Written Presentation Submitted by the ERRC to the OSCE Review Conference in Vienna
19 November 1996
There is no doubt that the past seven years have meant an important evolution towards a stronger commitment to human dimension issues on the part of the OSCE participating states. Especially in the field of human rights and fundamental freedoms, the achievements in standard-setting have been substantial. Significant steps have been taken to fully ensure the respect for human rights, both by strengthening the already existing CSCE provisions and by formulating new ones. Minority rights have also seen substantial progress.
Roma have not been left out of these positive developments. The first explicit recognition of the particular problems faced by Roma was made already in June 1990, during the Copenhagen Meeting of the Conference on the Human Dimension of the CSCE when the rise of ethnic hatred and ethnically motivated violence was brought to discussion. The precarious situation of the Roma was further discussed and unequivocal condemnations of discrimination against them were expressed during the subsequent human dimension meetings and seminars held in Geneva, Moscow, Helsinki and Warsaw. One significant result of these discussions was the establishment of the Contact Point for Roma and Sinti Issues within the ODIHR in 1994.
There were other positive results as well. In Article 4, paragraph 40 of the document of the Copenhagen Meeting, the participating states unequivocally condemn racial and ethnic hatred and discrimination and declare their firm intention to intensify the efforts to combat these phenomena in all their forms. Protection against threats or acts of discrimination, hostility or violence, be it on racial, ethnic, cultural, linguistic or religious grounds, is to be provided, both by adoption of appropriate laws (paragraph 40.1) and by effective measures in practice (paragraph 40.2).
Roma, however, continue to face persecution. Despite the numerous human dimension commitments agreed upon by the OSCE participating states, almost everywhere, their fundamental civil rights remain threatened. Countless local and international human rights NGOs have noticed the alarming rise of racist violence targeting Roma since the fall of Communism. Discrimination against Roma in employment, education, health care, administrative and other services is typical in most societies, and hate speech against them deepens the negative anti-Roma stereotypes which characterize European public opinion. The work of the European Roma Rights Center reveals that human dimension provisions have not been effectively implemented in a number of OSCE participating states.
The implementation of the OSCE participating states firm commitment to take all necessary measures to protect Roma against acts of violence in practice is therefore an issue of primary concern. Roma continue to face violence all over Europe. The prevailing patterns vary country by country and they change over time; violence against Roma can take form in mobs of co-citizens attacking Roma and their property at the community level, skinheads and other extreme-right groups committing acts of violence in public places, or law enforcement officials resorting to excessive use of force when involved in incidents with Roma. The latter form of violence is particularly alarming, since the fact that the threat comes from an official institution-- the police-- amounts to a tacit approval of racism and racist attacks against Roma among the public.
OSCE participating states commitments to ensure the democratic functioning of law enforcement are expressed in the Document of the Moscow Meeting of the Conference on the Human Dimension of the CSCE held in 1991. The implementation of these commitments, especially those ensured in Article 2, paragraphs 21-25, have clearly proven insufficient in several countries. Particular attention should be given to the full implementation of paragraph 25 along with Article 1, paragraph 5 of the Document of the Copenhagen Meeting, according to which the participating states ensure that their police forces be placed under control by civil authorities.
Where proper legislation with regard to the respect for human rights was previously lacking, as was the case in the countries of Central and Eastern Europe after the fall of Communism, law reform has been initiated. Legal provisions for the redress of human rights violations have by now been adopted in most countries. However, while proper human rights legislation is a precondition for ensuring the rights of Roma as equal citizens in participating states of the OSCE, it does not alone cease the actual discrimination against them. This is because of the tension between the human rights norms agreed upon and the inappropriate application or failure to apply the newly adopted legislation.
This is especially true in the case of legal provisions concerning racially motivated crime. Hungary, the Czech Republic and Slovakia have all adopted laws stipulating increased penalty for crimes proven to be racially motivated. It now remains to be seen how these laws will be applied. Courts have a broad margin of appreciation to define what they consider reasonable proof that a crime is racially motivated, and in all of the states above, they have proven reluctant to take the liberal view. Further, in several instances, local prosecutors have attempted to charge Roma with racially motivated crime when Roma sought revenge against skinheads for earlier attacks. Should this prove to be a regional pattern, it would be a demoralizing one.
The task at hand is therefore now multi-faceted. In states where legal provisions regarding human dimension commitments are still weak or dysfunctional, pressure should be brought to bear to improve them. In states where strong legal provisions on discrimination and racially motivated crime already exist, however, the painstaking and piecemeal work of monitoring and reporting on legal aberrations, building case law and precedent and creating the environment for a healthy legal culture still lies ahead. Law reform is merely a first step; proper implementation has yet to follow.
The legal aspect of the implementation of human dimension issues would be a purely technical problem if it involved simply raising the countries of Central and Eastern Europe to the legal standards enshrined in the West. However, developments since 1989 have shown that legal rights are easily eroded, and that many states in Western Europe have diluted their commitment to the rule of law in adverse political or economic circumstances. Universal legal standards were damaged, for example, when Germany amended its asylum law in 1993, introducing clauses which robbed individuals of their right to due process. Now that the German precedent is being adopted as European policy, ersatz versions of the idea of law are being adopted all over the region as if they represented acceptable legal standards.
In recent weeks, the European Roma Rights Center has become concerned about pending deportations of Roma persons to republics of the former Yugoslavia, particularly to Bosnia and the Federal Republic of Yugoslavia (FRY). The ERRC believes that however expensive asylum procedure can be, no one should be deprived of access to it. But asylum in this case is only a very limited venue to a just and humane settlement. The de facto refugees in Germany whose special protection expired in the end of 1995, should have more options today than asylum and deportation. We believe that the Roma who have come to Germany from the former Yugoslavia, particularly from Bosnia and the Federal Republic of Yugoslavia (Serbia and Montenegro), are a special case. Persons belonging to this group are more likely to be eligible for asylum or work permit than non-Roma. It is our opinion that persons of this category face additional threats to their fundamental rights if they are sent back to specific places in the former Yugoslavia.
To a significant extent, of course, a successful implementation of commitments agreed upon depends on the political will in individual countries. It is however clear that several human dimension commitments need further elaboration for a more effective protection of the fundamental rights of Roma. The adoption of legislation criminalizing racially motivated crime is fundamental; states which have not yet adopted such legislation must do so for the human dimension commitments to have any effect on the situation of Roma. Where states have already adopted such legislation, effective mechanisms for the supervision of its proper implementation should be created. Another step of no less importance is the promotion of human rights education, as it is expressed in Article 42 of the Document of Moscow with a special reference to Roma. Again, particular stress should be laid on the human rights training of law enforcement personnel, along with an enforced commitment to bring the individual states legal regulations on police powers in harmony with international standards.
The European Roma Rights Center stresses the importance of effective human rights monitoring of the situation of Roma in Europe and suggests that the High Commissioner for National Minorities undertake fact-finding missions to countries where the human rights and fundamental freedoms are most threatened. An OSCE report assessing the situation of Roma should be very welcome. Additionally, the authority of the Contact Point for Roma and Sinti Issues at the ODIHR should be strengthened. At present this office is understaffed and lacks the resources to work effectively. Finally, the European Roma Rights Center believes that broader involvement by NGOs in OSCE activities concerning Roma will help improve the human rights situation of this minority across the OSCE region.
The European Roma Rights Center is an international non-governmental organization monitoring the human rights situation of Roma and defending the rights of Roma individuals across Europe.