Cioban v. Romania (third-party intervention, 2017)
20 November 2018
This case concerns allegations that police discriminated and ill-treated a group of Romani people in Oradea, Romania. On 18 May 2009, police approached the group, accusing them of illegally parking and littering. The police explicitly said that they were responding to a complaint against Romani people. The group disputed the accusation, claiming that police had them mistaken for other people, and refused to sign the incident report. The officers threatened them. When one member of the group began filming the encounter, the police dragged him out of his car, hit him while handcuffing him, and took him to a police station where they forced him to sign the report, which he was not allowed to read.
The President of the Chamber of the European Court of Human Rights granted permission to the European Roma Rights Centre to intervene as a third party. We sent in our submission on 30 January 2015. These were our points:
- The Court should explicitly acknowledge the phenomenon of anti-Gypsyism as underlying the problem of racist violence against Roma. Specifically, the Court should integrate the notion of institutional racism – the collective failure of an organization to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin –against Roma into its analysis of whether or not there has been a violation of Article 14 (prohibiting discrimination) taken with the procedural limb of Article 3 (requiring effective investigation of alleged cruel, inhuman and/or degrading treatment). Institutional racism is not necessarily conscious. The ERRC believes that incorporating institutional racism into the Court’s analysis will better enable the Court to resolve discrimination claims. In particular, the ERRC believes that the Court should interpret institutional racism to apply with regard to procedural violations of Article 3 (failure to investigate alleged cruel, inhuman, or degrading treatment), measuring discrimination based on whether or not a discriminated group is receiving an appropriate level of service from authorities rather than proving that failure to investigate was due to consciously racist motives.
- Anti-Gypsyism is particularly prevalent in Romania. Surveys and analysis from the National Council for Combating Discrimination (NCCD), the UN Committee on the Elimination of Racial Discrimination (CERD) note that anti-Gypsyism is widespread among Romanian society and authorities. Further, the ERRC believes that Romania’s refusal to collect data on racially motivated crimes is further evidence of anti-Gypsyism. The ERRC also notes that the absence of an independent mechanism for dealing with complaints of racial discrimination against police in Romania, as suggested by European Commission against Racism and Intolerance in 2005, is a major obstacle to tackling the issue.
- Romanian authorities have failed to provide effective victim participation in investigating abuses. Romania lacks the necessary procedural safeguards to ensure that victims receive effective notice regarding investigations of their claims by prosecutors, including the termination of investigation, thereby undermining the ability of victims to file appeals.
- The Court should reevaluate burden of proof standards with regard to allegations of substantive violations of Article 3 (prohibiting cruel, inhuman, or degrading treatment) in conjunction with violations of Article 14 (prohibiting discrimination). As it is, when Roma applicants are victims of a violation of Article 14 taken with the procedural limb of Article 3, it is almost impossible to establish a violation of Article 14 taken with the substantive limb of Article 3. Put another way, if police failed to provide an adequate investigation of alleged cruel, inhuman or degrading treatment that was discriminatory in nature against the applicants, it is virtually impossible to establish that the police engaged in cruel, inhuman, and degrading treatment that was discriminatory in nature. That is because the Court expects proof of discrimination to be “beyond reasonable doubt,” which is paradoxically impossible to establish when police investigations are procedurally inadequate.
The European Court’s Judgment
The European Court of Human Rights ruled the application inadmissible. The Court found that the applicants had failed to exhaust domestic remedies. This is because the applicants had received the decision refusing to prosecute the police officers, and they missed the 21-day deadline to appeal. The Court said it did not matter that the decision was sent directly to the applicants, and not to their lawyer, as the rules required. The applicants should have consulted their lawyer, asked their lawyer to lodge an appeal, or complained before the national authorities about the failure to deliver the notice properly.
The Court’s judgment can be found here.
The full text of the ERRC’s intervention can be found here.