The European Court of Human Rights is Failing Roma: Negrea and Others v Romania
Imagine someone came up to you on the street and slapped you across the face. And, while you were dazed, he stole your wallet.
Not very nice. You’d be right to report him to the police. And to go to court to testify about what he did to you. And to expect the judge to deliver justice.
Imagine now you are having your day in court. The judge has considered the evidence and is about to deliver her verdict. Instead of speaking from the bench, though, she stands up, steps off the elevated platform, and walks towards you. She is walking fast enough so her robe flows a bit behind her. She gets right up in your face.
“The defendant”, she says, while she raises her hand, “is guilty of smacking you”. And just as she says “guilty”, she smacks you, with her own open hand, right across your face. Just like the defendant did.
And then she adds: “But the defendant is guilty of nothing else”.
So you can forget about your stolen wallet.
It was a bit less violent, but that is much like what European Court of Human Rights did to six Romani women in a judgment delivered recently.
The women asked for a cash benefit that Romania provides for all newborn infants. The women put in their requests between 2001 and 2003, when their children were born. They were refused by a civil servant who told them they were ineligible because they weren’t married. The civil servant was wrong: it does not matter if the parents of the newborn are married?
(Was the civil servant a lying racist? Bear with me – we’ll get there.)
The ERRC helped these women take a discrimination case through the national system, and, in 2007, having found that that system had failed them, we represented them in a case before the European Court of Human Rights. We sent in the complaint on 28 November 2007. Judgment was delivered on 24 July 2018.
Part of the complaint was about the delays in dealing with the case. In particular, with our help the women had filed a criminal complaint against the civil servant for discrimination, and the police had never dealt with it. In the end, it took the police almost eight years – from 16 July 2003 to 14 April 2011 – to deal with the case (which they closed by the way, without prosecuting the civil servant).
The European Court found that this was too long. So long it violated the women’s right to a fair trial, as victims of the alleged crime. So almost ten years and seven months after the applicants brought their complaint to the European Court, the European Court said that making them wait seven years and nine months for justice had violated their human rights.
For those of you who are mathematically minded, I offer you the following formula: 7.75 years + WTF = 10.5 years
People familiar with the European Court will be yawning by now. “Yeah, yeah, the European Court is so slow and overburdened, it violates its own standards on fair trials”.
But something more seems to be going on here. The ERRC is currently involved in 52 cases pending before the Court. In most of those we are representing Romani victims of human rights violations; in about a third of them we are intervening as third parties. And all these cases are going very, very slowly. We are waiting around three or four years for the Court to take each single step in the case.
The Court, quite rightly, has a priority policy. The Court deals more quickly with cases that concern serious human rights violations: for example people facing imminent torture, people currently in prison or detention that they claim is the result of a human rights violation, or cases concerning the well-being of children. So cases move through the European Court at different speeds.
The Negrea case did not meet the criteria to be prioritised. But eleven years? The Court may have no choice but to deal with “low priority” cases so slowly – rampant human rights violations and a lack of resources creating excessive demands. But I don’t hear the European Court sounding the alarm about what must, then, be a crisis. When I attend the meetings the Court holds with NGOs once every two years, they spend most of the time telling us how efficient they’ve become that we need to do better. They are rigidly defensive (and more than a touch arrogant). They do not come across as shocked or dismayed at how long justice is taking. The next meeting is on 30 November – I’ll let you know if their attitude has changed.
I am also worried about the way this priority policy is specifically working for Roma. First, I think the Court is wrong in many cases in deciding that a case is low priority. We are representing Romani teenagers currently in prison in circumstances we have alleged amount to ill-treatment; the Court has refused to prioritise the case, or even write us back about in over a year. We have cases of school segregation that have been pending for well over a year without a first step being taken. Under the Court’s own prioritisation policy, these should be on the fast track. They clearly aren’t.
But I admit that most of the cases in which we are supporting Roma before the European Court don’t meet the criteria for priority. They are the kinds of grinding, everyday forms of discrimination that have become so common from centuries of antigypsyism: a cop beats you up and the prosecutors have done nothing about it for years; racist laws that criminalise begging are used against you; or a benefits officer refuses your request for a newborn-baby allowance because you’re not married, even though that’s not the rule.
There is a concept in discrimination law called “indirect discrimination”. It means that a rule that looks neutral on its face – such as the Court’s priority policy – yet has a discriminatory impact on Roma, and is unjustifiable, should be ruled illegal. I am beginning to wonder if the Court’s way of dealing cases is impacting negatively on Romani applicants, and whether it can be justified. And so whether it amounts to discrimination.
We represented Roma in eleven new cases before the European Court last year and we have so far brought twelve new cases this year, record numbers for us. We’ll be watching closely how they are handled, along with the ten cases in which we have intervened as a third party in the past two years.
Oh and before we finish – was that civil servant a lying racist? Well, that we’ll never know, since we cannot get inside her head. But the European Court said there was no discrimination. The women, supported by the ERRC, did not bring enough evidence to show that this made-up “you have to be married” rule was discriminatory – either directly used against the women because they were Roma or indirectly discriminatory because it was unjustifiable and had a disparate impact on Roma. Despite the environment of antigypsyism in which the rule was made up, and the intersectionally vicious stereotypes about Romani families, there was not enough evidence of discrimination.
The Court is making it very, very difficult for Roma to prove discrimination, despite the well-accepted legal principle that victims of discrimination bear a lower burden of proof than in ordinary legal proceedings. This is not right. Authoritative international institutions constantly deliver damning reports about antigypsyism, but the European Court (and national courts) set the bar so high that actual victims who try to secure justice are blocked.