Symposium Report Legal Defence of the Rights of Roma (Budapest, 11-14 January 1997)
A symposium on Legal Defence of the Rights of Roma was held in Budapest from January 11 to January 14, 1997. It was hosted by the ERRC and co-sponsored by the European Roma Rights Center, the Autonómia Alapítvány (Hungary), and the Human Rights Project (Bulgaria). Following the opening public lecture by Lord Lester of Herne Hill QC at the Central European University in Budapest, the symposium took place in the offices of the ERRC.
The goals of the symposium were: (a) to bring together lawyers and human rights activists who work in Central and Eastern Europe in the field of public interest litigation for Roma; (b) to discuss legal strategies for the defence of the rights of Roma before domestic and international jurisdictions, and (c) to improve the capacity of the participants to employ legal action to redress violations.
Bringing together over 50 lawyers and human rights activists from 13 countries, mostly from Central and Eastern Europe, the symposium was one of the first events to date designed to discuss legal strategies for the defence of Roma.
This report draws on some of the experiences of participants, shared in both official sessions and informal conversations, to summarise the principal obstacles to the effective use of litigation on behalf of Roma, and a number of litigation strategies for change.
II. The Importance of Litigation for the Legal Defence of Roma and Its Relation to Other Strategies
The symposium opened with a public lecture by Lord Lester of Herne Hill QC entitled „A Litigation Strategy to Combat Discrimination". One of the pioneers of human rights litigation in Europe and the Commonwealth, Lord Lester asserted that seeking legal protection for Roma is the most important human rights problem in Europe today. In his presentation, Lord Lester outlined directions for the creation of a coherent litigation strategy for the advancement of the rights of Roma. His ideas were a source of inspiration for the participants and a basis for the ensuing symposium discussion.
The first substantive symposium seminar explored litigation as one strategy to defend the human rights of Roma. Dimitrina Petrova noted in her presentation that litigation is an indispensable strategy for the defence of human rights because it brings about real changes in the lives of people. By framing issues in strictly legal terms, litigation at its best forces governments to confront and address genuine problems in concrete ways. However, Petrova warned that litigation alone is insufficient. Instead, litigation must be seen as only one among a number of public interest law strategies which might include monitoring and reporting, public and legislative advocacy, human rights education, etc. It was widely agreed that human rights advocates, particularly those working on behalf of Roma, should make effective use of the whole range of available strategies and tools.
III. Litigation Models and Their Interaction with Other Public Interest Law Strategies
During the first session of the symposium Yonko Grozev of the Bulgarian Helsinki Committee described two litigation models which public interest groups may apply to defend the rights of Roma: community legal aid programs and impact-oriented litigation. Throughout the symposium, discussion focused on the costs and benefits of these two alternative models in relation to other public interest law strategies.
The first litigation model – community legal aid programs – seeks to advance the rights of Roma through assistance in a large number of individual cases. The purpose of this strategy is to empower Roma by broadening their access to the legal system. Various groups in the region, like Romano Centro in Austria, the Foundation for Romani Civil Rights in Hungary, the „Godi a Romenge" project of the organisation Romano Bax in Bulgaria and others apply this strategy. The positive effects of developing legal aid programs include: a) instilling confidence among community members in the law and legal system, and b) contributing to the self-empowerment of the Roma community. In relation to the goal of broadening the access of Roma to the legal system, participants discussed other legal defence strategies which do not include direct provision of legal assistance. These strategies include training Roma activists in assisting victims of human rights violations; providing scholarships for Romani law students; and establishing or strengthening the existing links of Roma rights NGOs with representatives of the legal profession.
One example of an organisation which employs such a grassroots approach is the Human Rights Project (HRP) in Bulgaria. HRP has undertaken a series of seminars to train community activists to provide basic legal assistance to Roma victims of abuse. These seminars offer basic knowledge and skills on communicating information to the prosecutor's office and other institutions which may be relevant when human rights violations against Roma have taken place. The seminars also focused on such themes as monitoring legal proceedings and pushing for criminal investigation where appropriate.
A common challenge for all participants was the creation of strong links between the Roma community and the legal profession. Close ties would not only encourage more professionals to work in the field of legal protection of Roma but would also help reduce the widespread prejudice against Roma now shared by many members of the bar and judiciary.
The second litigation model discussed by symposium participants was impact litigation. This model seeks to use the law to bring about reform on issues of concern to Roma by altering the legal framework and judicial and administrative practices. A number of organisations in Central and Eastern Europe - Legal Defence Bureau for National and Ethnic Minorities (NEKI) in Hungary, Human Rights Project in Bulgaria, Lawyers' Association for the Defence of Human Rights (APADO) in Romania, Dzeno Foundation in the Czech Republic and Legal Defence Bureau for Ethnic Minorities in Slovakia- have already achieved positive results through impact litigation. However, the symposium discussion confirmed that preparation of an impact case requires large expenditures of labour and other resources, and that goals are not easily achieved. An impact case demands the efforts of a team composed of a variety of professionals and activists. Lawyers preparing a case must take many factors into consideration, including the support of the community, public opinion, client morale, the degree of judicial hostility to public interest litigation, etc.
In general the symposium concluded that different strategies for legal defence of Roma are mutually reinforcing and advocated should make creative use of all of them.
IV. Obstacles to the Effective Use of Litigation
During symposium discussion, participants outlined some of the obstacles to the effective use of civil litigation and criminal prosecution on behalf of Roma. The following were among the most serious problems indicated:
a) Roma have limited access to lawyers.
A professional lawyer's assistance is crucial in any case involving legal work. However, Roma are rarely represented by a lawyer. Roma are less likely to be able to afford a lawyer. In addition, many lawyers are reluctant to represent Roma. Recently in Bulgaria, six different lawyers refused to represent the parents of a young Romani man who was murdered by skinheads.
b) In many countries, the law does not specifically punish racially motivated violence and/or existing legal provisions are not enforced.
In most countries of Central and Eastern Europe legislation does not explicitly provide stiffer punishments for racially-motivated crimes. In addition, many countries still do not have any institutional structures – such as minority or anti-discrimination ombudsman – whose specific area of competence is racially-motivated crimes. In countries which have adopted legislation addressing racially-motivated crimes (the Czech Republic, the Slovak Republic, Hungary), these laws are unevenly enforced. Recently in the Czech Republic a criminal court refused to apply the Penal Code provision on racial motivation in a murder case of Roma by a skinhead, because the murderer did not express verbally his anti-Roma animus while stabbing the victim to death. This decision was rendered in spite of the fact that other evidence made clear his racial motivation for the crime.
c) Roma often lack sufficient facility with the official language of legal proceedings.
Dr. Pavol Burák from the Legal Defence Bureau for Ethnic Minorities related a case in which witnesses could not understand the language of the interrogation and this initially discouraged prosecutors from bringing charges by creating the impression – which was not correct – that factual contradictions marred the accounts. Charges were finally lodged only after the Legal Defence Bureau for Ethnic Minorities insisted that the witnesses be questioned again, assisted by an interpreter.
d) Undue delay in the investigation of criminal cases discourages many Roma victims from pursuing justice.
Police and prosecutors exploit the absence of deadlines for the conclusion of investigations and/or disregard what procedural limitations do exist. In at least one serious case of mob violence against Roma in Romania, the investigative delay prevented prosecution through expiration of the statute of limitations.
e) Police do not register many criminal cases which are reported by Roma victims.
Crimes are not registered and therefore go unreported and uninvestigated. This frequently occurs when police officers are accused of crimes against Roma.
f) Investigative authorities often mischaracterise the crimes committed against Roma or improperly collect the facts of reported cases.
Human Rights Project (Bulgaria) worked on a case in which the prosecution mis-characterised the offense as minor in order to justify their initial refusal to bring charges against two police officers who mistreated two Romani minors. Pavol Burák of the Legal Defence Bureau for Ethnic Minorities in Kosice described a case in which the police investigators initially denied that a Romani child with dark skin had been a victim in a crime involving a skinhead attack on a group of Romani school children. This was done, he felt, in order to miscast the racially-motivated nature of the attack.
g) Political and institutional barriers impede the prosecution of police officers for violations against Roma.
In most of the countries represented at the symposium, crimes committed by police officers are prosecuted by the police themselves and there are no mechanisms for civilian control. When the police investigate themselves, the bonds between prosecutors and prosecuted raise questions about an investigation's impartiality. In Bulgaria and Romania, where police officers are prosecuted by Military Prosecutors Offices, even more serious doubts about the objectivity of investigations arise.
h) Civil remedies are not readily available to the victims of human rights violations.
In virtually all Central and East European countries, civil suit to attain compensation for damages is banned - in law and/or in practice- until the criminal court has rendered judgement on the same facts. Although the Civil Procedure Code in some countries does not explicitly prevent the victim from filing a civil suit while the corresponding criminal case is pending, in most of the countries in the region judges routinely refuse to hear such cases until the criminal case has concluded.
i) Public opinion is unfavorable.
Throughout Central and Eastern Europe, Roma are faced with deeply-rooted racist attitudes. Perpetrators of crime, whether private parties or state officials often receive popular approval for their unlawful acts. Winning public opinion in support of Roma is often necessary before the judiciary and the law enforcement institutions afford protection to the rights of Roma. In one such case in Bulgaria two police officers were convicted for mistreating two Romani boys in a trial in which the headmaster and teachers from the victims' school publicly supported the victims and testified on their behalf before the prosecution and in court. Similarly, in the Slovak Republic, skinheads were successfully prosecuted for a racially motivated attack against Roma children, where strong public pressure pushed the police to prosecute the perpetrators.
j) The judiciary is hostile or indigent.
Negative attitudes towards Roma are widely shared among members of the prosecution and judiciary. This poses problems for Romani victims of human rights abuse and Romani criminal defendants. In a recent Hungarian criminal case in which the defendant was a Romani man, the prosecutor in his pleading referred to the ethnicity of the defendant when asking the court to warrant a maximum penalty.
V. Litigation Related Strategies for Change
In the course of the symposium participants discussed various strategies for the effective use of litigation, including the following:
a) Be proactive in the selection of your cases.
Rights advocates should have a well-developed strategy with an understanding of the issues they wish to address and the patterns of violation they wish to challenge. Lawyers should actively seek out cases which raise issues likely to have a broader impact.
b) Find simple and easy targets to start with.
It is of considerable importance to win some cases. As „easy targets", symposium participants singled out cases of group violence against Roma; lack of police protection; lack of prosecution; exclusion from housing and education.
c) Do not limit yourself to the perspective of a traditional lawyer.
Litigation on behalf of Roma is very demanding and requires an unconventional approach to the relationship between lawyer and client. A human rights lawyer must be able not merely to find legal solutions to problems, but to identify with the client personally and be keenly sensitive to the moral issues which a case raises.
d) Make use of all available procedural rights.
A human rights lawyer can achieve much in a seemingly hopeless case simply by using all mechanisms for defence or redress which the domestic procedure affords, including, for example, the right to appeal negative decisions of the prosecution or other organs, and the right of the defence attorney to participate in all evidence collection procedures in the criminal process. Imre Furmann (NEKI) suggested the positive results may be achieved through the combined use of different remedies – criminal, civil and administrative – at one and the same time.
e) Make creative use of the provisions of the Constitution.
Many new or amended Central and East European constitutions provide strong protections for civil rights. Lawyers should use these constitutional safeguards to challenge the application of arguably unconstitutional statutory provisions. Representatives of APADO are looking for an appropriate case to test the constitutionality of the Military Prosecution in Romania.
f) Work in conjunction with other lawyers and public interest NGOs.
Both the lawyer working on behalf of Roma and his clients need a strong support system. Roma groups and public interest groups are best placed to mobilise community, domestic and international support and pressure in particular cases.
g) Learn to work with non-lawyers.
In the preparation of a case, lawyers must work with professionals from other fields. Strong litigation is dependent on the collection of statistical, demographic and sociological data provided by non-lawyers.
h) Use comparative legal argumentation when appropriate.
Human rights lawyers working in the relatively untested environment of Central and Eastern Europe should draw on jurisprudence from legal systems throughout and beyond the region.
j) Do not miss the opportunity to bring a case before an international tribunal.
International jurisdictions have an important role in shaping a country's legal system and judicial practice. A few positive decisions of international human rights tribunals are likely to have enormous impact on the legal protection of Roma.
VI. Other important issues addressed
Symposium participants discussed the role of NGOs in litigation and strategies to expand the rules on the standing of NGOs in domestic jurisdictions. Various avenues for the participation of NGOs in judicial proceedings were discussed, including the direct representation of Roma clients, intervention as third parties, submission of amicus curiae briefs or preparation of briefs to be used by the lawyer who represents the client at court.
A special focus of the symposium concerned remedies for Roma provided by international human rights instruments, including the European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) and the Inter national Covenant on Civil and Political Rights. Some speakers suggested that Roma rights advocates direct their efforts to the United Nations Human Rights Committee which has already elaborated strong standards for protection against discrimination. As to the ECHR, notwithstanding the limited nature of substantive rights which fall within its embrace, the Convention provides another working tool for the protection of the rights of Roma. Some participants expressed their disappointment with the ultimate decision on the case of Buckley v. United Kingdom, which was won before the European Commission but lost in the European Court. A lesson drawn by many from this experience is that Roma rights groups should be more active in public advocacy to make allies on the international scene.
VII. Conclusion and Future Directions
Participant response indicates that the main goals of the symposium were accomplished. Out of 20 evaluation forms returned to ERRC, 16 participants indicated that the symposium was „very useful" and 4 „somewhat useful". Almost all participants indicated that they would take part in another symposium organised by the ERRC focusing on concrete issues arising in the legal defence of Roma. The principal criticisms were as follows: (a) the symposium agenda covered too much ground, (b) the inclusion of both lawyers and non-lawyers resulted in a disjointed and less focused discussion than might have been appropriate, (c) it might have been helpful to have persons from international governmental organisations such as the Council of Europe.
The ERRC viewed the symposium as one step in the building of a network of public interest lawyers throughout Europe who work to defend the rights of Roma and to promote legal reform on issues of concern to Roma. In considering how the ERRC can best support and assist the network, the following ideas were mentioned:
(a) provide network members with legal research and advice on issues of comparative and international law;
(b) develop a central archive of international and domestic legal documents on criminal and criminal procedure law, human rights law, and constitutional law;
(c) use the information in the archive to systematically share information about judicial and legislative developments, i.e. the passage of laws and issuance of court decisions concerning the rights of Roma.
This report was written by Nikolai Gughinski, ERRC staff attorney