Strasbourg Cases and Their Long Term Impact

13 November 2006

Luke Clements¹

What has been the lasting legacy of European Roma Rights Centre's litigation strategy?

In this paper I try and do two things: firstly, to relate, briefly, the development of Roma cases at the European Court of Human Rights, and secondly, to try and assess the extent to which litigation can have a positive and durable influence on Roma people's lives. The first task is the easier. It is a history that has almost everything to do with the formation of the European Roma Rights Centre (ERRC). Few non-governmental organisations – if any – can point to a decade of such impressive achievement.

Ten years ago, there were little or no effective legal challenges being made to the widespread abuse of the human rights of Roma.

Ten years ago, I remember visiting Târgu- Mureş with the wonderful Jim Goldston, ERRC's then legal director. We heard of the despair of Romanian Roma concerning atrocities committed in Hădăreni village and elsewhere, and their sense of powerlessness. We heard of widespread abuse by the police and of the endemic discrimination that Roma experienced in housing, education, health and so on. These terrible incidents had been largely ignored by the state authorities

Ten years ago, although there had been no European Commission or European Court of Human Rights decision concerning the treatment of Roma in Central and Eastern Europe, there had been many international reports condemning the appalling treatment of Roma. Expressions of concern however seldom change anything.

In 1997, the European Commission on Human Rights issued a largely negative report in response to a complaint made by a Romani youth, Anton Assenov, and his parents. The complaint alleged that Anton had been illtreated whilst in police custody in Shumen. The case was then referred to the European Court of Human Rights at which point the ERRC became involved, supporting the local lawyers, and then directly intervening at Strasbourg. As a consequence, in October 1998, the Court gave the landmark Assenov v. Bulgaria ruling. It found a violation of almost every complaint made. In particular, it held that, where credible evidence exists that a person has been ill treated in police custody, then there is an obligation under Article 3 of the Convention on the state to carry out a full and independent investigation. The Assenov judgment not only produced hard rights for Roma, it improved the situation of all people claiming that they had been ill treated at the hands of the state.

Subsequent to this decision, many cases taken or supported by the ERRC have been successful: international cases concerning (for instance) deaths in custody (eg. Velikova v. Bulgaria (2000)) and the illegal expulsion of Roma (Conka v. Belgium (2002)), as well as domestic proceedings, such as the UK House of Lords case finding unlawful discrimination against Roma (ERRC v. Immigration Officer at Prague Airport and others (2004)). These cases have not only developed principles of international law for the benefit of Roma, they have proved to be of central importance to the struggle of all socially excluded people. At a recent symposium in Strasbourg, I heard it said that Convention discrimination law is now synonymous with Roma case law. This is largely true and almost entirely due to the pioneering work of the ERRC and the inspirational local lawyers with whom it works.

Last year, two more landmark rulings were made by the European Court of Human Rights in relation to ERRC supported complaints.

In Nachova v. Bulgaria, the Court ruled that a failure by a state to investigate allegations of severe discriminatory treatment could amount to a violation of Article 14 of the Convention. Nachova is a judgment of immense importance whose repercussions we will still be trying to gauge 10 years hence. It means that states must not only refrain from directly discriminating against minorities, such as Roma, but that they have a positive obligation to investigate situations where severe problems appear to exist. Such a responsibility can, and probably will, be developed into a general obligation to promote racial harmony – to take active measures to reduce inequality.

Moldovan and others v. Romania was the second 2005 judgment of immense importance. It is particularly satisfying that it directly ruled on the terrible events at Hădăreni village in Romania to which I have already referred. Moldovan is a judgment that challenges the perception that Roma are powerless to confront the indifference and hostility of the police and state officials to their plight. The Strasbourg Court found that the applicants had suffered gross racial discrimination at the hands of the state authorities (including the Târgu-Mureş Court of Appeal). Indeed, the state's indifference and stigmatisation of the victims was held to constitute "degrading treatment" within the meaning of Article 3 of the Convention. The Court in addition ordered compensation in excess of EUR 225,000. This compensation was in addition to financial compensation earlier negotiated in a friendly settlement between several of the applicants and Romanian government.

Not all the ERRC's legal challenges have been successful. Earlier this year, the European Court of Human Rights rejected a complaint concerning discriminatory treatment in relation to the education of Roma in the Czech Republic. Despite compelling evidence painstakingly acquired by the ERRC over many years, the Court took a negative and restrictive approach and found no violation. At the time of writing, we are awaiting the outcome of an application to the Grand Chamber for a review. It would be to the Court's eternal shame if it failed to reverse this dreadful decision. The tide has however turned, and it is inevitable that, in the years to come, cases like this will succeed: Sooner or later the Strasbourg Court will see the light.

What though is likely to be the long-term influence of this litigation? Roma may no longer be burnt alive and subjected to pogroms of the type in Hădăreni village, but life is still brutal for very many – particularly in Eastern and Central Europe. The police still ill-treat Roma in detention and it would be naive to suggest that their social welfare conditions have changed materially: they are still at the bottom of the social pile and face discrimination in every aspect of their lives.

But this is not a unique experience. Black people in the United States still face de facto discrimination and segregation in their schooling and experience generally inferior services in housing, health and education, notwithstanding the Supreme Court ruling in Brown v Board of Education in 1954 and 60 years of radical civil rights campaigning.

Effecting change is not easy. Winning a court case brings a wonderful feel but there is no guarantee that it will deliver anything significant in terms of positive change. Challenging endemic discrimination and social exclusion is a long term process. Litigation is one strand of such a strategy – an important one – but it is only one strand.

This is not to understate the value of a statement of the law by the European Court of Human Rights, or indeed of any other equivalent international tribunal. Judgments protect and empower oppressed communities and give support to all those who wish to see an end to such injustice. They make Governments sit up and pay attention to the domestic constitutional minority rights guarantees that are all too often ignored in the daily political imperative of appeasing the majority. Carefully phrased judgments can promote local reconciliation and suggest pathways to the peaceful and orderly resolution of longstanding tensions.

All too often, however a successful case merely results in the institution "Strasbourg proofing" its behaviour and then continuing to discriminate as before, but doing so in a way that avoids further court condemnation. People are not beaten up, but they do mysteriously fall down police cell steps. Children are not segregated on racial grounds, but they are then made to take an exam which only those from socially privileged backgrounds are likely to pass.

Of course judgments concerning gross violations tend to be effective even in the absence of other external forces. Cases concerning brutality against Roma in detention fall into this group, since the Assenov judgment now obliges states to investigate and establish precisely how the injuries were sustained. However, discrimination against Roma does not always take this form. All too often, it is pervasive and stems from long standing racial stigmatisation and community repression: all too often it manifests itself, not in acts of indiscriminate violence of the Assenov or Hădăreni village type, but in more diffuse ways. In an early Court judgment concerning English Gypsies, Judge Pettiti highlighted both the insidious nature of these discriminatory state practices and the difficulty courts had in dealing with them: They arose, he said, through "the deliberate superimposition and accumulation of administrative rules (each of which would be acceptable taken singly)" but which cumulatively made it "totally impossible for a Gypsy family to make suitable arrangements for its accommodation, social life and the integration of its children at school".²

Pettiti's lament concerning the impotence of courts faced with such endemic and "indirect'' discrimination is a warning to all who pin too many of their hopes on litigation strategies. Courts are generally poor at peeling away layers of injustice: judges like simple targets with which to deploy their logic; they are uneasy when asked to roll up their sleeves and determine cases that spring from multifaceted community inequalities.

The awkwardness of the judiciary is not an acceptable excuse when faced by such manifest injustice. They need to acquire new skills and strategies to improve the effectiveness of the justice system in dealing with problems of this nature. The law, however, has its limits, particularly when the origins of the discrimination are so diffuse – historic, economic, cultural, social and political.

All governments are restricted in their ability to make dramatic shifts in their country's cultural and socio-economic structures. The righting of historic injustices will often take time and require both vision and support – domestic and international. Court judgments condemning such inequalities are not self-enforcing. Although state acknowledgment of the problem and a wish to make amends is a sine qua non, without more, this too is often insufficient. Fortunately, however, the ERRC's Central and Eastern European strategy has come at a unique time – coinciding as it has with the enlargement of the European Union. With such a backdrop, many Governments have seen the benefits of partnership working with local Romani organisations, especially as it has frequently had the potential to open EU coffers as well as those of the European Bank for Reconstruction and Development and the World Bank. Such cooperation has produced real benefits, but almost certainly would not have occurred without the threat of litigation (and the consequent international condemnation).

It is to the enormous credit of the ERRC's founding fathers/mothers that, from its inception, the organisation has been aware of the limitations of a "litigation only" strategy and has given equal weight to its international advocacy, its research and policy development and its training of Romani activists.

Reliable and accurate first-hand research is the foundation of all ERRC activities. It informs the litigation as well as the domestic and international responses to the human rights abuses that it exposes. In recent years, the reports concerning systematic discrimination in the fields of education, access to public accommodation and health services, as well as in documenting violence against Roma and Romani communities, have probably done as much (if not more) to change the European perception of the status of Roma as the very many successful cases before the European Court of Human Rights. And yet, without the litigation, most of these reports would probably have been filed unread in the library of good intentions.

A specific incident – one of hundreds challenged successfully by the ERRC over the last 10 years – gives some measure of the effectiveness and lasting impact of the litigation strategy. It took place on 13 October 1999, when the council for Usti nad Labem in the Czech Republic built a two-meter-high wall to isolate a Romani community. Forty days later it was dismantled. What was the reason for such a volte-face?

There can be no doubt that the ERRC played a central role in challenging this abomination. Using its excellent local and international links, it ensured that the story was widely published in Europe and beyond, including editorials in the New York Times and the Herald Tribune. It threatened immediate legal action and called upon the European Union to block the Czech state's accession to the Community.

The speed of the Czech Government's response was almost certainly due to the severe embarrassment that the incident caused it with the EU. One could therefore argue that the ghettoisation policy was successfully thwarted for reasons political rather than judicial. That, however, is to miss two important points: The first concerns the question, "Why did the construction of the wall get such enormous attention?" The answer is that it typified the discrimination that the ERRC had painstakingly researched, challenged and publicised since its formation. The ERRC had, with its track record of robust litigation and thorough research, made Romani issues a key measure in assessing the EU accession suitability of states such as the Czech Republic. The reality was that, if the wall had not been removed, there would have been immediate litigation, leaving the EU no choice but to put on hold accession.

The second point raises another question, namely "What would happen if the wall was built today?" The answer is that it would probably take more than 40 days to get it removed, because the Czech Republic is now safely within the EU fold. However, the wall would certainly come down. This is not because the European Court of Human Rights would judge against it: The case would not get to Strasbourg. The wall would be removed because ERRC's litigation strategy has helped nurture the significant body of dedicated Czech lawyers who would today take action in the domestic courts. In their courts, they would refer to the established international law principles articulated in Moldovan and Nachova.

The litigation strategy has quite simply changed the socio-legal environment and the cultural context by which we judge the discrimination experienced by Roma. Court judgments, by restructuring the law, inevitably restructure the social and community relationship regulated by the law. Judgments, it has been said, bend and change "the legal and social landscape so that, after such cases are decided, people will be guided by assumptions and premises and patterns that differ from those that shaped their behaviour before those cases were decided".³

The litigation strategy has changed our very perceptions. It has given us a new language with which we can more clearly explain why certain actions are legally unacceptable, even if many of us have always sensed them to be so.

Endnotes:

1. Solicitor, London, and Reader in Law at Cardiff University.
2. See European Court of Human Rights, Judgment on the case of Buckley v. UK, adopted on 26 August 1996, Dissenting Opinion of Judge Pettiti, available at: http://cmiskp.echr.coe.int/tkp197/view.asp?item=1&portal=hbkm&action=html&highlight=Buckley%20%7C%20v.%20%7C%20UK&sessionid=7871620&skin=hudoc-en.
3. Laurence Tribe. "The Curvature of Constitutional Space: What Lawyers Can Learn from Modern Physics". In Harvard Law Review: 103 November 1989; No.1.