Note from the Executive Director
24 April 2010
Note from the Executive Director
Rob Kushen1
When I began working at the Open Society Institute (OSI) in 1996, I was dimly aware of the creation that year of an organisation modelled after the American Civil Liberties Union that would attempt to utilise legal advocacy and litigation in Europe to advance the human rights of Roma. At the time, the idea of using litigation to advance rights was one with which activists in the United States and Western Europe were comfortable, but for those in the former Communist bloc the idea was seen as novel, if not naïve. While I respected those at OSI who helped launch the concept, I certainly was sceptical. As a lawyer who had started my human rights career reporting on violations in the Soviet Union for Helsinki Watch (1990-91), I was well aware of the success with which the Soviet Union had exported the idea of “telephone justice” to the countries of Eastern Europe. Cases of any political significance were not decided by judges (or a judge and lay assessors), but by Party bosses who would telephone the judge with an instruction on the correct outcome. In those days, all cases involving individual rights were politically significant. Not surprisingly, a system that required little legal reasoning from its judges produced judges who were not very adept at legal reasoning. While the political systems of many of these countries had changed immediately after the fall of the Berlin Wall, the justice systems had not. It was difficult to see how judges and prosecutors, schooled in the old regime, could suddenly spring to life anew as independent-minded seekers of truth.
From 1991-96, I worked as a lawyer in the US Department of State. I spent much of my time in law enforcement and I observed first-hand the dysfunctional justice systems in Eastern Europe. One of my main tasks at that time was to work with the United Nations (UN) and counterparts in other countries to set up the International Criminal Tribunal for the former Yugoslavia. This Tribunal was born of a recognition that the justice systems of the region were incapable of dispensing justice, particularly in cases of serious human rights abuses. In 1996, when the ERRC began operation, it was not clear that anything much had changed, at least at the domestic level.
However, in the decade after the disintegration of the Soviet Union, the countries of the former Communist bloc began to integrate themselves into European institutions; in particular, they became a party to the European Convention on the Protection of Human Rights and Fundamental Freedoms (ECHR). On 1 January 1996, the number of countries from the former Communist bloc that were parties to the ECHR stood at eight. Today, that number stands at 22.2 The Convention offered a new remedy for rights violations and a new tool for the ERRC. It is a tool the ERRC has wielded to great effect.
The ERRC has litigated over 500 cases before national and international courts and other justice mechanisms to challenge state and non-state actors who have discriminated against Romani individuals or have committed violence against them. So far, approximately 300 cases have been completed. The ERRC achieved a positive outcome in more than 255 of these cases, resulting in over 2 million EUR paid in compensation to Romani victims. The ERRC has won 33 cases in international jurisdictions, including 24 cases before the European Court of Human Rights. ERRC litigation has been instrumental in shaping the legal framework in areas such as police abuse and school segregation.
In 1999, while running a non-profit health and human rights organisation, Doctors of the World (DOW), I witnessed first-hand the extreme disadvantages faced by Roma, Ashkalia and Egyptians (RAE) in Kosovo. Despite the efforts of some RAE to ally themselves with one side or another during the Kosovo war, they were subject to attacks and discrimination by the Serbs and the Albanians, resulting in a large number of refugees and internally displaced persons. For those RAE who remained in Kosovo, their continued exclusion from society and from the provision of health services even after the war was over necessitated targeted interventions, such as the programmes DOW developed on maternal child health care and tuberculosis control.
My engagement in Roma matters intensified in 2004 when I began my second tour at the Open Society Institute, this time as Director of International Operations. I joined an advisory board for OSI’s Roma programming and helped OSI develop its policy on integrated education. I also got involved in the planning for the Decade of Roma Inclusion and had an opportunity to learn more about the work of ERRC and other Roma advocacy organisations. I remained on the Roma advisory board after I left OSI in 2007 to run an HIV treatment programme for the Harvard School of Public Health.
I began working with the ERRC on a consultancy basis last fall, and immersed myself in the organisation’s past and present work. The ERRC’s results have been impressive. It has been instrumental in developing international human rights law as a practical tool in protecting the rights of Roma, particularly through the creation of jurisprudence at the European Court of Human Rights. This, in turn, has had a positive impact on state-level jurisprudence, legislation and policy. Unfortunately, the practical impact of a favourable court decision on systemic rights violations is not always so apparent. The case of D.H. and Others v. the Czech Republic is an ample illustration of this. Despite a strong and unequivocal ruling by the Court that the tracking of Romani children into schools for children with mild disabilities was illegal discrimination, the practice continues in the Czech Republic to this day.
Does D.H. indicate that litigation in defence of rights is a failure? Not at all. However, it does show that legal advocacy is a long-term process that requires consistent engagement for many years; victory in court is only the beginning. One of my chief goals as Managing Director is to ensure that ERRC takes this long-term view and also utilises litigation, research and advocacy synergistically to ensure a sustained result. In response to D.H., the ERRC has already conducted follow-up research and produced a report documenting continuing violations (together with the Roma Education Fund); hosted a conference on the case to engage government officials and civil society advocates (together with the Roma Education Fund, OSI and the NGO coalition Together to School); and submitted observations to the Committee of Ministers on the failure of the Czech government to comply with the decision twice (together with OSI). We continue to participate in an NGO working group that engages directly with the Czech Ministry of Education on reform efforts, and will continue to work with the Open Society Institute and others to keep the Committee of Ministers engaged in the question of implementation. In this way, ERRC hopes to fulfil the promise of D.H., and the many other cases to follow.
Other objectives at ERRC in the coming months include ensuring a stronger Roma voice at the leadership level of the organisation. To that end, Isabela Mihalache, an experienced advocate on Roma issues, will be joining ERRC in September as Deputy Director. We will also enhance Romani representation on the ERRC Board.
On a substantive level, there is the need for ERRC to identify the most important rights challenges facing Romani communities in the future in order to guide ERRCs workplan. While hate crimes and hate speech dominate the media’s attention, there are many other issues meriting attention. The issues of school and housing segregation remain unresolved in most countries with significant Roma populations. Freedom of movement, a right enshrined by EU membership, is under threat as Western European countries express growing hostility to legal and illegal immigration and try to close their doors, even to EU citizens. Poor health status and inadequate access to health care is a persistent problem. Underlying all these rights issues, as both cause and effect, is the problem of widespread poverty and unemployment. Close consultation with Romani communities will be essential to inform ERRCs activities and ensure that we are helping to meet the many challenges facing Roma in the months and years to come.
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- Rob Kushen is the ERRC Executive Director.
- Council of Europe, Chart of Signatures and Ratifications, Convention for the Protection of Human Rights and Fundamental Freedoms, CETS NO. 005: 3 September 1953 (entry into force)http://conventions.coe.int/Treaty/Commun/ChercheSig.asp?NT=005&CM=&DF=&CL=ENG.
