Equinet’s Seminar on Fighting Discrimination on Grounds of Race and Ethnic Origin

1. Equinet’s Seminar on Fighting Discrimination on Grounds of Race and Ethnic Origin Workshop 2 – Case studies on discrimination against Roma European Court of Human Rights’ case law, including hate crime and hate speech Oana-LuizaTaba, European Court of Human Rights

2. Framework Most of the Roma-related cases before the ECtHR fall under: • Article 2 and 3 of the Convention – Right to life and prohibition of inhuman or degrading treatment • Article 8 – Right to respect for private and family life • Also on Article 10 – Freedom of expression, when conflicting with Article 8 • Also on Article 11 – Freedom of assembly • Article 1 of Protocol no 1 to the Convention – Protection of property • Article 2 of Protocol no 2 to the Convention – Right to education • Article 14 – Prohibition of discrimination

3. Article 14 - principles established by the ECtHR in Roma-related cases • The Grand Chamber found a violation of Article 14 taken into conjunction with Article 2 (procedural aspect), holding that it was the State’s obligation to investigate the possible racist motivation of the police killings (Nachovaand Others v. Bulgaria [GC] - 43577/98 and 43579/98 Judgment 6.7.2005 [GC]) • “Treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention..”

4. Article 14 - principles established by the ECtHR in Roma-related cases • In Šečić v. Croatia the Court clarifies that the principles established in Nachovav Bulgaria (the States "have the additional duty to take all reasonable steps to unmask any racial motive and to establish whether or not ethnic hatred and prejudice may have played a role in the events”) were applicable to attacks perpetrated by private individuals as well (Šečić v. Croatia, application no. 40116/02). • In Angelova and Iliev v. Bulgaria, when holding that there was a violation of the procedural aspect of Article 14 taken in conjunction with Article 3, the Court talked about “the need to reassert continuously society's condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence” (Angelova and Iliev v Bulgaria, application no 55523/00, § 98).

5. Article 14 - principles established by the ECtHR in Roma-related cases Cases of violence against Roma communities – interethnic conflicts in Romania: • Judgment of 12 July 2005 - Moldovan and Others v. Romania (Judgment No 2) (Hădăreni, Mureș County, September 1993). • Judgment of 26 April 2007 - Gergely v. Romania (CaşinulNou, Harghita County, August 1990). • Judgment of 26 April 2007 - Kalanyos and Others v. Romania (Plăieşii de Jos, Harghita, June 1991). • Judgment of 29 May 2009 - Tănase v. Romania (Bolintin-Deal, Giurgiu, April 1991).

6. Article 14 - principles established by the ECtHR in Roma-related cases • “The remarks concerning the applicants' honesty and way of life made by some authorities dealing with the applicants' grievances (see the decisions of the civil and criminal courts and remarks made by the mayor of Cheţani, […]) appear to be, in the absence of any substantiation on behalf of those authorities, purely discriminatory. In this connection the Court reiterates that discrimination based on race can of itself amount to degrading treatment within the meaning of Article 3 of the Convention.” (Moldovan and Others v. Romania, applications nos. 41138/98 and 64320/01, § 111).

7. Article 14 - principles established by the ECtHR in Roma-related cases • Failure to investigate the racist motivation of an arson attack causing the death of five Roma persons – violation of article 14 in conjunction with the procedural aspect of Article 2 –Fedorchenko and Lozenko v. Ukraine. • Several cases of death in police custody of Roma persons where the Court was not objectively persuaded that the objective evidence had been sufficiently strong in itself to suggest the existence of a racist motive for the incident: Anguelova v. Bulgaria, Mižigárová v. Slovakia, Ion Bălășoiu v. Romania, Velikova v. Bulgaria).

8. Police brutality cases • Police brutality – violation of Article 14 taken in conjunction with Article 3 (under its substantive limb) –Stoica v. Romania: the prosecutor in charge of the criminal investigation and the Romanian Government could not put forward any argument to show that the incident had been racially neutral. It was held that the evidence indicated that the police officers’ behavior had clearly been motivated by racism. • Similar: Ciorcan and Others v. Romania, Boacă and Others v. Romania

9. Right to respect for private and family life - Evictions • Evictions of UK Travellers: the Court found a violation of Article 8 due to the State’s failure to pay special consideration to the needs and different way of life of the Travellers, when it came to devising solutions to the unlawful occupation of land and deciding on possible alternative accommodation. Also, there was a lack of procedural safeguards. Connors v. the United Kingdom; Wintersteinand Others v. France.

10. Right to respect for private and family life –Publications allegedly insulting the Roma communities Aksu v. Turkey The applicant had not managed to build a case to prove that the publications had a discriminatory intent or effect. Therefore, the case was analyzed under Article 8. It was held that the-re was no violation of Article 8 – the State has taken all necessary steps to comply with their obligation under Article 8 to protect the applicant’s effective right to respect for his private life as a member of the Roma community.

11. Verbal abuse and threats during anti-Roma march • R.B. v. Hungary (application no 64602/12) • Violation of Article 8 on account of the inadequate investigation into the applicant's allegations of racially motivated abuse. Given that the insults had taken place during an anti-Roma march and had come from a member of an extremely right-wing vigilante group, the authorities should have conducted the investigation in that specific context. • The complaint under Article 8 concerning the authorities’ inaction during the rallies was dismissed as manifestly ill-founded; the Court came to the conclusion that there had been no appearance of an unreasonable response by the police to the demonstrations. • The complaint under Article 3 (read alone or in conjunction with Article 14) was dismissed as manifestly ill-founded. The participants to the march were under continuous police monitoring; the statements were discriminatory, but they were not severe as to cause the kind of fear, anguish or feelings of inferiority necessary for a complaint to fall within the scope of Article 3.

12. Anti-Roma rallies • Vona v. Hungary: dissolution of an association on account of the anti-Roma rallies and demonstrations organized by its movement • Paramilitary marches had gone beyond the mere expression of a disturbing or offensive idea, which is protected under the Convention, given the physical presence of a threatening group of organized activists. • No violation of Article 11- Freedom of assembly

13. Questions • What is the potential role of equality bodies in front of the ECtHR in such cases? • Do you make use of the ECtHR Roma-related case law in your work? How? • How strong is Roma rights litigation in your countries? If it should be strengthened, how can the equality body contribute to that?