Košice workshop on human rights litigation

11 July 2000

On March 24, 2000, the Bratislava-based League of Human Rights Advocates, in co-operation with the Slovak branch office of the Information and Documentation Center of the Council of Europe, the International Club for Peace Research, and the Legal Defence Bureau for Ethnic Minorities in Slovakia organised a workshop on Roma-related human rights litigation in Košice, Slovakia. The Open Society Institute funded the event.

The workshop brought together more than thirty lawyers, practising attorneys, judges, and Roma rights advocates. ERRC participants were Research and Publications Director Claude Cahn and staff attorneys Gioia Maiellano and Branimir Pleše.

Among the main issues discussed were international and comparative human rights litigation standards regarding the following: freedom from torture, inhuman and/or degrading treatment, discrimination, right to a fair trial, right to an effective national remedy, right to liberty and security of person, right to privacy, and children's rights. One issue of particular interest to the Slovak judges present was the use of "testing" in anti-discrimination litigation. Testing involves comparing the treatment of two groups - in this case Romani and non-Romani individuals ("testers") - in access to public accommodation, employment, housing, and other spheres of social life. As this legal method has been used extensively in the United States, the U.S. experience in testing litigation was discussed at length.

One key presentation at the Košice workshop was provided by ERRC staff attorney Branimir Pleše. He elaborated in detail the relevant international jurisprudence with respect to:

1. defining torture, inhuman and/or degrading treatment;
2. the positive obligation of the state to prevent not only human rights abuses committed by government agents but also those taking place between private parties themselves; and
3. the duty of the state to conduct a comprehensive, impartial, and prompt investigation into arguable claims of torture put forth by the victims.

A summary of Mr Pleše's address follows:

Torture, inhuman and/or degrading treatment

The Strasbourg organs have made clear that Article 3 of the European Convention on Human Rights (ECHR) prohibits the infliction, not only of physical injury, but also of mental suffering. In the case of Ireland v. the United Kingdom¹, the European Court of Human Rights defined terms used in Article 3 as follows:

Torture: "deliberate inhuman treatment causing very serious and cruel suffering"

Inhuman treatment or punishment: "the infliction of intense physical and mental suffering"

Degrading treatment: "ill-treatment designed to arouse in victims feelings of fear, anguish, and inferiority capable of humiliating and debasing them and possibly breaking their physical or moral resistance"

In the famous Greek case, the European Commission² held: "The notion of inhuman treatment covers at least such treatment as deliberately causes severe suffering, mental or physical, which in the particular situation, is unjustifiable ... Treatment or punishment of an individual may be said to be degrading if it grossly humiliates him before others or drives him to act against his will or conscience³." In such instances, the Commission found that Article 3 covered "the infliction of mental suffering by creating a state of anguish and stress by means other then bodily assault⁴."

Furthermore, the European Court of Human Rights has made clear that, in evaluating claims of violation of Article 3, it will take into account a range of factors which bear on the vulnerability of the victim. Thus, in its judgement in Ireland v. United Kingdom, the Court held:

"…ill-treatment must attain a minimum level of severity if it is to fall within the scope of Article 3. The assessment of this minimum is in the nature of things, relative; it depends on all the circumstances of the case, such as the duration of the treatment , its physical or mental effects and in some cases, the sex, age, and state of health of the victim, etc⁵."

The rationale for taking the victim's sex, age and state of health into account when assessing whether Article 3 of the Convention has been violated is clear: the level of ill-treatment required to be "degrading" depends, in part, on the vulnerability of the victim to physical or emotional suffering. The same reasoning supports the conclusion that association with a minority group historically subjected to discrimination and prejudice, such as the Roma, may render a victim more vulnerable to ill-treatment according to Article 3. This is particularly so in countries where law enforcement bodies have consistently failed to address systematic patterns of violence and discrimination against the group in question.

In its admissibility decision in the case of Arthur Hilton v. United Kingdom⁶ - where the author, a black inmate, complained of various forms of ill-treatment - the Commission found that "the author's allegations of assault, abuse, harassment, victimisation, racial discrimination and the like raise an issue under Article 3 of the Convention⁷... "

All else being equal, a given level of physical abuse is more likely to constitute "degrading or inhuman treatment or punishment" when motivated by racial animus and/or coupled with racial epithets, than when racial considerations are absent.

Positive obligations of the state in instances of violence by private actors

Traditional international law considers states responsible only for actions or omissions of its own agents, and not for human rights violations between private parties. In recent years, this has begun to change.

Regarding the "positive obligation" of the State to prevent and suppress acts of violence/community violence committed by private individuals, the following jurisprudence should be noted:

The European Court of Human Rights has held that Article 3 of the Convention, read in conjunction with Article 1, requires states not merely to refrain from torture or inhuman or degrading treatment or punishment, but also to "secure" this right by providing protection against ill-treatment by private persons.

In Costello-Roberts v. United Kingdom the court held "that the responsibility of a State is engaged if a violation of one of the rights and freedoms defined in the Convention is the result of non-observance by that State of its obligation under Article 1 [...] to secure those rights and freedoms in its domestic law to everyone within its jurisdiction" (Costello-Roberts v. United Kingdom, 19 EHRR 112 (1993), para. 26; see also, mutatis mutandis, Young, James and Webster v. the United Kingdom, Judgement of 13 August 1981, Series A no. 44, p.20, para. 49 and A v. United Kingdom, Judgement of 23 September 1998, para. 22)⁸.

In A v. United Kingdom, Judgement of 23 September 1998, para. 22, the Court stated that Articles 1 and 3 of the European Convention required "States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment or punishment, including such ill-treatment administered by private individuals").

The United Nations Human Rights Committee has also referred to a number of private actions threatening human rights and the State's duty to deter such activity. In its General Comment of 1992, it clarified that the scope of protection to be undertaken by the State extends to cover torture, or other cruel, inhuman, or degrading treatment or punishment committed by people acting in their "private capacity" (HRC, General Comment 20, Article 7, Forty-fourth Session, 1992, para 2). The General Comment reads in part: "It is the duty of the State party to afford everyone protection through legislative and other measures as may be necessary against acts prohibited by Article 7 [i.e. torture, inhuman or degrading treatment], whether inflicted by people acting in their official capacity, outside their official capacity or in a private capacity" (Ibid., para 2). The Committee's comment also declares that States should indicate the provisions of their criminal law which prohibit and specify the penalties applicable "whether committed by public officials or other persons acting on behalf of the State, or by private persons" (Ibid., para. 13). The references to private capacity and private persons thus leave no doubt that Article 7 of the Covenant has now been interpreted as covering the private sphere.

Similarly, the Inter-American Commission on Human Rights has also clearly stated, in the context of violent attacks, that "governments must prevent and suppress acts of violence, even forcefully, whether committed by public officials or private individuals, whether their motives are political or otherwise⁹".

In Velásquez Rodriguez v. Honduras¹⁰ the Inter-American Court of Human Rights was concerned with a "disappearance" and certain difficulties surrounding the proof of a link to State forces. The Court offered a very wide interpretation of Article I(I) of the American Convention, stating that this Article implied an obligation to organize the governmental apparatus so that everyone is ensured free and full enjoyment of their human rights. It specifically confirmed that private individuals can violate human rights and that this can be imputable to the State:

"An illegal act which violates human rights and which is initially not directly imputable to a State (for example, because it is the act of a private person or because the person responsible has not been identified) can lead to international responsibility of the State, not because of the act itself but because of the lack of due diligence to prevent the violation or to respond to it as required by the Convention.

... [T]he violation can be established even if the identity of the individual perpetrator is unknown¹¹."

Two duties for the State emerge. First, where due diligence by the State could have prevented the abuse of human rights then the State is internationally responsible. Second, where the State fails to respond it is similarly responsible because "those [private] parties are aided in a sense by the government, thereby making the State responsible on the international plane¹²."

Finally, a number of international instruments are also relevant in this context:

United Nations Code of Conduct for Law Enforcement Officials¹³ provides that "law enforcement officials shall at all times fulfil the duty imposed upon them by law, by serving the community and by protecting all persons against illegal acts, consistent with the high degree of responsibility required by their profession" (Article 1). Article 5 thereof reads "[n]o law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment …".

Basic Principles on the Use of Force and Firearms by Law Enforcement Officials¹⁴ envisage that "[l]aw enforcement officials shall not use firearms against persons except in self-defence or defence of others against the imminent threat of death or serious injury, to prevent the perpetration of a particularly serious crime involving grave threat to life …" (Article 9)

In its Declaration on the Police, the Council of Europe states that "[a] police officer shall fulfil the duties the law imposes upon him by protecting his fellow citizens and the community against violent, predatory and other harmful acts, as defined by law" (Article 1). Article 5 reads "[a] police officer must oppose violations of the law. If immediate or irreparable and serious harm should result from permitting the violation to take place he shall take immediate action, to the best of his ability."

Similarly, Article 6(2) of the Council of Europe's Framework Convention for the Protection of National Minorities, states: "The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity¹⁵."

The obligation to investigate

In the Judgement of Assenov and Others v. Bulgaria, the European Court stated that "... where an individual raises an arguable claim that he has been seriously ill-treated by the police or other such agents of the State unlawfully and in the breach of Article 3, that provision, read in conjunction with the State's general duty under Article 1 of the Convention to 'secure to everyone within their jurisdiction the rights and freedoms in [the] Convention', requires by implication that there should be an effective official investigation. This obligation ... should be capable of leading to the identification and punishment of those responsible (...). If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance (...), would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity¹⁶."

In Encarnación Blanco Abad v. Spain the Committee Against Torture observed that, "under Article 12 of the Convention, the authorities have the obligation to proceed to an investigation ex officio, wherever there are reasonable grounds to believe that acts of torture or ill-treatment have been committed and whatever the origin of the suspicion¹⁷".

The Committee also found that "a criminal investigation must seek both to determine the nature and circumstances of the alleged acts and to establish the identity of any person who might have been involved therein¹⁸".

In another case, Henri Unai Parot v. Spain, the Committee noted that the "Convention does not require the formal submission of a complaint of torture. It is sufficient for torture only to have been alleged by the victim for the state to be under an obligation promptly and impartially to examine the allegation." And that "even if [the] attempts to engage available domestic remedies may not have complied with procedural formalities prescribed by law, they left no doubt as to Mr Parot's wish to have the allegations investigated¹⁹." The Committee concluded that, in the circumstances, it was not barred from considering the communication.

Therefore, in order to comply with the requirements of Article 3, the prosecuting and law enforcement authorities of a given state should conduct not just any investigation but an investigation capable of leading to the identification and punishment of those responsible. The investigation must also comprehensively determine the nature and circumstances of the incident at issue. To interpret these articles differently would mean to render them ineffective in practice and to make it possible and easy for the police and other investigating authorities to comply with the Convention requirements by simply conducting a pro forma investigation.

***

In conclusion, the seminar was important for a number of reasons. It brought together diverse groups of individuals, Roma and non-Roma, lawyers and non-lawyers, all sharing the common ideal of improving the human rights situation of Roma. In addition the workshop provided an excellent forum for vigorous discussion of legal strategies as well as for the exchange of views between local and international participants.

Endnotes:

1. Ireland v. United Kingdom, A-25 (1978).
2. As of 1 November 1998, the Commission no longer exists. Its function was to establish the facts of the case and to rule on the admissibility of the application, thus acting as a filter before applications reached the ECHR.
3. Report of 5 November 1969, Yearbook XII; The Greek case (1969), p.186.
4. Ibid., p.461.
5. Judgement of 18 January 1978, 2 EHRR 25, para. 162. (See also Aydin v. Turkey, Judgement of 25 September, 1997, para. 84; Tyrer v. United Kingdom, 2 EHRR 1 (1978), para. 30; Costello-Roberts v. United Kingdom, 19 EHRR 112 (1993), paras. 26-28).
6. Application No.5613/72, Decision of 5 March 1976.
7. Arthur Hilton v. United Kingdom, Application No. 5613/72, Decision of 5 March 1976, p.187.
8. Note that the same principle also applies to Article 2 cases, regarding the right to life. In other words, the Court had also upheld the legal principle that Governments are under a positive obligation to protect life not only in cases involving actions of state agents, but also any third party. In Osman, the Court noted that "the first sentence of Article 2, para. §1 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction" (see Osman v. the UK, Judgement of 18 October 1998, para. 115; see also the L.C.B. v. the United Kingdom Judgement of 9 June 1998, Reports of Judgements and Decisions 1998-III, p.1403, para.§36).
9. IACHR, "Report on the Situation of Human Rights in the Republic of Guatemala", OAS doc. OEA/Ser.L/V/VII. 53, doc. 21, rev. 2, 13 Oct. 1981, para. I0.
10. Judgement of 29 July I988; for the text of the judgement see 28 ILM (1989), 291.
11. Ibid., paras. 172-173.
12. Ibid., para. 177.
13. Adopted by General Assembly resolution 34/169 of 17 December 1979.
14. Adopted by the Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, Cuba, 27 August to 7 September 1990.
15. See also Article 5(b) of the International Convention on the Elimination of All Forms of Racial Discrimination, which reads: "In compliance with the fundamental obligations laid down in article 2 of this Convention, State Parties undertake to prohibit and to eliminate racial discrimination in all its forms and to guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law, notably in the enjoyment of the following rights ... (b) The right to security of person and protection by the State against violence or bodily harm, whether inflicted by government officials or by any individual group or institution."
16. Assenov and Others v. Bulgaria, (90/1997/874/1086), Judgement of 28 October 1998, para. 102.
17. Committee Against Torture, Communication No 59/1996, Encarnación Blanco Abad v. Spain, 14/05/98. CAT/C/20/D/59/1996, para 8.2.
18. Ibid., para. 8.8.
19. Committee against Torture, Communication No.6/1990, Henri Unai Parot v. Spain, U.N. Doc. A/50/44 at 62 (1995), para. 10.4 and para 6.1.