Equal Rights for the Romani Population

18 June 2007

Jean-Michel Belorgey¹

In three decisions, dated 8 December 2004, 7 December 2005 and 18 October 2006, the European Committee of Social Rights, the regulatory body for the Council of Europe's Social Charter, found that Greece, Italy and Bulgaria had failed to satisfy their commitments under articles 16 and/or 31 of the Charter regarding the housing of Roma, both their own and foreign nationals present in their countries.

In doing so, the Commitee specifically rejected certain arguments presented by the states in their defence, relating to the lack of relevant statistics, the decentralised management of housing policies and the inability of Roma to meet the eligibility conditions for housing, which were the same for all applicants.

Unfortunately, domestic and international courts that hear cases concerning the rights of Roma and Travellers do not all show sufficient zeal in taking account, to the extent that is legally and ethically necessary, the relevant convention provisions concerning social rights, respect for human dignity and discrimination.

The case of D.H. and others v. the Czech Republic first came before the European Court of Human Rights in 2000 after a long period in the Czech courts, as is normally the case given the conditions governing applications to the Court. In February 2006, the Court reached the – to put it mildly – disappointing decision that placing eighteen Romani children (in accordance with regular practice in many eastern European and Balkan countries) in special schools for children with learning difficulties, despite the fact that their intellectual capacity was quite normal, was undoubtedly inappropriate but was not the result of discrimination by the Czech authorities. It remains to be seen what will become of the application when it is considered in the Grand Chamber, and how the latter will apply Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, and more specifically its case-law in such cases as Thlimenos v. Greece of 6 April 2000 and Connors v. United Kingdom of 27 May 2004,² according to which the principle of equal treatment requires persons in different situations to be treated differently, to the extent that this is necessary.

There can be hardly any doubt that selecting one particular type of school rather than another for the education of Romani, or Traveller, children on the basis of criteria designed for all children itself entails a discriminatory element, as is also demonstrated by the consequences of such an approach, namely, the concentration of such children in segregated forms of schooling.

But ostracising Roma is not confined to eastern Europe and the Balkans. And although pogroms are not such an established tradition in western and northern Europe as they are in Slovakia or Romania, we are well aware from experience in Béziers, France, or at the Bobbin Mill Encampment in Pitlochry, Scotland, that all sorts of excuses, such as illegal presence in the country or unlawful settlement on a flood plain, are used to justify the refusal to offer Romani and similar children normal, or any, schooling. Other techniques are used to deny Roma access to housing, evict them or drive them away, such as increasing the parking charges on caravan sites, destroying the dwellings they occupy (since 2006, several hundred homes occupied by Roma have been destroyed in greater Istanbul and Bursa, on the Black Sea and in Turkey in general), restricting caravans to increasingly confined areas, attributing the rejection suffered by Roma and Travellers to their antisocial behaviour and, as in the case of French law,³ criminalising breaches of legislation that exclude such persons and are deliberately designed to provoke such breaches.

The Romani presence is pervasive in eastern Europe, where opposition to it has often taken violent forms, whereas western Europe has only ever experienced the backwash of Romani migration, though it has been no more successful in coming to terms with it. Yet between the two there is a certain obscure and obscene connivance. An example is the systematic rejection by the French Office for the Protection of Refugees and Stateless Persons of asylum applications from Roma, whether Christian or Muslim and whether from Serbia, Croatia or Kosovo, all areas ravaged by civil war and ethnic cleansing. In these conflicts, as under the Nazis, Roma have borne more than their share of such cleansing.

Two of the major issues facing contemporary society, those of social marginalisation or exclusion, and of migration to developed countries from the countries of the south, are the focus of a debate that is often marked by a variety of ideological or partisan differences.

The first issue involves, on the one hand, those who are naturally inclined to accept social differences and otherness and enter into dialogue with persons who embody another history and different values, or who have at least understood that there is practically no alternative if we wish to avoid new crusades or wars of religion and persecution, inquisitions and proscriptions of all kinds, and, on the other hand, those who feel justified in affirming the primacy and non-negotiability of their own values and the need for others either to accept them or resign themselves to leaving the country.

The second rift is between those who believe, with varying shades of refinement, in the existence of genetic, cultural and historical determinants linked to the collective history of a nation or ethnic or social group, and those who believe, again with varying shades of refinement, although this is not what they are generally noted for, in the autonomy of each human being, which is either innate or can be acquired, through the combined effects of individual will and external pressures or constraints. In the view of the latter group, human beings worthy of the name are capable of extricating themselves from fatalism, physical or mental fatigue, superstition and violence.

The dividing line in the second case is not necessarily the same as between the first set of differences. However, it also reflects, in the case of the second group, a form of ethnocentrism. It is also based on a sort of faith in the freedom of individuals and their capacity, linked to this freedom, to escape from the shackles of their collective or individual childhoods, as well as on a tendency to ascribe what seems to be a rejection of dominant values to these shackles and to accuse those who fail to follow the path offered to them of abnegation, laziness and a lack of character. This leads to their disqualification and, in more than one case, to their being held hostage.

Is there only one form of rationality? Are there not, in reality, several which, with the aid of numerous tricks, accommodations and totalitarian urges, are in constant ebb and flow within each system of representation of the world? Given this, it would be vain to believe that the deviations and aberrations that are thought, by those outside, to be reflected in certain forms of conduct or behaviour can be overcome by making a single system of rationality the yardstick by which to judge conduct based on another such system.4 Even the courts are occasionally aware of this, when they are able to free themselves from the demands of their environment and their own ways and customs. They alone can make the point with sufficient force. They must do so.

Endnotes:

1. Jean-Michel Belorgey is General Rapporteur and Former President of the Council of Europe’s European Committee of Social Rights. Mr Belorgey’s is a Judge at France’s Conseil d’Etat and Head of the Section du Rapport et des Etudes (Report and Studies Division). Amongst his many previous professional activities, he was Adviser on Co-operation to the French Embassy in Algiers (1979-1981), Member of the French National Assembly in the District of Allier (1981-1993), and Chair of the Cultural, Family and Social Affairs Committee, National Assembly.
2. According to which the vulnerable position of Roma and Travellers means that special consideration should be given to their needs and their lifestyle, including those living on the edge of the law.
3. In an article entitled, “L’hospitalité façonnée par le droit, la loi Besson sur l’accueil et l’habitat des gens du voyage,” Anne Gotman offers a revealing account of the parliamentary debates that accompanied the vote on 5 July 2000 on the «Besson Act» on sites and accommodation for Travellers; see Ville et hospitalité: les municipalités et leurs étrangers, Editions de la Maison des sciences de l’homme, 2004. But at least the Besson Act represented a certain progress. The March 2003 Sarkozy Act and the 2006 Crime Prevention Act on the other hand were clearly backward steps, with up to six months’ imprisonment, fi nes or seizure of the vehicle for illegal parking of caravans and the possibility of removing caravans from their stopping place without a court order. Under these circumstances, in all probability, France could be held to be in violation of the Charter.
4. See Belorgey, Jean-Michel. “Maničres de penser le social“. In La Revue administrative, No. 34, July 2003.