Seminar on domestic and international aspects of the legal protection of Roma
10 September 1998
Nikolai Gughinski
Recently, the European Roma Rights Center (ERRC) and the Human Rights Project (HRP) co-organised a workshop on domestic and international legal protection of Roma. The workshop took place in Sofia, Bulgaria on May 8-10, 1998. The HRP is a domestic Bulgarian public interest law organisation providing legal services to Roma. Also participating were the Bulgarian Lawyers for Human Rights and the Bulgarian Helsinki Committee.
The workshop focused on two major issues: (i) specific problems, drawn from the experience of the participants in litigating domestically on behalf of Roma, and (ii) possibilities for the international protection of the rights of Roma that are made available by the European Convention on Human Rights (ECHR).
The workshop opened with a brief overview of specific aspects of public interest litigation for Roma. Toni Tashev, HRP staff attorney, pointed out the practical necessity for lawyers to work in co-operation with community-based organisations or individuals, as well as the need for litigators to be proactive in their work with Romani clients, many of whom have been alienated from the legal system. This is especially true where the client has been a victim of violence or other human rights abuses by state officials. Participants also discussed some of the most widespread problems that Roma face in the criminal justice system - both as victims and as defendants. It was noted that in addition to the pervasive racial prejudices and negative attitudes Roma also encounter a legal system often disposed to infringing upon their rights and the rights of other indigent segments of society. Workshop participants generally agreed that the ill-treatment of Roma in detention is often facilitated by the lack of access to legal counsel and medical assistance. Thus, in spite of a constitutional right to legal counsel from the moment of detention, no implementing legislation obliges authorities to provide legal counsel to detained individuals. Similarly, there are inadequate regulations concerning the right of the detained to see a doctor. Workshop participants generally agreed that Romani defendants are the most disproportionately affected by these gaps in legislation.
Participants also discussed avenues for civil action in cases of human rights abuses of Roma perpetrated by government officials. A discussion moderated by Ms Zhanin Sildareva, Judge of the Supreme Court of Cassation, focused on hypothetical situations involving claims for damages resulting from unlawful acts by administrative or judicial authorities. The issues debated included:
- which authorities should be sued in particular cases - whether the central institution or the territorial unit directly responsible for the unlawful act;
- problems of evidence in civil litigation and the onus of proof - the participants discussed in particular how to prove improper conduct by the police, when this has taken place in detention with no witnesses present; and
- the correlation between civil actions for damages and pending criminal investigations stemming from the same facts.
A discussion on the protection of Roma rights through the mechanisms of European human rights law was introduced by Mr Viktor Soloveytchik, staff attorney for the Secretariat of the European Commission on Human Rights. Mr Soloveytchik addressed (i) the admissibility requirements for applications to the European Commission, and (ii) the case-law of the Commission and the Court under Article 14 (prohibition of discrimination) of the ECHR. During his presentation on the requirements of admissibility developed by the Commission, Mr Soloveytchik stressed some specific aspects of Bulgarian law relevant to the exhaustion of domestic remedies rule of Article 26 of the ECHR.
In discussing Article 14 case-law, it was noted that Article 14 provides accessory protection. Thus, Article 14 cannot be invoked independent of other provisions of the Convention. In this context, some participants expressed concern that in interpreting Article 14, the Convention organs have more effectively addressed problems of de jure discrimination than of discrimination in fact. In cases involving discrimination in fact, the organs of the Convention have often preferred not to consider the discrimination claim, especially if there has been a violation of a separate substantive right. In instances where the court has chosen to review the Article 14 claim, it has placed a very high burden of proof on the applicant.
In the following session, Luke Clements, a solicitor from Hereford, England, offered a survey of litigation and litigation strategies on behalf of Roma before the Strasbourg organs. Mr Clements' presentation was based upon his extensive experience in bringing cases involving British Travellers to the European Commission. This included the first case involving a Gypsy applicant to be heard and decided by the Court - the case of Buckley v. United Kingdom (1996).
Discussions on the protection of Roma through the mechanisms of the European Convention on Human Rights concluded with a presentation by attorney Zdravka Kalaydjieva, who spoke about her experience in presenting the first case in Strasbourg involving Romani applicants from Central or Eastern Europe - the case of Assenov and others v. Bulgaria. Ms Kalaydjieva and other participants presented the history of the case, which involves allegations of violation of the Convention rights of a 14-year-old Romani boy. In September 1992 the boy was allegedly beaten for gambling at a town square in the north Bulgarian town of Shumen. The boy was then detained for several hours, during which time he was allegedly beaten again. His parents subsequently addressed complaints to the police and all levels of the prosecution. These were rejected without investigation. In 1995 the boy was detained, prosecuted, and convicted on charges of robbery. In 1997, the European Commission found the Bulgarian government in violation of a number of convention provisions, and referred the case to the European Court, which is expected to issue its ruling before the end of 1998.
Ms Kalaydjieva related some of the lessons she had learned during her litigation of the Assenov case. First, cases in Strasbourg require substantial preparatory work from the very early stages of the domestic litigation. The presentation of evidence in Strasbourg is not constrained by a formalistic procedure as is the case in most domestic legal systems. Therefore, acquiring written statements by witnesses or experts, submitting notes and other documentary materials from all stages of the domestic proceedings is of significant benefit to the applicant, even if such materials may lack relevance for the domestic litigation. Another lesson concerned the need for the client to have a strong support network. Mr Assenov and his family, for example, had to cope with the strong pressure that was exerted on them by authorities to withdraw their application. Support from domestic and international groups in such situations may turn out to be decisive for the applicant's ability to continue in the long and emotionally difficult process of litigation at the court.
The workshop succeeded in accomplishing a number of tasks. First, it brought together lawyers and human rights activists and provided an opportunity to openly discuss the problems of the legal protection of Roma that arise from the daily practice of the participants. Second, the workshop provided an opportunity for an exchange of experience among Bulgarian practitioners and judges, and Bulgarian and other experts in European human rights law. Third, Roma rights litigators were strongly encouraged by the positive examples provided on how to best utilise the avenues of protection offered by the human rights protection system of the European Convention on Human Rights. Finally, the workshop strengthened the sense of community among public interest lawyers acting on behalf of Roma. As a result of positive feedback from the participants at the close of the workshop, the organisers announced their intention to make such meetings a regular practice.
