Litigating Discrimination in Access to Social Services

18 June 2007

Andi Dobrushi¹

The provision of social services and access thereto by Roma throughout Europe is tainted by discrimination. After the post-communist changes that swept Eastern Europe in early 1990s, discrimination and violence were blatant and the intent to harm members of Romani communities was very obvious. Nowadays, many of the sources of discrimination are subtle, yet they result in practices that have an overarching effect on Romani communities and seriously impair their right to live in dignity, free of discrimination.

Such treatment directly contradicts a number of international human rights instruments that clearly prohibit any discrimination in access to social assistance based on grounds such as race, ethnic or social origin, or colour. For instance, in becoming party to the International Covenant on Economic, Social and Cultural Rights, States commit to "recognise the right of everyone to social security, including social insurance" (Article 9), and undertake to do so "[…] without discrimination of any kind as to race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status" (Article 2(2)).

Similarly, in becoming party to the International Convention on the Elimination of All Forms of Racial Discrimination, States undertake to "[…] guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law", particularly with respect to a list of rights including the right to social security and social services (Article 5 (e)(iv)). At the European level, the Revised Social Charter also requires States to guarantee the right to social assistance (Part I, Article 13), the right to housing (Part I, Article 31), and the right of the family to social, legal and economic protection, which includes provision of family housing (Part II, Article 16) without discrimination on any ground, including inter alia race, national extraction or social origin, association with a national minority, birth or other status.

The ERRC is involved in strategic litigation cases highlighting various aspects of the right to social services for Roma around Europe. Below are a few cases in which authorities in different European countries have infringed the right of Roma to social services.

Access to family pension (Croatia)

This is a case of denial of family pension to a Romani woman in Zagreb, Croatia.

The Croatian Institute for Pension Insurance refused to grant a family pension to Ms Sadija Husic, a Romani woman, following the death of her husband Dervis in November 2000. According Croatian Pension Insurance Act, Ms Husic and her mentally disabled daughter Amira both have the right to receive a family pension because Mr Husic worked for more than five years.

Mr Husic reported having worked as a registered employee of his own business from 1 January 1994 until 9 November 2000, when he died, and paid all the necessary insurance contributions. However, following Ms Husic's request for the family pension, on 2 June 2006 the Croatian Institute for Pension Insurance issued a decision stating that Mr Husic had worked only from 1 January 1994 through 30 November 1998 – 4 years and 11 months in total, just short of the required five years – and that Ms Husic is therefore not entitled to receive the family pension.

Local attorney Alenka Vlahinic gathered evidence from the Croatian Financial Agency that Mr Husic's firm was active until at least April 1999 and paid all the required contributions and that Mr Husic himself was registered and paid all contributions in the same period. Mr Husic therefore worked long enough that his family is entitled to a family pension. Ms Vlahinic is of the opinion that the decision of the Croatian Institute for Pension Insurance is a result of discrimination against Ms Husic because all of the proper and necessary documentation had been submitted for a positive decision. In Ms Vlahinic's opinion, the Croatian Institute for Pension Insurance decided against Ms Husic because she is illiterate, and therefore they assumed that she did not know her rights or understand her late husband's firm and its business.

At the end of June 2006, the ERRC, in cooperation with local attorney Alenka Vlahinic, appealed the decision of the Croatian Institute for Pension Insurance. The ERRC and Ms Vlahinic also filed a claim for the family pension on behalf of Ms Husic's daughter Amira in accordance with her right.

Constitutional court complaint against discriminatory conditions for accessing social housing in Zagreb (Croatia)

This case involves an abstract complaint to the Croatian Constitutional Court and, as such, no clients are represented.

In accordance with Article 51 of the Law on the Lease of Apartments, the City of Zagreb is authorised to regulate the lease of apartments belonging to the city through a system of city bylaws. An analysis of the relevant by-law (By-law on lease of the apartments, adopted on 9 February 1998) by the ERRC indicated that the criteria for accessing social housing included therein would have discriminatory effect with respect to Roma.

Concretely, Article 2 of Section 1 of the by-law requires that applicants have 10 years of uninterrupted legal, registered residence in Zagreb prior to submitting their application. Article 13 of the same by-law pertains to the living status priority list, which suggests that a person who has an "established" or "settled" lifestyle increases her/his chances of acquiring points, which form the basis of decision making pertaining to social housing. In reality, this means that persons without a registered residence receive no points and that those persons with more secure forms of tenure receive more points. It is noteworthy that legally registered tenants and/or persons living with their family receive points while those people most in need of social housing – those with insecure forms of housing or no housing at all –receive no points, which renders them almost entirely unable to obtain social housing.

In addition, tenders for the distribution of social housing are to be announced at 5-year intervals. The by-law does not address the question of what to do with those people in need of social housing in the interim period. These people are left without state support and may face homelessness. Such persons would also be in a highly disadvantageous position when applying for social housing when the time arrives.

In response to these provisions, the ERRC, together with local attorney Mr Kresimir Lipovscak, submitted an abstract constitutional complaint, challenging the constitutionality of the regulation and claiming violation of Croatia's international human rights obligations. The complaint is currently pending before the Croatian Constitutional Court.

Forced eviction and the right to adequate housing (Romania)

This case involves the forced eviction of Romani families and their subsequent placement in highly substandard housing by Romanian government representatives.

In October 2006, about 20 Romani families were evicted from a building on Alunisului Street in Tulcea. Most of the evicted families were provided alternative housing in a location away from the city in an industrial port with unsafe conditions. The remaining families were made homeless by the eviction for two months until they were provided with mobile housing units, which were placed on a garbage dump (background details can be found at: www.errc.org).

The ERRC undertook and supported several legal actions in this case, including:

• Preparatory requests for information, based on the Romanian Freedom of Information Act, filed with local courts to secure evidence for subsequent litigation;
• Commencing legal proceedings to secure a court order compelling local authorities to improve living conditions in the derelict buildings in which the evicted Roma were re-housed; and
• Two requests for damages and a complaint based on the Romanian Anti-discrimination Act are currently being prepared for submission.

Decision to provide social housing revoked on discriminatory grounds (Slovakia)

This case concerns actions to ensure the practical implementation of a discrimination finding by a UN treaty monitoring body in a case related to social housing in Slovakia.

On 20 March 2002, councillors of the Dobsina municipality approved a plan to construct low-cost housing for the Romani inhabitants of the town. About 1,800 Roma live in Dobsina, many in appalling conditions without drinking water, raw sewage removal or drainage, and in very poor quality huts. The Dobsina chairman of the Real Slovak National Party, a far-right political party, together with four other nationalists, organised a petition to stop the housing plan as they did not want any more Roma living in Dobsina. They presented this petition to the municipal council, which proceeded to vote to cancel the earlier decision to build social housing and agreed to a resolution that included an explicit reference to the racist petition. After Slovak courts refused to investigate the legality of these actions, several local Roma, with assistance from the ERRC and the League of Human Rights Advocates, filed a claim before the UN Committee on the Elimination of Racial Discrimination (CERD).

In the case L.R. v Slovak Republic, the CERD found in March 2005 that the Dobsina municipality's decision to revoke the resolution to provide social housing to Roma amounted to discriminatory conduct. The Slovak government was recommended to provide an effective remedy and the Committee noted that "the State party should take measures to ensure that the petitioners are placed in the same position that they were in upon adoption of the first resolution by the municipal council."

To date, the municipality has not taken any actions in this regard and a new case has been filed against the municipality to force them to take the necessary actions. Representatives of the ERRC, the Milan Simecka Foundation and the Slovak League of Human Rights Advocates (LHRA) filed a complaint against the Municipality of Dobsina and the Slovak government under Slovakia's Anti-Discrimination Act for vioilation of housing rights enshired in the act, asking for the court to give effect to the CERD decision.

Access to maternal allowances (Russia)

This case involves the refusal to grant social allowances for newborn babies to a Romani woman in Volzhskiy, Russia.

Ms Z.I. gave birth to her daughter on 12 November 2005 and applied to the Directorate of Social Aid of the town of Volzhskiy to receive the social allowance for the newborn. After her initial application, Ms Z.I. had to go to the Directorate several times because each time the officials asked her to produce new documents, including her husband's death certificate (who died in July 2000 in Ukraine). Ms Z.I. did not have a Russian passport when she gave birth, but possessed only a certificate proving her identity, also mentioning her husband's name, I.K.

During her visits to the Directorate, the officials assured Ms Z.I., in the presence of witnesses, that she would receive the allowance as soon as she submitted all required documents. She was also assured that the several months required for her husband's death certificate to arrive from Ukraine would not affect her application for the social allowance. In September 2006, when she finally received and submitted the death certificate from Ukraine, Ms Z.I. was informed that she would receive a written response from the higher authority, the Regional Directorate for Social Aid.

On 1 November 2006, the Regional Directorate rejected Ms Z.I.'s request for the social allowance, citing the expiry of the application deadline as the reason for denying her request. The ERRC has received information that Russian officials often refuse Roma (mainly Romani women) access to social benefits, relying on perceived illiteracy and defenselessness.

Ms Z.I. feels that the social workers did not provide her with proper guidance or give her proper information about the process. The ERRC, together with a local lawyer, have submitted a complaint to the local court, asking that the Regional Directorate pay Ms Z.I. her social allowance. At a hearing in February 2007, the Volzhskiy Municipal Court transferred the case to a lay juror. Since that date, the hearing has been postponed several times because representatives of the Regional Directorate for Social Aid failed to show up.

Endnotes:

1. Andi Dobrushi is ERRC Senior Staff Attorney.