In recent years, the human rights treaty-monitoring bodies have begun to pay attention to the rights of the Roma population. It is estimated that there are more than 14 million Roma around the world, but an exact number is difficult to determine, as the Roma are often not included in official census counts. The Roma are a distinct ethnic minority dispersed worldwide and generally form a separate social group distinguished from mainstream society where they live. This group of people suffers a wide range of human rights violations, in particular racial violence and discrimination in the enjoyment of rights, such as the right to adequate housing and right to education. This situation is particularly severe in Central and Eastern European countries where the Roma are, in general, in an extremely vulnerable position in social, economic and political terms. This vulnerability is manifested in widespread and acute poverty, unemployment, illiteracy, lack of formal education and segregation in the educational system, substandard housing, and other problems. Prejudice against the Roma is persistent and, as reported by several human rights organisations, Roma populations are frequently targeted as scapegoats for the ills of society at large, resulting in violent attacks against them and their property.
A. Standards
The key human rights principles essential for effective protection of Roma/Sinti/Gypsy populations are to be found in existing international instruments, such as CERD, ICCPR, CEDAW,CAT, ICESCR and CRC. All these instruments establish rights, which shall be enjoyed by this group without discrimination.
Of particular importance are the provisions against racial discrimination, which should be applied specifically for the protection of Roma communities. Among the different UN bodies involved in combating racism, there was no reference to the Roma until 1991 when the Sub-Commission on the Promotion and Protection of Human Rights expressed that ‘in many countries, various obstacles exist to the full realisation by persons belonging to the Roma community of their civil, political, economic, social and cultural rights and that such obstacles constitute discrimination directed specifically against that community, rendering it particularly vulnerable’ (Resolution 1991/21). A year later, the UN Human Rights Commission in Resolution 1992/65, ‘Protection of Roma (gypsies)’, urged the Sub-Commission’s Special Rapporteur on minorities ‘to afford special attention to and to provide information on the specific conditions in which the Roma communities live’. In 2000, the vulnerability of this group was highlighted in a working paper written by Yeung Kam Yeung Sik Yuen, Sub- Commission Expert on the situation of Roma.
The Committee for the Elimination of Racial Discrimination has been particularly significant regarding Roma issues, as it has taken a comprehensive approach to the protection of this group. In 2000, it adopted its General Recommendation 27, which focuses specifically on ‘Discrimination against Roma’. This General Recommendation urges states parties to adopt measures to protect Roma communities against racial violence and to improve their living conditions. The general recommendation, which is addressed to all states parties to CERD, calls upon them to express determined politicalwill and moral leadership, with a view to protecting them against discrimination by state bodies or persons and organisations. It further recommends the implementation of practical national strategies and programmes to improve the standard of living of Roma. These include a more flexible approach towards education whereby it would easier for the children of travellers to enrol temporarily in schools, while the feasibility of distance learning and the holding of classes in the encampments should also be explored. Roma people should be encouraged to join the police, and each country should acknowledge the wrongs done to Gypsies during the Second World War.
At the European level, in addition to the protection afforded by the European Convention, this group is also protected through the Framework Convention for the Protection of National Minorities and the European Charter for Regional or Minority Languages. The European Commission against Racism and Intolerance (ECRI) has adopted a General Policy Recommendation (No. 3) on ‘Combating Racism and Intolerance against Roma/Gypsies’, which provides for a broad approach to the protection of this group (see I§6.D). Also pertinent to Roma people is the Commission’s General Policy Recommendation No. 11 on ‘Combating Racism and Racial Discrimination in Policing’, which concerns racial profiling and police investigations of anti-Roma incidents.
The CoE has set up a partnership agreement with the European Roma and Travellers Forum (ERTF). The ERTF receives funding and has privileged access to the various bodies of the Council that deal with Roma issues. These bodies include the Committee of Experts on Roma and Travellers and the Council of Europe co- ordinator for Roma and Travellers issues. This privileged access gives Roma the potential to participate and influence the decision-making process in issues concerning them.
The first EU Roma Summit, convened by the European Commission in September 2008, brought together 400 representatives of the EU and Roma organisations. The event was partly in response to a Commission report that identified the failure of EU states to effectively implement policies to improve the lives of Roma people. The objective of the Summit was to create an understanding of the situation or Roma, while identifying strategies and best practises that would inform the future policies of the EU towards Roma people. The Summit came under intense criticism from some groups for failing to condemn Italy’s policy of fingerprinting Romani people.
A Joint CoE/EC programme was launched for 2008/2009 entitled ‘Enhancing the domestic capacity to devise, implement and monitor National Action Plans for Roma, and countering negative stereotyping faced by Roma people’. Another example of joint CoE/EC programmes on behalf of Roma people is the Dosta awareness campaign, a collaborative effort with several NGOs to promote a positive image of Roma citizens to combat common stereotypes and prejudices in South-Eastern countries, such as Moldova and Ukraine.
The OSCE is also committed to the protection of Roma. It was the first international organisation to recognise, in 1990, the ‘particular problems of Roma (gypsies)’ in the context of the proliferation of racial and ethnic hatred, xenophobia and discrimination (Copenhagen Document). As a result, a Contact Point for Roma and Sinti Issues was established in 1994 within the OSCE Office for Democratic Institutions and Human Rights (ODIHR) in Warsaw. In November 2003, the Permanent Council of the OSCE adopted Decision No. 566 on an ‘Action Plan on Improving the Situation of Roma and Sinti within the OSCE Area’. The aim of the action plan is to ensure that Roma and Sinti people are able to play a full and equal part in society, and to eradicate discrimination against them. The commitment to this plan was reaffirmed and elaborated upon in OSCE Decision No. 6/08, which stresses the value of the reports by the Director of the ODIHR to the Permanent Council on the implementation of the plan.
B. Supervision
It is a common practice of the UN treaty monitoring bodies to issue recommendations and suggestions as to how to protect Roma/Gypsy/Sinti in their concluding observations on states’ reports. For example, the Committee on Economic, Social and Cultural Rights has required states to take positive measures to protect the Roma population. Examining the report on Italy, the Committee noted with concern that:
[A] large number of the Roma population live in camps lacking basic sanitary facilities on the outskirts of major Italian cities. The Roma on the whole live below the poverty line and are discriminated against, especially in the workplace, if and when they find work, and in the housing sector. Life in the camps has had a major negative impact on the Roma children, many of whom abandon primary and secondary schooling in order to look after their younger siblings or to go out begging in the streets in order to help increase their family income (Concluding Observations Italy E/2001/22 para. 116).
In light of these findings, the Committee recommended that the state:
[S]tep up its efforts to improve the situation of the Roma population, inter alia by replacing camps with low cost houses; by legalising the status of Roma immigrants; by setting up employment and educational programmes for parents; by giving support to Roma families with children at school; by providing better education for Roma children; and by strengthening and implementing anti discrimination legislation, especially in the employment and housing sectors (para. 126).
The Committee has also indicated that ‘the continued discrimination against the Gypsies calls for immediate remedial policies and measures’ (Concluding Observations Germany, 1999).
The CERD Committee has dealt with cases concerning discrimination against Roma people. L. R. et al. v. The Slovak Republic concerned a petition against a municipal plan for low-cost housing for Roma people stating that ‘it will lead to an influx of inadaptable citizens’. The petition was signed by 2,700 inhabitants and the plans for housing were cancelled explicitly referring to it. The applicants argued that the state had failed to ensure that public authorities act in conformity with the obligation not to engage in any act or practice of racial discrimination, that the petition’s wording can be regarded as incitement to racial discrimination and that the state failed to safeguard the right to adequate housing and to provide an effective remedy against acts of racial discrimination. The Committee held that there had been a violation of Article 2 (state obligation), Article 4 (prohibition of propaganda), Article 5(esc-rights) and Article 6 (effective remedy).
The Committee against Torture has also dealt with issues relating to Roma. For example, in Dzemajl et al. v. Yugoslavia, the Committee found that the lack of protection afforded by the police against an anti-Roma rampage in which an entire settlement was levelled and all properties belonging to its Roma residents were burnt or destroyed, amounted to a violation by the state of the prohibition of cruel, inhuman or degrading treatment or punishment.
The UN Special Procedures have addressed Roma issues, e.g., in November 2008 when the Independent Expert on minority issues and the Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related forms of intolerance expressed ‘grave concern over the recent rise in anti-Roma sentiment and violent incidents in several European countries’. The UN experts considered:
[T]hat the policies and actions of numerous states have been, at best, inadequate to resolve intolerable conditions of poverty, marginalization and exclusion experienced by the Roma minority in Europe. Policies such as finger-printing of Roma, abuse by police, and racist statements by senior public officials contribute to creating a climate in which societal discrimination and racism are sustained and enhanced.
The experts stated their belief that the growing number of such incidents requires both a national and Europe-wide response. ‘A strong message must be sent by the European Union and acted upon by Member States. It is unacceptable for any sector of society to be vilified, threatened and attacked.’
At the European level, the European Court has dealt with the discrimination against Roma, for example, in Assenov et al. v. Bulgaria, where the applicant was a Bulgarian national of Roma origin who claimed that when he was 14 years of age he was beaten by the police while in detention. The Court found that a lack of an effective investigation into the applicant’s claim entailed a violation by the state of Article 3 ECHR.
In Velikova v. Bulgaria the Court ruled that a Roma man had died as a result of injuries inflicted while he was in the hands of the police, that he was not properly examined by a medical doctor when he was in custody suffering from grave injuries and that there had not been an inadequate investigation into the circumstances of his death, in violation of the right to life. The Court ruled that it had not been proven ‘beyond reasonable doubt’ that the killing and the lack of a meaningful investigation into it were motivated by racial prejudice (see also, e.g., Anguelova v. Bulgaria).
In Chapman v. The United Kingdom, a slim majority of the Court considered that the applicants’ occupation of their caravans was an integral part of their ethnic identity as gypsies and that certain enforcement measures and planning decisions interfered with their rights to respect for their private and family life. However, the Court found that the measures were ‘in accordance with the law’ and pursued the legitimate aim of protecting the ‘rights of others’ through preservation of the environment and found there had been no violation of Article 8 (respect for home, private and family life), nor of Article 1 Protocol No. 1 (the right to peaceful enjoyment of possessions).
In Moldvan and Others v. Romania the applicants complained that – following the destruction of their houses – they could not live in their homes and had to live in very poor, cramped conditions. They also complained that the authorities had failed to carry out an adequate criminal investigation. Several applicants also complained about the length of the criminal proceedings. They further submitted that they had 435 Roma / Gypsies / Sinti suffered discrimination. The Court concluded that the applicants’ living conditions and the racial discrimination to which they had been publicly subjected by the way in which their grievances were dealt with by the various authorities constituted an interference with their human dignity which, in the special circumstances of the case, amounted to ‘degrading treatment’ within the meaning of Article 3 ECHR.
In Conka v. Belgium the Court found that the arrest and deportation of a Roma family to Slovakia amounted to an infringement of Articles 5 (right to liberty and security), Article 13 (right to an effective remedy) and Article 4 Protocol 4 (prohibition of the collective expulsion of aliens). In Balogh v. Hungary the applicant was beaten by police in custody. The Court found a violation of Article 3 (prohibition of torture and inhuman and degrading treatment). In Connors v. The United Kingdom the applicant complained, in particular, that he was not given the opportunity to challenge in court the allegations made against him which were the basis for his family’s eviction and that – unlike the owners of privately run sites, housing associations and local authority landlords – local authorities running gypsy sites were not required to prove allegations against tenants. The Court found a violation of Article 8 (right to respect for private and family life).
In Nachova and Others v. Bulgaria, the Grand Chamber affirmed in substantial part the Court’s first ever finding of racial discrimination in breach of Article 14. The Court’s ruling established that states have an obligation to investigate possible racist motives behind acts of violence. The applicants alleged that their relatives had been killed in violation of Article 2, as a result of deficient law and practice which permitted the use of lethal force without absolute necessity. They also complained that the authorities had failed to conduct an effective investigation into the deaths and alleged that prejudice and hostile attitudes towards people of Roma origin had played a decisive role in the events leading up to the shootings and the failure to carry out a meaningful investigation. The Court found that there had been a violation of Article 2 (right to life) in respect of the deaths and ineffective investigation into them and a violation of Article 14 taken in conjunction with Article 2 in that the authorities had failed to investigate possible racist motives behind the events that had led to the deaths (see also Secic v. Croatia).
A groundbreaking recent Grand Chamber decision is DH and Others v. Czech Republic. The applicants argued that their treatment amounted to a discriminatory denial of their right to education in breach of Article 14 taken together with Article 2 of Protocol No. 1 (the right to education). In their submissions they drew on extensive research indicating that Roma children were systematically assigned to segregated schools based on their racial or ethnic identity rather than their intellectual capacities. The Grand Chamber held that the education policy in the Czech Republic, which resulted in the majority of Roma children being placed in special schools designed for children with disabilities, indirectly discriminated against the applicants on the basis of their race in relation to their right to education.