Hysenaj v Albania (third-party intervention, pending)
22 August 2016
The applicant is a Romani woman whose house was set on fire. The authorities did not inform her about the criminal proceedings against the perpetrators, and as a result she was unable to lodge a civil claim against them.
The ERRC’s Third-Party Intervention
The ERRC urged the Court to name antigypsyism as underlying racist violence against and harassment of Roma in Europe. The Court had to use that word to describe the significance, under the Convention, of acts and omissions of State bodies that might appear isolated or accidental, but, in reality, formed part of and perpetuated a pattern of racial exclusion. The ERRC relied on two definitions of antigypsyism, one provided by the European Commission against Racism and Intolerance and the other more recently formulated by the Alliance Against Antigypsyism. The ERRC then provided a non-exhaustive survey of evidence that Council of Europe Member States were allowing antigypsyism to flourish in the years preceding the events at issue in the present case. The survey covered a wide range of unresolved (and usually improperly investigated) hate crimes across Europe. Moving to the issue of access to justice, the ERRC noted that despite the significant number of improperly investigated hate crimes against Roma in Europe, few cases had made it to the Court in recent years. The ERRC saw this as a symptom of the effects antigypsyism, and particular of institutional racism against Roma within police, prosecutors’ offices, and domestic courts. The ERRC surveyed the evidence showing that Roma and other minorities in Europe had little faith in these institutions and that these institutions were aware of the problem. The ERRC relied in particular on a working paper published by the European Centre for Minority Issues, an NGO, providing the results of a survey among Roma in Albania about their awareness of the justice system and their experiences accessing it. The paper pointed to an institutional failure on the part of the Albanian justice system to provide an appropriate service to Roma, which, in the ERRC’s view, met the definition of institutional racism. The ERRC concluded by urging the Court not to limit itself to examining merely whether an omission had prevented Roma from pursuing justice in a hate-crime case. Such a limited approach ran the risk of implicitly treating the omission as an isolated incident or an accident, when in fact such omissions were part of a broader pattern of racial exclusion; Roma turned to the Court to expose the full extent of that pattern in cases such as these. Instead, the burden was on the Respondent Government to explain precisely how such an omission had happened. In the absence of a satisfactory explanation that the omission was not related to an applicant’s ethnicity, there should be a finding of a violation of Article 14 taken with Article 6 § 1 on the basis that the authorities had deprived Roma of access to justice on grounds of race or ethnicity.
The Court’s statement of facts can be found here.
The ERRC’s third-party intervention can be found here.