Roma rights litigation
05 January 1999
On October 28, 1998, the European Court of Human Rights in Strasbourg issued its decision on the case of Assenov v. Bulgaria. Anton Assenov, a young Rom who had been forcefully arrested, handcuffed and beaten by police officers in Shoumen, north-eastern Bulgaria, in September 1992, became the first Romani person ever to win his case at an international court of law. Between the autumn of 1992 and the autumn of 1998 lie six years of what I will define here as the formative stages of two interdependent and somewhat overlapping civic 'movements' in post-communist Europe. The first is the 'movement' for legal defence of the rights of the Roma. I realised that this 'movement' would be reality when the Human Rights Project, a Bulgarian organisation developing legal strategies to benefit the Roma, won in 1995 the case of Kiril Yosifov Yordanov, a Rom from Pazardjik, in which the Bulgarian Ministry of the Interior was ordered by a domestic court to pay reparation to a victim of a punitive expedition by police.
The second is the 'movement' for public interest law, which is a conscious attempt to use law as a tool of social change. Its landmark victories are yet to come, and at least some of them will feature Romani clients. The creation in 1997 of the Public Interest Law Initiative in Transitional Societies at the Columbia Law School in New York, by the imaginative lawyer Edwin Rekosh, documented the appearance of a new professional identity, that of the Central/East European public interest lawyer.
A major preoccupation of the ERRC is litigation in defense of Roma rights. But, people might ask, are all Roma rights cases also public interest law cases? The Assenov case was innovative from a purely legal point of view, regardless of the fact that Assenov is of Romani origin: it set a procedural guarantee of the right under Article 3. The court stated that "where an individual raised an arguable claim that he had been seriously ill-treated by agents of the State unlawfully and 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", required by implication that there should be an effective official investigation, capable of leading to the identification and punishment of those responsible. If this were not the case, the general legal prohibition of torture and inhuman and degrading treatment and punishment, despite its fundamental importance, would be ineffective in practice and it would be possible in some cases for agents of the State to abuse the rights of those within their control with virtual impunity". (Brief and simplified paraphrase: not only torture itself, but failure to properly investigate allegations of torture is a violation of the right to be free from torture.) In the Yordanov case, the very launching of that case, with its ambitious goals, was seen as lunatic by most professionals standing by. The ingenious way in which an existing domestic law was harnessed to challenge police violence committed by unidentified officers was a precedent.
Needless to say, with its limited resources, the ERRC cannot support all the 'Roma cases' in the region. A strict selection must be practised each time we contribute — with expertise, or money, or both. Due to the novelty and fragility of Roma rights litigation, the ERRC is still indispensable. The process is not yet irreversible. In this issue, we offer a glimpse into our litigation laboratory.
Unlike the Assenov case, many if not most of the "Roma cases" in court are currently routine ones. Only a few of the dozens of cases sponsored by the ERRC in Central and Eastern Europe are utterly revolutionary and are significant events in the public interest law 'movement'. Many are more or less modest 'contributions' to public interest LAW, notable for one or more substantial or procedural aspects. Yet I would argue that each case defending the legal rights of members of the Roma minority in those countries where this minority is disadvantaged — i.e., everywhere, is a contribution to PUBLIC INTEREST law, insofar as it challenges that very disadvantaged status. Every time a Romani person goes to court freely and deliberately, we make a small step in the direction of a less racist society.