20 September 2010
THE SITUATION OF ROMA AND TRAVELLERS1 IN EUROPE:
MAIN HUMAN RIGHTS STANDARDS OF THE COUNCIL OF EUROPE
A. THE EUROPEAN CONVENTION ON HUMAN RIGHTS (ECHR)
The national, regional and local authorities of all Council of Europe member States are obliged to respect and protect the rights and freedoms set out in the ECHR, as defined in the case-law of the European Court of Human Rights, of everyone within their jurisdiction.
Article 2 - Right to life
· Violations of Article 2 have been identified in the following cases:
o Unlawful killing by a state agent.2
o Failure to protect against a known, real and immediate risk of unlawful killing by a private individual (violation of the State’s positive obligation to protect the right to life).3
o Where an individual is detained by the authorities in good health and dies whilst in detention and the State does not provide a plausible explanation of the cause of death.4
o Failure to investigate unlawful killings, whether by state agents or private individuals (violation of the State’s procedural obligations).
Moreover, the State authorities must take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events5.
Article 3 – Prohibition of torture
· In no circumstances, including during arrest, detention or expulsion, may individuals be tortured or treated in an inhuman or degrading manner.
· Article 3 also prohibits the expulsion of individuals to a country where they would run real risk of such ill-treatment (“non refoulement” principle). The situation that an individual may face in the country to which they are expelled may amount to torture or inhuman or degrading treatment. If there are substantial grounds for showing that expulsion of an individual would give rise to a real risk of exposure to such torture or treatment, the expelling state may be acting in violation of Article 3.6
· This also applies to situations where the risk emanates from private persons or groups of persons, although in this case it must be shown that the risk is real and that the authorities of the receiving State are unable to provide appropriate protection.7
· Positive obligations of states: the obligation to investigate and to provide an effective judicial or other remedy in response to an arguable claim of ill-treatment in breach of Article 3.
· Article 3 is an absolute right. The conduct of or any threat posed by an individual cannot be taken into account as a justification for expulsion to a threat of prescribed ill-treatment.8
Article 5 – Right to liberty and security
· Article 5 ECHR permits arrest and detention in the course of or with a view to expulsion proceedings, but only under certain circumstances prescribed by law.
· Measures of arrest, detention and deportation must comply with the general principles of the Convention, which exclude arbitrariness. Deliberate efforts to facilitate or improve the effectiveness of expulsion operations by misleading individuals as to the purpose of an official communication in order to deprive them more easily of their liberty may thus amount to a violation of Article 5.9
Article 8 – Right to respect for private and family life
· Public authorities may only interfere with an established family life in pursuit of a countervailing public interest, as listed exhaustively in Article 8(2)10.
· Any interference must be proportionate to the public interest being pursued.11 Where an established family life would be disrupted as a result of an otherwise lawful expulsion, the expulsion may violate Article 8 if the interference with the family life would be disproportionate to the public interest being pursued by the expulsion.12
· Measures or conditions of arrest, detention and expulsion may have such adverse effects on an individual’s physical and moral integrity as to amount to a violation of the right to respect for private life, as guaranteed by Article 8.13
Article 13 – Right to an effective remedy
· Anyone with an arguable claim of a violation of an ECHR-protected right or freedom has the right to an effective remedy capable of dealing with the substance of the complaint, including by establishing the violation, and awarding appropriate relief. This includes the right to gain effective access to the procedure for determining refugee status;14 those wishing to make an asylum claim must have a reasonable time to lodge their application.15
· Where States have a positive obligation under Articles 2 and 3 to investigate killings, torture or other ill-treatment, the Court may find that such an obligation concurrently exists under Article 1316.
· Where the claim is that expulsion could lead to a real risk of exposure to the death penalty, torture or inhuman or degrading treatment or punishment, the remedy against the removal decision must have suspensive effect.17
Protocol No. 1 Article 2 – Right to education 18
· Violations of the prohibition of discrimination (see below) in connection with the right to education have been found in relation to practices by which Roma children in particular are placed in special classes or institutions, purportedly on account of their lower levels of educational achievement or linguistic ability, but with the result that their continuing educational development and social integration is impeded in comparison to that of other children. 19
Protocol No. 4 Article 4 – Prohibition of collective expulsion of aliens 20
· Collective expulsion is to be understood as any measure compelling aliens, as a group, to leave a country, except where such a measure is taken on the basis of a reasonable and objective examination of the particular case of each individual member of the group.21
· The expulsion procedure must afford sufficient guarantees demonstrating that the personal circumstances of each of those concerned has been genuinely and individually taken into account. Relevant circumstances include any asylum applications and associated decisions; a mere reference to the legal basis of the expulsion order may thus be insufficient.22
· Where a group of aliens is subject to collective expulsion on the basis of one or more of the grounds set out in Article 14 (and Article 1 of Protocol No. 12), this may amount to discrimination in so far as other groups are not similarly subject to the same treatment. Such a difference in treatment is discriminatory if “it has no objective and reasonable justification”, that is, if it does not pursue a “legitimate aim” or if there is not a “reasonable relationship of proportionality” between the means employed and the aim sought to be realised. Where the difference in treatment is based on race, colour or ethnic origin, the notion of objective and reasonable justification must be interpreted as strictly as possible.23
Protocol No. 7 Article 1 – Procedural safeguards relating to expulsion of aliens24
· The expulsion of aliens lawfully resident on a State’s territory must respect minimum procedural safeguards2526. These safeguards also apply, after expulsion, to a previously lawfully-resident alien expelled for public order or national security reasons27.
· The necessity of expelling an individual for public order or national security reasons must be established on an individual basis (see also under Article 4 of Protocol No. 4 above).
· Even where a lawfully-resident alien is expelled for public order or national security reasons, the decision to expel must be in accordance with law.28 This requires not only the existence of a legal basis in domestic law, but also that the law in question be accessible and foreseeable, as well as affording a measure of protection against arbitrary interferences by the public authorities with Convention rights.
Article 14 – Prohibition of discrimination and
Protocol No. 12 Article 1 – General prohibition of discrimination29
· Article 14 and Article 1 of Protocol No. 12 prohibit discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status , the former with respect to any right guaranteed by the ECHR, the latter more generally (general prohibition of discrimination of a public authority) .
· Examples of discrimination amounting to a violation of Article 14 include: differences of treatment by a court on account of the accused’s Roma origin (in connection with Article 6 – Right to a fair trial)30; the refusal to grant a pension to a Roma widow because marriage under Roma rites was held to be void of civil effects after having recognised the couple as a family in other contexts (in connection with Article 1 of Protocol no. 1 – Protection of property)31; ineligibility of Roma people in elections (in connection with Article 3 of Protocol No. 3 – Right to free elections, also found to be a violation of Article 1 of Protocol No. 12)32
B. THE EUROPEAN SOCIAL CHARTER
The European Social Charter lays down fundamental rights (related to housing, health, education, employment, social and legal protection and non discrimination), which States Parties have undertaken to secure to nationals of the States Parties (43 out of the 47 member states). In addition, no one (i.e. including nationals of non Council of Europe member states, persons in an irregular situation, undocumented persons and thus also Roma and Travellers falling within these categories) may be deprived of the rights under the Charter which are linked to life and dignity (e.g. urgent medical assistance should be granted to everyone; no one may be evicted, not even from an illegally occupied site, without respecting the dignity of the persons concerned and without alternative accommodation being made available; everyone has a right to shelter; everyone has a right to procedural safeguards in the event of expulsion, etc).
Violations found by the European Committee on Social Rights with specific regard to the rights of Roma and Travellers concern Articles 11, 13, 16, 17, 19, 30 and 31, as well as Article E taken in conjunction with these Articles of the Charter.
Article 11 – The right to protection of health
Violations of this right have been found on the grounds of failure of the authorities to take appropriate measures to address the exclusion, marginalisation and environmental hazards which Roma communities are exposed to, as well as the problems encountered by many Roma and Travellers in accessing health care services.
Article 13 – The right to social and medical assistance
Violations of this right have been found on the ground of denial of continued social assistance to persons in need, which resulted in depriving them of adequate resources to continue to live in a manner compatible with their human dignity.
Article 16 – The right of the family to social, legal, and economic protection
Violations of this right have been found on the grounds of:
· insufficient legal protection of Roma and Travellers’ families due to the fact that their legal status is not ensured (lack of identity documents and/or birth certificates);
· discriminatory access in practice to social services, family benefits and housing33;
· procedures of identification and census of Roma and Sinti not accompanied by due safeguards for privacy and against abuses, amounting instead to an undue interference in the private and family life of the persons concerned34.
Article 17 – The right of children and young persons to social, legal and economic protection
Violations of this right have been found on the ground that, while educational policies for Roma children may be accompanied by flexible structures to meet the diversity of the group and may take into account the fact that some groups live an itinerant or semi-itinerant life style, there should be no separate schools for Roma.
Article 19 – The right of migrant workers and their families to protection and assistance
Violations of this Article have been found on the grounds of:
· racist misleading propaganda allowed by or emanating from public authorities;
· segregation and poor living conditions in camps and stopping places;
· de facto collective expulsions of Roma and Travellers migrants35.
In the case of evictions and of racist propaganda, the fact that public authorities not only refrained from taking appropriate action against the perpetrators of the violations found but also contributed to such violence, and the circumstance that the violations found were specifically targeting and affecting vulnerable groups amounts, according to the European Committee on Social Rights, to an “aggravated violation”36.
Article 30 – The right to protection against poverty and social exclusion
Violations of this Article have been found on the grounds of:
· failure to adopt a co-ordinated approach to promoting effective access to housing for persons who live or risk living in a situation of social exclusion;
· segregation, poverty and civil marginalisation affecting most Roma and Sinti living in camps or similar settlements.
Article 31 – The right to housing
Violations of this right have been found, inter alia, on the grounds of:
· poor living conditions of Roma and Travellers in camps or stopping places;
· the failure to create a sufficient number of stopping places for Travellers, the carrying out of evictions without respecting the dignity of the persons concerned and without alternative accommodation being made available;
· the lack of legal remedies and/or legal aid to those who need it to seek redress from the courts following evictions;
· the lack of adequate supply of affordable housing for persons with limited resources.
Article E – Non-discrimination
As Article 14 of the ECHR, the function of Article E is to help secure the equal effective enjoyment of all the rights concerned regardless of difference.
As regards Roma and Travellers, most of the violations found with regard to the rights mentioned above were also held to constitute racial discrimination or discrimination on the basis of ethnic origin.
C. THE FRAMEWORK CONVENTION FOR THE PROTECTION OF NATIONAL MINORITIES
It is the first legally binding multilateral instrument in this field. Its aim is to protect the existence of national minorities within the respective territories of the Parties. The Convention seeks to promote the full and effective equality of national minorities by creating appropriate conditions enabling them to preserve and develop their culture and to retain their identity. Today 39 States are party to the Convention37. The Committee of Ministers adopts recommendations on the basis of proposals by an Advisory Committee.
In accordance with the system of the Framework Convention, most states Parties38 grant protection under the Convention to Roma and Travellers. However, some countries only grant such protection to “autochtonous” Roma and Travellers, e.g. Roma and Travellers with the citizenship of the state concerned and having traditionally resided on the territory of this state (e.g. Germany, Austria), and not to “foreign” Roma and Travellers. This situation has regularly been raised by the Advisory Committee and by the Committee of Ministers in its resolutions on the implementation of the Convention. As a result of this situation, expulsions of non-citizens (or threats of expulsion) may not be expressly covered by the FCNM in respect of some states. Nonetheless, the Advisory Committee has expressed views on this in cases where the situation was particularly alarming and affected large numbers of persons.
1. The Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and of equal protection of the law. In this respect, any discrimination based on belonging to a national minority shall be prohibited.
2. The Parties undertake to adopt, where necessary, adequate measures in order to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to a national minority and those belonging to the majority. In this respect, they shall take due account of the specific conditions of the persons belonging to national minorities.
3. The measures adopted in accordance with paragraph 2 shall not be considered to be an act of discrimination.
Recommendations have been made to take measures with a view to preventing and combating discrimination and social exclusion of the Roma and Travellers (including non-citizens) and addressing, as a matter of priority, the difficulties they face in employment, housing, health and education.
1. The Parties shall encourage a spirit of tolerance and intercultural dialogue and take effective measures to promote mutual respect and understanding and co-operation among all persons living on their territory, irrespective of those persons' ethnic, cultural, linguistic or religious identity, in particular in the fields of education, culture and the media.
2. The Parties undertake to take appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence as a result of their ethnic, cultural, linguistic or religious identity.
Recommendations have been made to avoid stigmatisation based on ethnic origin, to fight against the dissemination of prejudices through the media, to address hate speech by politicians, and against the stigmatisation as a criminal group and related ethnic profiling of the Roma by the police.
D. THE EUROPEAN CHARTER FOR REGIONAL OR MINORITY LANGUAGES
The European Charter for Regional or Minority Languages is the only internationally binding legal instrument focused on minority language protection. It covers primarily territorial languages, i.e. which are traditionally used in a particular geographical area. However, it also addresses non-territorial languages which are traditionally present on the territory. Romani is a classic example of a non-territorial language. In the absence of a territorial base, only a limited number of provisions of the Charter can be applied to these languages. One example of provision applicable to Romani is the following:
The parties undertake to promote, by appropriate measures, mutual understanding between all the linguistic groups of the country and in particular the inclusion of respect, understanding and tolerance in relation to regional or minority languages among the objectives of education and training provided within their countries and encouragement of the mass media to pursue the same objective.
Out of the 24 parties to the Charter39, 14 have opted for the protection of Romani. Most of them protect Romani under Part II provisions, which ensure general protection : this is the case in Austria, the Czech Republic, Finland, the Netherlands, Norway, Romania, Slovenia, Spain, Sweden. Romani is also protected under Part III of the Charter (which sets a number of specific measures to promote the use of the language in public life) in Germany, Hungary, Montenegro, Poland, Serbia and Slovakia.
E. RECOMMENDATIONS BY ECRI (EUROPEAN COMMISSION AGAINST RACISM AND INTOLERANCE)
General Policy Recommendation No. 3 (1998) on combating racism and intolerance against Roma/Gypsies
Building on ECRI’s General Policy Recommendation No. 1 on combating racism, xenophobia, anti-Semitism and intolerance, this text recommends to the Governments of member States, inter alia:
- to take measures to ensure that justice is fully and promptly done in cases of violations of fundamental rights of Roma and that no degree of impunity is tolerated as regards crimes committed against Roma;
- to enact comprehensive legislation covering discrimination by public authorities and private persons and to provide legal aid to Roma victims;
- to encourage Roma participation in decision-making processes, an active role for their organisations and dialogue with the police and local authorities;
- to encourage awareness-raising among media professionals and provide training to teachers and all those involved in the administration of justice;
- to ensure equal access to education for Roma children and to combat all forms of school segregation; and
- to ensure that questions relating to “travelling” within a country, in particular regulations concerning residence and town planning, are solved in a way which does not hinder the way of life of the persons concerned.
Recommendations in country reports
ECRI regularly recommends in its country reports that member States take measures to ensure:
- that Roma and Travellers with an itinerant lifestyle be provided with adequate stopping places and education for their children;
- that Roma and Travellers have access to adequate, non-segregated housing;
- that forced evictions of Roma and Travellers be avoided when the latter are not provided with adequate accommodation-alternatives; that illegal evictions and evictions involving excessive use of force be avoided;
- that Roma and Travellers unemployment be combated with training, loans and awareness-raising and
- that Roma and Travellers have equal access to health care, including preventive care.
Other areas in which ECRI makes recommendations as concerns Roma include statelessness, personal documents, social welfare and other public services, access to public places, conduct of law enforcement officials, cultural identity and data collection.
F. RECOMMENDATIONS BY THE COMMITTEE OF MINISTERS
The Committee of Ministers has adopted seven recommendations that specifically address Roma and Traveller-related issues. These recommendations cover the following topics: education, employment, movement and encampment, housing, health and general policies for integration.
· Recommendation No R (2000) 4 on the education of Roma/Gypsy children in Europe
· Recommendation CM/Rec(2009)4 on the education of Roma and Travellers in Europe
· Recommendation Rec(2001)17 on improving the economic and employment situation of Roma/Gypsies and Travellers in Europe
· Recommendation Rec(2004)14 on the movement and encampment of Travellers in Europe
· Recommendation Rec(2005)4 on improving the housing conditions of Roma and Travellers in Europe
· Recommendation Rec(2006)10 on better access to health care for Roma and Travellers in Europe
· Recommendation Rec(2008)5 on policies for Roma and/or Travellers in Europe
This last Recommendation is the keystone of a political structure built up during the last years : it concerns the legal framework, and includes recommendations aimed at improving the efficiency of antidiscriminatory legislation, as well as the drafting, adoption and implementation of a strategy for the integration of Roma and Travellers.
This Recommendation recognises the existence of anti-Gypsyism as a specific form of racism and intolerance, leading to hostile acts ranging from exclusion to violence against Roma and/or Traveller communities. It encourages awareness-raising campaigns against prejudices and stereotypes towards Roma and Travellers.
G. OTHER RELEVANT STANDARDS OF THE COUNCIL OF EUROPE
The Committee of Ministers has adopted several other relevant legal instruments adopted within the Council of Europe and, in particular, the Guidelines on Human Rights Protection in the context of accelerated Asylum Procedures adopted by the Committee of Ministers of the Council of Europe in 200940, in order to establish safeguards for asylum seekers in accelerated procedures, as well as the Twenty Guidelines on Forced Returns also adopted by the Committee of Ministers in 2005.41
1 The term ‘Roma and Travellers’ used in the present text refers to Roma, Sinti, Kale, Travellers, and related groups in Europe, and aims to cover the wide diversity of groups concerned, including groups which identify themselves as Gypsies.
2 See Nachova & others v. Bulgaria, App. nos. 43577/98 & 43579/98, GC judgment of 06/07/05, paras. 93-109.
3 See Branko Tomašić & others v. Croatia, App. no. 46598/06, judgment of 15/01/09, para. 51.
4 See Salman v. Turkey, App. no. 21986/93, GC judgment of 27 June 2000, para. 99.
5 See Nachova & others v. Bulgaria, op. cit., paras. 110-119, and also Angelova and Iliev v. Bulgaria, App. No. 55523/00, judgment of 26 July 2007, paras. 115-117.
6 See Saadi v Italy, App. no. 37201/06, GC judgment of 28/02/08, para. 125.
7 See H.L.R. v. France, App. no. 24573/94, judgment of 29 April 1997, para. 40.
8 See Saadi v. Italy, op. cit., para. 138.
9 See Čonka & others v. Belgium, App. no. 51564/99, judgment of 05/05/02, paras. 34-46
10 National security, public safety or the economic well-being of the country, the prevention of disorder or crime, the protection of health or morals, the protection of the rights and freedoms of others.
11 See Slivenko v. Latvia, App. no. 48321/99, GC judgment of 9 October 2003, para. 113
12 See e.g. Boultif v. Switzerland, App. no. 54273/00, judgment of 02/11/01, paras. 46-56.
13 See e.g. Raininen v. Finland, App. no. 20972/92, judgment of 16/12/97, para. 63; Gillan & Quinton v. U.K., App. no. 4158/05, judgment of 12/01/10, para. 60.
14 Amuur v. France, App. no. 19776/92, judgment of 25/06/96, para. 43.
15 See e.g. Jabari v. Turkey, App. no. 40035/98, judgment of 11/07/00, para. 40; K.R.S. v. U.K., App. no. 32733/08, decision of 02/12/08.
16 See Menesheva v. Russia, App. No. 59261/00, judgment of 09/03/06, paras. 68 and 74
17 See e.g. Jabari v. Turkey, op. cit.; K.R.S. v. U.K., App. no. 32733/08, decision of 02/12/08; Čonka v. Belgium, op. cit, para. 79.
18 Protocol No. 1 has been ratified by all CoE member States except Monaco and Switzerland, which have signed it.
19 See e.g. D.H. & others v. Czech Republic, App. no. 57325/00, GC judgment of 13/11/07, paras. 175-210; Oršuš & others v. Croatia, App. no. 15766/03, GC judgment of 16/03/10, paras. 180-185.
20 Protocol No. 4 has been ratified by all CoE member States except Greece, Switzerland, Turkey and the United Kingdom; Turkey and the United Kingdom have signed it.
21 See Čonka & others v. Belgium, op. cit., para. 59.
22 See Čonka & others v. Belgium, op. cit., paras. 61-63.
23 See Oršuš & others v. Croatia, op. cit., para. 156.
24 Protocol No. 7 has been ratified by all CoE member States except Belgium, Germany, The Netherlands, Turkey and the United Kingdom; all but the United Kingdom have signed it.
25 To submit reasons against expulsion, to have his case reviewed, and to be represented for these purposes before the competent authority or a person or persons designated by that authority.
26 This paper does not address the question under EU law of the lawfulness of residence of Roma from one EU-member State on the territory of another.
27 See Lupsa v. Romania, App. no. 10337/04, judgment of 08/09/06, paras. 51-61.
28 See Lupsa v. Romania, op. cit., para. 55
29 Albania, Andorra, Armenia, Bosnia and Herzegovina, Croatia, Cyprus, Finland, Georgia, Luxembourg, Montenegro, The Netherlands, Romania, San Marino, Serbia, Slovenia, Spain, The former Yugoslav Republic of Macedonia and Ukraine have ratified Protocol No. 12; 19 other member States have signed but not yet ratified it.
30 See Paraskeva Todorova v. Bulgaria, App. no 37193/07, judgment of 25 March 2010, paras. 35-46.
31 See Munoz Diaz v. Spain, App. no. 49151/07, judgment of 8 December 2009, paras. 51-71.
32 See Sejdić and Finci v. Bosnia and Herzegovina, App. Nos. 27996/06 and 34836/06, judgment of 22 December 2009, paras. 47-56.
33 For more details on housing in particular see Article 31.
34 This violation is found in a decision on the merits which will be made public soon.
35 This violation was found in a decision on the merits which will be made public soon.
36 This violation was found in a decision on the merits which will be made public soon.
37 All the CoE member States except: Andorra, Belgium, France, Greece, Luxembourg, Monaco and Turkey.
38 With some exceptions such as the Netherlands and Denmark.
39 Armenia, Austria, Croatia, Cyprus, Czech Republic, Denmark, Finland, Germany, Hungary, Liechtenstein, Luxembourg, Montenegro, The Netherlands, Norway, Poland, Romania, Serbia, Slovakia, Slovenia, Spain, Sweden, Switzerland, Ukraine, United Kingdom.
40 Document H/INF (2009) 4 containing also the Explanatory Memorandum.
41 Document CM(2005)40.