Towards Realising a Right to Positive Action for Roma in Europe: Connors v. UK

11 March 2005

Claude Cahn1

In October 2004, Slovak Minister of Justice Daniel Lipšic filed a complaint at the Slovak Constitutional Court requesting that that body quash the positive action provisions of the new Slovak anti-discrimination law. Minister Lipšic had been threatening to file such a complaint since the law was adopted earlier this year. Many had previously assumed that Lipšic was merely making populist hay among the many segments of Slovak society who apparently can be rallied to oppose something called “positive discrimination”, a phrase in which images of Gypsies eventually coming to rule over ethnic Slovaks as slave-driving task-masters, dance in the heads of the fearful. Judgment is currently pending in the case.

In light of the foregoing, it is of interest that, in May 2004, the European Court of Human Rights, ruling in the case of Connors v. United Kingdom, has apparently taken new steps to anchor the principle that in some instances, positive action may in fact be a right flowing to members of disadvantaged groups, in particular Roma. The decision, which has in many ways redrawn the contours of the international law obligations of Council of Europe Member States, has not yet received due attention in Roma rights circles, or indeed among individuals and groups working on anti-discrimination generally in Europe. This is unfortunate, since the implications of the Court’s decision in Connors are of great significance for activists and policy-makers alike.

The Party of Moderate Progress Revisited: International Law and Positive Action

Until Connors, it could be plausibly claimed that the cause of arguing the proposal that simply removing formal obstacles to equal treatment would be unlikely actually to result in equality of outcomes, if measures for the support of persons facing historic discriminatory burdens (not to mention present hostility) were not adopted, had gotten stuck in the mud. The dull middle of opinion on international law obligations flowing to states in the area of positive action on behalf of weak groups – and especially weak ethnic groups – is that it is “permitted, but not required, and should only be temporary and remedial”. This view – around which consensus appears at present to be frozen – falls considerably short of the standards set down under international law, in particular in the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD).

Elaboration by UN bodies of the concept of “positive action” or “affirmative action” has become increasingly equivocating, and language more-and-more tentative. Paradigmatic of the onset of exaggerated caution in the area of positive action is the 2001 report on the “Concept and Practice of Affirmative Action”, tabled by the UN Special Rapporteur on the Prevention of Discrimination and Protection of Indigenous Peoples and Minorities at the request of the UN Sub-Commission on the Promotion and Protection of Human Rights2. This document makes fascinating reading in its labored effort to take no stand on any matter of import. Here, for example, are the conclusions of the Special Rapporteur to the question “Is Affirmative Action Mandatory?”:

Some international doctrine and jurisprudence suggest that, when a State ratifies a human rights treaty, it agrees to take positive State action to “ensure” enjoyment of, or to take steps to achieve “full realization” of, the rights recognized in that treaty, as is the case with the International Convention on the Elimination of All Forms of Racial Discrimination and the Convention on the Elimination of All Forms of Discrimination against Women3.

The Human Rights Committee has made a number of statements in its General Comments with respect to the necessity of positive government action4. It has often remarked that this cannot be done by simply enacting law and has asked State parties to provide information in their subsequent reports concerning the measures they have taken or are taking to give effect to the precise and positive obligations under article 3 of the International Covenant on Civil and Political Rights.5

The Committee on the Elimination of Discrimination against Women and the Committee on Economic, Social and Cultural Rights have both adopted several general recommendations which indicate their view that the respective Conventions impose positive state action for achieving equality.6 However to state that international law impose a duty to take affirmative action is too extreme. What it does promote is the possibility of taking affirmative action to achieve de facto equality.

The Committee on the Elimination of Discrimination against Women reiterated the importance of this possibility in its General Recommendation No. 5:

“Taking note … that there is still a need for action to be taken to implement fully the convention by introducing measures to promote de facto equality between men and women … Recommends that States parties make more use of temporary special measures such as positive action, preferential treatment or quota systems to advance women’s integration into education, the economy, politics and employment.”7

The Human Rights Committee has interpreted the International Covenant on Civil and Political Rights as requiring affirmative action programmes in certain circumstances. In its General Comment on non-discrimination the Committee points out that: “… the principle of equality sometimes requires States parties to take affirmative action in order to diminish or eliminate conditions which cause or help to perpetuate discrimination prohibited by the Covenant. For example, in a State where the general conditions of a certain part of the population prevent or impair their enjoyment of human rights, the State should take specific action to correct those conditions. Such action may involve granting for a time to the part of the population concerned certain preferential treatment in specific matters as compared with the rest of the population”.8

The Committee on Economic, Social and Cultural Rights has raised a number of questions concerning affirmative action, especially as regards people with physical disabilities and ethnic or racial minorities, and in doing so, Craven maintains, it seems to accept the legitimacy of affirmative action. However, it still has not explicitly recognized the obligatory nature of affirmative action.9

Yet, some commentators have argued that States are indeed obliged to take affirmative action for the benefit of disadvantaged groups.10 They base their arguments on the theory of “effet utile”. The rights contained in the human rights treaties have to be given appropriate and full effect, and in some cases affirmative action is the most appropriate technique to ensure this.11 Those commentators also base themselves on case law developed by the European Court of Human Rights, which has found that in some circumstances passivity on the part of the State will not be sufficient, but there will be positive obligations inherent in an effective respect for the rights inscribed in the Convention. The Marckx case, especially, seems to strengthen them in their belief that positive State action, and in certain cases affirmative action, is sometimes required of the State in order for it to fulfil its duty to respect equality.12

The contention that international law imposes no duty to take affirmative action – that it merely “promotes the possibility of taking affirmative action to achieve de facto equality” – is derived from a highly selective reading of international law on the matter.

Were the sole source for affirmative action measures Article 1(4) of the International Convention on the Elimination of All Forms of Racial Discrimination (ICERD), indeed the position above might hold some validity. Article 1(4) of the ICERD states:

Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.

The wording of ICERD Article 1(4) is primarily designed to shelter positive action policies from the kinds of legal action that has been brought repeatedly against US “affirmative action” policies – actions which argue that policies preferring members of one ethnic group are discriminatory against other ethnic groups, or against members of the “majority”. The inclusion of Article 1(4) has been key in ensuring that the primary international law regulating states obligations to stamp out racism is not itself enlisted in the service of policies hostile to action against racism.

However, Article 1(4) is not the only provision of the ICERD relating to positive action measures. Article 2(2) of the ICERD provides:

States Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.

ICERD Article 2(2) clearly imposes a burden (“shall, when the circumstances so warrant”) on states to adopt positive action measures if there is evidence that such are needed in order to ensure equality of outcome. This goes well beyond merely “promoting the possibility of taking affirmative action to achieve de facto equality”; it in fact engages the positive obligations of the state.

European Union law in the field of combating racial discrimination has to date followed Article 1(4) of the ICERD (if not indeed taking a more pusillanimous approach), but not yet taken notice of Article 2(2). Specifically, Article 5 of the EU Race Directive, addressing the issue of “Positive Action”, states: “With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin.”13 In light of the fact that both Article 1(4) and Article 2(2) comprise components of European Union Member States’ obligations to end racial discrimination, the currently diminished EU standard will need to change, and the sooner the better, to end a situation in which states are faced with discord between requirements flowing from the EU acquis on the one hand, and their international obligations on the other.

Above and beyond problems arising due to dissonance between two legal regimes, the standard promoted in the UN Special Rapporteur’s paper cited above would enshrine a framework more harmful than good and therefore fundamentally at odds with the requirements of justice. This is because, if taken seriously, such an approach would establish a fundamental paradox, the shape of which is roughly as follows: where groups are despised and subject to discrimination, governments may adopt positive measures on their behalf; but if the governments concerned are democratic, it is highly unlikely that the public at large will endorse such measures, and hence unlikely that they will be adopted. Said differently, if one is a member of a group suffering racial discrimination, and one seeks positive action measures, then one’s best move is not to be a member of a group suffering from racial discrimination. It would only be at the moment at which a group had shed the stigma of racial animus and emerged as sheltered by the prestige enjoyed by privileged groups that such a group could ever hope to garner the support needed to win positive action measures. But of course such a moment would be precisely the moment at which such measures would no longer be necessary. Such a standard, if proven durable, would be patently inadequate. Thankfully, pressure has mounted to establish a framework more amenable as a rights-based anchor for positive action.

Expanding Minority Rights Regime in Europe

Although positive action measures are different from minority rights, significant developments at the Council of Europe in recent years in the field of minority rights have fostered possibilities for advancing a right to positive action. Positive action measures are temporary, and aim to ensure diversity, where procedural neutrality would result in disparate negative outcomes for weak groups. Minority rights are a significantly more complex series of norms, and it is beyond the scope of this article to examine the minority rights regime in detail.14 It is however significant that minority rights standards within the Council of Europe system significantly expanded during the 1990s. Moreover, these standards provided a range of explicit links between anti-discrimination and minority rights frameworks, and additionally included provisions on positive action. Among other things, minority rights approaches significantly heighten discursive possibilities for naming burdened groups explicitly, since although minority rights (as anchored under the ICCPR) are individual, pressure arises to name the “community” to which a minority individual belongs, so as to ensure effective realisation of the rights concerned.

Two legal instruments are of particular significance. First of all, the European Charter for Regional or Minority Languages, which was opened for signature in 1992 and entered into force in 1998, provides significant programmatic flesh to states’ minority rights commitments, by offering a range of options for the realisation of minority expression to which states’ parties commit to implementing. At Article 7(2), the Charter affirms:

The Parties undertake to eliminate, if they have not yet done so, any unjustified distinction, exclusion, restriction or preference relating to the use of a regional or minority language and intended to discourage or endanger the maintenance or development of it. The adoption of special measures in favour of regional or minority languages aimed at promoting equality between the users of these languages and the rest of the population or which take due account of their specific conditions is not considered to be an act of discrimination against the users of more widely-used languages.

Perhaps more significantly, in 1994, the Council of Europe adopted the Framework Convention for the Protection of National Minorities. This document provided an extensive series of bridges between minority rights and anti-discrimination discourses under no less than three of its substantive provisions.15 Additionally, at Articles 4(2) and 4(3), the Framework Convention provides affirmation of the need for positive action measures where relevant:

The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.

The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.

The Framework Convention and the European Charter for Regional or Minority Languages anchor minority rights within the Council of Europe system, and moreover link these explicitly to the anti-discrimination framework. Additionally, by requiring “where necessary” measures to ensure equality of outcomes for burdened minorities, the Framework Convention comes significantly closer to bringing the standard established in the ICERD at Article 2(2) into European human rights law. The adoption of these two standards must be regarded as a milestone on the road to the Connors decision.

Setting the Stage for Connors

The Court reached a crucial milestone on the road to the Connors decision when it anchored, in its decision in Thlimmenos v. Greece in 2000, the following principle:

The Court has so far considered that the right under Article 14 not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is violated when States treat differently persons in analogous situations without providing an objective and reasonable justification [...]. However, the Court considers that this is not the only facet of the prohibition of discrimination in Article 14. The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.16  

However, the issues in Thlimmenos did not relate to racial discrimination – Thlimmenos hinged upon clear-cut facts related to matters of religious conscience. As has been detailed elsewhere, in recent years, the European Court of Human Rights has increasingly moved to reassess its approach to the issue of racial discrimination.17 In the years since its founding, the Court had, until its ruling in February 2004 in the case of Nachova v. Bulgaria, never found a violation of the European Convention’s Article 14 anti-discrimination provisions in a case in which racial discrimination was at issue. The primary legal obstacle to such a ruling had been the Court’s “beyond a reasonable doubt” standard of proof, under which the Court was apparently only prepared to recognise racial discrimination in cases of “95% or more probability of fact”, a very unlikely state-of-affairs in race discrimination cases.18 In Nachova, at least partially as a result of ERRC argument in the case, the Court was persuaded to apply a different standard of prove in at least some cases,19 and it consequently found that Bulgaria had violated the European Convention when it failed to investigate adequately the killing by Bulgarian police of two Romani men in circumstances which indicated that race factors had at least in part influenced the actions of police.

This change in approach has been widely celebrated and in many ways stems from vocal dissatisfaction coming from a number of sectors, not least from within the Court itself. In the case of Anguelova v. Bulgaria, for example, a 2002 ruling by the European Court, Bulgaria was found in violation of the Convention in a case involving the killing by police of a Romani man but – still pre-Nachova – the Court declined to find a violation of the Convention’s Article 14 anti-discrimination provisions. This unwillingness by the Court (again) to tackle the race factor in the killing prompted Judge Bonello to the following dissent: 

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.20

The persuasive force of dissenting opinions such as this and similar dissenting opinions from the pen of other Judges on the Court appear to have finally moved the Court to reassess its approach to race. The Nachova ruling should therefore be seen as part of an overall reevaluation going on now at the Court as to the role of race factors in human rights issues in Europe, as well as a re-positioning of the Court itself as to its own role in combating racism and racial discrimination. As we will see below, however, the Court’s moves in Nachova are in many ways a mere technical prelude for the sea change in approach it undertakes in Connors three months later.

Connors v. United Kingdom

In the first place, it must be noted that the decision in Connors v. United Kingdom has not received the attention that Nachova has in anti-racism circles, probably because in Connors, the Court declined to find a violation of the Article 14 anti-discrimination provision of the Convention. The unwillingness of the Court to find a violation of Article 14 should not however blind observers to how significant the moves of the Court are in Connors.

James Connors and his family are Gypsies who lived on a public site provided for Travellers at Cottingley Springs in Leeds, England. During 1999, the family became involved in a dispute with the local council due to the unwillingness of the latter to undertake repairs to the site. This issue appears to have led ultimately to the eviction in dramatic circumstances by police of the family from the site on August 1, 2000. Mr Connors and his family had lived on the site, with a short absence, for some fourteen to fifteen years. Following the eviction they suffered difficulties in finding a lawful alternative location for their caravans, in coping with health problems in the family and with caring for young children in the family, and in ensuring continuation in the children’s education. In his application to the European Court of Human Rights, Mr Connors told the Court that following the eviction he and his family were required to move on repeatedly. Partly at least due to the stress and uncertainty, the applicant’s wife chose to move into a house with the younger children and they were separated in May 2001. Their son Daniel lived for a while with Mr Connors. Following the eviction, he did not return to school. Mr Connors stated that he continued to travel in his caravan, with his son Michael and occasionally Daniel, but that they were unable generally to remain in any place for more than two weeks. He had chest pains for which he received medication and tests. As he had no permanent address, he used his wife’s address for postal purposes, including medical appointments. Indeed, the family was effectively homeless and although they returned repeatedly to the site, they were treated there “as trespassers”.

In the case, the Court was asked by counsel to consider breaches of Article 8 (right to family and private life), Article 14 (ban on discrimination), Article 1 of Protocol 1 (right to peaceful enjoyment of one’s possessions), Article 13 (right to an effective remedy) and Article 6 (right to a fair trial). By far the most detailed claim pertained to the alleged Article 8 violation.

In its review of domestic law and practice related to the Article 8, much of the Court’s discussion turned on the question of whether key elements of a fundamental human right – in this case the legal security of tenure component of the Article 8 right to private and family life21 – extended to persons taking advantage of an arrangement established for the purpose of assisting members of a minority in pursuing a traditional practice. Although the Court did not so articulate the issue, one may view this aspect of the problem being examined as the mirror image of the question of a right to positive action. The Court examined a number of U.K. cases in which domestic courts apparently came to the conclusion that Roma/Gypsies living on sites established by local authorities for the purpose of furthering traditional Gypsy lifestyles did not in fact have a right to legal security of tenure, as required by international law. For example, in the case of R. (Smith) v. Barking and Dagenham London Borough [2002] EWHC 2400, the presiding judge concluded, “I am satisfied that ... the absence of security of tenure for all gypsy/travellers on all local authority sites, is still appropriate and justified. [...]” The conclusion that one category of persons might be required to choose between a fundamental human right on the one hand and pursuing elements of their traditional practices on the other, where these traditional practices involved not harmful acts such as the repression of women, but rather traditional housing arrangements, cannot have sat well with the Court. Indeed, on a previous occasion on which the Court had been asked to review similar matters, vigorous dissent on this issue had been lodged by Judge Pettiti:

The Strasbourg institutions’ difficulty in identifying this type of problem is that the deliberate superimposition and accumulation of administrative rules (each of which would be acceptable taken singly) result, firstly, in its being totally impossible for a Gypsy family to make suitable arrangements for its accommodation, social life and the integration of its children at school and, secondly, in different government departments combining measures relating to town planning, nature conservation, the viability of access roads, planning permission requirements, road safety and public health that, in the instant case, mean the Buckley family are caught in a ‘vicious circle’.22 

In discussing the particular “interference” – the August 2000 eviction – the Court examined, as is standard under its review of alleged Article 8 violations, whether the measure was justified as “necessary in a democratic society”. On this matter, the government argued a basis in equality. The judgment states, under Point 77, “Similar terms would have applied to a secure housing tenant.” The government also argued that suitable safeguards existed for procedural guarantees against arbitrary eviction (although the wording of the judgment begs the question of whether in fact that assessment is accurate): “If there had been no proper basis for the eviction or the applicant had mounted a substantial factual challenge to the asserted justification, the domestic courts would have been able, through their scrutiny, to provide a remedy against arbitrary action.”

From this point on, however, the judgment begins to raise questions as to the status of government policy as a positive action measure. In language which appears to be clearly aimed at weighing the status of measures against the international law provisions quoted above, the government argues that although it had previously promoted public sites for Gypsies, this policy had served its purpose and then, as specified under international law, been ended: “Regarding the provision for gypsies, it had to be recalled that the 1968 Act had sought to remedy the grave shortage of sites for gypsies who led a nomadic lifestyle by placing a duty on local authorities to provide such sites. By 1994, the Act was found to have served its purpose as far as it could reasonably be expected to, with local authority sites providing the largest contribution to the overall accommodation needs of gypsies. Policy then changed its emphasis to encouraging gypsies to promote their own sites via the planning process. The authorities were keeping the situation under review, as seen in the independent reports issued in October 2002 and July 2003, which did not reveal that the exemption posed any problems in practice in the operation of local authority gypsy sites.”

The consequences of this suspension of the positive action measure did, however, apparently lead to forced evictions, practices which the UN Committee on Economic, Social and Cultural Rights has called prima facie incompatible with the Covenant and which raise serious concerns under Article 8 of the European Convention. Although the government contended that local authorities used powers to evict “sparingly and as a sanction of last resort”, it nevertheless referred to such evictions as “an important management tool”. The Court was thus confronted with assessing the consequences of the end of a positive action measure, where its absence resulted in practices highly questionable under human rights law, and where procedural guarantees against abuse were not convincingly evident.23

Indeed, in its previous case law, developed in similar cases against the U.K., the Court has identified the need to “facilitate the gypsy way of life” as a “positive obligation” of the State. In Connors, this is put bluntly, as a matter of established principle: 

“The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases (Buckley judgment [...], pp. 1292-95, §§76, 80 and 84). To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life (see Chapman, [...], §96 and the authorities cited, mutatis mutandis, therein).”

In those Buckley and Chapman however, despite establishing and reaffirming this principle, the Court had cited the “wide margin of appreciation” afforded to States and had therefore not found a violation of Article 8 (or indeed any other provision of the Convention). The central revolution of the Connors decision is that, despite the complexity of the issues at hand, including unresolved issues as to who, precisely, is meant when one speaks of “Gypsies”,24 on this issue, the Court is apparently no longer prepared not to interfere with the “wide margin of appreciation” afforded states. In the Connors decision most significant passage, the Court overturns at a stroke the Court’s approach to assessing domestic housing policy:

[...] The Court has also stated that in spheres such as housing, which play a central role in the welfare and economic policies of modern societies, it will respect the legislature’s judgment as to what is in the general interest unless that judgment is manifestly without reasonable foundation (see Mellacher and Others v. Austria, judgment of 19 December 1989, Series A no. 169, p. 27, §45, Immobiliare Saffi v. Italy [GC], no. 22774/93, ECHR 1999-V, §49). It may be noted however that this was in the context of Article 1 of Protocol No. 1, not Article 8 which concerns rights of central importance to the individual’s identity, self-determination, physical and moral integrity, maintenance of relationships with others and a settled and secure place in the community (see, mutatis mutandis, Gillow v. the United Kingdom, cited above, §55; Pretty v. the United Kingdom, no. 2346/02, ECHR 2002-III; Christine Goodwin v. the United Kingdom, no. 28957/95, §90, ECHR 2002-VI). Where general social and economic policy considerations have arisen in the context of Article 8 itself, the scope of the margin of appreciation depends on the context of the case, with particular significance attaching to the extent of the intrusion into the personal sphere of the applicant (Hatton and others v. the United Kingdom, [GC] no. 36022/97, ECHR 2003-..., §§103 and 123).25

The Convention reason the Court found through which to move substantially into positive action is procedural. The judgment states: “The central issue in this case is [...] whether, in the circumstance, the legal framework applicable to the occupation of pitches on local authority gypsy sites provided the applicant with sufficient procedural protection of his rights.”26

The Court also goes to great lengths to reassure that precisely what it is not doing is establishing any sort of right to positive action:

“The Court would also observe that this case is not concerned with matters of general planning or economic policy but with the much narrower issue of the policy of procedural protection for a particular category of persons. The present case may also be distinguished from the Chapman case [...], in which there was a wide margin of appreciation, as in that case, it was undisputed that the applicant had breached planning law in taking up occupation of land within the Green Belt in her caravans and claimed, in effect, special exemption from the rules applying to everyone else. In the present case, the applicant was lawfully on the site and claims that the procedural guarantees available to other mobile home sites, including privately run gypsy sites, and to local authority housing, should equally apply to the occupation of that site by himself and his family.”

Are the Court’s pronouncements that it is solely concerned with procedure and not at all with the substance of rights-based policy to be taken at face value? This is debatable.

In the first place, embedded at the centre of the passage above is the seed of equality of outcome. Although the central preoccupation of the text itself is “procedural guarantees”, in fact what is examined is whether a policy arrangement established under the (now required) Convention principles to “facilitate a gypsy way of life” and to provide “special consideration” to Roma as a result of their vulnerable position in practice secure fundamental rights of equality. In examining this issue further in the Connors decision, the Court delved deeply into whether or not Gypsies in fact derived benefit from the policies nominally ascribed to assist them. The judgment states, at Point 90:

“Nor does the gypsy population gain any benefit from the special regime through any corresponding duty on the local authority to ensure that there is a sufficient provision for them (see P. v. the United Kingdom, no. 14751/89, decision on admissibility of 12 December 1990, Decisions and Reports 67, p. 264, concerning the regime applicable before the repeal of section 6 of the Caravan Sites Act 1968 and paragraphs 35-36 above). The October 2002 report noted that 70% of local authorities did not have any written gypsy/traveller accommodation policy and commented that this reflected the lack of a specific duty on local authorities to consider their needs [...]. Since the 1994 Act came into force, there has been only a small net increase in the number of local authority pitches. The case of Chapman, together with the four other applications by gypsies decided by the Grand Chamber (Beard v. the United Kingdom, no. 24882/94, Coster v. the United Kingdom no. 24876/94, Jane Smith v. the United Kingdom, no. 25154/94, and Lee v. the United Kingdom, no. 25289/94, judgments of 18 January 2001), also demonstrate that there are no special allowances made for gypsies in the planning criteria applied by local authorities to applications for permission to station of caravans on private sites.

These concerns can hardly be said to constitute solely a preoccupation with procedure, insofar as what is examined is whether or not there is “any benefit” flowing to Gypsies from the special regime in place.

One key aspect of Connors thus involves a significant deepening of the European Court of Human Rights’ commitment to the idea that equality does not necessarily mean treating all individuals in the same way. In Connors, the Court cites Chapman v. UK in explaining that “The vulnerable position of gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases ... To this extent, there is thus a positive obligation imposed on the Contracting States by virtue of Article 8 to facilitate the gypsy way of life...” However, the Court found no violations in Chapman. At that time, the Court was content to note principle, but to leave the question of problematic implementation to the “margin of appreciation” left to states. Apparently that is no longer true. Indeed, the Court now justifies its intrusion in this case into the “wide margin of appreciation” accorded to states with reference to the reasoning set out above (“the vulnerable position of gypsies”, etc.). Although in Connors the Court found no violation of the Article 14 ban on discrimination, the Court’s decision in Connors can be considered important in the Court’s developing strengths in the area of racial discrimination, particularly in the area of positive obligations to establish policies aiming to secure equality of outcome.


In the Connors decision, much of the Court’s reasoning hinged upon evaluation of a statutory regime adopted into domestic law (the U.K. policy of providing sites for Travellers), and whether that policy provided suitable and sufficient guarantees for the full realisation of the fundamental human rights secured under the European Convention. In the Court’s assessment, in the case of Connors, a “positive action” policy established by the U.K. lawmakers did not provide such guarantees, and the Court therefore found the U.K. in violation of the Convention.

The contours of the right established in the Connors decision looks, at minimum, roughly as follows:

  • There must be a framework to ensure that a “gypsy way of life” is facilitated, and that due to “the vulnerable position of gypsies as a minority”, “special consideration” is given to their needs;

  • That framework must be implemented;

  • Local responsibility for implementing the framework must be clearly allocated;

  • There should be no arbitrary obstacles to making use of the framework;

  • The effectiveness of the framework will be assessed at least in part to determine whether “any benefit” flows to Roma as a result of the framework;

  • Internal to the framework, fundamental human rights – in particular the European Convention rights – must be effectively realised.

Left as yet unaddressed is how the Court will assess the compliance of states which have not yet adopted any positive action policies for Roma, aware as the Court is that the U.K. is not the only country in Europe in which such policies would be required in order to ensure equal realisation of Convention rights. How would the Court assess the housing policies of a country such as Romania, for example, where in recent years protections to individuals against evictions have been slashed and Roma disproportionately evicted from housing, while government social housing policy remains resolutely color-blind, despite the obvious need for Roma-specific housing policies to counter a housing emergency? Or how would the Court assess any one of the now many government programmes for improving the situation of Roma, filled as they are with lofty declarative goals, but for the most part lacking entirely in local implementation duties?27

Here there is clearly reason for optimism on the part of Roma rights activists. Given the Court’s willingness to take a State to task for providing a dysfunctional and apparently unimplemented legal regime for positive action (and one with no clearly allocated duty for local implementation), one can only assume that where no such positive action regime exists, the Court will find the rights at issue that much more frustrated. This is indeed the core meaning of the Court’s recognition that “there is [...] a positive obligation imposed on the Contracting States [...] to facilitate the gypsy way of life” and that “the vulnerable position of gypsies as a minority means that some special consideration should be given to their needs”. However, argument in those cases still lies ahead, and it will tax the creativity of advocates to bring them well.

The fact that a right of Roma in the Council of Europe Member States to positive action is currently waxing does not abrogate the requirement that officials in the Member States explain to their publics why such measures are good. To date no sensible debate has begun in Central and Eastern Europe as to why positive action measures for Roma should be embraced by the public at large. This is unfortunate, in light of the fact that positive action measures can potentially provoke public backlash, if undertaken in a void of public support. There are clear indications that such support could be garnered, were policy-makers to engage well to build it. In light of the foregoing, the Slovak Minister of Justice’s lawsuit should be seen as another of that country’s thoroughly senseless detours on the road to finally establishing full compliance with its international human rights commitments.


  1. Acting Executive Director, European Roma Rights Center; comments to: The author is indebted to Luke Clements, Lanna Hollo and Savelina Russinova for a number of the observations herein, as well as for reviewing drafts of this article.
  2. United Nations Economic and Social Council, Commission on Human Rights, Sub-Commission on the Promotion and Protection of Human Rights, Fifty-third session, Prevention of Discrimination and Protection of Indigenous Peoples and Minorities, "The Concept and Practice of Affirmative Action", Progress report submitted by Mr. Bossuyt, Special Rapporteur, in accordance with Sub-Commission resolution 1998/5, E/CN.4/Sub.2/2001/15, 26 June 2001. The footnotes following numbered in Roman numerals are from the original report by the Special Rapporteur.
  3. Article 2.2 of the International Convention on the Elimination of All Forms of Racial Discrimination states: "State Parties shall, when the circumstances so warrant, take, in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved".Article 3 of the Convention on the Elimination of All Forms of Discrimination against Women states: "State Parties shall take in all fields, in particular in the political, social, economic and cultural fields, all appropriate measures, including legislation, to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on the basis of equality with men."(Editors note: the footnotes to text from the 2001 report on the "Concept and Practice of Affirmative Action" by the UN Special Rapporteur on the Prevention of Discrimination and Protection of Indigenous Peoples and Minorities at the request of the UN Sub-Commission on the Promotion and Protection of Human Rights were included in the original text of the report).
  4. See, for example, Human Rights Committee, General Comment 4 on article 3, (see HRI/GEN/1/Rev.1, Part I) (1994), para. 2: "Firstly, article 3, or articles 2 (1) and 26 insofar as those articles primarily deal with the prevention of discrimination on a number of grounds, among which sex is one, requires not only measures of protection but also affirmative action designed to ensure the positive enjoyment of rights."
  5. Ibid.
  6. For example, Committee on the Elimination of Discrimination against Women, General Recommendation No. 8 on implementation of article 8 of the Convention (see HRI/GEN/1/Rev.1, Part IV) (1994): "Recommends that States parties take further direct measures in accordance with article 4 of the Convention to ensure the full implementation of article 8 of the Convention and to ensure to women on equal terms with men and without any discrimination the opportunities to represent their Government at the international level and to participate in the work of international organizations." Committee on Economic, Social and Cultural Rights, General Comment No. 5 on persons with disabilities (see E/C.12/1994/13) para. 9: "The obligation of States parties to the Covenant to promote progressive realization of the relevant right to the maximum of their available resources clearly requires Governments to do much more than merely abstain from taking measures which might have a negative impact on persons with disabilities. The obligation in the case of such a vulnerable and disadvantaged group is to take positive action to reduce structural disadvantages and to give appropriate preferential treatment to people with disabilities in order to achieve the objectives of full participation and equality within society for all persons with disabilities."
  7. Committee on the Elimination of Discrimination against Women, General Recommendation No. 5 on temporary special measures (see HRI/GEN/1/Rev.1. Part IV).
  8. Human Rights Committee, General Comment 18 on non-discrimination (see HRI/GEN/1/Rev.1, Part I, (1994), para. 10.
  9. M. Craven, The International Covenant on Economic, Social and Cultural Rights, a Perspective on its Development, Oxford, Clarendon Press, 1995, p. 186.
  10. B.G. Ramcharan, op. cit. p. 261; A. Bayefsky, loc. cit., pp. 27-33; E. Vogel-Polsky. Les actions positives et les contraintes constitutionelles et legislatives qui p, Comit11 E. Vogel-Polsky, "Les actions positives dans la thPositieve actie, positieve discriminatie, voorrangsbehandeling voor vrouwen, Tegenspraak-Cahier 8, Antwerpen, Kluwer, 1990, p. 79.
  11. E. Vogel-Polsky, "Les actions positives dans la th?orie juridique contemporaine", in B. de Grave, (ed.), Positieve actie, positieve discriminatie, voorrangsbehandeling voor vrouwen, Tegenspraak-Cahier 8, Antwerpen, Kluwer, 1990, p. 79.
  12. European Court of Human Rights, Marckx v. Belgium, 13 June 1978, vol. 31, Ser. A., para. 31.
  13. Council Directive 2000/43/EC implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, Article 5. EU jurisprudence on positive action in the field of gender discrimination has been extensively elaborated by the European Court of Justice, but issues related to positive action for ethnic groups have not yet been ruled upon by the Court.
  14. The primary source under international human rights law for minority rights is Article 27 of the International Covenant on Civil and Political Rights (ICCPR), which states, "In those states where ethnic, religious or linguistic minorities exist, persons belonging to such minorities shall not be denied the right, in community with the other members of their group, to enjoy their own culture, to profess and practice their own religion, or to use their own language."
  15. The Framework Convention on the Protection of National Minorities states:At Article 3(1): "Every person belonging to a national minority shall have the right freely to choose to be treated or not to be treated as such and no disadvantage shall result from this choice or from the exercise of the rights which are connected to that choice."At Article 4(1): "The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited."At Article 6(2): "The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity."
  16. European Court of Human Rights, Judgment, Thlimmenos v. Greece, (Application no. 34369/97), 6 April 2000. The Court's moves in Thlimmenos were noteworthy, given that the facts in Thlimmenos indicated a person denied employment because of a previous criminal conviction for refusing to serve in Greece's armed forces for reasons of conscientious objection on grounds of religion. There is no Convention right to employment, and the Court was asked to consider finding a violation of Article 9 (the right to freedom of thought, conscience and religion) in conjunction with Article 14, even though it was not being asked to consider the actual criminal conviction, which had taken place many years before. The Court found such a violation, indicating that it may be prepared to find violations of the principle of equal treatment even in areas not secured by the Convention, if the facts involved are sufficiently compelling and/or if level of impairment of a given right is particularly grave. The Court granted itself permission to rule in this manner by holding the following: "The Court recalls that Article 14 of the Convention has no independent existence, since it has effect solely in relation to the rights and freedoms safeguarded by the other substantive provisions of the Convention and its Protocols. However, the application of Article 14 does not presuppose a breach of one or more of such provisions and to this extent it is autonomous. For Article 14 to become applicable it suffices that the facts of a case fall within the ambit of another substantive provision of the Convention or its Protocols (see the Inze v. Austria judgment of 28 October 1987, Series A no. 126, p. 17, § 36)." (Judgment, Thlimmenos v. Greece, para. 40).
  17. See Plese, Branimir, "The Strasbourg Court Finally Redresses Racial Discrimination", Roma Rights 1/2004, pp. 109-120.
  18. Ibid. p.110.
  19. In its decision in Nachova, the Court justified encroaching upon the "beyond a reasonable doubt" standard of proof with reference to the particularly egregious facts of the case, in particular holding that "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." This has caused some commentators to worry that the Court may be prepared to examine racial discrimination under the reduced standard only in cases of the death of the victim at the hands of the state authorities. However, the Court?s reference to cases such as Conka v. Belgium, in which the Court also suspended use of the "beyond a reasonable doubt" standard as a result of its displeasure at the fact that Belgian police had tricked Romani asylum seekers into coming to the police station by lying to them in a written communication, indicate that it is more likely to adopt a "stinking fish" approach when assessing racial discrimination claims. That is, where certain factual profiles (death of the victims, abandonment of bona fides, or other egregious breaches catch the eye of the Court), it will be particularly likely to act to assess a case under loosened proof standards.
  20. European Court of Human Rights, Judgment, Anguelova v. Bulgaria, (Application no. 38361/97), 13 June 2002.
  21. Article 11 of the International Covenant on Economic, Social and Cultural Rights ("ICESCR") states: "The States Parties " recognize the right of everyone to an adequate standard of living for himself and his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions"." In its General Comment 4 on the right to adequate housing, the United Nations Committee on Economic, Social and Cultural rights stated:"7. In the Committee's view, the right to housing should not be interpreted in a narrow or restrictive sense which equates it with, for example, the shelter provided by merely having a roof over one's head or views shelter exclusively as a commodity. Rather it should be seen as the right to live somewhere in security, peace and dignity [...] irrespective of income or access to economic resources. Secondly, the reference in article 11 (1) must be read as referring not just to housing but to adequate housing."In Paragraph 8 of the same General Comment, the Committee elaborated an approach whereby adequate housing was to be understood in terms of seven key elements. These include:"(a) Legal security of tenure. Tenure takes a variety of forms, including rental (public and private) accommodation, cooperative housing, lease, owner-occupation, emergency housing and informal settlements, including occupation of land or property. Notwithstanding the type of tenure, all persons should possess a degree of security of tenure which guarantees legal protection against forced eviction, harassment and other threats. States parties should consequently take immediate measures aimed at conferring legal security of tenure upon those persons and households currently lacking such protection, in genuine consultation with affected persons and groups;"
  22. Dissenting opinion of Judge Pettiti, Decision on Merits, Buckley v. United Kingdom, 25.9.1996.
  23. Rendered more precisely: the U.K. government argued that a measure aimed at protecting a minority right - minority lifestyle nomadism -- entailed the need to not have security of tenure, as well as the need to be able to easily expel troublemakers. The question then arose as to whether the eviction truly seemed to be carried out in fulfillment of this measure aimed at protecting a minority right. The Court's answer to those questions was "no", and it held that the eviction practices in question could not seriously be defended by recourse to such arguments. In this vein, the Court held, "even allowing for the margin of appreciation which is to be afforded to the State in such circumstances, the Court is not persuaded that the necessity for a statutory scheme which permitted the summary eviction of the applicant and his family has been sufficiently demonstrated by the Government. The power to evict without the burden of giving reasons liable to be examined as to their merits by an independent tribunal has not been convincingly shown to respond to any specific goal or to provide any specific benefit to members of the gypsy community. The references to "flexibility" or "administrative burden" have not been supported by any concrete indications of the difficulties that the regime is thereby intended to avoid" (Connors Judgment, para. 94).
  24. See Connors Judgment, paras. 57-58.
  25. Connors judgment para. 82.
  26. This paper will not assess the implications of the Connors decision on domestic housing policy, although the new standard set out in Paragraph 82 of the decision may beg the need for such an assessment.
  27. Recent review by the European Committee of Social Rights concerning Greece's compliance with the European Social Charter in the matter of European Roma Rights Center v. Greece focussed explicitly on the question of to whom statutory obligations to implement a government policy concerning sanitary provisions for nomadic groups flowed and what measures are undertaken if measures to fulfil these obligations are not undertaken. Decision in the complaint is pending.



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