Alković v Montenegro (third-party intervention, 2017)
23 May 2016
The case concerns the harassment a Roma Muslim man and his family experienced from their non-Roma, non-Muslim neighbours. The applicant tried in vain to lodge criminal complaints against them, although he was prosecuted for a minor offence.
The Court’s Judgment
The European Court found a violation of Article 8 of the Convention (right to respect for private life, family life, and home) taken with Article 14 (prohibition of discrimination). The Montenegrin authorities did not do enough to establish what had happened to the applicant. For example, even though everyone admitted that during one incident shots were fired and there were bullet shells, the police never collected them to figure out who fired them. The authorities’ failure to take steps to establish who had committed the crimes deprived him of the benefit of the legal framework designed to protect him, and the Court took into account “the fact that the applicant is Roma as well as Muslim, and that there was not one, isolated incident directed against him, but many, and in view of the nature of these other incidents”. The applicant was awarded €6,000 for “non-pecuniary damage” (suffering).
The ERRC’s Third-Party Intervention
The ERRC urged the Court explicitly to acknowledge the phenomenon of anti-Gypsyism as underlying the problem of racist violence and harassment against Roma. The ERRC stressed that the definition of anti-Gypsyism encompasses institutional racism. The ERRC relied on a widely-recognised definition of institutional racism: “the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin”. The ERRC then set out the scope of the problem of racist violence against Roma in Europe. The ERRC went on to describe the particular situation of Roma in South East Europe in general and in Montenegro in particular. The ERRC stressed the widespread nature of negative attitudes towards Roma in Montenegro, which were much more common than such attitudes in neighbouring Serbia, for example. The ERRC set out the evidence concerning the situation of Roma Muslims in South East Europe, including their historical presence in the region and negative attitudes towards them. The ERRC then urged the Court to integrate the notion of institutional racism into its analysis of whether there has been a violation of Article 14 taken with other provisions of the Convention where there are allegations of failures to protect Roma from violence or harassment, or to investigate acts of violence or harassment adequately. In addition to or instead of addressing the question of whether protection was adequate in an individual case or whether an investigation failed to unmask racist motives, the ERRC urged the Court to examine whether protection of Roma or an investigation into anti-Roma violence or harassment was ineffective due to institutional racism (i.e. due to a failure to provide an appropriate and professional service to Roma) and, if so, find a violation on that broader basis. The ERRC noted the absence of appropriate procedural and institutional arrangements in Montenegro for responding to violence and harassment against minorities. The ERRC expressed its view that those arrangements, and particularly the unduly burdensome procedures for victims to report and substantiate hate crimes, amounted to institutional racism in Montenegro. The ERRC finished its intervention by urging the Court to expand its approach to intersectional forms of discrimination, an approach which the Court began to develop in B.S. v Spain (2012), § 71. When dealing, for example, with the authorities’ approach to harassment of Roma Muslims, the Court should examine whether the authorities took into account the complex situation of exclusion they face, instead of separately examining whether the people concerned were victims of discrimination based on religion and/or race.
The Court’s statement of facts in the case can be found here.
The ERRC’s third-party intervention can be found here.
The Court’s judgment can be found here.