERRC argued that Mrs. Nadezda Borosova, Mario Goral's mother, was due two separate and independent sets of moral damage arising from the murder of her son. In January the Regional Court in Banska Bystrica agreed, and awarded Mrs. Borosova 300,000 Slovak Crowns (approximately 7,800 Euro) compensation.
