An obstructed path: Roma and access to justice

Roma Rights 1/2001 addresses the theme of "access to justice". ERRC Legal Director Gloria Jean Garland begins the following group of articles with a framing piece on access to justice in the context of the European Court of Human Rights (ECHR). Edwin Rekosh and Vessela Terzieva discuss access to justice issues as they relate to Roma in some of the countries facing post-Communism. Krassimir Kanev presents problems of access to justice for Roma in Bulgaria — and in particular the availability of legal counsel in serious criminal cases — by presenting one particularly egregious case pending before the European Court of Human Rights. Barbora Bukovská moves the discussion deeper into discrimination issues through a presentation of problems related to discretion and bias in the Czech justice system. ERRC presents a joint project by ERRC, Interights and Migration Policy Group aiming to make the most of the historic opportunity for enhanced anti-discrimination work provided by the recently adopted European Union "Race Equality Directive" and Protocol No. 12 to the European Convention on Human Rights. James Goldston discusses implications and suggests strategies for advocates related to the European Union "Race Equality Directive", Protocol No. 12, and the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD). Next, ERRC presents part of a report by Marcel Zwamborn on specialised bodies on equal treatment and non-discrimination. ERRC describes legal action undertaken seeking justice for the victims of the 1993 pogrom in Hădăreni, Romania. Gianluca Esposito provides an overview of Council of Europe Committee of Ministers Resolutions and Recommendations pertaining to legal aid, including access to legal aid for foreigners, as well as recent developments in the field of cross-border co-operation between member states of the Council of Europe in the field of legal aid. Toward the back of the issue, on page 97, attorney David Strupek reflects on his experiences with the provision of legal aid to Roma in the Czech Republic. Readers are also urged to see and use the (unofficial) ERRC Romani-language translation of the European Union’s Race Equality Directive on page 91. The English-language official version is available from the ERRC by contacting: office@errc.org.

Gloria Jean Garland1

  • At around noon on November 14, 1997, 28-year-old D.D., a Romani man, was arrested at his home in Novi Sad, Yugoslavia by police. He was taken to the police station and severely beaten by plain-clothes officers attempting to force him to confess to a burglary committed in the town. He was kept in custody for three days — during the day in the police station room where he had been beaten, and evenings in the district prison. At the police station, he was denied food and water and the possibility of using the lavatory. On the fourth day he was brought before an investigating judge who, noting his medical condition, ordered the police to take him to a forensic specialist to establish the nature and severity of his injuries. Despite this court order, the police did not do so. After recovering from his injuries and consulting a lawyer, Mr D.D. filed a criminal complaint with the Novi Sad Municipal Public Prosecutor’s Office. Fifteen months later, having heard nothing, he and his lawyers followed up with the prosecutor’s office both orally and in writing. There was no response. Since that time, over three years now, the prosecuting authorities have failed to respond or to take any action with regard to his complaint.2
  • In the village of Ivanski, Bulgaria, on the evening of April 18, 1996, a group of seven teenagers decided to "look for a Gypsy to beat up." They saw Mr A.I., a Romani man, walking down the road towards the railway station. They raced after him, grabbed him, and knocked his head against a wall. Although Mr A.I. was a total stranger to them and did nothing to provoke the attack, the group hit and kicked him repeatedly. Finally, one of the boys took out a knife and stabbed him several times. He later died as a result of his injuries. The members of the group were arrested and questioned by police later that evening, and all but one was released. Six members of the group were charged with "hooliganism", and four of them admitted their guilt to the investigator. The boy who had stabbed Mr A.I. was charged with "unintentional murder". The investigator concluded that the charges had been proven and that the case should be brought to court, but the case file was never sent to the prosecutor’s office. A year later, Mr A.I.’s wife examined the case file and was told that the investigation could not be concluded because a key witness had moved away. Mrs A.I. later filed a claim for compensation and a complaint as to the delays in the proceedings. Because the investigation file was never submitted to the prosecution authorities and charges never brought before the court, the proceedings are still pending, more than four years after Mr A.I.’s murder. Under Bulgarian law, an action for civil damages outside the criminal proceedings is practically impossible prior to the conclusion of the criminal proceedings. Thus, Mrs A.I. is without either civil or criminal remedies for the murder of her husband.3
  • In 1991 in Harghita County, Romania, following a fight between four Romani men and a night guard, ethnic Hungarian villagers beat two Romani men in revenge. One later died from his injuries. Two days later, a public notice informed the inhabitants of the Romani settlement that their houses would be set on fire. They informed the village government and the police, to no avail. An organised group of non-Romani villagers cut the electrical wires leading to the settlement, knocked down the telephone pole connecting the village with the neighbouring village, and then set all 28 Romani houses on fire. The prosecutors concluded the offences were a result of "serious provocative acts of the victims" and declined to prosecute.4
  • In Slovakia, M.L., a young Romani man, was denied service in a railway station restaurant. The waitress told him that her boss did not allow them to serve Roma. Mr M.L. filed a complaint with the police. The Slovak police informed him that there is no Slovak law prohibiting discrimination by the restaurant owner, so they were unable to pursue his complaint.5
  • In 1996, N.J., a Serbian Romani man who has lived in Austria for over fifteen years, got into a dispute with police officers over a parking ticket, resulting in the police later storming his apartment. During the raid, officers beat him and his wife, and then arrested them. An administrative complaint against the police was rejected by the Independent Administrative Senate because they indicated the wrong date for their detention (April 24 instead of 25). The administrative decision was appealed to the Constitutional Court. The Constitutional Court overturned the decision and sent it back to the Independent Administrative Senate (IAS), saying the case could not be dismissed because of a factual error in the date. The administrative tribunal did not react, so the applicants turned to the Administrative High Court, which gave a deadline to the Independent Administrative Senate to issue a decision. The IAS missed the deadline, but later issued a decision rejecting the claims. Before this untimely administrative decision can be challenged, the applicants must pay significant court fees, funds they do not have.

These illustrative examples demonstrate why "access to justice" has a hollow ring for many Roma. When faced with investigators who refuse to investigate hate crimes and prosecutors who refuse to prosecute the cases, or legal systems that don’t provide sanctions for the breach of Constitutional guarantees of non-discrimination, the term "access to justice" has little meaning.

Justice in a broader sense

The term "access to justice" in a legal sense generally refers to the right to bring a case before a court. But true access to justice, in its broadest sense, entails much more. For the idealist, it conjures up visions of a courthouse with open, welcoming doors, and courtrooms presided over by wise and fair judges. On one side sits a dedicated prosecutor whose sole goal is the pursuit of a just result. Opposite the prosecutor is the able defence lawyer who speaks the defendant’s language, paid for by state funds as needed. Civil litigants find able advocates to defend their rights, with legal aid covering costs where necessary. Along with this image comes a readily available and easy to understand set of laws providing clear standards and guidelines and redress for every wrong, along with a well-administered judicial system that promptly processes and resolves all complaints.

Obviously, this ideal is rarely attained, even in the most advanced of societies. The barriers to bringing a case before the courts and receiving a prompt and just resolution are many. They include factual restraints such as the lack of appropriate laws to define the crime or permit civil redress, reluctant prosecutors or investigators, immunities protecting certain individuals or institutions from lawsuits, and procedural restrictions, as well as practical restraints such as a lack of funds or access to a lawyer. In addition, overcrowded courts and unqualified and underpaid judges contribute to the denial of justice. Finally, preconceived notions, bias, and prejudice against the Roma on the part of investigators, prosecutors and judges can interfere with the fairness of proceedings.

While not all of these impediments are actionable, some constitute violations of international human rights guarantees. Inadequate access to justice is not, of course, a problem affecting only Roma, but the additional barriers of prejudice, discrimination and social and economic marginalisation they suffer can significantly increase the impact of the problem. This paper will discuss some of the more prevalent substantive, procedural and practical barriers to justice encountered by Roma and some potential remedies offered under international conventions and treaties, with a focus on the European Convention for the Protection of Human Rights and Fundamental Freedoms ("European Convention"). 

European Court of Human Rights imposes positive duty on states to protect life

In a judgment delivered in Strasbourg on March 28, 2000, in the case of Mahmut Kaya v. Turkey,1  the European Court of Human Rights imposed a requirement on states to take reasonable steps to prevent death or injury by non-state actors in certain circumstances. International conventions protecting the right to life have long prohibited states and state actors from causing death or injury, but the Kaya judgment goes further by imposing a positive obligation on the state. In addition, the Court reaffirmed earlier rulings that the state must provide an effective remedy, i.e. carry out an adequate and competent official investigation in order to identify and apprehend the perpetrators.

Facts of the case

The applicant’s brother, Dr Hasan Kaya, a Turkish national of Kurdish origin, practised medicine in Elazig. He was a friend of Mr Metin Can, a lawyer who was President of the Elazig Human Rights Association. On February 21, 1993, after being contacted by two men, Mr Can left his home with Dr Kaya. The next day, when they had not returned home, the police were informed that they had disappeared. On February 27, 1993, the bodies of the two men were found under a bridge near Tunceli. Both had been shot through the head and bore marks of injuries on their bodies. There were subsequent reports in the media that both men had been killed as Kurdistan Workers’ Party (PKK) sympathisers by contra-guerillas acting with the knowledge and support of the security forces. A report issued by the Prime Minister’s office in January 1998 referred to Metin Can as one of the men targeted by elements acting outside the law in southeastern Turkey with the knowledge of the authorities.

The complaint

The applicant complained to the Court that his brother was killed by or with the complicity of security forces in violation of Article 2 (right to life) and that, before his death, he was tortured contrary to Article 3 (prohibition against torture). He also complained that the lack of a proper and effective investigation into the disappearance, torture and killing of his brother breached the procedural obligations of Articles 2 and 3, thus also violating Article 13 (right to an effective remedy).

In addition, he claimed his brother was targeted due to his Kurdish origins, in violation of Article 14 (prohibition of discrimination).

The court’s decision

Failure to protect life: There was insufficient proof that state authorities were involved in the killing itself. Nonetheless, the Court found the authorities knew or should have known that Dr. Kaya, a doctor suspected of aiding and abetting the PKK, was at risk of being targeted by contra-guerillas with the acquiescence or knowledge of the state’s security forces, and thus had an obligation to take reasonable measures to protect his life. They failed to do so.

In support of this conclusion, the Court referred to other cases in southeastern Turkey in which the Court had ruled that there had been serious failures by the authorities to investigate allegations of wrongdoing by the security forces. In these cases, the public prosecutor often failed to pursue complaints by individuals against the security forces and attributed incidents to the PKK on the basis of minimal or no evidence. The State Security Court, which has jurisdiction over terrorist crimes, lacks the necessary independence imposed by Article 6 of the Convention (right to fair trial). The Court concluded that these procedural defects gave rise to a lack of accountability by members of the security forces for their actions. It found this lack of accountability incompatible with the rule of law in a democratic society. Though a wide range of preventive measures would have been available to the authorities regarding the activities of their own security forces and those groups acting under their auspices or with their knowledge, nothing was done. There was, accordingly, a violation of Article 2.

Inadequate investigation: The Court noted, among other things, that the investigation changed hands four times and was still pending before the Malatya State Security Court. There were significant delays in seeking statements from witnesses and periods of a complete absence of activity. Of the two autopsies, the first was cursory and inaccurate, while the second omitted explanations and conclusions concerning marks and injuries on the bodies. There was no forensic examination of the scene or report regarding whether the victims were killed at the scene or how they were deposited at the scene. No investigative steps were taken to discover how the two victims had been transported from Elazig to Tunceli; a journey on the road connecting the two towns would have involved stopping at a series of official checkpoints along the 130 km route. The Court observed that the major, indeed the only, initiative in investigating alleged contra-guerilla and security force involvement had been taken by the relatives of the victims.

Accordingly, the Court was not satisfied that the investigation carried out into the killing of Dr Kaya and Mr Can was adequate or effective or that it had been conducted with the diligence and determination necessary for there to be any realistic prospect of the identification and apprehension of the perpetrators. The Court concluded that there had been in this respect a violation of Article 2.

Prohibition against torture: As the authorities knew or ought to have known that Dr Kaya was at risk of being attacked, the Court found that the failure to protect his life placed him in danger not only of extra-judicial execution but also of ill-treatment from persons who were unaccountable for their actions. The Government was therefore responsible for the ill-treatment suffered by Dr Kaya after his disappearance and prior to his death.

Lack of an adequate remedy: As it was undisputed that Dr Kaya was the victim of an unlawful killing and there was an arguable claim of a violation of Article 2, the authorities were under an obligation to carry out an effective investigation into the circumstances of the killing. However, no effective criminal investigation had ensued and therefore the applicant was denied an effective remedy for the killing of his brother.

In addition to Article 2, the Court found violations of Articles 3 and 13. The Court did not separately consider the applicant’s discrimination claim under Article 14, as it arose out of the same facts as his other claims. Pursuant to the provisions of Article 41 of the Convention (just satisfaction), the Court awarded 15,000 pounds sterling (approximately 24,000 euros) for non-pecuniary damages to Dr. Kaya’s heirs and 2500 pounds sterling (approximately 4,000 euros) to the applicant himself.

Endnote:

1. This summary is taken in part from the Court’s press release No. 214 of 28 March 2000.

Access to justice under the European Convention

The European Convention guarantees both the right to an effective remedy (Article 13) and the right to a fair trial (Article 6). Although the subject matter covered by these two articles overlaps (the absence of a fair trial of necessity constituting the lack of an effective remedy), their applicability to a particular situation can vary. Even a combination of the two provisions will not cover all potential claims, however. Article 6(1) of the European Convention provides, "In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. […]" The court has not clearly defined what is included in "civil rights and obligations," but it covers rights of a private law character (such as contract obligations or torts) and excludes public law rights unless they have financial or economic implications.6 "Civil rights" include certain types of social benefits,7 unjust dismissals,8 and decisions relating to the taking of children into public care.9

If a "civil right" as such is not involved, but a "fundamental right" is, then recourse can be had to Article 13 of the European Convention. Article 13 provides: "Everyone whose rights and freedoms as set forth in this convention are violated shall have an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity." That remedy is generally, but does not necessarily need to be, before a court of law. For example, an administrative agency whose decisions can be appealed to a court can provide effective redress.10

The right to an effective remedy for the violation of fundamental rights is guaranteed in numerous other international legal instruments as well. For example, Article 8 of the Universal Declaration of Human Rights states that "everyone has the right to an effective remedy by the competent national tribunals for acts violating the fundamental rights granted him by the constitution or by law." Article 2(3)(a) of the International Covenant on Civil and Political Rights (ICCPR) provides, "Each State Party to the present Covenant undertakes to ensure that any person whose rights or freedoms as herein recognised are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity." Article 6 of the International Convention on the Elimination of All Forms of Racial discrimination provides, "States Parties shall assure to everyone within their jurisdiction effective protection and remedies, through the competent national tribunals and other state institutions, against any acts of racial discrimination which violate his human rights and fundamental freedoms contrary to this Convention, as well as the right to seek from tribunals just and adequate reparation or satisfaction for any damage suffered as a result of such discrimination."

Some international instruments specifically provide for the right to monetary compensation, as well as other forms of remedy.11 In L. Karim v. the Netherlands12, the United Nations Committee on the Elimination of Racial Discrimination found that the Netherlands authorities had not responded adequately to racial threats against the victim and recommended that the state party provide the petitioner "with relief commensurate with the moral damage he suffered."13 Courts in Central and Eastern Europe are finally beginning to acknowledge the need for monetary compensation for moral as well as pecuniary damages. A Slovak appellate court recently recognised, for the first time under Slovak law, the right to non-pecuniary (moral) damages for emotional suffering on the part of a Romani woman whose teenage son was murdered by a group of skinheads who set him on fire.14

Despite these broad guarantees, there is little guidance as to what constitutes an "effective remedy" from international tribunals. The paucity of case law under Article 13 of the European Convention results from the Court’s reluctance to examine a complaint under Article 13 if it has considered a remedy under another article. Because the requirements of Article 13 are less strict than the guarantee of a right to a fair trial under Article 6, for example, a violation of Article 6 automatically encompasses a violation of Article 13 and the court rarely considers the Article 13 claim on its own.15 In addition, Article 13 can only be used with respect to rights guaranteed under the European Convention and not, for example, to enforce rights guaranteed under state laws that do not fall under the ECHR’s framework (such as a right to housing or to social benefits).

Access to a court

Whether a remedy is effective or a trial fair depends, in the first place, on getting the claim before a court or other tribunal. A relatively early case, Golder v. the United Kingdom,16 examined the issue of whether the guarantee of a fair trial under Article 6(1) applied to prospective proceedings or only to cases already pending before a court. Mr Golder was serving a fifteen-year sentence for robbery in Parkhurst Prison on the Isle of Wight. He claimed to have been wrongly accused by a prison officer of participating in a jailhouse disturbance. Even though no disciplinary charges were ever pursued, the allegations remained in his prison record and may have adversely affected his prospects for parole. He asked for permission from the Home Secretary to consult a solicitor in order to sue the guard for libel to challenge the accusation. Permission to contact a lawyer was refused. The Court held that although Article 6(1) did not expressly state a right of access to the courts, the procedural guarantees it provided would be meaningless without such a right. Thus, by preventing Mr Golder from communicating with a lawyer, the United Kingdom had prevented him from commencing legal proceedings and thus violated the provisions of Article 6(1). Accordingly, the right to a fair hearing under Article 6(1) includes the right of access to a court itself.

Refusals to prosecute or investigate crimes

Access to a court is often impossible in cases where investigators refuse to investigate and prosecutors refuse to prosecute, a pattern the ERRC has seen time and again when Roma are victims of crime, violence or police brutality. European Court and Commission admissibility decisions make it clear that the ability of the victim of a crime to have the alleged perpetrator prosecuted has not been recognized as an element of "access to justice" pursuant to Article 6(1).17 For example, in X v. Federal Republic of Germany,18 the European Commission concluded, "The right of access to the courts which Art. 6(1) of the Convention grants to anyone who seeks the determination of his civil rights does not include any right to bring criminal proceedings against a third person, either by means of a public prosecution or by means of a private prosecution."19 This means, simply stated, that there is no general right under Article 6(1) to have a criminal case brought to trial, either by the public prosecutor or privately. In some countries, however, the victim of a crime has the right under domestic law to bring a prosecution on his or her own if the prosecutor declines to prosecute. The legal right to do so is then a "civil right" for the purposes of Article 6(1), and denial of that right actionable under the European Convention.20

In some countries, such as Bulgaria and Romania, the refusal to prosecute a criminal case can also prevent a claim for civil damages.21 In such a case, the decision on whether to prosecute a claim would be determinative of the victim’s "civil right" to seek compensatory damages, thus triggering the protections of Article 6(1). The ERRC recently filed an application with the European Court of Human Rights in a case involving community violence in the village of Hadareni, Romania. There, villagers, joined by the police chief and members of the police department, killed three Romani men and burned down fourteen Roma-occupied houses following the death of a Romanian man in a fight. The Military Court, which handles claims against the police, declined to prosecute the police officers. Under Romanian law, a victim’s request for civil damages following a crime may be exercised only if the prosecutor issues an indictment and a criminal trial takes place. Thus, the victims were deprived of both criminal justice and civil compensation with respect to the police action, in violation of Articles 6(1) and 13.

Despite the inapplicability of Article 6(1) to the right to bring criminal proceedings, the failure to bring a prosecution may be regarded as a denial of the right to an effective remedy under Article 13 in cases involving violations of fundamental rights guaranteed under the European Convention. For example, in Kaya v. Turkey22, a case involving the torture and death of a Kurdish doctor by contra-guerillas acting with the tacit complicity of Turkish security forces, the Court found the victim’s brother was denied an effective remedy under Article 13 due to the lack of an adequate criminal investigation leading to the identification and prosecution of the perpetrators, along with substantive violations of Article 2 (right to life) and Article 3 (prohibition of torture).

Thus, the refusal of police and/or prosecutors to pursue criminal investigations and remedies against those who have committed crimes against Roma can, at least in some instances, be actionable under the European Convention and other international instruments.

Inadequate legal framework

Another common barrier to justice, particularly in the field of discrimination, is the lack of an adequate legal framework classifying the offence as a crime or violation. In Slovakia, for example, despite constitutional guarantees of equal treatment,23 there are no laws prohibiting discrimination and providing for penalties with respect to places of public accommodation. Thus, Roma who are turned away from restaurants, shops, or discotheques have no recourse under Slovak law against the owners of such establishments, the constitutional guarantees notwithstanding.24 The situation is changing, fortunately, as Slovakia is in the process of preparing a comprehensive anti-discrimination law, but there are no guarantees as to when that law will become effective or what form it will finally take.

Article 14 of the European Convention (prohibition of discrimination) at present applies only with respect to the fundamental rights and freedoms set forth in the convention, and has no independent application to discriminatory behaviour.25 Protocol 12 to the Convention, which prohibits discrimination on any ground secured by law and not only with respect to the rights guaranteed by the Convention, was signed by 25 member states of the Council of Europe, and will come into force as soon as ten states have ratified it. In addition, European Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin ("Race Equality Directive"), will require all EU member states (including prospective new members) to adopt comprehensive legislation guaranteeing equal treatment without discrimination on grounds of race or ethnicity by July 19, 2003. At least in this area, then, the barriers to access to a court for lack of a legal remedy should be lowered in the near future.26

Unreasonable length of proceedings

To quote a saying, "justice delayed is justice denied." In two of the cases described in the introduction to this paper, criminal complaints filed by Romani victims against persons who had violently attacked them had not yet been brought to trial at the time of writing, although the underlying incidents occurred in 1996 and 1997. With respect to European Court of Human Rights case law, whether the length of proceedings is so excessive as to give rise to a claim for denial of a fair trial or lack of an effective remedy depends upon various factors such as the complexity of the case,27 what is at stake for the applicant,28 and the conduct of both the state authorities and the applicant himself.29 Perhaps the best known European Court decisions relating to unreasonable delays are those involving a number of cases against Italy in the 1980s. In Pretto v. Italy,30 the applicant brought a lawsuit involving the sale of land before a regional court in September of 1971. Judgment was rendered in March 1973 and appealed in July. In October 1974, the appellate court reversed the regional court’s decision, which was then taken to the Court of Cassation in February 1975. After various appeals and cross-appeals, a final judgment was finally served on Mr Pretto in June 1977. In considering his claim under Article 6(1), the European Court took the relevant date as 1 August 1973, when Italy recognised the right to individual petition before the court, which meant a delay of three years, six months and five days. Applying the factors listed above (including complexity of the case and the conduct of the applicant and state officials), the Court concluded there was no breach of the "reasonable time" requirement.

The European Court has rejected arguments by governments attempting to justify delays due to inadequate staffing or administrative inconvenience.31 Criminal cases, by virtue of the applicant’s high personal stake in the proceedings, should be pursued more quickly than civil cases. The same rationale has applied in AIDS cases because of the dire health situation of the individuals involved and obvious urgency.32

It is somewhat ironic that the Court’s own delays often exceed the delays alleged to be unreasonable in domestic proceedings. For example, in the Pretto case discussed above, the Court’s decision was issued 8 December 1983, more than twelve years after the original complaint was filed and more than six years after the final judgment was served. It is not uncommon for a case to be pending for more than three years before the European Court even issues a ruling as to its admissibility.33 Delays with respect to criminal trials can give rise to claims under both Article 5 (right to liberty and security of person) and the "reasonable time" guarantees under the provisions of Article 6(1) of the European Convention. For purposes of this paper, only Article 6(1) is addressed.34

Access to a lawyer in criminal cases

Many states provide in domestic laws for access to a lawyer in criminal cases, with the state providing a lawyer for those who are unable to pay for one. Article 6(3)(c) of the European Convention provides that: "Everyone charged with a criminal offence has the following minimum rights: [ …] c. to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require."35 In determining when the interests of justice trigger the obligation to provide legal aid, the Court considers such factors as the seriousness of the offense, the potential sentence, and the complexity of the case.36 In many countries, those accused of minor crimes involving prison sentences of less than one year have no right to a state-funded attorney.37 This obviously has an adverse impact on Romani individuals accused of petty theft or other minor crimes.

In theory at least, any defendant accused of a serious crime has the right to a state-provided lawyer to defend him. The reality of the situation for many Roma and other defendants who must rely on state-funded legal assistance, however, is that the publicly funded lawyer is often overworked, underpaid, and sometimes disinterested in the ultimate outcome of the case. The lack of effective assistance by legal counsel can serve as a basis for appeal of a conviction, but it is often difficult to prove.

The right to legal aid in criminal cases does not necessarily extend to the appellate arena. Nonetheless, in cases involving complex issues or potential severe penal consequences, the European Court of Human Rights recognises such a right. In Granger v. U.K.,38 a witness in a criminal trial recanted his testimony on the witness stand and was charged with perjury. Following conviction, his solicitor concluded that there was no reasonable prospect of success. Based on this conclusion, the request for legal aid was denied.39 The European Court held that, because of the complex issues involved, the "interests of justice" under Article 6(3)(c) required that the refusal of legal aid should have been subject to review when the issues in the appeal proceedings proved more complicated than had been anticipated.

In Boner v. U.K.,40 a case decided four years after Granger, the applicant was arrested for armed robbery and received legal aid for his criminal defence. Following his conviction, he applied to the Scottish Legal Aid Board to extend legal aid to the appeal proceedings. The solicitor advised the Legal Aid Board that he did not see any "substantive grounds for appeal." Despite this, and despite the additional safeguards adopted after Granger requiring the Court to adjourn a hearing and recommend review of the refusal of legal aid if substantive grounds for appeal appeared, the Court found a violation of Article 6(3)(c). Because of the severity of the sentence the defendant was facing (eight years in jail), the interests of justice required legal aid for representation at the hearing of his appeal.

Access to a lawyer in civil cases

Although there is no specific requirement in the European Convention for legal aid in civil cases, such a requirement has been held to be a necessary component of access to justice in circumstances where legal representation is compulsory or where the complexity of the procedure is such that a lay person cannot be expected to have effective access in the absence of legal counsel. In Airey v. Ireland,41 the plaintiff wanted to petition for judicial separation from her husband but had no money to pay for a lawyer (divorce was illegal in Ireland at the time). Legal aid was not available under Irish law for civil matters. In finding a violation of Article 6(1), the Court held that the complexity of the family law procedure at issue mandated the assistance of counsel in order for the plaintiff to have effective access to the court. It is difficult to predict those circumstances where the Court would find the procedures sufficiently complex to require the provision of legal aid.42

Other financial barriers

The imposition of high court fees or security bonds can deny access to a court, in violation of Article 6(1). In Ait-Mouhoub v. France,43 the applicant was serving time for aiding and abetting armed robbery. He lodged a criminal complaint against two gendarmes alleging subornation of perjury and forgery and applied for legal aid to pursue the case. Legal aid was denied because his appeal on the criminal charges was still pending. In the meantime, the judge ordered payment of 80,000 French francs as security for the appeal. The European Court found a violation of the applicant’s right of access to a "tribunal" within the meaning of Article 6(1) because the amount of security of costs was disproportionately high with respect to the applicant’s means (which were nil). Thus, while requiring security on appeal can meet the legitimate needs of protecting other litigants and guaranteeing payment of civil fines, the costs cannot be so high as to deprive the prospective litigant of the ability to bring his or her case.

Immunities

In some cases, those persons responsible for mistreatment of Roma and others are immune from civil and criminal prosecution because of the positions they occupy — often as politicians, military or police officers, or other public authorities. For example, in August 2000, Slovak Member of Parliament Vit’ezslav Moric made a public statement that Roma should be placed on reservations similar to U.S. Indian reservations.44 The Romani Intelligentsia Party filed a criminal complaint alleging incitement to racial hatred, defamation, spreading false reports, and supporting movements aimed at the suppression of rights and freedoms of others. The complaint was dismissed because, as a Member of Parliament, he was immune from prosecution.45 Such immunities clearly impede access to justice, but may not rise to the level of a violation of the Convention.

The European Court, in determining whether the existence of an immunity violates the right to access to a court under Article 6(1), balances the public purpose served by the immunity against the competing public interest in accountability for actions. In Osman v. United Kingdom,46 thepolice failed to provide adequate protection to a school boy and his family, who had been repeatedly threatened by the boy’s former teacher. Ultimately, the teacher shot and killed the father and wounded the son. The applicant’s claims against the police for negligence were dismissed by the British courts based upon public policy exclusions of actions in negligence against the police in the performance of their duties. The European Court, while noting the legitimacy of such an exclusionary rule, imposed a balancing test with respect to the degrees of negligence and the harm suffered, concluding that blanket immunity was a violation of the Convention.47

In another United Kingdom case, Fayed v. United Kingdom,48 the applicants challenged the immunity conferred on the authorities investigating the company’s affairs. In that case, the Court held the public interest underlying the immunity (the ability to publish a report on the investigation without lengthy judicial hearings) was proportional to the restriction imposed, particularly in view of the procedural guarantees observed during the investigation. Similar immunities can apply to other public officials in the performance of their duties, including social workers and other public assistance providers.

According to both European Court case law and general common sense, such immunities cannot be absolute and must be proportionate to their legitimate aims. For example, immunity would not be a valid defence to police officers acting intentionally in inflicting violence on or other abuse against Roma, but it might protect them and other public officials from lawsuits in less extreme circumstances.

Other procedural restrictions

The Court does recognise states’ rights to regulate access to courts, but any limitations must pursue a legitimate aim, and the restriction must be proportionate to that aim. If the restriction is disproportionate, then the "essence" of the right of access under Article 6(1) is violated. Acceptable limitations include imposing time requirements within which a complaint must be raised, and limitations on access to minors, persons of unsound mind, bankrupts, or vexatious litigants.49

The criteria for determining acceptability of a procedural restriction were outlined by the Court in Ashingdane v. United Kingdom.50 In that case, U.K law required prior approval from the court before mental patients could bring legal proceedings against their providers. In upholding the restriction, the Court noted the legitimate aim of protecting those working in mental hospitals from being unfairly harassed by their patients. Because such lawsuits could proceed if the court were persuaded that the worker acted in bad faith or without reasonable care, the European Court concluded the right to access was not unduly impaired. Thus, a limitation may be acceptable under Article 6(1) if it pursues a legitimate aim and if there is a reasonable relationship of proportionality between the means employed and the aim sought to be achieved.51

Closing comments

Securing the right to bring a complaint before a tribunal is only the first step in insuring access to fair, prompt resolution of claims, both civil and criminal. Access to justice, in both the narrow legal sense and the broader practical sense, involves complex legal and social issues that do not lend themselves to easy solutions. Nonetheless, international legal instruments do provide some guarantees and avenues to be pursued in many circumstances where state-level protections have fallen short of the mark. Romani citizens of various countries, who are often victims of discrimination and poverty and frequently lack awareness of their rights, are often left out in the cold when the courthouse doors close. A better understanding of the rights afforded by international human rights conventions is at least a step towards removing some of the obstacles to justice they face.

Endnotes:

  1. Gloria Jean Garland is Legal Director of the European Roma Rights Center.
  2. ERRC Communication to the United Nations Committee Against Torture in the Matter of Danilo Dimitrijevic v. FR Yugoslavia, 7 August 2000.
  3. ERRC Application to the European Court of Human Rights in the Matter of Anguelova and Iliev v. Bulgaria - February 2000.
  4. ERRC Application to the European Court of Human Rights in the Matter of Sandor Kalanyos et al. v. Romania - 57884/00, (2000).
  5. ERRC Application to the United Nations Committee on the Elimination of Racial Discrimination in the Matter of Miroslav Lacko v. Slovakia - 22 December, 1998, No. 11/1998.
  6. The ICCPR contains similar language. The African [Banjul] Charter on Human and Peoples’ Rights covers “fundamental rights,” and the 1978 American Convention on Human Rights covers “rights and obligations of a civil, labor, fiscal, or any other nature.” See McBride, “Access to Justice Under International Human Rights Treaties”, The Parker School Journal of East European Law, Vol. 5, 1-2, 1998, pp.4-7. Generally speaking, “public law” rights include those falling under the state’s regulation of activities in the public interest, such as passport and naturalization proceedings, asylum claims, state compensation for natural disasters, and relationships between the state and civil servants.
  7. For example, social security benefits (Schuler-Zgraggen v. Switzerland A 263 (1993), health insurance Feldbrugge v. Netherlands A 99 (1986) and supplementary widow’s pension under industrial-accident insurance (Deumeland v. Germany A 180 (1986).
  8. Obermeier v. Austria A 179 (1990).
  9. Olsson v. Sweden (No 1) A 130 (1998).
  10. See Leander v. Sweden A 116 para 77 (1987).
  11. For example, Article 10 of the American Convention on Human Rights provides for the “right to be compensated in accordance with the law.” Article 21(2) of the African Charter on Human and People’s Rights affirms the “right to an adequate compensation.” Article 9(5) of the ICCPR and Article 5(5) of the European Convention refer to the “enforceable right to compensation.” The ILO Convention Concerning Indigenous and Tribal Peoples in Independent Countries, adopted by the General Conference of the International Labour Organisation on June 27, 1989, and in force as of September 5, 1991, requires “fair compensation for damages” (Art. 15(2), “compensation in money” (Art. 16(4)), and compensation “for any loss or injury.” (Art. 16(5)).
  12. Case No. 4/1991.
  13. Ibid., para. 6.9.
  14. Borosova v. Ferko, case no. 15 Co 46/00 decision issued January 31, 2000.
  15. See Hentrich v. France A 296-A para. 65 (1994): “In view of its decision in respect of Article 6 para. 1, the Court considers it unnecessary to look at the case under Article 13 of the Convention; this is because the requirements of that provision are less strict than, and are here absorbed by, those of Article 6 para. 1.” Dutertre and van der Velde, Key Extracts from a Selection of Judgments of the European Court of Human Rights and Decisions and Reports of the European Commission of Human Rights, published by the Council of Europe, 1999.
  16. Golder v. UK A 18 (1975).
  17. See, e.g., J. McBride, “Access to Justice Under International Human Rights Treaties”, Op.cit. and cases cited therein.
  18. 7 D.R. 91 (1976).
  19. See also Wallen v. Sweden, 43 D.R. 184, 185 (1985): “The right under Article 6(1) to have a criminal charge determined is only a right for the accused and not a right for the victim of the alleged criminal offence, or for anyone who makes a charge against another.”
  20. See Helmers v. Sweden A 212-A (1991).
  21. Bulgarian Civil Procedure Code Article 182(d); Romanian Criminal Procedure Code Articles 14 and 15.
  22. Kaya v. Turkey. Judgement of 28 March 2000. Case available on ECHR website: http://hudoc.echr.coe.int.
  23. Article 12, paragraph 2 of the Constitution of the Slovak Republic provides, “Fundamental rights shall be guaranteed in the Slovak Republic to every person regardless of sex, race, colour, language, faith, religion, political affiliation or conviction, national or social origin, nationality or ethnic origin, property, birth or any other status, and no person shall be denied their legal rights, discriminated against or favoured on any of these grounds.”
  24. ERRC Application to the United Nations Committee on the Elimination of Racial Discrimination in the Matter of Miroslav Lacko v. Slovakia - 22 December, 1998 No. 11/1998.
  25. Rasmussen v. Denmark A 87 para. 29 (1984).
  26. On the implications of the Race Equality Directive, as well as on ERRC action in promoting its full implementation, see the “Advocacy” section of this issue of Roma Rights, at p.63.
  27. See Konig v. Germany, 2 EHRR 270, (1978), para 99.
  28. Buchholz v. Germany, 3 EHRR 597, (1981), para 49.
  29. Konig v. Germany, Op. cit., para 99.
  30. Pretto v. Italy A 71 (1983).
  31. D. Gomien, D.J. Harris, L. Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter, Council of Europe publishing, Strasbourg, 1996, citing the De Cubber judgment of 26 October 1984, and the Guincho judgment of 10 July 1984.
  32. See K. Reid, A Practitioner’s Guide to the European Convention of Human Rights, London: Sweet & Maxwell, 1998, pp.409-412 (chart of cases).
  33. This comment is based upon the ERRC’s own experiences before the Court.
  34. For more comprehensive discussions of the guarantees under Article 5, see for example: Gomien, Harris, Zwaak, Law and Practice of the European Convention on Human Rights and the European Social Charter, Op. cit., pp.127-154. A European Court official, who shall remain anonymous, remarked to ERRC staff that it was fortunate the Court itself was not a signatory to the Convention; otherwise, it would often be in violation of Article 6.
  35. The International Covenant on Civil and Political Rights and the American Convention on Human Rights all recognize the right to have a lawyer provided if the defendant is unable to pay, but the African [Banjul] Charter on Human and Peoples’ Rights does not. See J. McBride, “Access to Justice Under International Human Rights Treaties”, Op. cit.
  36. See Quaranta v. Switzerland A 205 paras 32-34 (1991).
  37. In Slovakia, for example, the Criminal Procedure Code (Art. 36) does not guarantee an attorney for defendants accused of crimes punishable by a maximum sentence of less than five years.
  38. Granger v. UK A 174 (1990).
  39. Under Scottish law, legal aid is administered by the Scottish Legal Aid Board, an independent body whose members are appointed by the Secretary of State. To grant legal aid with respect to an appeal, the Legal Aid Board requires an application by the solicitor supporting the grounds of appeal and the solicitor’s opinion as to whether those grounds are substantial.
  40. Boner v. UK A 300-B (1994).
  41. Airey v. Ireland A 32 (1979).
  42. Compare, for example, Munro v. United Kingdom, 52 D.R. 158 (1987), where the Commission upheld a refusal of legal aid by concluding that a defamation case had less serious potential consequences than the judicial separation at issue in Airey. On Council of Europe standards on legal aid in general, and cross-border legal aid in particular, see the “Legal Defence” section of this issue of Roma Rights, p.83.
  43. Ait-Mouhoub v. France, Reports 1998-VIII.
  44. See Roma Rights No. 3, 2000, Snapshots from Around Europe, pp.23-24.
  45. The Slovak Parliament subsequently stripped him of his immunity by a vote of 65 to 27.
  46. Osman v. UK Judgement of 28 October 1998. Case available on ECHR website: http://hudoc.echr.coe.int.
  47. Ibid, para. 151-154.
  48. Fayed v. UK A 294-B (1994).
  49. Reid, A Practitioners’ Guide, Op. cit., pp.64-65. A “vexatious litigant” is one who repeatedly brings lawsuits lacking in merit.
  50. Ashingdane v. UK A 93 (1985).
  51. Ibid, para. 57.

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