Should the European Court of Human Rights recognise discriminatory violence against Roma?
What is the added value, if anything, of explicitly recognising the discriminatory nature of violence in human rights cases regarding state responsibility?
The European Court of Human Rights’ case law on anti-Roma violence has been a hotly debated topic (for a more recent contribution on the matter I refer to an article written by Mathias Möschel). In several cases the Court has, after finding a violation of the prohibition of torture or the right to life, refused to recognise the related, yet separate allegation of discriminatory physical abuse. In an Anglo-Saxon criminal law context, it has been claimed that the racial nature of a hate crime adds to its severity. But is there an added value in explicitly recognising the discriminatory nature of violence in human rights cases regarding state responsibility, especially with a view to the contemporary functions and purposes of the ECtHR? I addressed this question last week during the Inaugural Conference hosted by the International Network for Hate Studies at the University of Sussex.
The ECtHR is a regional supervisory institution equipped with the task of safeguarding and monitoring respect for civil and political rights embedded in the European Convention on Human Rights and Fundamental Freedoms. In Nachova and others v. Bulgaria the Court underlined that “its role is not to rule on criminal guilt or civil liability but on Contracting States’ responsibility under the Convention” (para. 147). The Court was brought into existence in a post-World War II setting and at its very genesis, in the 1950s, it was mainly regarded as a higher safeguard in alarming situations where the liberties set out in the European Convention on Human Rights are threatened by totalitarian regimes (see for example an article by Steven Greer, ‘What’s wrong with the European Convention on Human Rights?’, p. 681). The original thought behind the establishment of a Strasbourg human rights mechanism, therefore, appears to be the prevention of atrocities resembling those that occurred during the Second World War.
However, after the 1950s, it appeared that in practice complaints concerning ‘alarming matters’ compromising the most fundamental values and the democracies within the Council of Europe’s Member States failed to occur most of the time. The modern Court has been described as having four different purposes, notably 1) to hold State parties to account; (2) to protect minority groups and views; (3) to trigger reform; and (4) to uphold a model of rights-bearing based on individuals rather than citizens (B. Çali, ‘The purposes of the European Human Rights System: one or many?’, p. 299). Furthermore, proposals have been made for the ECtHR to start delivering constitutional justice. This constitutional model implies that the Court's primary responsibility ought to be the selection and adjudication of the most serious alleged violations (see for example the critique by Greer, Greer & Wildhaber and Gerards).
With a view to this description of the Court’s functions and purposes, is it reasonable to consider that the Court should recognise anti-Roma violence or at least elaborate more on this kind of complaints in its judgments?
It ought to be recalled that some of the most horrific human rights violations during World War II appeared in the form of the massive liquidation of certain groups. One of those groups was the Roma. Taking this historic context into account, it is very striking to perceive that isolated instances of discriminatory violence against Roma are not receiving much attention in the Court’s judgments. One would expect that a human rights tribunal, created in the first place in order to prevent World War II scenarios, would provide for a more elaborate reasoning when the physical abuse of Romani individuals on the basis of their ethnicity is alleged.
A more elaborate and rigorous examination of anti-Roma violence complaints is also justified by the latest discussion on the functions and purposes of the modern Court. As it appeared earlier, a number of lawyers plead for a European human rights tribunal focusing on the most serious alleged violations. In my view, discriminatory violence claims are covered under that umbrella. Furthermore, paying more attention to discriminatory violence complaints appears to fit into the Court’s purpose to protect minority groups.
In an Anglo-Saxon context it has been claimed that legislation allowing the prosecution and sanctioning of bias crimes represents values that matter in a society and those that are mostly affected by such crimes, such as harmony between different groups and the equality principle. If the ECtHR were to choose to address discriminatory violence complaints in a more elaborate manner or if it would recognise such violations, it could underline the importance of such principles on a European level. A human rights tribunal providing a minimal reasoning during the examination of such complaints risks sending a wrong signal to society in Europe, notably that harmony between different groups and equality are not considered particularly important in Europe.