Fogarasi and others v Romania (third party intervention, 2017)
The police came to the home of a Romani family and told them to turn down their music at a part. They complied. The police then came back and tried to arrest the father. He resisted and a fight broke out, with neighbours involved; one of the neighbours hit the father over the head with a hammer. The mother threw stones towards the police car, injuring no one. The police left and, a little while later, while the family were leaving a pharmacy and headed towards the hospital, to get treatment for the father, special forces police showed up and arrested the whole family. The family and the authorities tell different versions what happened after that, with the family (including their teenage daughter) alleging severe mistreatment. The parents clearly suffered significant injuries, as hospital records from after their release prove.
The ERRC’s Intervention
The ERRC was granted permission to submit a third-party intervention in the case.
The ERRC emphasised that, in recent years, anti-Gypsyism across Europe has been on the rise. The ERRC made clear its concerns about the Romanian legislation that deals with “administrative conveyance” of people to police stations. In particular, the ERRC is concerned about Roma who find themselves in (often physical) conflict with police officers and are accused of committing offences against them. These Roma are often “administratively conveyed” to a local police station by those same officers, during which time they remain under the control of the officers they have allegedly injured before being transferred to a police station where they can make their own complaints. This measure can extend to up to 24 hours. During this period people are effectively detained and are being subjected to physical violence by police acting with impunity. In a climate of widespread anti-Gypsyism, this is particularly worrying for Roma. The ERRC also expressed the view that Romanian criminal law is not sufficient to guarantee compliance with Article 14 of the European Convention on Human Rights, read in conjunction with Article 3. In Romania, the legislation only places importance on possible racist motivation in the punishment phase of criminal proceedings, which may lead the authorities to neglect to consider racist motives at the much earlier stage of investigation. There is a need for supplementary measures to ensure that the authorities investigate racial motivation from the outset, including, for example, the collection of data about hate crimes. The ERRC noted that the Romanian legislation only applies an aggravating circumstance to ordinary violent offences (article 77(h) of the Criminal Code19) which are based on racist motivation of the crime. When faced with such a system and in the absence of any official data on hate crimes, there is a high risk that the authorities will not discharge their obligations under the Convention to deal with racist crime appropriately.
Normally judgments are delivered by seven-judge “chambers” of the European Court of Human Rights, but the European Convention on Human Rights allows three-judge “committees” to decide some cases, for example when the case is a matter of “well established case law”. That is what happened here: a three-judge committee decided, based on well-established principles, that the applicants had been victims of a violation of Article 3 of the European Convention on Human Rights (prohibition of torture and inhuman or degrading treatment). It was the Government’s responsibility to show why the applicants had suffered such injuries, and they could not explain what had happened. However, the Court did not find that there was race discrimination (Article 14 of the Convention), as there was no indication that what happened was the result of racism, and there was nothing that should have led the authorities to investigate whether there was racism.