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Law and practice in international and domestic courts - Seminar on the European Convention on Human Rights 30-31 January, 1998 Cluj-Napoca, Romania

2 April 1998

James Goldston

This one and one-half day seminar, organised by the European Roma Rights Center and financed by the European Union, offered intensive review and analysis of the standards and caselaw of parts of the European Convention on Human Rights, discussed their applicability in Romanian courts, and presented a range of issues for consideration by human rights litigators before the Strasbourg organs. Approximately twenty lawyers (Roma and non-Roma), one Romani law student, two Romani activists, and one human rights professional participated in the seminar, which focused specifically on the rights of Roma and more generally on universal human rights standards. Discussion addressed the following topics: (i) admissibility requirements for applications to the European Commission on Human Rights; (ü) Strasbourg caselaw under ECHR Articles 6 (access to justice/right to fair trial) and 14 (non-discrimination); (iii) survey of litigation and litigation strategies on behalf of Roma before the Strasbourg organs; and (iv) civil and criminal remedies for human rights violations in Romanian courts. Lawyers were provided with the following Romanian-language documents: summaries of European Court caselaw in each area, lists of relevant decisions, an application form to the European Commission on Human Rights, and guidelines for lawyers in filing applications with the Commission.

The seminar was organised by Monica Macovei, a Romanian attorney who is a consultant to the ERRC, as well as to the Council of Europe and other international organisations. Two international experts on human rights law took part in the seminar — Christina Sandru, a staff attorney in the Secretariat of the European Commission on Human Rights in Strasbourg; and Luke Clements, a solicitor in England who has litigated numerous Roma and other cases before the Strasbourg organs. Three Romanian attorneys made presentations on aspects of Romanian law. Three staff members of the ERRC helped organize, and took part in, the seminar.

Throughout the seminar, discussion was animated, as attorneys posed questions or comments concerning particular points of law or the application of general principles to different fact situations. As a result, the following summary of presentations reflects neither the richness and diversity of, nor the degree of interchange which characterised the discussion.

By bringing Romani and non-Romani lawyers together to consider issues of particular interest to Roma, and human rights issues of concern to all, the seminar was designed to highlight the relationship between general international human rights and the rights of Roma. On the one hand, it is impossible to speak about the rights of Roma without addressing some of the broader issues of human rights litigation. Thus, lawyers acting on behalf of Roma share the interest of all human rights advocates in changing the way that law is thought about and practised in much of post-Communist Europe — in particular, in viewing and using law and litigation as tools to achieve social change. As part of this reconceptualisation of the role of law and lawyers, Roma rights and human rights supporters must strive to increase knowledge of, and reliance upon, international and regional norms and caselaw by lawyers and judges in domestic courts.

The novelty of human rights litigation in Europe offers distinct challenges and opportunities to Roma and other minorities. In societies where the rule of law itself rests on a fragile foundation, litigators may well find themselves struggling to vindicate not only the substantive merits of their individual claims, but more fundamental matters – the independence of the judiciary, the role of constitutional interpretation — which in other countries may be well settled. On the positive side, as a relatively new field of study and action, human rights litigation in Central and Eastern Europe has few formal obstacles or negative precedents to overcome. The potential for creative and innovative lawyering to produce significant results is real.

On the other hand, much as one cannot address the question of Roma rights without considering issues fundamental to all human rights law, so one cannot talk about human rights without considering the Roma and other vulnerable minorities. On a political level, societies emerging from decades of Communism will be measured in part by the way they treat their most vulnerable — the poor, the criminally accused, and the objects of racial, ethnic, sexual and other prejudice. And on the legal plane, human rights protections in law — and the courts, lawyers and litigation to enforce them — exist in large part for the benefit of minorities. By definition, courts are anti-majoritarian institutions, often the only possible avenue for discrete and insular minorities to secure the protections which others obtain through the political process. In short, if human rights lawyers in Europe are to give true meaning to the grand promises of constitutions and international instruments, they cannot ignore issues of concern to the Roma and other minorities.

Christina Sandru, staff attorney with the Secretariat of the European Commission on Human Rights, offered a survey of the admissibility requirements for applications submitted under the European Convention on Human Rights. She discussed ECHR Articles 25 and 26 and the governing caselaw and principles thereunder, explaining the six-month rule, the requirement that domestic remedies be exhausted, the possibility for organisations to file applications, standing requirements, and other central issues. Participants asked numerous questions about the practical aspects of filing an application — including the languages in which an application and/or supporting documents may be filed, the timing of applications and government responses, and related matters.

In discussing Article 14, Ms Sandru stressed the limited nature of the protection afforded — ie. that the non-discrimination clause may not be invoked independent of other provisions of the Convention, and that a number of minority rights are not covered thereby. She discussed caselaw in the areas of discrimination on the grounds of sex, legitimacy, religion, language and lifestyle. Discussants noted the paucity of race or ethnic discrimination claims under Article 14 in Strasbourg caselaw, and pointed to the fact that these forms of different treatment, more often involving questions of practice than of legal text, are difficult to prove.

Luke Clements offered practical advice to Romanian lawyers seeking to take cases to Strasbourg. Clements stressed how important it is for lawyers filing applications to get to know Commission staff, to maintain contact with them, and to use them as sources of assistance and advice in individual cases. (An article based on his presentation follows in this issue).

Monica Macovei discussed in detail the caselaw of the Convention organs under Article 6 concerning the rights of access to justice and a fair trial. She described how the Court and Commission have interpreted the concepts „fair”, „public”, „independent”, „unbiased”, and „instituted in accordance with the law”. Although Article 6 is clearly concerned with both civil and criminal litigation, it has also been applied to administrative procedures when these are determinative of a specific right. Thus, the Court has applied Article 6 to a disciplinary proceeding for doctors where their right to practice medicine was in issue and to prison administrative proceedings. Ms. Macovei’s presentation of the requirement of an independent tribunal sparked a great deal of discussion concerning the independence of the prosecutor in Romania and the possibility of Strasbourg litigation to challenge the absence of judicial review for prosecutorial non-indictment decisions.

Peter Eckstein Kovács, member of Parliament from Cluj and an attorney, analysed provisions under the Romanian civil and criminal codes for obtaining remedies for harm. Under the Code of Criminal Procedure, an injured party may ask for civil damages within a criminal trial. Plaintiffs who use this procedure are not required to post any bond or pay any tax; by contrast, the plaintiff in a standard civil suit in Romania must, at the time of filing the lawsuit, post ten percent of the damages sought. Participants discussed the relationship between civil and criminal liability and the circumstances under which a criminal investigation may stay and/or bar a civil lawsuit.

Dan Oprea, president of the Braşov Bar Association, described some cases that he and other members of the public interest law group APADO had brought in the past two years on behalf of Romani victims of violence. Oprea explained that APADO lawyers had succeeded in jump-starting a number of cases where prosecutorial investigations had ground to a halt. However, he highlighted two difficulties: (i) the lack of a continuous flow of funding to keep lawyers working regularly on such cases; and (ii) the need for stronger links between lawyers and Romani communities.

Vasile Ghere, an attorney and former prosecutor from Tîrgu-Mureş, described an ongoing Romanian case in which he represents a number of Roma whose houses were burned in September 1993 by a mob. During this violence, three Roma were killed. After more than three years of delay, which some observers have suggested was the product of political pressure, an indictment was returned in 1997, and the case proceeded to trial against eleven defendants. Ghere represents a number of Roma victims at this trial in seeking civil compensation for damages. He addressed, among other issues, the progress of the case, the choice of forum, and the likelihood that other perpetrators of violence — who are not named in the pending indictment — will ever be charged.

Overall, the seminar succeeded in accomplishing a number of aims. First, the event brought together Roma and non-Roma lawyers for serious discussion of human rights law and litigation before the Strasbourg organs and in Romanian courts. The discussion addressed issues of general human rights concern as well as more specifically Roma-related matters, thereby highlighting the interrelationship between the two. Second, the seminar provided concrete information and advice on legal questions concerning Strasbourg caselaw and practice. Third, by demystifying the Strasbourg system, the seminar encouraged a number of lawyers — Roma and non-Roma — who had not previously litigated in the field of international human rights to do so. Several participants indicated that they would be interested in finding and litigating human rights cases in the near future. Finally, the collective nature of the event — intense discussions over a day and a half, meetings over meals and coffee, shared exposure to new ideas and new thinking — seemed to create a valuable, if still fragile, sense of community among lawyers interested in human rights in Romania. It is this sense of community, and of shared possibility, which must be reaffirmed and expanded in the future through additional seminars, informal interaction, and co-operation on litigation and/or legal reform efforts.

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