The Strasbourg Court Finally Redresses Racial Discrimination

27 May 2004

Branimir Pleše¹

In 26 February 2004, the European Court of Human Rights ("the Court") announced its judgment in the case of Nachova and Others v. Bulgaria.² The Court unanimously found the Bulgarian state responsible for the deaths of two Romani men as well as its subsequent failure to conduct an effective official investigation, in violation of Article 2 of the European Convention on Human Rights ("the Convention"). Most importantly though, for the first time in its history, the Court also found a violation of the guarantee against racial discrimination contained in Article 14 taken together with Article 2, and in doing so stressed that the Bulgarian authorities had failed in their duty to take all possible steps to establish whether or not discriminatory attitudes played a role in the events at issue. This article will focus on the Court's evolving jurisprudence concerning the standard of proof and the burden of proof in general and as applied in cases of racial discrimination and outline the main arguments contained in the amicus brief filed by the European Roma Rights Center (ERRC) on 21 May 2002 which ultimately lead to the Court's landmark judgement in Nachova.

Introduction

The term standard of proof, also known as the quantum of proof, refers to "the degree of probability to which facts must be proved to be true",³ while the term burden of proof, also known as the onus of proof, concerns "the legal obligation on a party to satisfy the fact-finder, to a specified standard of proof, that certain facts are true".⁴ In Nachova, the ERRC sought and was granted permission to provide the Court with its written comments concerning the relevant international and comparative jurisprudence on issues involving both the burden of proof and the standard of proof as applied in cases of discrimination. In its brief, the ERRC also elaborated upon the ever more pressing need for the Court to re-evaluate its current approach to these issues, the ultimate goal being to secure practical and effective redress to all victims of discrimination.

The ERRC Amicus Brief in Nachova v. Bulgaria

The ERRC began by addressing the practical difficulties attached to the current "reasonable doubt" standard of proof and explained how that standard is more appropriate in a criminal rather than a human rights context. It then turned to a discussion of some of the creative remedies that various courts have fashioned to address certain evidentiary issues, such as inferences, presumptions, and shifts in the burden of proof where needed to assure justice. The ERRC noted the growing consensus, particularly in Europe, for a shift in the burden of proof with regard to claims of discrimination, and the international recognition given to the special nature of human rights abuse based on race and ethnicity. Finally, the ERRC proposed an approach which would take into account both the serious nature of human rights claims filed against a given state and the need for a reasonable and attainable level of proof in order for Article 14, like the Convention, to live up to its potential as a tool to combat racism and related intolerance. Some of the issues raised in the ERRC amicus brief in Nachova follow below:

a) The pre-Nachova standard of proof under Article 14 with respect to claims of racial discrimination is inconsistent with international human rights standards and renders the Convention's protections illusory

One aspect of the ERRC amicus brief addressed the issue of overly strict standards of proof, as applied prior to the adoption of the landmark decision in Nachova. Nothing in the Convention or Rules of Court mandates a particular standard of proof - international courts are free to set the most appropriate standards based on their experience.⁵ There is a close relationship between the effective protection of substantive rights and the required allocation and standard of proof.⁶ The Court's application, pre-Nachova, of a beyond-a-reasonable-doubt standard for substantive violations including Article 14, which some commentators have characterised as a 95% or more probability of a fact,⁷ is more appropriate in an adversarial criminal context than with respect to human rights violations. The Inter-American Court of Human Rights outlined the differences as follows:

"The international protection of human rights should not be confused with criminal justice. States do not appear before the Court as defendants in a criminal action. The objective of international human rights law is not to punish those individuals who are guilty of violations but rather to protect the victims and to provide for the reparation of damages resulting from the acts of States responsible."⁸

This principle was further elaborated in a dissenting opinion in the case of Labita v. Italy, heard by the European Court of Human Rights:⁹

"[T]he standard of proof 'beyond all reasonable doubt' is, in certain legal systems, used in criminal cases. However, this Court is not called upon to judge an individual's guilt or innocence or to punish those responsible for a violation; its task is to protect victims and provide redress for damage caused by the acts of the State responsible. The test, method and standard of proof in respect of responsibility under the Convention are different from those applicable in the various national systems as regards responsibility of individuals for criminal offences."¹⁰

This Court has held that the Convention "is intended to guarantee not rights that are theoretical and illusory but rights that are practical and effective."¹¹ Yet an analysis of the pre-Nachova case law under Article 14, including a series of cases involving the alleged killing or torture of Kurds by Turkish authorities¹² or of Roma by Bulgarian authorities,¹³ indicates that this high standard of proof has in effect prevented the Court from finding a violation of Article 14 even in these egregious cases, thus rendering illusory or hypothetical the cornerstone protection intended by Article 14. This was especially troubling in situations where the evidence that might meet the "reasonable doubt" standard was in the hands of the state, and the state refused to cooperate.¹⁴

For example, in the case of Velikova v. Bulgaria, another ERRC case, the applicant claimed her husband's Romani ethnicity was a decisive factor in his ill treatment and murder while in police custody. She cited widespread prejudice and instances of racially motivated violence, often carried out with impunity against Roma in Bulgaria, as documented by human rights monitoring organisations and even acknowledged by the Bulgarian government. Despite this evidence, the Court was unable to find a violation of Article 14:

"The Court observes that the applicant's complaint under Article 14 is grounded on a number of serious arguments. It also notes that the respondent State failed to provide a plausible explanation as to the circumstances of Mr. Tsonchev's death and as to the reasons why the investigation omitted certain fundamental and indispensable steps which could have shed light on the events ... The Court recalls, however, that the standard of proof required under the Convention is 'proof beyond reasonable doubt.' The material before it does not enable the Court to conclude beyond reasonable doubt that Mr. Tsonchev's death and the lack of a meaningful investigation into it were motivated by racial prejudice, as claimed by the applicant. It follows that no violation of Article 14 has been established."¹⁵

Short of a written policy or specific admission from a state official that someone's race or ethnicity was a factor in treatment violating Articles 2 or 3 of the Convention, it is difficult to imagine what kind of evidence would meet the "reasonable doubt" standard, as evidenced in Velikova and other similar cases. If testimony from the mistreated individuals, medical certificates, and reports from international or non-governmental organizations substantiating disturbing trends with respect to the treatment of particular racial or ethnic minorities are not sufficient to at least require further investigation or to shift the burden of proof to the state, then, the ERRC argued, the protections of Article 14 simply must be deemed illusory.

b) The Court has not hesitated to lighten or shift the burden of proof or resort to inferences or presumptions in other contexts as needed to reach a just result - such an approach should apply with equal force to Article 14 cases

This Court and other international courts have not hesitated to shift or lighten the burden of proof in certain instances, particularly those cases involving violation of fundamental rights or where the evidence that would prove the case is under the control of the perpetrator. When an individual dies or is injured while in custody, the burden is on the state to provide a satisfactory explanation.¹⁶ The failure to undertake an effective official investigation can result in a finding of a procedural violation of Article 2 or 3.¹⁷

The UN Human Rights Committee has similarly held that "the burden of proof cannot rest alone with the author of a communication, especially considering that the author and the State party do not always have equal access to the evidence and that frequently the State party alone has access to the relevant information … Mr Mukong has provided detailed information about the treatment he was subjected to; in the circumstances, it was incumbent upon the State party to refute the allegations in detail, rather than shifting the burden of proof to the author."¹⁸

More recently, the ERRC argued, the Court has itself demonstrated a trend towards stepping back from the "reasonable doubt" requirement with respect to substantive violations of the Convention through the use of inferences where a government has failed to cooperate in providing evidence. For example, in two more recent Turkish cases, the Court held that the government's failure to submit information to which it alone had access may give rise to an inference that the applicant's case is well founded.¹⁹

A similar shifting of proof was also articulated with respect to a recent case concerning the collective expulsion of aliens, where the Court held:

"The Court reiterates its case law whereby collective expulsion, within the meaning of Article 4 of Protocol No. 4, is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual alien of the group ... [Given the facts of this case] ... and in view of the large number of persons of the same origin who suffered the same fate as the applicants, the Court considers that the procedure followed did not enable it to eliminate all doubt that the expulsion might have been collective ... [Therefore] ... there has been a violation of Article 4 of Protocol No. 4."²⁰

Both the wording and reasoning of the judgment suggest that (1) the applicants had initially successfully raised an arguable claim of a violation of Article 4 of Protocol 4, (2) it was then up to the respondent government to "eliminate all doubt that the expulsions might have been collective," and (3) having failed to do so, the government was found to have violated the Convention.

Thus, the ERRC argued, the cited jurisprudence makes it clear that where important and fundamental rights are involved, the Court may use presumptions, inferences, or shifts in the burden of proof as tools in its efforts to secure adequate protection against human rights violations. In view of the growing international consensus as to the fundamental nature of the ban on racial discrimination, there are similarly compelling reasons to do the same when it comes to complaints raised under Article 14 of the Convention.

c) International and comparative anti-discrimination legislation and jurisprudence reflects a clear and growing trend of shifting the burden of proof to the alleged perpetrator

In its brief the ERRC stressed that the Court has repeatedly stated that an evolving or dynamic approach to the interpretation of the Convention is required if its object and purpose, the protection of individual rights, is to be fulfilled. In Tyrer v. United Kingdom the Court stated "that the Convention is a living instrument which … must be interpreted in the light of present-day conditions." (2 EHRR 1, 1978, para. 31.) Dramatic evidence of this evolution with respect to discrimination can be seen in the proposed Protocol 12, signed by 25 member states upon its presentation, which expressly recognizes the right to be free from discrimination as a general, not accessory, right.

The European Union standard on burden of proof with respect to claims of discrimination is embodied in the recent "race equality directive," which became binding on the member states on 19 July 2003.²¹ The directive stipulates that once a plaintiff establishes "facts from which it may be presumed that there has been direct or indirect discrimination," the burden of proof shifts to the respondent to prove there has been no breach of the principle of equal treatment.²²

This standard is the result of over twenty years of progressive liberalization and improvements that have evolved since the first EU gender directives in the mid-1970's.²³ In view of the intrinsically weaker position of an employee, as compared to an employer, the European Court of Justice (ECJ) went on to develop the principle of "transparency" of the employer's acts or omissions. This principle requires that once a prima facie breach is established, the burden of proof shifts to the defendant to provide the court with an objective justification, based on non-discriminatory criteria, for the adoption of the measure at issue.²⁴

The "race equality directive" is the end result of a long and thoughtful process, and reflects developments in both ECJ and other domestic and international legislation and jurisprudence. It offers a compelling perspective within which the Court may wish to re-evaluate its current approach to corresponding issues under the Convention - the ultimate goal always being to secure practical and effective protection to all victims of discrimination.

EU member states apply a similar approach, placing "a heavy onus on the employer" to satisfy the tribunal that a requirement or condition resulting in less favorable treatment for a protected group was necessary.²⁵ In an extraordinary departure from the normal German legal standard of full judicial persuasion (beyond a reasonable doubt), Section 611a of the German Civil Code provides that in an employment context, the employee needs to show gender discrimination by a mere preponderance of the evidence.²⁶

In the Netherlands, the allocation of the burden of proof may change pursuant to certain rules or requirements of reasonableness and fairness, which in labor discrimination cases has been used as a basis to shift the burden of proof to the employer in view of the inequality of the parties.²⁷ The Dutch Supreme Court in Binderen/Kaya confirmed the shifting of the burden of proof in cases of discrimination.²⁸

The European Union standard and directives are in keeping with legislation and jurisprudence from other jurisdictions as well. The United States Supreme Court in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 802 (1973) stated that the complainant carries the initial burden of establishing a prima facie case of discrimination. Once that is done, the burden shifts to the employer to articulate a legitimate, nondiscriminatory reason for its actions. Similarly, in Griggs v. Duke Power Co., 401 U.S. 424, 427 (1971), a case involving indirect discrimination, the initial burden was on the plaintiff to show the employer's practices had a discriminatory impact on a protected class, which could be done by showing a mere statistical disparity. The burden then shifts to the employer to show the challenged practice is a business necessity with a "manifest relationship" to the employment in question.

The United States Civil Rights Act of 1991²⁹ specifically places the burden on the employer to demonstrate that a practice resulting in a disparate impact (indirect discrimination) on the basis of race, color, religion, sex, or national origin is job related for the position in question and consistent with business necessity. Even in some EU candidate countries, at least in an employment discrimination context, the burden of proof shifts to the defendant.³⁰

In its brief, the ERRC noted that most of the case law relating to standards of proof for discrimination claims arises in the employment context, where the employer is in a stronger position than the employee. A fortiori, in the more serious context of a claim on the part of an individual against the state for a violation of fundamental human rights, the same rationale applies with even more force.

In view of the particularly invidious nature of race discrimination and the "special importance" attached thereto, the right to be free from such discrimination is a fundamental right requiring a high level of protection.

The European Commission on Human Rights has recognised that, under certain circumstances, racially discriminatory policies may amount to degrading treatment violative of Article 3.³¹ In East African Asians, the Commission affirmed that "special importance should be attached to discrimination based on race," and that "differential treatment of a group of persons on the basis of race might therefore be capable of constituting degrading treatment when different treatment on some other ground would raise no such question."³²
Legal developments outside of Strasbourg likewise acknowledge the singular evil of differential treatment based on race, and offer further support for the notion that prohibitions against racial discrimination are of fundamental importance. In the United States, classifications based on race are suspect and subject to "strict scrutiny" because ensuring citizens that the state will not discriminate against them on account of race is the "core guarantee of equal protection."³³ The constitutions of virtually all Council of Europe member states ban discrimination on the grounds of race and/or ethnic origin. The European Union Consultative Commission on Racism and Xenophobia has made clear that the principles of non-discrimination and tolerance lie at the foundation of the Union itself.³⁴

Legal efforts to sanction and eradicate racial prejudice and discrimination have resulted in the adoption of numerous binding international legal instruments³⁵ which today make the general prohibition against race discrimination one of the elements of ius cogens, a peremptory rule of international law^.36

d) Final remarks contained in the brief

In its submission, the ERRC is mindful of the fact that a special seriousness attaches to a claim that a member state has violated the Convention, and that the Court's standard of proof must consider the seriousness of the charge yet still be capable of "establishing the truth of the allegations in a convincing manner."³⁷ An approach is needed which would strike a fair balance between protecting the fundamental right involved and the avoidance of unrealistic burdens of proof on either the state or the applicant.

The Inter-American Court in the Velasquez case adopted an intermediate standard - that which "established the truth … in a convincing manner." This standard appears analogous to the "clear and convincing" standard of proof applied in the United States to cases falling in between the "preponderance of the evidence" standard used in most civil cases and the "beyond-a-reasonable-doubt" standard used in criminal cases - the standard used in cases involving individual rights, such as civil commitment to psychiatric institutions, maintaining one's nationality, or expulsion.³⁸ Commentators have estimated this level of proof as requiring about 75% probability of a fact (compared to 51% for a "preponderance of the evidence" and more than 95% with respect to "reasonable doubt").³⁹

Once convincing evidence has been shown that a person's race or ethnicity was a factor with respect to the violation at issue, then the Court should impose an obligation on the respondent state to conduct an investigation capable of proving or disproving the discrimination claim, similar to that imposed with respect to violations of Articles 2 and 3. The state's failure to do so would support an inference that Article 14 has been violated.

In the case of Assenov v. Bulgaria, the Court held that Article 3 not only prohibits certain misconduct but in addition obliges states to enforce that prohibition by carrying out adequate investigations under specified circumstances.⁴⁰ The fundamental importance of protecting against racial discrimination demands a similar obligation in Article 14 cases, particularly where the claim is accessory to a non-derogable obligation under Article 2 or 3. As in Assenov, absent such a procedural requirement, Article 14's prohibition "... would be ineffective in practice and it would be possible in some cases for agents of the State to [practice racial discrimination] with virtual impunity."

While states enjoy a "margin of appreciation" with respect to some kinds of restrictions of Convention rights, the ERRC noted that it is difficult to imagine any appropriate "margin of appreciation" with respect to different treatment based on race.⁴¹ Thus, the Court should extend to Article 14 cases based on racial or ethnic discrimination a procedural requirement similar to the one which the Court in McCann⁴² first grafted onto Article 2 and in Assenov to Article 3, which would come into effect upon a "convincing" showing that discrimination was a factor in the violation. The difficulty which claimants have had in proving discrimination beyond a reasonable doubt shows that, absent a requirement that the state investigate such claims, the prohibition against discrimination is ineffective and theoretical.

Such an approach would be in keeping with the requirements imposed on states in other regimes as well as by the Convention.⁴³ It would ease the unrealistically high burden on victims of discrimination, and would affirm further the Convention's aims of "securing the universal and effective recognition and observance" of the rights enumerated therein.⁴⁴

The Court's Judgement in the Case of Anguelova v. Bulgaria

On 13 June 2002, following the submission of the ERRC amicus brief in Nachova, in Anguelova v. Bulgaria,⁴⁵ another ERRC case involving the death of a young Romani man while in police custody, the Court found the respondent government in breach of several provisions of the Convention, including Articles 2, 3, 5 and 13. However, like in Velikova previously, the Court again failed to find a violation of Article 14. While accepting that the applicant had raised "serious" arguments to the effect that the victim's treatment by the police was in part a result of his Romani ethnicity, it nevertheless went on to state that the applicant had not proven her discrimination claim "beyond a reasonable doubt".

In a thoughtful dissenting opinion, Judge Bonello noted his concern that the Court, in over fifty years, had not found a single instance of a violation of the right to life or the right not to be subjected to torture based on race, color or ethnicity:

Leafing through the annals of the Court, an uninformed observer would be justified to conclude that, for over fifty years democratic Europe has been exempted from any suspicion of racism, intolerance or xenophobia. The Europe projected by the Court's case-law is that of an exemplary haven of ethnic fraternity, in which peoples of the most diverse origin coalesce without distress, prejudice or recrimination. The present case energises that delusion ... Frequently and regularly the Court acknowledges that members of vulnerable minorities are deprived of life or subjected to appalling treatment in violation of Article 3; but not once has the Court found that this happens to be linked to their ethnicity. Kurds, coloureds, Muslims, Roma and others are again and again killed, tortured or maimed, but the Court is not persuaded that their race, colour, nationality or place of origin has anything to do with it. Misfortunes punctually visit disadvantaged minority groups, but only as the result of well-disposed coincidence ... At the root of this injurious escape from reality lies the evidentiary rule which the Court has inflicted on itself … "proof beyond reasonable doubt" … Nowhere does the Convention mandate … [this] … standard today required of the victim to convince the Court that death or ill-treatment were induced by ethnic prejudice. Article 32, on the contrary, gives the Court the widest possible discretion as to the interpretation and the application of the Convention […]

[…] It is cheerless for me to discern that, in the cornerstone protection against racial discrimination, the Court has been left lagging behind other leading human rights tribunals ... So long as the Court persists in requiring in human rights disputes a standard of proof that fifty years experience has shown it to be as unreal as it is unrealistic … it will, in effect, only continue to pay lip-service to the guarantees it then makes impossible to uphold. The way forward, in my view, lies in a radical and creative rethinking of the Court's approach, leading to the removal of the barriers which, in some important human rights domains, make the Court an inept trustee of the Convention. The Court has often risen to the challenge in spectacularly visionary manners, and ought, in matters of ethnic discrimination, to succumb with pride to its own tradition of trail blazing.⁴⁶

The Court's Judgement in the Case of Nachova and Others v. Bulgaria

Finally, on 26 February 2004, the Court announced its judgment in the case of Nachova and Others v. Bulgaria.⁴⁷ It unanimously found the Bulgarian state responsible for the deaths of two Romani men, shot by military police officers, as well as its subsequent failure to conduct an effective official investigation, in violation of Article 2 of the Convention. For the first time in its history, the Court also found a violation of the guarantee against racial discrimination contained in Article 14 taken together with Article 2.

Having clearly taken into account the arguments put forward by the applicants as well as those contained in the ERRC amicus brief, as detailed above, the Court explained its ruling as follows:

The Court considers that when investigating violent incidents and, in particular, deaths at the hands of State agents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights … On the basis of the above the Court finds that the authorities failed in their duty under Article 14 of the Convention, taken together with Article 2, to take all possible steps to establish whether or not discriminatory attitudes may have played a role in events ... The Court considers, furthermore, that the domestic authorities' failure to discharge that duty should have an incidence on its approach in the present case in the examination of the allegation of a "substantive" violation of Article 14 [...]

[...] The Court has held on many occasions that the standard of proof it applies is that of "proof beyond reasonable doubt", but it has made it clear that that standard should not be interpreted as requiring such a high degree of probability as in criminal trials.

[…] The Court has already recognised that specific approaches to the issue of proof may be needed in cases of alleged discriminatory acts of violence ... In addition, it has become an established view in Europe that effective implementation of the prohibition of discrimination requires the use of specific measures that take into account the difficulties involved in proving discrimination (see … above concerning anti-discrimination legislation, including evidentiary rules tailored to deal with the specific difficulties inherent in proving discrimination). The Court has also emphasised the need for a broad interpretation of the protection provided by Article 14 of the Convention … In the light of the above, the Court considers that in cases where the authorities have not pursued lines of inquiry that were clearly warranted in their investigation into acts of violence by State agents and have disregarded evidence of possible discrimination, it may, when examining complaints under Article 14 of the Convention, draw negative inferences or shift the burden of proof to the respondent Government, as it has previously done in situations involving evidential difficulties … In these circumstances, the Court considers that the burden of proof shifts to the respondent Government, which must satisfy the Court, on the basis of additional evidence or a convincing explanation of the facts, that the events complained of were not shaped by any prohibited discriminatory attitude on the part of State agents [...] ⁴⁸

The significance of the Court's judgement in Nachova is tremendous. From now on, governments will have to consider and investigate promptly and thoroughly every arguable claim of a violation of Article 14 taken together with Articles 2 and 3 of the Convention, and possibly others, based on race and/or ethnicity. Should a government fail to comply, the Court will find it in violation the Convention and grant the victim appropriate redress. Such a landmark decision is long overdue, but the Court has now finally lived up to its own mandate to provide a remedy to those in greatest need and assert its authority as a defender of the disadvantaged and the vulnerable.

Endnotes:

1. Branimir Pleše is Legal Director of the ERRC.
2. Application nos. 43577/98 and 43579/98.
3. Dennis, Ian. The Law of Evidence. Sweet & Maxwell, 1999, p. 342.
4. Ibid., p. 341.
5. Article 32 of the Convention gives the Court the absolute power to interpret and apply its provisions, including rules with respect to the proof necessary to substantiate a claim.
6. See Kokott, Juliane. The Burden of Proof in Comparative and International Human Rights Law. Kluwer Law International Publishers, 1998.
7. Ibid, p. 134.
8. Velasquez Rodriguez case, Inter-American Court of Human Rights, Judgment of 29 July 1988, para. 134.
9. Labita v. Italy, European Court of Human Rights, application no. 26772/95, Judgment of 6 April, 2000.
10. Ibid, dissenting opinion para. 1. See also the dissenting opinion of Judge Bonello in Veznedaroglu v. Turkey, application No. 32357/96 (unreported), para. 13 (cited in Erdal, U. “Burden and standard of proof in proceedings under the European Convention,” HR/68 (2001) 26 European Law Review. Human Rights Survey, p. 77): “I find the standard of proof – beyond reasonable doubt – required by the Court in torture cases to be legally untenable and, in practice, unachievable. Proof “beyond reasonable doubt” reflects a maximum standard relevant and desirable to establish criminal culpability. No person shall be judicially deprived of liberty . . . unless his guilt is manifest ‘beyond reasonable doubt.’ . . . But in other fields of judicial enquiry, the standard of proof should be proportionate to the aim, which the search for truth pursues: the highest degree of certainty, in criminal matters; a workable degree of probability in others.”
11. See, e.g., Artico v. Italy, 1980, 3 EHRR 1, para. 33.
12. For example, the Court was unable to find a violation of Article 14 in the following cases: Tanrikulu v. Turkey, Judgment of 8 July 1999 (applicant claimed husband was killed by state security forces because of Kurdish ethnicity, citing Susurluk Report and Commission reports finding state agencies implicated in deliberate elimination of prominent Kurds; despite “grave concern” at government’s failure to provideundercopies of the complete investigations file and produce two public prosecutors as witnesses, the Court was unable to find a violation of Article 14); Ergi v. Turkey, Judgment of 28 July 1998 (applicant claimed sister killed by state security forces who attacked their village; Commission concluded government’s failure to provide documents and information was an inference in support of applicant’s allegations, yet insufficient to find violation of Article 14); Kurt v. Turkey, Judgment of 25 May 1998 (applicant whose son “disappeared” claimed forced disappearances primarily affected Kurds, citing reports by UN Working Group on Enforced or Involuntary Disappearances; no finding of violation of Article 14); Tanli v. Turkey, Judgment of 10 April 2001 (applicant whose son died in detention presented substantial evidence from UN agencies and NGOs as to systematic unlawful treatment of Kurds, yet Court did not find son was the target of a discriminatory policy on account of his ethnic origin).
13. See, e.g., Assenov v. Bulgaria, Judgment of 28 October 1999; Velikova v. Bulgaria, Judgment of 18 May, 2000.
14. See, e.g., cases cited in Erdal, “Burden and Standard of Proof in Proceedings Under the European Convention,” supra note 10, pp. 74-76.
15. Ibid., paras. 91, 92, 93, 94.
16. Salman v. Turkey [27 June 2000]; Askoy v. Turkey [18 December 1996]; Tomasi v. France [27 August 1992], Assenov v. Bulgaria [28 October 1999].
17. Kaya v. Turkey [19 February 1998], Assenov v. Bulgaria [28 October 1999].
18. Mukong v. Cameroon, Communication No. 458/1991, U.N. Doc. CCPR/C/51/D/458/1991 (1994). See also Bleir v. Uruguay, Doc. A/37/40, p. 130 (1982) (state held liable where petitioner’s testimony of ill treatment was supported by other eyewitnesses and further clarification depended on information in state’s hands which was not produced); Santullo (Valcada) v. Uruguay, Doc. A/35/40, p. 107 (1980) (state produced no evidence that allegations of ill treatment had been investigated; general denial not enough).
19. Tas v. Turkey, [14 November 2000] (lack of documentation as to where applicant’s son was detained and no explanation for what happened to him permitted inference that son had died in state custody); Timurtas v.Turkey, judgment of 13 June 2000, para. 66 (“failure on a Government’s part to submit such information which is in their hands without a satisfactory explanation may ... give rise to the drawing of inferences as to the well-foundedness of the allegations.”)
20. Conka v. Belgium, Judgment of 5 February 2002, paras. 59, 61 and 63.
21. Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin. (Official Journal L 180, 19/07/2000 p. 0022-0026).
22. Ibid, Article 8. This language is identical to that contained in Directive 97/80 on the burden of proof in cases of discrimination based on sex. (Official Journal L 014, 20/01/1998 P. 0006-0008)
23. Beginning with Directive 76/207 on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions. (Official Journal L39, 14/2/1976 p. 40) See also S. Koukoulis-Spiliotopoulos, From Formal to Substantive Gender Equality, 2001, published by Marangopoulos Foundation for Human Rights.
24. See case No. 109/88, Danfoss, [1989] ECR 3220, para. 12. This was previously articulated in the landmark case of Bilka Kaufhaus v. Weber von Hartz (case 170/84), ECR 1986, 1607).
25. See for example, Steel v. Union of Post Office Workers, 2 All E.F. 504, 505 (1977), heard by the UK Employment Appeal Tribunal; see also the U.K Race Relations Act of 1976 (burden on discriminator to show a requirement was justifiable on race-neutral grounds).
26. See Kokott, supra note 6, p. 113.
27. Code of Legal Procedure, Article 177.
28. Supreme Court 10-12-1982, NJ 1983, 687.
29. Pub. L. No. 102-166, 105 Stat. 1071 (1991), Section 105(a).
30. For example, Hungarian Labor Code Section 5, “Prohibition on Discrimination and the Obligation of Priority”, prohibits discrimination in employment based on gender, age, national origin, religion, political views, or membership in an employee interest organization. Paragraph 2 provides that in the event of a dispute, the employer shall be required to prove his acts did not violate that prohibition. (more recently, in December 2003, Hungary adopted a single more comprehensive anti-discrimination act.)
31. East African Asians v. UK, 3 EHRR 76 (1973) (British immigration legislation singled out U.K. passport holders of Asian origin resident in E. Africa and denied them admission to the UK; Commission held this violated Article 3.)
32. Ibid., para. 207. See also Abdulazis, Cabales and Balkandali v. UK, Commission Report, 6 EHRR 28 (1983), para. 113 (expressly affirming “its opinion in the East Afrian Asians cases that the singling out of a group of persons for differential treatment on the basis of race might, in certain circumstances, constitute a special form of affront to human dignity”); Hilton v. UK, No. 5613/72, Admissibility Decision of 5 March 1976 (allegation of racial discrimination by prison officers against prisoner raised an issue under Article 3); Glimmervenn & Hagenbeek v. Netherlands, 4 EHRR 260 (1979), Admissibility Decision, para. 19 (recalling holding of East African Asians that race discrimination could amount to degrading treatment). See also Vivien Prais v. Council of the European Communities, Case 130/75, Decision of the European Court of Justice, 27 October 1976, p. 7 (referring to East African Asians); and Harris, O’Boyle, et al, Law of the European Convention on Human Rights (1995), p. 82 (suggesting that, after East African Asians, “single instances or practices of direct or indirect racial discrimination, which must be inherently degrading, are contrary to Article 3”).
33. Batson v. Kentucky, 476 U.S. 79 (1986). See also United States v. Carolene Products, 304 U.S. 144, 152 n.4 (1938) (“. . . similar considerations enter into the review of statutes directed at particular religious, or national, or racial minorities: whether prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities, and which may call searching judicial inquiry.”)
34. See European Council Consultative Commission on Racism and Xenophobia, Final Report, 12 April 1995.
35. See Universal Declaration of Human Rights (1948), Art. 7; International Labour Organisation Convention No. 111 (1958); Convention Against Discrimination in Education (1960); Declaration on the Elimination of All Forms of Racial Discrimination (1965); Convention on the Elimination of All Forms of Racial Discrimination (1965); International Covenant on Civil and Political Rights (1966), Arts. 2, 26; International Covenant on Social, Economic and Cultural Rights (1966), Art. 2; International Convention on the Suppression and Punishment of the Crime of Apartheid (1973).
36. See, e.g., Dissenting Opinion of Judge Tanaka in the South West Africa Cases (Second Phase), ICJ Reports (1966), p. 298.
37. See Velasquez Rodriguez Case, supra, para. 129.
38. See Kokott, supra note 6, p. 20, citing Lessarad v. Schmidt, 349 F. Supp. 1078 (E.D. Wis. 1972) (“The requirements of due process are not static but vary depending upon the importance of the interests involved and the nature of subsequent proceedings.”)
39. Ibid, p. 134.
40. Assenov v. Bulgaria, supra, para. 102 (“where an individual raises an arguable claim that he has been seriously ill-treated by the police … in breach of Article 3, that provision, read in conjunction with the State’s general duty under Article 1 of the Convention to ‘secure to everyone within their jurisdiction the rights and freedoms in [the] Convention,’ requires by implication that there should be an effective official investigation.”)
41. See Schokkenbroek, Jeroen. “The Prohibition of Discrimination in Article 14 of the Convention and the Margin of Appreciation,” Human Rights Law Journal 19/1998, p. 20 and p. 22.
42. Mc Cann and others v. United Kingdom, 21 EHRR 97 (1995), para. 161.
43. Godinez Cruz Case, Judgment of 20 January 1989, Inter-Am. Ct.H.R. (Ser. C) No. 5 (1989), paras. 140–41 (“The State has a legal duty to take reasonable steps to prevent human rights violations and to use the means at its disposal to carry out a serious investigation of violations committed within its jurisdiction, to identify those responsible, to impose the appropriate punishment, and to ensure the victim adequate compensation.”) See also Velasquez Rodriguez Case, supra, paras. 166-167 (Article 1(1) of the Convention requires, inter alia, that States “prevent, investigate and punish any violation of the rights recognised by the Convention”).
44. Preamble to the European Convention on Human Rights.
45. Application no. 38361/97.
46. Ibid., dissenting opinion of Judge Bonello, paras. 2–4 and 9–13.
47. See note 1 supra.