Litigating cases on behalf of Roma before the Court and Commission in Strasbourg

02 April 1998

Litigating cases on behalf of Roma before the Court and Commission¹ in Strasbourg

Luke Clements²

Over half of all complaints to the European Commission are made without the assistance of lawyers. This is a great strength of the system; the European Convention on Human Rights is not a complex body of law; it is based upon basic, universally comprehended concepts of decency, fairness and respect for others. You do not need to be a lawyer to express injustice, to articulate what it feels like to be oppressed. In addition to actual victims, complaints can be initiated by ‘representatives’ who need not have any special qualifications other than the victim’s authority to so act. Anyone may be a representative — for instance a friend, community worker, priest etc..

Early on in any complaint, it is however important to have the assistance of a lawyer familiar with European Convention law, as many of the complaints received by the Commission are technically defective for one reason or another. There are four main hurdles a complainant must cross in order to have his or her complaint considered:

• The complaint must concern an alleged violation of one of the rights set out in the Convention or one of the protocols thereto;
• The complainant must have tried to settle his or her complaint by using alt the available remedies in their own country;
• The complaint must be made within six months of the failure of the last attempted domestic remedy;
• The complainant must have been a victim of the injustice which he or she alleges.

Most complaints are rejected by the Commission in Strasbourg because the complainant has not exhausted the potential legal remedies in his or her own country. Many complaints are also rejected because, although there has been an injustice, it does not concern a right which is protected by the Convention. For instance, the Convention does not guarantee a person the right to be given social security assistance, if poor, or the right to a house, if homeless. In the case of these examples, alt that the Convention protects is a person’s right (under Article 8) „to respect for his private and family life, his home and his correspondence".

It has been argued³ that the Commission has imposed more severe admissibility criteria for Roma than non-Roma. For instance in the 1993 application Ruby Smith v UK⁴ complaint was made concerning a specific UK law which made it a criminal offence for a Gypsy (but not a non-Gypsy) to camp in certain „designated" areas unless he or she lived on a legal site. The applicant was a Gypsy and lived in such an area on a legal site. She claimed, however, that the law made it impossible for her to resume her travelling life, or for her family to visit her. The Commission held that

„the traditional lifestyle of a minority may, in principle, attract the guarantees of Article 8 [...] However an individual applicant who is a member of a minority must establish that the measure complained of has a real and direct effect on his or her pursuit of that lifestyle. The Commission finds on the facts of the present case that the applicant has failed to do so."

The Commission’s decision imposed a far more severe admissibility test in this case than has applied to many non-Roma complainants. In Modinos v Cyprus⁵, for instance, the mere existence of a law prohibiting homosexual acts was held to make the applicant a victim, even though he had not been prosecuted under the law and the government had made it clear that it would not use the law.

Although this stringent application of the admissibility criteria to Roma is unfair, it is a fact of life and applicants should ensure that they spell out in their applications:

• precisely what steps they have taken to resolve the violation in their domestic courts;
• exactly how they have suffered because of the violation of their Convention rights;
• that they have complied with the six month time limit;
• that the infringement of their human rights is covered by an Article (or Articles) of the Convention.

The initial letter to the Commission

A complaint to the European Commission of Human Rights must be made within six months of the violation or the dismissal of the last attempt in the domestic courts to resolve the injustice. The six month period is ended when the Commission receives a letter (or fax) making a complaint. The initial letter should set out the basic details of the complaint and if possible be no more than two or three pages in length. It should give the name, address, date and place of birth of the complainant. It should express as succinctly as possible the essence of the complaint and list the articles of the Convention that have been violated. If possible the letter should ask the Commission to indicate whether it considers that any Convention points have been overlooked in the complaint letter. The letter should conclude by requesting that a formal application form be forwarded.

The Commission will then reply by sending the formal application form. It may also indicate whether it considers that any aspect of the complaint may cause problems (and possibly enclosing a copy of any case that needs to be considered). It may also indicate if it is presently considering any similar complaint.

The complaint form then needs to be completed and forwarded to the Commission. In completing the form, the applicant should ensure that all possible Articles of the Convention are raised. Very often, although the injustice is apparent, the actual argument under the Convention is not obvious. It is best, in such cases, to approach the problem from many directions.

An example

Depending upon the nature of the injustice, one might initially consider whether the injustice significantly affects the victim’s family and personal life; if so was there a simple independent procedure by which the local courts could remedy this? The answer to such a question may cause a complaint to allege violations of Articles 8 (right to family life) and 13 (right to an adequate legal remedy). If a violation of Article 13 is alleged it is generally appropriate to argue, in the alternative, Article 6 (and vice versa). Article 6 is relevant because if the state responds by alleging that there is a domestic legal remedy, one could argue that this remedy does not comply with Article 6, which requires such remedies to be fair, independent, relatively quick, etc.. If the Article 8 violation is serious, then it might also be appropriate to include argument on Article 3 (degrading treatment). If the Article 8 violation includes lack of respect for a person’s home, then it may also be appropriate to include submissions on Article 1 of the First Protocol (right to enjoy one’s possessions). In almost alt Roma cases, it will generally be appropriate to allege a violation of a particular article independent of Article 14 (the anti-discrimination article); but then to include (in the alternative) submissions on Article 14 in conjunction with the particular article.

Frequently complaints will of course raise many other articles — and the approach should always be — if in doubt — include it. Whilst the Court does not want to be burdened with irrelevant argument, it accepts that frequently several Convention articles may bear upon a particular injustice; that the consequences of an injustice may take many forms.

Communication of complaints

Only about 10% of alt complaints are ‘communicated’ to respondent governments for their ‘observations’; the other 90% being rejected early on for one of the above reasons. However once the state is asked for its comments, limited financial legal aid is available for the applicant from the Council of Europe. The sums are fixed, but the initial amount is about FF 3,500.

After the Commission has heard from the government, it will decide whether or not the complaint is admissible. Before doing this it may convene a hearing to which the parties will be invited. If the applicant has legal aid, then this will cover the costs of travel to and accommodation in Strasbourg.

If the Commission decides that a complaint is admissible it will encourage the parties to reach a friendly settlement. If at all possible this should be seriously considered (although a party will not be criticised for not wishing to settle a case). The benefits of such a settlement are that the complainant will often get a better settlement than ordered by the Court and of course it is impossible to be sure that a case will succeed before the Court.

If no friendly settlement is reached, the Commission will prepare a report giving its view as to whether or not the facts disclose a violation of the relevant articles of the Convention. Roma cases will then (almost invariably) be transferred to the Court for a final decision.

There is scope, in the Court process, for third parties (for example NGOs like the European Roma Rights Center — ERRC) to intervene and give objective information about the background facts to the complaint. For instance one might detail the problems faced by Roma in a particular country or region. This can be very helpful in showing that the injustice that gave rise to the complaint, is not isolated. It also lends support to a complaint when a highly respected international body such as the ERRC is prepared to make such submissions.

Urgent cases

If the complaint concerns a serious violation and urgent action is required from the Commission, a specific request can be made for help under ‘Rule 36’. If the complaint concerns imminent risk of a danger to life, the Commission can be asked to make an interim request to the government to take steps to secure the applicant’s safety pending consideration of the applicant’s complaint to the Court. Such requests usually relate to impending extradition or deportations.

Where the Commission is not prepared to make a request for interim measures against the state concerned, it may however be prepared to expedite to the complaint and to notify the state of its introduction. This step can be a useful mechanism for focussing the state’s attention upon a particular problem and making it aware that the Commission is also watching; it is amazing how often this helps defuse a difficult problem.

Conclusion

There is no doubt that Roma have historically encountered particular problems in getting their complaints considered in Strasbourg. The explanation for this resistance by the Commission and Court is complex, but has three particular aspects:
 

1. In part the problem stems from the difficulty Roma have in fitting into the stereotype of a national minority group; this was indeed recognised in the Council of Europe’s Parliamentary Assembly Recommendation 1203 (1993) ‘On Gypsies in Europe’. Paragraph 2 records that:

‘a special place among the minorities is reserved for Gypsies. Living scattered all over Europe, not having a country to call their own, they are a true European minority, but one that does not fit in the definitions of national or linguistic minorities’.

2. In part the problem stems from the historical ambivalence shown by the Commission and Court to the question of minorities, suggesting that concerns would be better addressed by other procedures (such as under a Minority Rights Protocol) which are considered briefly below. Thankfully, in the only Roma case so far to reach the Court, Buckley v UK, September 5, 1996 [see Roma Rights, Autumn 1996] the Court took the opportunity to stress that the European Convention on Human Rights is an appropriate mechanism for addressing Roma complaints.
3. Finally, and most pertinently perhaps, is the difficulty the Court and Commission have had in identifying the particular persecution experienced by Roma. Most of the finest Court judgements are given as ‘dissenting judgements; in the Buckley judgement this is particularly true. Three judges dissented, most notably Judge Pettiti who stated (amongst other things):

The Strasbourg institutions’ difficulty in identifying this type of problem is that the deliberate superimposition and accumulation of administrative rules (each of which would be acceptable taken singly) result, firstly, in its being totally impossible for a Gypsy family to make suitable arrangements for its accommodation, social life and the integration of its children at school, and secondly, in different government departments combining measures relating to town planning, nature conservation, the viability of access roads, planning permission requirements, road safety and public health that, in the instant case, mean the Buckley family are caught in a „vicious circle".

Alternative international mechanisms
 

1. The Framework Convention for the Protection of National Minorities came into force on 1 February 1998. The enforcement of this Convention relies upon reporting and monitoring mechanisms. Council of Europe states will have to file a comprehensive report during 1999 explaining the legislative and other measures they have taken to implement the Convention.
2. The OSCE Commissioner on National Minorities is charged with the obligation of (amongst other things) investigating „tensions involving national minority issues"⁶ — with a view to monitoring and defusing tensions between minorities and their neighbours. The Commissioner is located at Prinsessgracht 22, 2514 AP The Hague, Netherlands.
3. The UN Human Rights Committee is charged with overseeing the implementation of the International Covenant on Civil and Political Rights. The rights protected by the Covenant are similar in nature to those protected by the European Convention although in general they are more comprehensive (most notably the anti-discrimination provision). The complaints procedure is however less satisfactory and whenever possible the European Convention procedure should be used. The Covenant may however be used when the complaint is to be made more than 6 months after the injustice (as the Human rights Committee procedure does not have such a time limit). The Human Rights Committee is at Palais des Nations, 8-14 Avenue de la Paix, 1211 Geneva 10, Switzerland.

Entnotes:

1. In November 1998 the procedure for complaints will change when the Court and Commision will be effectively merged. The substance of the process will not however change materially, although after November 1998 complaints should be adressed to the Court, not the Commission.
2. Luke Clements is a solicitor in the United Kingdom. In 1996, Mr Clements acted as counsel for Ms June Buokley in the first case involving a Gypsy/Romani applicant to be heard before the European Court of Human Rights in Strasbourg (see Roma Rights, Autumn 1996). He is also a research fellow at the Traveller Research Unit at the University of Wales (Cardiff Law School) and author of a practitioner's guide to the European Convention on Human Rights entitled, European Human Rights: Taking a Case Under the Convention (London: Sweet and Maxwell, 1994)
3. L. Clements, et al, The Rights of Minorities: a Romany perspective, OSCE ODIHR Bulletin Vol 4 No. 4.
4. Application 18401/91; decision 6.5.93.
5. Series A, No. 193; 13 EHRR, 212.
6. Principle para. II(2) CSCE Helsinki Document 1992.