Forced Evictions and Human Rights

Living in No-Man’s Land: Human Rights and the Roma

Darren Dinsmore LL.B, LL.M (Ph.D Candidate, Queens University Belfast)1

‘The Italian Minister of Interior is reported to have proposed that all Roma, including children, living in camps in Italy should be fingerprinted. This proposal invites historical analogies which are so obvious that they do not even have to be spelled out’. Terry Davis, Secretary General of the Council Europe.2

The announcement by the Italian Interior Minister Roberto Maroni in June 2008 of plans to fingerprint Roma, ‘to avoid phenomena like begging’, came at a time of notable unrest in and around Roma settlements in Italy. Described by opposition MP Rosy Bindi as an ‘ethnic register’3, the fingerprint plan reveals a deep-rooted prejudice. Due to report to the EU Justice Commissioner, Mr. Maroni has explained that the scheme will enable Roma children to get access to schooling, underlining the reality that the human rights needs of the Roma concern merely access to housing and education, among others.4 In a timely resolution, its third on the situation of the Roma5, described as ‘a pan-European ethno-cultural community without a nation State’, the European Parliament noted the prevalence of recent police raids and attacks on Roma settlements by private citizens in Italy and Hungary.6 The Italian response included the declaration of a state of emergency in the Campania, Lazio and Lombardy regions of Italy to deal with the unrest.7 Prefects have thereby been granted exceptional powers in derogation from constitutional guarantees; with the intention of enabling a census of the Roma population.8 Rather than ‘criminalising’ the Roma, the

1 Submitted for the purposes of the International Protection of Human Rights Course, Abo Akademi University, Turku / Abo, Finland. 2 ‘Council of Europe Secretary General Terry Davis on the Proposal to Fingerprint Roma in Italy’, Council of Europe Press Release, 484 (2008), 27th June 2008. 3 ‘Italy Fingerprint Plan Criticised’, BBC News, 26th June 2008; http://news.bbc.co.uk/2/hi/europe/7476413.stm. 4 Farkas, L., ‘A Good Way to Equality: Roma Seeking Judicial Protection against Discrimination in Europe’, 3 European Anti-Discrimination Law Review [2006] 21. 5 Following European Parliament Resolution of 28 April 2005 on the Situation of the Roma in the European Union, OJ C 45 E, and the Resolution of 31 January 2008 on a European Strategy on the Roma, P6_TA(2008)0035. In addition, see the EU Commission Staff Working Document on Community Instruments and Policies for Roma Inclusion, SEC(2008)2172. 6 European Parliament Resolution of 10 July 2008 on the Census of the Roma on the Basis of Ethnicity in Italy, Provisional Edition, P6_TA-PROV(2008)0361. 7 Decree of 21st May 2008, Gazzetta Ufficiale No. 122, 26th May 2008, at pp. 9; supra N.4, para. G. 8 Similar issues have arisen regarding DNA, fingerprints and data retention in the recent application to the European Court of Human Rights of S. and M. Marper v. UK (30562/02; 30566/04), declared admissible on 16th January 2007. On 10th July 2007, the Chamber relinquished jurisdiction to the Grand Chamber. The decision on the merits is expected in September 2008. 1 European Parliament urged the Italian authorities to provide equal access of Roma children, in particular, to ‘quality education, housing and healthcare, within the framework of inclusion and integration policies’.9 On the right to housing, in particular, there are an increasing number of decisions in which States have been found in breach of human rights obligations. The findings in those cases attest to a consistent pattern of treatment inconsistent to various human rights responsibilities. Following a brief review of the normative framework developed by the UN, this paper will assess the leading decisions on the housing rights and evictions of Roma given within three very different human right systems: the UN Committee against Torture, the European Committee of Social Rights and, finally, the European Court of Human Rights. A trend concerning a lack of meaningful State participation and compliance will be explained. Given the scope of the allegations, and the attitude of States Parties, it is clear that the integration of the Roma constitutes a compelling challenge to the protection of human rights.

Forced Evictions and Housing Rights The applicable principles as regards the practice of forced evictions are to be found in the output of a number of UN human rights bodies. Throughout the 1990s, a development of normative standards was undertaken by the UN Commission and Sub-Commission on Human Rights, and a treaty-based body, the UN Committee on Economic, Social and Cultural Rights (‘CESCR’). The contributions clarified the extent of the responsibility to protect against, and mitigate the impact of, forced evictions. It is an area in which the interdependence of human rights is readily apparent, Theo van Boven commented:

‘…the issue of forced removals and forced eviction has in recent years reached the international human rights agenda because it is considered a practice that does grave and disastrous harm to the basic civil, political, economic and cultural rights of large numbers of people, both individual persons and collectivities’.10

9 Supra N. 5, at para. 2. 10 Economic and Social Council, 45th Session of the UN Sub-Commission on the Prevention of Discrimination and Protection of Minorities, ‘Study Concerning the Right to Restitution, Compensation, and Rehabilitation for Victims of Gross Violations of Human Rights and Fundamental Freedoms’, Final Report, at para. 21, E/CN.4/Sub.2/1993/8, 2nd July 1993; cited in Office of the UN High Commissioner for Human Rights ‘Fact Sheet No. 25: Forced Evictions and Human Rights’, at pp. 2, www.unhchr.ch/html/menu6/2/fs25.htm. 2 In the context of providing guidance as to the interpretation of the right to adequate housing, as guaranteed under Article 11 (1)11 of the International Covenant on Economic, Social and Cultural Rights (‘ICESCR’)12, the CESCR has been a leading actor. 13 In 1991, by way of a ‘general comment’ of forced evictions,14 the Committee addressed the issue of States’ duties regarding evictions. Stressing the broad scope of legal protection required by Article 11 (1), involving the right ‘to live somewhere in security, peace and dignity’, the Committee recognised the right to adequate housing as a fundamental aspect of the framework of respect for human dignity and the principle of non-discrimination. Explicit reference was made to the disproportionate impact of forced evictions and the corresponding need to need to ensure ‘full and sustainable access to housing resources’ to the elderly, children, physically-disabled, terminally ill, victims of natural disasters and other marginalised or vulnerable persons.15 Explaining for the first time the nature of the guarantee against forced evictions, entailing the right not to be subjected to arbitrary or unlawful interference of one’s privacy, home or correspondence, the CESCR stated:

‘…instances of forced eviction are prima facie incompatible with the requirements of the Covenant and can only be justified in the most exceptional circumstances, and in accordance with the relevant principles of international law’.16

In 1993, the UN Commission on Human Rights gave its own contribution encouraged greater action in the field of forced evictions, a practice identified as a ‘gross violation’ of human rights.17 Elaborating further the principles to be applied, the Commission called upon States to guarantee protection against arbitrary and forced evictions, and to ensure security of tenure. Stressing that ‘ultimate legal responsibility’ rests with the State(s) concerned, the Commission observed that the practice of forced eviction increases levels of homelessness and ‘intensifies social

11 ‘The States Parties…recognize the right of everyone to an adequate standard of living from himself and for his family, including adequate food, clothing and housing, and to the continuous improvement of living conditions’. 12 Adopted and opened for signature, ratification and accession by General Assembly Resolution 2200 A (XXI) of 16th December 1966; entry into force on 3rd January 1976. 13 For a more detailed coverage of the CESCR’s role in the realisation of housing rights: Leckie, S., ‘The UN Committee on Economic, Social and Cultural Rights and the Right to Adequate Housing: Towards an Appropriate Approach’, 11 (1989) Human Rights Quarterly 522 – 560. 14 General Comment No. 4 ‘The Right to Adequate Housing (Article 11 (1) of the Covenant)’, 12th December 1991, E/1992/23, para. 7. In 1990, the Committee adopted General Comment No. 2, ‘International Technical Assistance Measures, E/1990/23, Annex III dealing with the issue of development-induced displacement. 15 Ibid., (e) ‘Accessibility’. 16 Ibid., para. 18. 17 Resolution 1993/77 ‘Forced Evictions’, 10th March 1993. 3 conflict’, with inevitable consequences for the vulnerable.18 Particular emphasis was placed on the duty to consult and negotiate with affected persons or groups prior to evictions19, and subsequently to provide remedies by way of restitution, compensation or alternative accommodation or land of affected persons or groups.20 In a series of resolutions, the UN Sub-Commission on Prevention of Discrimination and Protection of Minorities (‘Sub-Commission’) similarly referred to evictions as ‘a gross violation of a broad range of human rights’21 and called for the adoption of a ‘general comment’ by the CESCR on the issue. The Sub-Commission also encouraged all country and thematic Rapporteurs of the Commission and Sub-Commission to include reports and coverage of practices of forced evictions as part of their mandate.22 At its Sixteenth Session in 1997, after prolonged negotiation, the CESCR provided a major clarification of the grounds and conditions for ‘legal evictions’ in General Comment No. 723. Employing the preferred term of ‘forced evictions’, rather than ‘unfair evictions’ or ‘illegal evictions’,24 the Committee’s definition made note of the importance of effective access to protection:

‘…the permanent or temporary removal against their will of individuals, families and / or communities from the homes and / or land which they occupy, without the provision of, and access to, appropriate forms of legal or other protection.’25 [Emphasis added]

General Comment No. 7 was welcomed by Philip Alston as evidence of the role of the CESCR as the ‘premier international mechanism in the struggle against forced evictions’.26 It provided the following conditions to ensure against arbitrary or punitive acts of eviction. Regarding permitted evictions, the obligations under international human rights law were adopted i.e. to carry out ‘justified’ forced evictions in ‘strict compliance’ with the principles of reasonableness and 18 The Commission commented: ‘…the practice of forced eviction…result[s] in increased kevels of homelessness and inadequate housing and living conditions…and invariably affects the poorest, most socially, economically, environmentally and politically damaged and vulnerable sectors if society’. 19 Ibid., para. 3. 20 Ibid., para. 4. 21 Listing the rights to housing, food, movement, privacy, security of the home and person, security of tenure, equality of treatment and ‘a variety of additional rights’; Resolution 1996/27, 29th August 1996. 22 Resolution 1993/41 ‘Forced Evictions’, 26th August 1993; Resolution 1994/39 ‘Forced Evictions, 26th August 1994; Resolution 1995/29 ‘Forced Evictions’, 24th August 1995. 23 ‘The Right to Adequate Housing (Article 11 (1) of the Covenant): Forced Evictions’, 20th May 1997, E/1998/22, Annex IV. 24 For a commentary on the relationship between forced displacement and human rights, and on ‘confusion in the terminology’: Stavropoulou, M., ‘Displacement and Human Rights: Reflections on UN Practice’, 20:3 (1998) Human Rights Quarterly 515 – 554. 25 Ibid., para. 3. 26 ‘Forced Evictions and Human Rights: A Manual for Action’, Centre of Housing Rights and Evictions, Sources 3, per Philip Alston at pp. 16; www.cohre.org/store/attachments/COHRE %20sources%203.pdf. 4 proportionality, and to act in accordance with law.27 Prior to evictions, therefore, due consideration is to be given to possible alternative measures, in consultation with affected persons so as to minimise the need for use of force.28 A key aim of the general comment was to prevent arbitrary interferences and mitigate the impact of evictions upon vulnerable persons or groups of persons. Where evictions occur, therefore, a range of guarantees are given, including: reasonable notice of eviction to affected persons; that officials are present during eviction and all persons carrying out evictions are identified, and; to provide legal remedies and a right to compensation.29

The principles of General Comment No. 7 have repeatedly featured in the pronouncements of various UN bodies. In its concluding observations upon States’ reports, the CESCR has urged for the provision of conditions for permissible evictions in domestic law in Uruguay30 and South Korea31, amongst others. A lack of consultation prior to evictions has been observed by the Human Rights Committee in Kenya32, and more recently by the CESCR in China33. A lack of redress by means of compensation or inadequate provision of alternative housing has featured in the commentaries of the Human Rights Committee regarding Uzbekistan34, of the Committee for the Elimination of Racial Discrimination (‘CERD’) regarding Sudan35, and of the CESCR regarding Estonia36. The situation in the Occupied Territories has been included in the observations of the CESCR37 and the Committee for the Rights of the Child38. The practice of forced evictions in breach of human rights law is an international phenomenon, and an area in which the UN has become increasingly active. The assessment of relevant decisions will follow, beginning with the approach of the CAT to a current problem requiring police protection in Italy, the destruction and eviction of Roma settlements as a collective punishment by private citizens.

27 Para. 14. 28 Para. 13. 29 Para. 15. As regards remedial measures, General Comment No. 7 states: ‘…[w]here those affected are unable to provide for themselves, the State party must take all appropriate measures, to the maximum of its available resources, to ensure that adequate alternative housing, resettlement or access to productive land, as the case may be, is available’, para. 16. 30 Concluding Observations: Uruguay (22/12/1997), U.N. Doc. E/C.12/1/Add.18, para. 16. 31 Concluding Observations: Republic of Korea (21/05/2001), U.N. Doc. E/CN.12/1/Add.59, para. 25. 32 Concluding Observations: Kenya (29/04/2005), U.N. Doc. CCPR/CO/83/KEN, para. 22. 33 Concluding Observations: Peoples’ Republic of China (including Hong Kong and Macao) (13/05/2003), U.N. Doc. E/C.12/1/Add.107, para. 61. 34 Concluding Observations: Uzbekistan (26/04/2001), U.N. Doc. CCPR/CO/71/UZB, para.16. 35 Concluding Observations: Sudan (27/04/01), U.N. Doc. CERD/C/304/Add.116, para. 13. 36 Concluding Observations: Estonia (19/12/2002), U.N. Doc. E/C.12/1/Add.85, para. 25. 37 Concluding Observations: Israel (04/12/1998), U.N. Doc. E/C.12/1/Add.27, para. 11 – 12 regarding confiscation of property, para. 22 regarding house demolitions. 38 Concluding Observations: Israel (09/10/2002), U.N. Doc. CRC/C/15/Add.195, para. 50 – 51. 5 The UN Committee against Torture (‘CAT’) In December 2002, the CAT gave a landmark ruling on an alleged act of destruction of the complainant’s homes and forced eviction by ‘consent or acquiescence’ of the national police, in the case of Hajrizi Dzemajl et al v. Yugoslavia.39 Although this was the first decision of the CAT on the practice of forced evictions, the CAT had previously addressed the issue. In 2001, the CAT expressed concern and called upon Israel to discontinue house demolitions which ‘may’ amount to inhuman treatment.40 In the same year, the CAT noted the prevalence of discrimination against the Roma population in the Czech Republic and repeated reports of violent attacks accompanied by a failure or unwillingness of the national authorities to protect, investigate or prosecute the perpetrators.41 The discrimination against Roma in housing and employment, including the practice of forced eviction, has since been repeatedly observed by the Human Rights Committee, the CESCR and the CERD.42

The application in the Dzemajl case was lodged by 65 nationals of the Federal Republic of Yugoslavia of Romani origin and concerned events in April 1995 following the alleged rape of an ethnic Montenegrin minor. On account of the lack of active participation of police or other national authorities in the act of eviction, the concept of positive obligations was central to the complaints. State responsibility was engaged not by action taken, but as a result of the failure to act to prevent or stop a racist pogrom against the Roma minority. The complainants emphasised as a general context to their complaints that there had been a consistent lack of State action to protect the Roma minority in Yugoslavia since the departure of former President Slobodan Milosevic, referring to a ‘dire’ human rights situation in which the Roma were victims of ‘systematic police brutality’.43 The Yugoslav State failed to participate in the proceedings before the CAT in any meaningful way, neither submitting detailed observations regarding admissibility nor on the merits, despite

39 U.N. Doc., CAT/C/29/D/161/2000, 2nd December 2002. 40 Conclusions and Recommendations: Israel (23/11/2001), U.N. Doc., CAT/C/XXVII/Concl.5, paras. 6 (j) and 7 (g). 41 Concluding Observations: Czech Republic (14/05/2001), U.N. Doc. A/56/44, para. 113 (b). 42 By the Human Rights Committee, regarding Hungary (Concluding Observations (19/04/2002), U.N. Doc. CCPR/CO/74/HUN, para. 7) and Germany (Concluding Observations (04/05/2004) U.N. Doc. CCPR/CO/80/DEU, para. 21). By the CESCR, regarding Italy (Concluding Observations (23/05/2000), U.N. Doc. E/C.12/1/Add.43, para. 10) and Slovakia (Concluding Observations (191/12/2002), U.N. Doc. E/C.12/1/Add.81, para. 9). By the CERD, regarding Ukraine (Concluding Observations (19/10/2006), U.N. Doc. CERD/C/UKR/CO/18, para. 11) and Lithuania (Concluding Observations (21/03/2002), U.N. Doc. CERD/C/60/CO/8, para. 14. This a selective, indicative list, rather than being comprehensive. 43 Para. 3.5. 6 three separate communications of the Committee requesting it to do so.44 The Committee was therefore reliant on the complainants’ submissions on the facts.45

As part of the investigation into the allegation of rape, the complainants claimed that police entered the Roma settlement in the town of Danilovgrad on the night of the 14th April and took into custody all of the young male inhabitants. A group of ethnic Montenegrins began anti-Roma protests and called upon the Municipal Assembly to expel them from the town. On the morning of the 15th April, after two of the men confessed to the rape, the other detainees were released from custody and warned by police to leave Danilovgrad immediately. A police officer also visited the settlement and advised residents to leave on several occasions. During the course of the 15th April, non-Roma residents gathered in increasing numbers in and around Danilovgrad, entered and destroyed the Bozova Glavica settlement; setting fire to homes, cars, farming equipment, stables and other property. Despite the presence of five police officers throughout, little was done to prevent the acts of destruction. The complainants submitted that, in fact, a police car was moved to a safe distance and care taken to prevent the spread of fires to the surrounding buildings of non-Roma residents. Within days of the destruction, no traces of the settlement remained.

On the basis of the failure to protect them against the acts of destruction, the complainants alleged that they had been the victims of torture under Article 1, or ill- treatment under Article 16 (1) of the Convention against Torture.46 Stressing the ‘particularly vulnerable character of the Roma minority’47 and the racial motivations behind the attack, the complainants contended that the pogrom had been committed with the ‘consent or acquiescence’ of the police; specific mention of which is included in both Articles 148 and 16 (1)49. In their submissions before the Committee,

44 Paras. 6 - 7. 45 The complainants asserted that by failing to contest the complaints the State had ‘tacitly accepted’ the claims, para. 8.14. 46 Convention against Torture and Other Cruel, Inhuman and Degrading treatment or Punishment, adopted on 10th December 1984 by General Assembly Resolution 39/46; entry into force on 26th June 1987. 47 Para. 3.6. 48 Article 1 (1) states: ‘For the purposes of this Convention, torture means any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person…when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. 49 Article 16 (1) states: ‘Each State Party shall undertake to prevent in any territory under its jurisdiction other acts of cruel, inhuman and degrading treatment or punishment…when such acts are committed by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity’. 7 the complainants referred to the duties on States under Article 7 of the International Covenant on Civil and Political Rights (‘ICCPR’).50 In its General Comment No. 2051, the Committee on Civil and Political Rights (‘CCPR’) explained that protection against prohibited acts must include protection against acts committed both by persons acting in an official or in a private capacity.52 On the criminal law obligations resulting from Article 7, for instance, the CCPR commented:

‘States parties should indicate when presenting their reports the provisions of their criminal law which penalize torture and cruel, inhuman and degrading treatment or punishment, specifying the penalties applicable to such acts, whether committed by public officials or other persons acting on behalf of the State, or by private persons. Those who violate article 7, whether by encouraging, ordering, tolerating or perpetrating prohibited acts, must be held responsible.’53

The complainants also relied on the concept of positive obligations, citing the decision of the Inter-American Court of Human Rights in the Velasquez Rodriguez v. Honduras case and the principle that a lack of ‘due diligence’ could result in State responsibility for breaches of the Inter-American Convention.54 Further, the complainants cited the European Court of Human Rights’ decision in the case of Osman v. United Kingdom55 on an alleged failure to protect the right to life against the criminal acts of others.56 Referring to its jurisprudence on similar inaction of law enforcement officials to protect groups against ‘racially motivated attacks’ in Slovakia57 and the Czech Republic58, the ECSR upheld the positive duty and found the inaction of police to constitute an act of cruel, inhuman and degrading treatment or punishment. Aggravating factors were stated to be the number of complainants hiding in the settlement on 15th April, the ‘particular vulnerability’ of the victims and the

50 Adopted for signature, ratification and accession by General Assembly Resolution 2200A (XXI) 16th December 1966; entry into force on 23rd March 1976, para. 8.9. 51 General Comment No. 20: ‘Replaces General Comment No. 7 Concerning Prohibition of Torture and Cruel Treatment or Punishment (Art. 7)’, Forty-Fourth Session, 10th March 1992. 52 Ibid., para. 2. 53 Ibid., para. 13. A similar provision is contained in the UN Code of Conduct for Law Enforcement Officials, Adopted by General Assembly Resolution 34/169, 17th December 1979, Article 5 of which states: ‘No law enforcement official may inflict, instigate or tolerate any act of torture or other cruel, inhuman or degrading treatment or punishment’. [Emphasis added] 54 Judgment of 29th July 1988, Series C, No. 4, 147, at 291. 55 (23452/94) [GC] Judgment of 28th October 1998, 29 EHRR 245. 56 The complainants also drew the Committee’s attention to the judgments of the European Court of Human Rights in the cases of Mentes and Others v. Turkey (23186/94) [GC] Judgment of 28th November 1997, Reports of Judgments and Decisions, 1997-VIII and Selcuk and Asker v. Turkey (23184-5/94) Judgment of 24th April 1998, 26 E.H.R.R. (1998) 477, in which the Court found violations of Article 3 of the ECHR on account of the destruction of homes and forced eviction of the applicants. These decisions will be examined in detail in the following chapter. 57 Concluding observations on the initial report of Slovakia, U.N. Doc. CAT A/56/44 (2001), para. 104. 58 Concluding observations on the second periodic report of the Czech Republic, U.N. Doc. CAT A/56/44 (2001), para. 81. 8 ‘significant level of racial motivation’.59 Dzemajl was noteworthy as the first decision in which the CAT found a substantive breach of Article 16. As noted by Sarah Joseph, decisions of the Committee had hitherto been limited to non-refoulement under Article 3 and of procedural breaches of the duty to investigate60; it was not until November 2004 that the first finding of ‘torture’ was given by the Committee.61 It is worth considering that, in the annex to the decision, Committee Members Fernando Marino and Alejandro Gonzalez Poblete submitted an individual opinion to the effect that the Yugoslav State was responsible for torture on account of the severity of suffering inflicted on the complainants by the destruction of property, ‘violent evictions’ and forced displacement. 62 Stressing the ‘unlawful acquiescence’ of police, the members considered that the vulnerability of the complainants, as Roma, created an obligation on the State to provide greater protection. As to whether the treatment is to be considered as fulfilling the high threshold as to constitute ‘torture’, Manfred Nowak has suggested that, because the complainants were not in detention at the material time, there was a lack of the purpose necessary for a violation of Article 1.63

A total of twenty persons were questioned by police in regard to the pogrom. Charges against one person were dropped due to lack of evidence and the investigation subsequently discontinued.64A civil action for pecuniary and non-pecuniary damages lodged with the court of first instance in September 1996 was still pending by the time of the Committee’s decision. Eight of the complainants had also pursued an application for a court order, in regard to which a retrial was also still pending after decision of the Montenegrin Supreme Court. Deemed to have failed to conduct ‘a prompt and impartial investigation capable to leading to the identification and punishment of the perpetrators’65, the Committee found the State in breach of Article

59 Para. 9.2. 60 Joseph, S., ‘Committee against Torture: Recent Jurisprudence’, 6:3 Human Rights Law Review (2006) 571 – 577. It is important to consider that the first three findings of ‘torture’, reviewed by Joseph, related to treatment inflicted upon Serbian citizens of Roma origin. 61 Regarding the treatment of the complainant during detention in police custody in the case of Dragan Dimitrijevic v. Serbia and Montenegro, Communication No. 207/02, U.N. Doc. CAT/C/33/D/207/2002, 29th November 2004. 62 Specifically, the members cited the fact that they had been forced to abandon their homes, that their homes and settlement was destroyed, causing forced displacement and forcing them to live in poverty without jobs and denied compensation for losses sustained. 63 Nowak, M., ‘What Practices Constitute Torture?: US and UN Standards’, 28:4 Human Rights Quarterly (2006) 809 – 841, at pp. 819. 64 By decision of the magistrate of the Basic Court of Danilovgrad dated 8 February 1996; that decision was not served upon the complainants to the current case. 65 Henri Unai Parot v. Spain, CAT/C/14/D/6/1990, 2nd May 1995 and Encarnacion Blanco Abad v. Spain, CAT/C/14/D/59/1996, 14th May 1998. 9 12. It was an acute failure given that several hundred people had participated in the destruction and no-one had been brought before a court. The Committee also found two separate breaches of Article 13.66 On account of the additional failure to grant redress and to compensate the complainants, the Committee found a further violation of Article 16. Despite the Committee’s calls for the State to prosecute and punish the persons responsible for the violation and to provide fair and adequate compensation67, the decision had little impact for the complainants. The Government informed the Committee that it would pursue a speedier outcome to the return to work proceedings and a settlement in the civil case for damages but asserted that charges could not be brought against the perpetrators. The complainants had yet to receive domestic redress eight years after their eviction.68 Nonetheless, the assertion that States must not merely refrain from acts of inhuman or other treatment, but are also bound to protect against or to prevent violations between private individuals is an important step in the further development of the meaning and value of the prohibitions contained in the Convention against Torture.69 The finding of a violation adds authority, and indeed visibility, to the calls of domestic NGOs and other actors in their efforts to secure equality of treatment of the Roma.70

The European Committee of Social Rights (‘ECSR’) Unlike those of the CAT or the European Court, the decisions given by the European Committee of Social Rights on the housing situation of the Roma concerned

66 Due to the lack of an effective investigation and the failure to inform the complainants of the decision to discontinue the investigation, barring them from pursuing a private prosecution. Article 13 states: ‘Each State Party shall ensure that any individual who alleges he has been subjected to torture in any territory under its jurisdiction has the right to complain to, and to have his case promptly and impartially examined by, its competent authorities’. 67 Although there is no express provision for the right to compensation in the UN Convention for victims of acts other than torture, the Committee for the first time ruled that a State should provide compensation to complainants following the finding of a violation. 68 See the Joint European Roma Rights Center / Humanitarian Law Center letter to Milo Djukanovic, Prime Minister of the Republic of Montenegro, dated 8th May 2003 urging for action to remedy the situation of the complainants; http://www.errc.org/publications/letters/2003/montenegro_jan_22_2003.shtml. 69 Joseph, op. cited, supra N.57, at pp. 5. 70 Since Dzemajl, the situation of the Roma has continued to feature before the CAT. In the case of the Czech Republic, regarding persistent violence and the reluctance of police to protect and to investigate, ‘Conclusions and Recommendations’, U.N. Doc., CAT/C/CR/32/2, 3rd June 2004, para. 5 (a). In the case of Greece, regarding instances of ill-treatment of Roma by police during forced evictions or relocations, ‘Conclusions and Recommendations’, U.N. Doc., CAT/C/CR/33/2, 10th December 2004, para. 5 (j). 10 collective complaints.71 On complaints lodged by the European Roma Rights Center72 (‘ERRC’) against Greece73, Italy74 and Bulgaria75, the ECSR found multiple violations of the 1961 and the Revised European Social Charter. In each case, complaints regarding the provision of inadequate housing and evictions of Roma dwellings were submitted under the right to housing. The Greek and Bulgarian complaints were submitted under Article 16 of the 1961 Charter76 and the Revised Charter77, respectively. The text of Article 16 does not explicitly guarantee a right to adequate housing, instead asserting that the ‘provision of family housing’ is one of several elements by which States Parties ‘undertake to promote the economic, legal and social protection of family life’. On the first occasion in which a collective complaint was lodged under Article 16, in the Greek case the ECSR emphasised as an imperative that States actively pursue the ‘underlying purpose’ of the Charter to ‘express solidarity and promote social inclusion’.78 The ECSR therefore attributed a broad scope to Article 16:

‘…adequate housing refers not only to a dwelling which must not be sub- standard and must have essential amenities, but also to a dwelling of suitable size considering the composition of the family in residence. Furthermore the obligation to promote and provide housing extends to security from unlawful eviction’.79

In the Italian case, the ERRC alleged as a context to its complaints that the treatment of the Roma in Italy was marked by ‘segregationist policies and practices of the field of housing [that] constitute racial discrimination’.80 In that case, the complaints were lodged under Article 31 of the Revised European Social Charter81, under which the

71 The collective complaints procedure was created by the ‘Additional Protocol to the European Social Charter Providing for a System of Collective Complaints’, opened for signature on 9th November 1995; entry into force on 1st July 1998. For a review of the first twenty-three collective complaints, and the background to the protocol, Churchill, R.R. and Khaliq, U., ‘The Collective Complaints System of the European Social Charter: An Effective Mechanism for Ensuring Compliance with Economic and Social Rights?’, 15:3 European Journal of International Law [2004] 417, at 422 – 423. 72 The ERRC enjoys ‘participatory status’ as an NGO and is entitled to lodge collective complaints with the Committee. 73 Complaint No. 15/2003, 8th December 2004 (Merits). 74 Complaint No. 27/2004, 7th December 2005 (Merits). 75 Complaint No. 31/2005, 18th October 2006 (Merits). 76 Greece ratified the 1961 Charter on 3rd May 1996; Greece signed the Revised Charter on 3rd May 1996 but had not ratified it at the time of proceedings. 77 Bulgaria ratified the Revised Charter on 7th June 2000. In the instrument of ratification, Bulgaria accepted the collective complaints procedure. Article 31, however, was omitted from the list of provisions under which collective complaints could be lodged. 78 Para. 19. 79 Para. 24. 80 Para. 5. 81 Opened for signature on 3rd May 1996, entry into force on 1st July 1999; Italy signed the Revised Charter on the date opened for signature and ratified it on 5th July 1999; entry into force on 1st September 1999. 11 aim of ‘ensuring the effective exercise of the right to housing’ imposes a three-fold obligation on States.82 In its assessment, the ECSR stressed the importance of housing rights to securing ‘social inclusion and integration of individuals into society…[and] the abolishment of socio-economic inequalities’.83 The alleged inadequacy of living conditions of camping sites was placed in the context of an alleged discriminatory and exclusionist State policy:

‘Italy is accused of actively pursuing a policy of racial segregation and boasting of a network of ghettos aimed at preventing Roma from integrating into mainstream Italian society. Such a policy is based on the assumption that Roma and Sinti are ‘nomads’ who can only live on the edges of society’.84

Although perhaps argued more emphatically in the Italian case, the denial of the right to adequate housing was alleged as discriminatory in each of the ERRC cases. In the Greek case, the preamble to the Charter was the basis of the complaint of discrimination of the Roma by the State.85 The ECSR considered that the principles of equality and non-discrimination form ‘an integral part of Article 16 as a result of the Preamble’.86 The complaints of discrimination against Italy and Bulgaria were submitted under Article E of the Revised Charter,87 in regard to which the ECSR emphasised the obligation to prevent indirect discrimination.88 In each of their submissions, the respondent States denied the allegations as ‘unfounded’ and sought to avoid responsibility for the alleged violations in a number of ways. The Greek and Bulgarian governments drew attention to measures taken under ongoing domestic initiatives designed to improve the housing situation and integration of the Roma. Where those schemes had not been implemented, the failure was blamed on local authorities and it was argued that responsibility could not be attributed to the national government. The ECSR rejected this approach on reliance of the ‘ultimate

82 First, to ‘promote access to housing of an adequate standard’. Second, to ‘prevent and reduce homelessness with a view to its gradual elimination’. Third, to make the cost of housing ‘accessible to those without adequate resources’. 83 Para. 18. 84 Para. 28. 85 ‘Considering that the enjoyment of social rights should be secured without discrimination on ground of race, colour, sex, religion, political opinion, national extraction or social origin’. 86 Para. 26. 87 The text of which states: ‘The enjoyment of the rights set forth in this Charter shall be secured without discrimination on any ground such as race, colour, sex, language, religion, political or other opinion, national extraction or social origin, health, association with a national minority, birth or other status’. 88 The ECSR explained the positive nature of the non-discrimination guarantee, the duty of States to ‘take due and positive account of all relevant differences or by failing to take adequate steps to ensure that the rights and collective advantages that are open to all are genuinely accessible by and to all’, Citing its decision in the case of International Association Autism-Europe v. France, Collective Complaint No. 13/2002, 4th November 2003, para. 52; cited in E.R.R.C v. Italy, at para. 20. 12 responsibility for implementation of official policy’ of the State.89 On the basis that the majority of the Roma in Italy are nationals of third countries or are illegal immigrants, the Italian government also argued that they do not fulfil the requirements of ‘protected persons’ under the Revised Charter.90 The ERRC blamed the discriminatory policy of the Italian authorities for that very situation.91 The ECSR again rejected the government’s objection; difficulty in differentiating between those to whom it is obliged to afford protection does not exempt for the State.92 Although the ERRC provided various supporting documents and reports, both the Greek and Italian governments claimed they were unable to provide the ECSR with precise data regarding the numbers of Roma. In the Greek case, citing legal and constitutional obstacles, the government did eventually give an estimate albeit without any information as to what that estimate what based on.93 The ECSR commented:

‘The Committee considers that when the collection and storage of personal data is prevented for such reasons, but it is also generally acknowledged that a particular group is or could be discriminated against, the authorities have the responsibility for finding alternative means of assessing the extent of the problem’.94

The further failure to provide detailed evidence and the lack of implementation of domestic schemes was decisive in the finding of violations regarding the inadequacy of permanent dwellings and camp sites. In the Greek case, the ERRC cited various sources and evidence in support of the allegation of the insufficiency of permanent dwellings. Further, it alleged discrimination on the basis that at least one hundred thousand Roma were living in sub-standard housing without adequate infrastructure, limited or no access to basic amenities and in unsafe or unsanitary locations.95 Although the 2001 ‘Integrated Action Plan for the Social Integration of the Roma People’ (‘IAP’)96 identified housing as a priority concern, the ERRC cited the ‘intransigent’ attitude of local authorities impeding improvements. On both counts, the ECSR found a violation of Article 16 but made no mention of discrimination. The

89 E.R.R.C. v. Greece, at para. 29. E.R.R.C. v. Italy, at para. 26. 90 Para. 6; Article 1 of Appendix 1 of the Revised Charter provides that protected persons are ‘nationals of other Parties lawfully resident or working regularly within the territory of the Party concerned’. 91 The ERRC alleged that many of the Roma were unlawfully present in Italy, ‘…precisely because of the discrimination practised by the Italian authorities, who refuse systematically to grant them legal status, even if they have been in the country for several generations’, at para. 16. 92 Para. 18; both parties to the case accepted that the complaint covered Italian citizens, nationals of parties to the Charter or Revised Charter and lawfully resident in Italy. 93 Para. 28. 94 E.R.R.C. v. Greece, para. 27; relied on in E.R.R.C. v. Italy, para. 23. 95 Paras. 31 – 33. 96 With a budget of EUR 300 million, the Action Plan involved the purchase of land, the building of new settlements, homes and camps, and repairs to existing camps, at paras. 34 – 36. 13 ERRC also complained of the denial of access to basic amenities and failure to take into account the size of Roma families in the allocation of places.97 Contesting the evidence provided by the ERRC, the government claimed that it had discharged its responsibilities by establishing ‘authorised’ camps to accommodate specific numbers of persons and blamed the Roma for subsequent deterioration of conditions.98 Given that the government had failed to corroborate its claims with any evidence, to prove that the number of sites was sufficient for the Roma population for instance, the ECSR’s finding of violations was unsurprising.99

In the Bulgarian case, the ERRC again complained of the segregation of the Roma, in overcrowded settlements, living in sub-standard housing with insufficient infrastructure to suit their needs.100 It was argued that the domestic programmes were ‘largely unimplemented and under-resourced’.101 For the first time, the ERRC and the respondent State were in agreement that the living conditions of the Roma were inadequate.102 The State was therefore clearly obliged to take legal and practical measures. Allowing a ‘margin of appreciation’ in the decision of what are the appropriate measures to ‘achieve the objectives of the Charter’, the ECSR reaffirmed that its examination was premised on the concept of ‘progressive realisation’103. On account of the failure of the Bulgarian government to submit sufficient evidence of the implementation of the relevant domestic schemes104, and given the urgent needs of the Roma and the six-year period the government had to achieve significant

97 Para. 29 – 31; the ERRC submitted its report ‘Campland: Racial Segregation of Roma in Italy’ in support of its allegations, in which fieldwork and interviews with representatives of NGOs established the nature and scope of the treatment at issue. 98 The government argued: ‘Subsequent inadequacies result from the behaviour of the Roma community, who set up unauthorised camps or introduce into authorised camps new residents who were not originally catered for, actions for which the authorities are not responsible’, at para. 33. 99 Finding a violation of Article 31 together with Article E, the ECSR noted, in particular, the failure to provide Roma with adequate housing to meet their needs and to take ‘due and positive account of all relevant differences’, para. 36. 100 Paras. 23 – 25. 101 In particular, the 1999 ‘Framework Programme for the Equal Integration of the Roma into Bulgarian Society’, as implemented within the 2005 ‘National Action Plan on the Decade’ and, further, the adoption of a housing programme for the Roma as part of the National Housing Strategy; para. 28. 102 On account of measures taken as part of the ongoing domestic initiatives, the government claimed that: ‘…it has largely demonstrated its recognition of Roma as a vulnerable ethnic minority by means of the several programmes and measures taken specifically addressing the Roma situation in general and concerning housing’; para. 30. 103 The relevant considerations being those of reasonable time and ‘measurable progress…to an extent consistent with the maximum use of available resources’, International Association Autism-Europe, op. cited, para. 53; cited at para. 35. 104 Cahn and Danova-Russinova noted, ‘It is clear from the arguments of the government that it was intransigent and not prepared to address the needs and concerns of the Roma people’; Cahn, C. and Danova-Russinova, S., ‘The Justiciability of the Right to Adequate Housing’, 8:3 Economic and Social Rights Review – Economic and Social Rights in South Africa [October 2007] 16, at pp. 18. 14 improvement, the ECSR found a failure to improve living conditions and the integration of the Roma.105

Suffering a lack of security of tenure and the evictions of ‘illegal dwellings’, the ERRC argued successfully in each case that a denial of access to alternative accommodation, access to remedies or compensation constituted breaches of the right to housing as part of a discriminatory practice. In the Greek case, the ERRC noted that local authorities often evicted Roma from settlements either without alternative housing or, alternatively, subsequently resettled affected persons in substandard housing conditions. Alleging a lack of procedural safeguards, the ERRC submitted that many of the evictions documented were in fact in breach of domestic law. Examples were also provided of cases where Roma, both settled and itinerant, were prosecuted for inhabiting sites without adequate infrastructure and a corresponding breach of sanitary regulations.106 Seeking to defend its position, the government argued that the evictions were legitimate in the protection of the rights of others. As to the procedure followed when ‘expelling’ Roma, with emphasis upon the illegal occupation of land owned by the State,107 the government explained three main elements: 1) after the issuing of a Protocol of Administrative expulsion, the subject(s) has thirty days to challenge the decision before a Magistrates Court and can lodge an appeal against that decision with a higher court; 2) legal aid should be available to assist appeals; 3) alternative housing ‘should be provided’.108 The ECSR noted the lack of any ‘real information’ such as statistics, remedies for persons unlawfully evicted or any relevant case-law submitted by the government. The ECSR found another violation of Article 16, with the burden shifted on the government to contradict the ERRC’s submissions on ‘collective evictions of Roma’ without the provision of alternative housing: ‘The Committee considers that illegal occupation of a site or dwelling may justify the eviction of the illegal occupants. However, the criteria of illegal occupation must not be unduly wide, the eviction should take place in accordance with the applicable rules of procedure and these should be sufficiently protective of the rights of the persons concerned’.109

105 A violation of Article 16 together with Article E. 106 Para. 48. 107 The government submitted: ‘…the Roma are moved from property that they occupy normally unlawfully, property that they have no right to occupy and that belongs to others and to whom the state owes a duty to respect and protect their rights’, para. 49. 108 Ibid. 109 Para. 51; 15 In the Italian case, the ERRC claimed that evictions were often carried out at night or at dawn, by police in riot gear, carried out without procedural safeguards such as formal warrants and accompanied by acts of violence.110 The government simply claimed that no misconduct or violence by police during evictions had been recorded, and that evictions were carried out by order of ‘competent authorities’, under supervision of Roma or other relevant organisations.111 On account of the lack of ‘credible’ evidence provided to disprove the allegation of violence during evictions, the ECSR found a State failure to establish that evictions were carried out ‘in conditions that respect the dignity of the persons concerned’.112

In the Bulgarian case, the ERRC complained that the Roma were ‘discriminated against and disproportionately exposed to forced eviction’.113 In particular, the ERRC alleged that the Provisional Regulations of Paragraph 16 of the 2001 Territory Planning Law (‘TPL’) had ‘eroded’ the legal protection against evictions. Although the TPL provided for the legalisation of dwellings, it was submitted that the Roma were denied effective access due to the lack of information provided in the Romani language, legal requirements that in practice excluded the Roma dwellings, and the expensive procedure.114 Citing examples of discrimination and the inability of Roma to meet the legal requirements, the ERRC complained that the TPL provided for the demolition of illegal dwellings without the provision of alternative housing or compensation; with the majority of Roma settlements ‘voted to demolition and their inhabitants evicted and rendered homeless’ as a result.115 The government countered by claiming that the legal framework was ‘necessary to regulate housing construction’, applied without discrimination and that it had taken steps to provide alternative accommodation, including renting of municipal dwellings. It therefore defended the denial of the provision of services to ‘illegal dwellings’ and of a right to compensation in such situations ‘since that would be to recognise a right following from unlawful behaviour’.116 The decisive fact was the ECSR’s consideration that the conditions for the legalisation of dwellings were ‘too stringent to be useful in

110 Para. 39; the ERRC also complained that the subjects of evictions would be taken by police for identity checks, with those found to be unlawfully present in Italy detained pending deportation proceedings, an issue on which the ECSR remained silent in its findings. 111 Para. 40. 112 In violation of Article 31 together with Article E. 113 Para. 44. 114 Para. 45. 115 Para. 47. 116 Compensation could be awarded only where ownership is proven, para. 49. 16 redressing the particularly urgent situation of the housing of Roma families’.117 Although recognising the margin of appreciation enjoyed by the State, the ECSR agreed with the allegation that the law disproportionately affected the Roma118 and found a failure to take due account of the ‘specificity’ of their living conditions. On the issue of evictions, ‘the consequence of the non-legalisation of dwellings’, the ECSR noted that, where provided, alternative accommodation or compensation was often inadequate, and concluded:

‘The Committee recalls that it is the responsibility of the state to ensure that evictions, when carried out, respect the dignity of the persons concerned even when they are illegal occupants, and that alternative accommodation or other compensatory measures are available. By failing to take into account that Roma families run a higher risk of eviction as a consequence of the precariousness of their tenancy, Bulgaria has discriminated against them’.119

Following the decisions of the ECSR, the Committee of Ministers of the Council of Europe, noted a range of measures and information provided by the States Parties. The Greek delegation explained that an evaluation and reform of the IAP was being undertaken and a Commission for the Social Reintegration of the Greek Roma created.120 Italy referred to the preparation of a draft law on a ‘comprehensive strategy’ on issues concerning Roma, Sinti and Travellers,121 Bulgaria to an act amending the TPA to make the criteria for legalisation of dwellings less restrictive.122 Cahn and Danova-Russinova have argued that the collective complaints mechanism provides ‘a strong tool of influence for policy change’.123 The lack of State cooperation and compliance, the weak response of the Committee of Ministers, in addition to the number of pending similar applications124, tends to support the view

117 In particular, as regards the safety and hygiene rules, the necessity of documents to establish ownership and the residence requirement, para. 54. 118 The ECSR noted ‘whose situation also differs as a consequence of the state non-intervention over a certain period’, para. 55. 119 Para. 56. 120Resolution ChS(2005)11, adopted on 8th June 2005. 121 Resolution ChS(2006)4, adopted on 3rd May 2006. 122 Resolution ChS(2007)2, adopted on 5th September 2007. 123 Supra N. 104, at pp. 19. 124 The eviction of Roma settlements without suitable alternative accommodation will be revisited by the ECSR in the pending cases of International Centre for the Legal Protection of Human Rights (Interrights) v. Greece, Collective Complaint No. 49/2008 and E.R.R.C. v. France, Collective Complaint No. 51/2008. A number of pending applications illustrate the scope of the continuing denial of rights to the Roma in Bulgaria: E.R.R.C. v. Bulgaria, Collective Complaint No. 46/2007, 5th February 2008 (admissibility) (provision of health services) and ERRC v. Bulgaria, Collective Complaint No. 48/2008, 2nd June 2008 (admissibility) (the right to adequate social assistance). A further complaint regarding adequate social assistance was struck out on the basis of insolvency proceedings of the complainant organisation, International Helsinki Federation for Human Rights (IHF) v. Bulgaria, Collective Complaint No. 44/2007, 5th March 2008. 17 that the procedure has ‘maintain[ed] the bias against jusiticiability of economic and social rights’.125

The European Court of Human Rights In recent years, the European Court of Human Rights has given decisions on a range of alleged breaches of the Convention rights of the Roma. In particular, the rapidly growing number of violations of Article 14 found by the Court regarding deaths in police custody126, ill-treatment127 and the right to education128, suggests a departure from a ‘tortured history’ in dealing with allegations of racial discrimination.129 The decision in the case of Moldovan v. Romania (No.2)130 has been selected for analysis. In that case, the prohibition of torture and ill-treatment under Article 3 of the Convention was engaged by lack of measures taken to address the inadequate living conditions of the applicants caused as a ‘direct repercussion’ of the actions of State agents.131

Featuring a retaliatory destruction of Roma houses by an angry mob of local citizens, the events at issue in the Moldovan case and the alleged breaches of rights under the European Convention were reminiscent of the incident in Danilovgrad in the Dzemajl case. This time, the context to the attack on the Roma followed the death of a man during a fight with three Roma men in the village of Hadaresi, Mures district, in September 1993. After that fight, a crowd of non-Roma, including a police commander and a number of police officers, gathered outside a house to which the three men had fled. First setting fire to the house, the crowd ‘pursued’ and beat two of the men to death after they escaped the fire. Unrest continued throughout the following two days, during which a total of thirteen houses owned by the seven applicants were destroyed.132 The current case differs from Dzemajl by the very fact

125 Cullen, H., ‘The Collective Complaints Mechanism of the European Social Charter’, 25 European Law Review, Supplement Human Rights Survey [2000] 18, at pp. 29. 126 The finding of a violation of Articles 2 and 14 in Nachova v. Bulgaria [GC] (43577/98; 43579/98) Judgment of 6th July 2005. 127 See, for instance, Bekos and Koutropoulos v. Greece (15250/02) Judgment of 13th December 2005, ill-treatment in custody and a failure to investigate possible racist motives; further, Secic v. Croatia (40116/02) Judgment of 31st May 2007 regarding the failure to investigate a racially-motivated assault. 128 D.H. and Others v. the Czech Republic [GC] (57325/00) Judgment of 13th November 2007 and, more recently, Sampanis v. Greece (32526/05) Judgment of 5th June 2008. 129 Cahn, C., ‘The Elephant in the Room: On Not Tackling Systemic Racial Discrimination at the European Court of Human Rights’, 4 European Anti-Discrimination Law Review [2006] 13. 130 (41138/98; 64321/01) Judgment of 12th July 2005. 131 Para. 104. 132 There were originally twenty-five applicants to the complaint, eighteen of whom agreed friendly settlements with the government, Moldovan v. Romania (No. 1) Judgment of 16th June 2005. 18 that the investigation into led to the conviction of the leading perpetrators, albeit a total of five years after the attack. Five people were convicted of ‘extremely serious murder’133 and, together with another seven citizens, of destruction of property and creating a public disturbance (one of whom was the Deputy Mayor).134 Cahn comments that the indictment ‘read more like an indictment of the victims than of the perpetrators’, criminalising the Roma population as a whole and blaming them for violating ‘the legal norms acknowledged by society’.135 Following an appeal by the pubic prosecutor, calling for tougher sentences, a sixth man was convicted of murder by decision of the County Court on 15th January 1999. Seven persons convicted in the original trial, however, benefited from sentence reductions, proceedings against the Deputy Mayor were discontinued and four men were subsequently acquitted or pardoned.136 Despite the presence of police at the scene of the initial incident and the statements of various witnesses attesting to the police participation in the riots in Hadaresi, the authorities were unwilling to open an investigation into their actions, stating:

‘…even though one should accept that during the events they had used words such as ‘do what you want, I have a family to take care of’ or ‘they will come out immediately if you set the houses on fire’. Moreover, we cannot consider the lack of initiative and the inability of the two policemen to influence the behaviour of the furious villagers as a form of participation – either in the form of instigation or as possible moral complicity’. 137

Although the government allocated funds for the reconstruction of houses, the applicants complained that six homes had not been rebuilt, and those that had were either uninhabitable or unfinished. 138 A pledge to provide financial assistance was also unfulfilled. On 12th January 2001, ordering the convicted civilians to pay pecuniary damages to the applicants, the Mures Regional Court rejected claims for non-pecuniary damages. Bias was clearly a factor, not least given that the court

133 Under Articles 174 and 176 of the Code of Criminal Procedure. 134 By decision of the Targu-Mures County Court, 17th July 1998. 135 In particular the following statement: ‘Due to their lifestyle and their rejection of moral values accepted by the rest of the population, the Roma community has marginalised itself, shown aggressive behaviour and deliberately denied and violated the legal norms acknowledged by society. Most of the Roma have no occupation and earn their living by doing odd jobs, stealing and engaging in all kinds of illicit activities…[t]he community feels that most of the disputes were resolved in an unfair, unsatisfactory manner in favour of Roma and this has caused an increase in the number of personal or collective vindictive action’, para. 44 of the judgment, Supra N. 26, cited at pp. 14. 136 On 22nd November 1999, two were acquitted by the Supreme Court of Justice. Two of the men convicted of murder were issued with presidential pardons by decree of 7th June 2000. 137 By decision of the military prosecutor at the Bucharest Military Court, 22nd August 1995, para. 36; upheld on appeal of the applicants lodged with the Military Prosecutor’s Office of the Supreme Court of Justice, on 14th August 2000, para. 60. 138 Para. 66. 19 contested their ownership of the goods claimed for, stating that ‘only work can be the source of revenue, and not events such as the present one’.139 On 24th February 2004, more than ten years after the attack on the applicants’ homes, the Tagru-Mures Court of Appeal ordered the convicted civilians to pay pecuniary damages regarding the emotional trauma suffered by six of the applicants.140 Pointing to the involvement of State agents in the destruction of their homes, the applicants relied on the positive obligations under Articles 3 (prohibition of torture and ill-treatment) and 8 (right to private and family life and the home) of the European Convention. In particular, they alleged that the failure of the State to respect its obligations under those rights had led to their inadequate and overcrowded living conditions causing illness. The applicants also complained that the decision of local officials not to rebuild certain homes was an act of ‘retaliation’.141 Rejecting the complaints, the government denied any State responsibility for the destruction of the applicants’ homes and considered that the granting of aid to assist reconstruction constituted fulfilment of its positive obligations under the Convention.142

Due to the fact that the destruction of the applicants’ homes occurred prior to Romania’s ratification of the Convention, in June 1993, the Court was precluded from examining the destruction and forced eviction from the village through lack of jurisdiction ratione temporis.143 Nonetheless, finding that the applicants had sufficiently established the police officers were involved in the ‘organised action’ of the burning of their houses and had attempted to cover up the incident, the Court found that State responsibility was engaged by their subsequent living conditions ‘having regard to the direct repercussions of State agents on the applicants’ rights’.144 Noting the well-established principle of positive obligations Contracting States flowing from the Convention rights145, which can be engaged by the ‘acquiescence or connivance’ of authorities in actions of private individuals146, the Court found a violation of both Article 3 and Article 8. Stressing the lack of measures taken to address the living conditions of the applicants over a period of ten years, the Court

139 Upheld on appeal to the Regional Court on 12th May 2003; paras. 71 - 76. 140 No award was made regarding the fifth applicant, Petru (Gruia) Lacatus, para. 77. 141 Para. 89. 142 Paras. 91 – 92. 143 Para. 102. 144 Para. 104. 145 X. and Y. v. the Netherlands, Judgment of 26th March 1985, Series A no. 91, para. 23, cited at para. 93. 146 Cyprus v. Turkey [GC] (25781/94) ECHR 2001-IV, para. 81, cited at para. 94. 20 considered that the general attitude of the authorities ‘perpetuated the applicants’ feelings of insecurity…and constituted in itself a hindrance’ to the applicants’ rights under Article 8, and found a continuing violation.147 The general attitude of the authorities and discriminatory remarks, described by the Court as ‘an aggravating factor’, were similarly decisive in the Court’s finding of a violation of Article 3:

‘…the Court finds that the applicants’ living conditions and the racial discrimination to which they have been publicly subjected by the way in which their grievances were dealt with by the authorities, constitute an interference with their human dignity which, in the special circumstances of this case, amounted to ‘degrading treatment’ within the meaning of the Article 3 of the Convention’.148

Together with Article 3 and 8, the applicants also complained of discrimination on the basis of ethnicity, in regard to which the Court explained that the burden on respondent States required evidence to establish that the alleged difference of treatment ‘has no objective and reasonable justification’.149 Refusing to accept that discrimination had been established by the applicants, the government submitted a minimal response to the allegation, noting that, by providing help to the Roma in Hadareni, the authorities had behaved in the same way as to the rest of the population. Upholding the complaint, the Court concluded that the length and outcome of the domestic proceedings, the prolonged refusal to award non-pecuniary damages150 and the repeated discriminatory remarks throughout constituted an unjustified difference of treatment in violation of Article 14. The Court found a further violation of Article 6 (1) on account of the length of the civil proceedings, but rejected the allegation of a violation Article 6 (1) by denial of access to a tribunal.151

Conclusion The range of actions and omissions of the States Parties in the cases reviewed provide cogent evidence of the nature and scope of the problem facing the Roma in Europe. Although the analysis has been limited to a handful of decisions of human rights

147 Para. 108. 148 Para. 113. 149 Para. 137. 150 Note, in this regard, the Joint Concurring Opinion of Judges Birsan and Mularoni, who rejected the notion that the refusal of the domestic courts to award non-pecuniary damages was relevant to the finding of a violation of the applicants’ rights under Articles 3,8 and 14. 151 In regard to the latter, the Court stated: ‘…the applicants cannot claim an additional right to a separate civil action against the police officers allegedly involved in the same incident’, para. 121. In a Partly Dissenting Opinion, Judge Thomassen, joined by Judge Loucaides, disagreed with that finding as a denial of state responsibility contrary to the rule of law. 21 actors152, it is evident that the source of the legal and practical obstacles to the inclusion and protection of rights of the Roma lies in perceptions, of both State agents and private citizens. In the context of the treatment and status of the Roma, the UN’s emphasis on the protection of the vulnerable against homelessness has a particular resonance. The failure to protect the Roma against collective punishments or reprisals, lack of security of tenure and denial of redress following evictions, justified or supported by overtly racist statements of national authorities, engaged a range of rights of a civil-political and socio-economic nature. Finding State responsibility for acts of inhuman and degrading treatment, violations of the rights to family life and housing, and discrimination, each of the selected cases involved a notable absence of meaningful State participation. The evictions jurisprudence is merely one aspect of the discriminatory treatment of a pan-European minority group. The extent of the challenge to European actors, national and regional, to secure respect for the difference, and dignity, of the Roma is obvious. Without genuine and effective implementation of national strategies, ill-tempered debate and exclusionist State policies will ensure the perpetuation of a situation actively undermining the substance of the European human rights regime.

152 For more comprehensive coverage, see O’Nions, H., ‘Minority Rights Protection in International Law: The Roma of Europe’, (2007) Dartmouth: Ashgate. 22