Workshop on human rights litigation on behalf of Roma

15 July 1999

Alicia Teruel Perez

From May 6 to 8, 1999, a workshop on human rights litigation in domestic and international courts on behalf of Roma took place in Granada, Spain. The workshop was co-organised by the European Roma Rights Center and the Granada Bar Association with the collaboration of the Romani Union National Federation. The aim was to make human rights litigation more familiar to Spanish lawyers, not on behalf of the Romani community — the largest minority in Spain — but also for other minorities in Spain who suffer discrimination and degrading treatment.

Three international experts — Mr Santiago Quesada Polo from the European Court of Human Rights in Strasbourg, France; Mr Luke Clements, a solicitor in England who has litigated numerous Roma-related and other cases before the Strasbourg organs; and Mr Bernardino Correa Guimera, legal officer in the Court of Justice of the European Communities in Luxembourg — took part in the workshop.

The first day of the workshop was devoted to presenting a general overview of the Roma rights situation in Spain. Diego Luis Fernandez Jimenez together with Jose Manuel Fresno Garcia, members of two of the major Romani organizations in Spain--Romani Union and The Gypsy General Secretariat Association — spoke in detail about the main problems faced by Roma in Spain. Most Spaniards tend to think that their country is free of racism, that people in Spain do not suffer discrimination, and hence that such litigation is not necessary in Spain. Spanish realities indicate that popular opinion is misguided.

According to Mr Fresno Garcia, the Romani community suffers discrimination in a number of areas. The Roma suffer segregation in the education system because authorities in practice fail to combat the phenomenon of „white flight" in the school system, as non-Romani children move to avoid being schooled together with Roma. Roma also face discrimination in employment, evident in high levels of joblessness and high numbers of Roma performing marginal, poorly paid work. In Spain many Roma are self-employed, selling goods on the street or at various markets. In many places, such vending is forbidden. Where this is the case, Roma are cut off from their primary source of income. In the field of housing, Roma face a variety of problems not of their own creation. Firstly, in many cities Roma live in shanties or, if not confined to shantytowns, they live in segregated settlements. Many Roma have serious problems in gaining access to public and private housing. Mr Fresno Garcia explained that thousands of Roma suffer daily the humiliation of poor living standards. In spite of these realities however, the Spanish media contribute to the stereotyping of Roma, notably by peddling the idea that Roma are drug dealers.

Mr Diego Luis Fernandez Jimenez discussed the fact that Roma have been subjected to degrading treatment since they came to Spain in the fifteenth century. The Romani community has influenced the Spanish language as well as Spanish culture. However, though Roma and non-Roma have been living together for centuries, non-Roma do not consider Roma a part of Spanish society.

Mr Jose Antonio Moreno Diaz, a lawyer from the non-governmental organisation SOS Racism, presented the legal mechanisms available under Spanish legislation to fight racism and discrimination. He pointed out the difficulty in convincing prosecutors and judges to include Article 22 of the Spanish Criminal Code in their legal arguments and decisions, so as to make explicit the aggravating circumstance of racial motivation. Mr Moreno Diaz told the assembled group that since judges and prosecutors are presently reluctant to apply Article 22, lawyers of the private prosecution should be aware of the possibility of its application and argue strenuously that it be applied.

Mr Jose M. Casado Gonzalez, prosecutor of the Provincial Court of Jaén in southern Spain, decried the failure of Spanish authorities to provide comprehensive protection for the security of Roma, especially in instances when they have legitimate fear of the non-Romani population. He provided one example from his own experience as prosecutor in the so-called Mancha Real case. Mancha Real is a village approximately twenty kilometres east of Jaén where Roma used to live. During a fight in 1987 between a Romani man and a non-Romani man, the non-Romani man died. The mayor of the village together with the council representatives then incited the population to fight and expel all of the Romani families from the village. Non-Romani villagers set houses, cars and other property belonging to local Roma on fire, and a huge demonstration ended the peaceful life of the Romani families in the village. A criminal case was subsequently opened against the mayor, representatives of the local council, and a number of persons who had taken part in the attacks. They were convicted and made to pay compensation for damages to the victims, but they never went to jail. The Romani families left the village, since they were no longer confident that they could remain there without being attacked by the non-Roma of Mancha Real. The prosecutor Mr Casado Gonzalez expressed the opinion that justice was not served in the Mancha Real case.

On the second day, the conference addressed the theme of international legal instruments and courts. Mr Santiago Quesada Polo, legal officer at the European Court of Human Rights in Strasbourg, gave a presentation on litigation in the Strasbourg organs. He discussed the admissibility requirements for applications submitted under the European Convention of Human Rights and explained the major practicalities of litigation in Strasbourg. He stated that the reason there have to date been only a few cases against Spain in Strasbourg was that although the situation of Roma in Spain is not much better than in other countries, few Spanish lawyers know how to litigate in international courts.

Mr Luke Clements discussed the various cases he has taken before the European Court of Human Rights on behalf of Roma. Mr Bernardino Correa Guimera, legal officer in the Court of Justice of the European Communities, spoke about the recently adopted Amsterdam Treaty. The Court of Justice of the European Communities in Luxembourg has not recently reviewed any racial or ethnic discrimination cases. Some cases have, however, been addressed to the Court of Justice in the field of sexual discrimination in employment. Mr Correa Guimera told the group that he foresees that in the very near future, complaints concerning racial discrimination may well be addressed to the Court under Article 13 of the Treaty. Article 13 states, „Without prejudice to the other provisions of this treaty and within the limits of the powers conferred by it upon the Community, the Council, acting unanimously on a proposal from the Commission and after consulting the European Parliament, may take appropriate action to combat discrimination based on sex, racial or ethnic origin, religion or belief, disability, age or sexual orientation." The jurisprudence of the Court in its interpretation of discrimination has been revolutionary. The Court recognises not only direct discrimination but also indirect discrimination and has in certain cases effectively placed the burden of proof on the side of the alleged discriminator. According to Mr Correa Guimera, discrimination on grounds of race is a high priority for the European Union Commission.

Mr Jose Luis Mazon Costa, who is currently bringing a case to Strasbourg about the right to a dignified death, spoke about litigation at the United Nations Human Rights Committee (HRC) in Geneva. He explained that in some particular cases the plaintiff has more possibilities for success in a case at the HRC than at the European Court of Human Rights in Strasbourg. The choice concerning the organ to which one should bring a case depends, according to Mr Mazon Costa, on the particularities of each case.

I spoke as staff attorney on behalf of the ERRC and about the role of the ERRC in litigating on behalf of Roma in both the national and international courts. I focused on how the legal department of the ERRC chooses cases for ERRC involvement. I explained the various methods of co-operation with national lawyers who take cases on behalf of Romani victims of human rights abuses. I presented a brief summary of recent applications sent by the ERRC to the European Court of Human Rights in Strasbourg and to the United Nations Committee on the Elimination of all Forms of Racial Discrimination in Geneva. One of these cases is the so-called Medzilaborce case, concerning decisions by the local authorities of two villages in north-eastern Slovakia to ban Roma from entering these villages or staying there. After exhausting all domestic remedies available under Slovak law for challenging the resolutions, the ERRC and local counsel filed an application in Strasbourg (see „Legal Defence" in Roma Rights, 1/99). The focus of ERRC's claim was that both resolutions are in clear violation of the rights set forth in the Convention: the right to protection from degrading treatment, the right to respect for home and private life, the right to an effective remedy, the right to freedom of movement and choice of residence, all separately and together with the prohibition of discrimination. On April 19, Slovak authorities announced that they had struck down the two resolutions.

Mr James Goldston, ERRC legal director, talked about other discrimination cases in which the ERRC has been involved. His presentation focused on the characteristics of a human rights lawyer. For him, a human rights lawyer could be defined as prophet, as advocate or shaper of public discourse, as rebel and as believer. Mr Goldston said that the human rights lawyer must see, in a way that others cannot, how law may be used to serve the goal of human rights and to challenge conventional means of conceptualising an issue or problem and thereby inspire political activity, spur public debate, and encourage re-examination of underlying assumptions. For Mr Goldston, one of the greatest contributions a litigator can make is not filing a lawsuit, or even winning, but rather, simply imagining and articulating what all agree is a problem in new ways which have the potential to galvanise social movements and alter modes of understanding. He also pointed out that a human rights lawyer must resist the common temptation to accept as „given" the customs and practices of his or her colleagues in the bar. „The lawyer as rebel recognizes that, just because lawyers have always done it that way, does not mean that this is the only way to do it," Mr Goldston said.

The excellent organisation of the workshop by the Granada Bar Association was unfortunately not matched throughout by the level of participation of invited Spanish lawyers, both Romani and non-Romani, who had been invited to participate. Nevertheless, the sessions of the workshop were intensive and productive. The Granada Bar Association considered the workshop very interesting and human rights litigation will be included as a topic in the Legal Practice Course¹ which takes place in the Bar Association every year. Perhaps the greatest success of the workshop was that, according to information provided later to the ERRC, the General Bar Association of Spain in Madrid will likely promote the teaching of human rights litigation in international courts all over Spain through workshops and seminars.

Endnote:

1. The Legal Practice Course takes place in the two years of the curriculum of post-law school practical training at the Bar Associations. It is presently mandatory for legal aid lawyers, but the General Bar Association of Spain wants to make the course mandatory for all graduates of law school before they become members of the Bar.