Romani (Gypsy) culture and social issues.
The Rights of Minorities:
a Romany Perspective

By Luke Clements, Philip A. Thomas
and Robert Thomas

The most significant omission from the list of fundamental rights and freedoms protected by the European Convention on Human Rights (ECHR), is a general anti-discrimination article: an omission all the more striking when one recalls that the Convention was in large measure a reaction to atrocities inflicted upon minorities. Minority right is not a marginal human rights question, solely of concern to the individual or group involved; as Sieghart has concluded, "All human rights exist for the protection of minorities."

Article 14 of the European Convention does not prohibit discrimination against the membership of a national minority 'per se'; it merely prohibits discrimination as regards the enjoyment of the rights and freedoms set out in the Convention. In the 40 years since the Convention came into force it is possible to discern two general strategies adopted by the European human rights institutions to overcome this lacuna. The first is the political strategy - which at its most practical involves the promotion of a separate protocol for 'national minorities'; and the second is the legal strategy - an endeavour (through case law) to develop the European Convention on Human rights (henceforth "the Convention") to a point where it effectively protects the rights of minorities.

The success of these two approaches is well illustrated by reference to the position of European Romanies, or Gypsies (henceforth also referred to as 'Roma'). The history of the Roma is unique and their persecution has been well documented; during the Second World War it is estimated that between 300,000 and 600,000 Continental Roma were murdered.

The problems of discrimination and prejudice continue for Roma, who now number eight to ten million in Europe, and experience "widespread poverty and economic hardship, massive unemployment, concentration in unskilled labour, inadequate housing or support for a peripatetic existence, widespread suspicion and prejudice among the surrounding populations, poor education and extensive illiteracy and inadequate health care.

The Political Strategy

Attempts to safeguard human rights through international political initiatives are inevitably slow, arduous and frequently disappointing. Matters of principle may be compromised in the desire to achieve even minimal progress. As Roma neither constitute an effective pressure group nor a popular cause for political vote seekers, their rights command little time or attention within the political foray.

In 1995 the Council of Europe published two surveys of political initiatives relating the plight of European Roma, a summary of which appear below. During the last two years there have been several similar initiatives with increasing and welcome signs of inter-agency collaboration; for instance, the OSCE Human Dimension Seminar on Roma in Warsaw (20-23 September 1994) was organised jointly with the Council of Europe.

The United Nations

In March l993 UN High Commissioner for Refugees published a survey of 'the Roma people of Central and Eastern Europe.' The survey concludes that Roma
 

"Are for the most part, an 'underclass'; uneducated, unskilled, unemployed, in poor health primitively housed, and subject to both passive and active ethnic prejudice ... a 'third-world' people, living under 'third-world' conditions ... . They are Europe's 'Untouchables'. If the Roma were citizens of a third-world nation they would be eligible for international aid."


The UNHCR report made a number of recommendations essentially aimed at creating a network of existing and new Central and Eastern European organisations to monitor and safeguard the rights of Roma people. Within the UN, UNESCO has also taken limited steps (in addition to its practical activities - e.g., literacy projects in Greece and Spain), for instance, endorsing draft resolutions on Roma education, culture and language. In August 1991, the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the UN Commission of Human Rights included the Roma in its working group on slavery at the request on the International Romani Union.

OSCE - Office for Democratic Institutions and Human Rights

The problems faced by Roma were first specifically mentioned in the Document of the Copenhagen Meeting of the Conference on the Human Dimension of the (then) CSCE in 1990, by which the participating States declared their firm intentions to (inter alia) take effective measures to combat discrimination against Roma and to protect their property. Similar expressions of 'unequivocal condemnation' of discrimination against Roma were reiterated at Geneva and Moscow in 199l, at the Helsinki Follow-up Meeting in 1992 and at Human Dimension Seminars in Warsaw in 1993 and 1994. The Human Dimension Seminar on Roma in September 1994 resulted in a proposal to establish within the ODIHR a Contact Point for communication between Inter-Governmental Organisations and OSCE NGO's on Roma issues. The Budapest Summit in December 1994 confirmed the establishment of this Contact Point.

A special report by the High Commissioner on National Minorities was published in September 1993, dealing with the social, economic and humanitarian problems faced by Roma in the OSCE region. The report is a valuable analysis of the problems they face; a number of general and specific recommendations to safeguard the rights are made in the report. The High Commissioner reaffirmed the need for participating states to implement the measures agreed to at the Copenhagen meeting. Special government policies were called for to deal with Roma-related issues in the areas of employment, education, health care and general welfare. It was added that policies should not be instituted in such a manner as to exacerbate Roma and non-Roma community relations through the appearance of favourable treatment of one group over another. International co-operation between states was stated to be important in order to exchange experience and expertise that other states have in dealing with Roma issues. Finally, the Commissioner voiced the need to avoid duplication of effort, through co-operation between the CSCE, the Council of Europe, the EC, pertinent UN agencies and others. Perhaps most striking of all is the warning made in the report:
 

"Not to confront these difficulties now is only likely to lead to even more serious problems for the Roma, and for the region in the coming years, particularly if economic or political conditions deteriorate sharply."

The European Union

Of the four European Union programmes which have a specific Roma element, the education programme has been the most conspicuously successful. Due to its non-controversial nature and the undoubted quality of the programme's key personnel it has attracted significant EC funds and achieved much. Whilst the programme is based upon Commission resolutions, these have merely acted as the mechanism to transform an existing 'political will' into positive action. There is of course an important point here; political resolutions do not change anything unless accompanied by a corresponding political will.

The Council of Europe

Of all the human rights institutions, the Council of Europe has historically been the most active in promoting resolutions concerning the rights of Roma. Early resolutions concentrated upon general anti-discrimination measures, such as full compliance with the International Covenant on the Elimination of All Forms of Racial Discrimination (ICERD). In more recent years specific resolutions relating to Roma have followed, culminating in 1993 with two that have perhaps refined to a new level of purity these high sounding declarations, full of noble sentiments and good intentions.

On the 2nd February 1993 the Parliamentary Assembly adopted Recommendation 1203 'on Gypsies in Europe.' Paragraph 2 recorded that:
 

'A special place among the minorities is reserved for Gypsies. Living scattered all over Europe, not having a country to call their own, they are a true European minority, but one that does not fit in the definitions of national or linguistic minorities'.


The text contains the obligatory reference to the "deplorable situation in which the majority of Gypsies live today," and explains that this situation is of urgency, as with Central and Eastern European countries now member states, the number of Gypsies living in the area of the Council of Europe has increased dramatically.

The Assembly recommendations included the routine reference to ICERD, the need for member states to ratify the fourth protocol to the ECHR and the issuance of a further protocol relating to the rights of minorities. Also included was an appeal to member states to alter any existing legislation that directly or indirectly discriminates against Roma.

Six weeks following the Parliamentary Assembly's recommendation, a resolution of the Council of Europe's 'Standing Conference of Local and Regional Authorities of Europe' (SCLRAE) on 'Gypsies in Europe' was reached. The Conference correctly emphasised (at par. 7)
 

"the special responsibility of local and regional authorities towards Roma/Gypsies, particularly with regard to accommodating Gypsies in the municipality, their education, training, health, development and the promotion of their culture."


Whilst the resolution makes the (by now) routine request that the member states implement previous texts of the Council of Europe, it is nevertheless written in practical language and suggests specific measures aimed at breaking down barriers to communication between Roma and non-Roma. As is discussed below, there is a role for high-sounding European Resolutions - even when accompanied by no implementation procedures. There is, however, also a need for such institutions to appreciate that hyperbole alone is not sufficient; the SCLRAE text to this extent is a welcome entrant to the school of realism.

A Framework Convention for the Protection of National Minorities was opened for signature by the Council of Europe on 1 February 1995. The framework Convention contains many important rights and freedoms relating to national minorities. The means of enforcement is, however, weak, relying merely upon state reporting procedures.

The progress of the proposed protocol to the ECHR on the question of minority rights has also been unsatisfactory. The Convention came into force in September 1953, and the following year the Consultative Assembly of the Council of Europe focused attention to the need for "a more precise definition of the rights of national minorities." This proposal led to the creation of a Sub-Committee on Minorities in 1957 and a proposal in 1959 for an additional Protocol on Minorities. Since that time the Protocol has remained on the drawing board for 37 years, with the Parliamentary Assembly becoming ever more insistent about the need for its adoption. The current text of the proposed Protocol contains many fine principles, including the right to express, preserve and develop one's identity, the right to use of the minority in relations with public authorities and in education. Central is the equality before the law and non-discrimination article:
 

'All persons belonging to a national minority shall be equal before the law. Any discrimination based upon membership of a national minority shall be prohibited.'


In 1995 the Parliamentary Assembly called for the Framework Convention to be "complemented by an additional protocol to the Convention setting out clearly defined rights which individuals may invoke before independent judicial organs."

The history of Protocols to the Convention has, however, shown that they are not an effective vehicle for the development of human rights. With the exception of the first protocol, their ratification by states has been sketchy at best, and in such cases generally only after decades of delay. This is even more the case in relation to Protocols that would have a significant effect upon a particular state. Protocol 4 is such an example, in that it introduces the right of free movement, and is of a special relevance to Roma, a point emphasised in Recommendation 1203 (above). The Protocol was open for signature on 16 September l963, and yet it still has not been ratified by a number of states of the Council of Europe, including the UK and Spain.

Even where member states of the Council of Europe agree to take positive action, there is no certainty that such action will in fact occur. By way of example, the 1975 Committee of Ministers Resolution (75)13 (concerning the need to eradicate discrimination against Gypsies) invited each member state to report to the Secretary General on the action they were taking towards its implementation; to date it appears that not a single member state has complied with this resolution.

This lack of practical action is evidenced by the continuing deterioration in the conditions in which Roma live. The SCLRAE Resolution (above) itself at paragraph 5 regretted that the earlier resolutions of the Council of Europe "have as yet been followed up with little concrete action." Further, the Moderator's Report on the CSCE Human Dimension Seminar in Warsaw on Roma (1994),
 

"acknowledged that no state has yet fully implemented its commitments on human rights with special relevance to Roma. It was further acknowledged that most problems confronting Roma would be resolved if states fully implemented existing commitments."

The Legal Strategy

The ECHR together with the first and fourth protocols protect many of the rights and freedoms of importance to Roma, and in particular:

Article 3. The prohibition of degrading treatment. The Commission has held that degrading treatment can occur when a group of persons is publicly singled out for differential treatment, although subsequent decisions would suggest that such behaviour would probably need to be accompanied by treatment that aroused a feeling of fear, anguish and inferiority capable of humiliating and debasing the victim.

Article 8. The right to respect for one's private and family life, home and correspondence. The convention does not provide a right to a home, but in general, travelling Roma merely seek respect for their existing home - their caravan or other vehicle.

Article 11. The right to freedom of assembly and to freedom of association with others. Assembly at fairs, family weddings. funerals and other occasions is characteristic of Roma culture. Unreasonable or discriminatory restrictions upon this right are prohibited by Article 11.

Article 14. Prohibits discrimination in relation to the enjoyment of the rights and freedoms in the ECHR (and in the protocols ratified by the particular state). Article 14 applies even in the absence of a violation of one of the rights contained in one of the substantive Articles; all that is required is the existence of real and unjustified discrimination in the way certain individuals are permitted to enjoy that right.

PROTOCOL 1

Article l. Protects the right to peaceful enjoyment of possessions and prohibits arbitrary confiscation or other deprivation of such possessions;
Article 1 is of particular relevance to travelling Roma in that 'possessions' include the mobile home and equipment.

Article 2. Protects the right to education. With regard to education, the rights of travelling Roma raise a number of interesting issues. Article 2 protects against unreasonable state interference in parental choice, and allied to Article 14, a protection against unreasonable discriminatory provision. Interruptions in normal school education might be seen as an occupational hazard of travelling Roma life; obviously, however, there is a difference between parental choice over when to move on and precipitous moves resulting from forced evictions. Unduly restrictive state attendance at schools that interfered with traditional Roma travelling could also amount to a violation of Article 8.

PROTOCOL 4

Article 2. Protects the right to freedom of movement within a state.

Article 3. Protects the right not to be refused entry (or expelled from) a state of which the person is a national. These two rights are of importance, not only to traditional travelling Roma, but also in relation to inter-state Roma movements (forced or otherwise). Roma who are citizens of a European Union state have separate rights of free movement within the EU.


There is a view (possibly a minority one) within the Commission that complaints that raise minority rights issues are to be approached cautiously, if not treated differently to those of a purely individual nature. To an extent, this stems from the unsatisfactory nature of Article 14, in part from the political sensitivity of such complaints, and in part to the escapist view that such complaints would be better dealt with under the minority rights protocol when (and if) it comes into being.

This cautious approach of the Commission and Court was evidenced in the judgement in Belgium Linguistic complaint (1967) which restricted Article 14 to cases of discriminatory treatment in which there was "no reasonable relationship of proportionally between the means employed by the state and the legitimate ends pursued." The Court emphasised that (subject to this) states remained free to choose the measures that they considered appropriate.

In the unsuccessful application G v Norway (1983), Lapps complained about a decision to construct a hydro-electric dam and thereby flood part of the valley where they herded deer. The Commission, in its decision, reaffirmed that the ECHR does not guarantee the rights of minorities, but accepted that "under Article 8, a minority group is, in principle, entitled to claim the right to respect for the particular lifestyle it may lead, as being `private life,' `family life' or `home.'"

In X v Ireland (1983), 13 Roma living in caravans on two sites near a special school for travelling children made applications. They had been evicted from their sites because of the consequent nuisance on the sites having no basic facilities; they complained that their eviction by the authorities (without being offered alternative accommodation) violated Articles 3, 8, 14 and Article 2 of the First Protocol. Despite the complaint's disclosure of serious Convention issues, the Commission ruled it inadmissible on the procedural ground of 'non-exhaustion' of domestic remedies. Legal aid for the possible domestic remedy in question would almost certainly have been unavailable, however, the Commission placed weight upon the failure of the parties even to apply for such legal aid. This was objectively a harsh "inadmissibility" decision.

In 1991 and 1992 the Commission considered the admissibility of two complaints against the Netherlands made by several mobile home dwellers, although none claimed Roma status. In both cases the complaints concerned the applicant's forced removal by virtue of the state's Mobile Homes Act (Woonwagenwet) of l986.

In Beckers v Netherlands (1991) the applicant was forced to leave his mobile home dwelling because his occupancy was not permitted by the Act. Under the Act, a permit to occupy a mobile home could only be obtained if the applicant practised one of the trades listed in a certain Decree, or if he (or his spouse) had previously had a permit to occupy a mobile home. The applicant complained to the Commission, alleging violation of a number of Articles to the ECHR and Protocols l. & 4. Although the complaint was declared inadmissible, the Commission's finding in relation to the Article 8 complaint is of interest. It accepted that in denying the applicant the right to live in a mobile home, his Article 8 rights had been interfered with; it however, considered that in the case of the Netherlands a restriction on the number of persons occupying such accommodation pursued a legitimate aim (the country is small, overcrowded, etc.). In concluding that there was no violation of Article 8 it held that since the "applicant cannot claim to belong to a minority entitled to specific protection under Article 8 of the Convention, the Commission is of the opinion that the rules are not disproportionate...." It logically follows that such an interference would have been looked at in a different light had the applicant been a Roma.

The willingness of the Commission to accept that the actions by the state were not disproportionate was a matter of some concern, as it accepted (without any empirical evidence being submitted) that the population density of the Netherlands permitted such measures. The effect of the legislation has been the subject of considerable criticism. Annemarie Cottaar (et al) comments that caravan dwellers "were literally dragged to larger camps" and that because of 'the isolated location of the camps ... many caravan dwellers lost contact with society."

In Van De Vin v Netherlands (1992) a number of mobile home dwellers were required to have a municipal site that was to be closed; they had substantial notice of the move and were offered a variety of alternative sites. The applicants argued that in consequence several Articles of the ECHR had been violated, including Article 2 of Protocol 4. The Commission held the complaint to be inadmissible; in relation to Article 2 of Protocol 4 it stated that this provision does not guarantee a right to a specific place of residence without a title to reside on such a specific place.

In Powell v UK (1990) the applicants were non-travelling Roma living on a municipal caravan site built specifically to accommodate Roma. The UK law provided that Roma living on such sites could be evicted more easily than persons who lived on other mobile home sites. At that time the UK law also provided that each municipality was under a duty to provide sufficient sites to accommodate the Roma living in their area. In a poorly argued "majority decision the Commission ruled the complaint inadmissible, holding that in view of the municipal obligation to provide sites for Roma (but not for non-Roma) the difference in treatment did not offend the principle of proportionality (with regard to the state's margin of appreciation). Such a decision comes perilously close to legitimising the morally bankrupt 'separate but equal' doctrine.

Subsequent to the Powell decision, two further, equally unsatisfactory admissibility decisions followed, in the cases of Smith and others v UK (1991) and Smith v UK (1993), both of these complaints being made by Roma.

In the 1991 decision the applicants stated that notwithstanding the (then) duty of UK Municipal Councils to provide sufficient sites for Roma, there were no such sites in their area, no prospect of such sites and that they  were subject to repeated evictions and threats of evictions. The applicants had applied to the domestic Courts to compel the Government to provide sites, but the Court had declined to do this on the basis that the state was aware of the problem and (in the Court's view) endeavouring to resolve the difficulty. In holding the complaints to be inadmissible the Commission asserted that,
 

"Article 8 does not contain an express right to living accommodation. Moreover, although Article 8 may require positive action from Contracting States in certain circumstances, it is inevitable that when questions of policy and implementation arise, a considerable discretion must be left to them. The Commission finds that, in the present case questions relating to immediate provision of gypsy sites in [the municipality] were broadly canvassed by the Secretary of State and by the Court, and there is no indication that the authorities acted in such a way as not to respect the applicants' right under Article 8."


The Commission's decision is unsatisfactory for a number of reasons, not least that it essentially vindicated the State purely because it had not deliberately acted to the applicant's detriment - despite it having allowed a situation to arise where their Article 8 rights were being routinely violated.

The 1993 complaint concerned a specific UK law which made it a criminal offence for a Gypsy (but not a non-Gypsy) to camp in certain "designated" areas (unless he or she lived on a legal site). The applicant was a Gypsy and lived in such an area on a legal site. The Commission held that
 

"the traditional lifestyle of a minority may, in principle, attract the guarantees of Article 8 .... However an individual applicant who is a member of a minority must establish that the measure complained of has a real and direct effect on his or her pursuit of that lifestyle. The Commission finds on the facts of the present case that the applicant has failed to do so."


The Commission's decision imposed a far more severe admissibility test in this case than applied to many non-Roma complaints.

The Commission's approach to complaints made by Roma could legitimately be described as disproportionately harsh. In X v Ireland it applied an unusually stringent requirement in relation to exhaustion of domestic remedies. In Powell v UK and Smith & others v UK (1991) it appeared to allow a margin of appreciation to the state, so wide as to amount to an endorsement of the 'separate but equal' doctrine. In Smith v UK (1993) the requirement that the applicant be a victim was applied with far more vigour than has been the case with complaints made by (for instance) homosexuals.

On the positive side, the Commission's decision in Beckers v Netherlands indicates that the severe actions by the state (which the Commission found proportionate) might have been viewed otherwise if the victim had been a number of a minority such as the Roma.

On 11 January 1995 the Commission adopted its Report on the complaint Buckley v UK. The complainant is a Gypsy and her complaint concerns very similar facts to the Ruby Smith v UK (1993) complaint, save only that in the Buckley complaint, the applicant was under a threat of eviction from her encampment (as it lacked planning permission).

In its Report the Commission concluded (by a majority) that the complainant's rights under Article 8 (right to respect for private and family life, home and correspondence) had been violated. It accepted that the measures (both in relation to the criminalisation of Gypsies in designated areas, and in relation to the planning enforcement measures used by the state) were in accordance with the law and pursued a legitimate aim However, on the question of whether the measures were necessary in a democratic society (in relation to Article 8 (2)) the Commission considered them to be disproportionate.

The Commission contrasted the effect of planning enforcement measures on Gypsies and non-Gypsies:
 

"in the general type of planning case ... the assumption is that an individual has a wide range of accommodation possibilities available to him or her throughout the country. This case presents the special feature that, being a Gypsy, the applicant leads a traditional lifestyle which restricts the options open to her."


The Commission considered the specific circumstances of the complainant's case in detail and concluded,
 

"the measures taken against the applicant with regard to her continued occupation of her land, place her in the position where she is being required either to move off without any specific lawful place where she can go or to apply for a future vacancy on a site which she considers, with reason, to be unsuitable. Both of these alternatives offer the prospect of insecurity and the threat of disrupting the stability of her home and her children's existence. Against this, the Commission considers that the factors weighing in favour of the public interest in planning controls are of a slight and general nature. ... In these circumstances, the burden placed upon the applicant by the enforcement measures is, in the Commission's opinion, excessive and disproportionate. Even having regard to the margin of appreciation accorded to the domestic authorities, the Commission finds that the interests of the applicant in this case outweigh the general interest. It does not consider that this finding is tantamount to rendering Gypsies immune from legitimate planning controls. Special considerations arise in the planning sphere regarding the need of Gypsies which are acknowledged in the Government's own policies."


The Buckley complaint was transferred to the European Court of Human Rights for a final decision. An oral hearing occurred on 19 February 1996, and a final judgement is expected before the end of this year (1996).

Conclusion

Both the legal and the political strategies have been slow to produce any practical benefits for Roma. Buckley v UK may represent the high water mark of attempts to develop the jurisprudence of the ECHR to deal with minority rights issues - but (regardless of the eventual court decision) this seems unlikely. The tide is still flowing, as the many bleak resolutions from European institutions continue to assert. Indeed, the prominence of Roma is likely to increase with the accession of the Central and Eastern European states to the Council of Europe, including perhaps four million Roma, the majority of whom are living in conditions of poverty and repression even greater than that documented within western Europe.

The political strategy has yet to deliver much in the way of tangible benefits to the Roma. They still live in predominantly third world conditions in which there is a general disregard for their civil and political rights. States are vying with each other to approve resolutions of high flown rhetoric, with the implementation of such resolutions then being ignored.

At present the political strategy has `failed to deliver,' rather than failed. There is no doubt that a widely adopted and directly enforceable protocol on minority rights is a worthy goal. The question that must be asked, however, is whether such a quest is being used as a device to bar Roma and other minority groups from the existing Convention process.

It is equally unlikely that general recommendations emanating from the Parliamentary Assembly of the Council of Europe will result in any direct benefit to European minorities in the foreseeable future. Such recommendations can, however, lend support to specific complaints under the ECHR.

Complaints to the European Commission of Human Rights are made against individual states, most of which will have (in one way or another) been partly to the various political resolutions referred to above. The Court and Commission will accordingly approach the complaint on the basis that these resolutions form the bench mark for acceptable standards of state behaviour.

The Court and Commission have repeatedly asserted that the Convention is a living instrument which must adapt and develop with the changes in public attitude. Further, they assert that their decisions be informed by, and take into account, relevant developments within the Parliamentary Assembly and other institutions concerned with human rights. It is perhaps through this route that such resolutions will prove to be of most benefit.

The Committee is indeed showing signs of relaxing its past reservations about admitting complaints that raise minority rights issues. This change of attitude has perhaps three causes, the first being the general acceptance that in all probability a fully ratified and enforceable minority rights protocol will not exist for several decades - if at all. Second, there exists the expectation of a significant growth in minority rights complaints as a consequence of the ratification of the ECHR by Central and Eastern European states (and the relatively recent recognition by Turkey of the jurisdiction of the Court); and finally, there is a sense of competition, with the significant minority rights role being developed by the OSCE.

The mechanisms for effective protection of minority rights do exist. Whether any substantial benefit is to be gained from them remains to be seem.


Note About the Authors:

Luke Clements is Solicitor and Consultant to University of Wales Cardiff Law School Traveller Research Unit. Philip A. Thomas is  Professor of Socio Legal Studies University of Wales Cardiff Law School and Director of Traveller Research Unit. Robert Thomas is from the University of Nottingham.

This article originally appeared in the Fall 1996 Vol. 4 No. 4 issue of the OSCE Office for Democratic Institutions and Human Rights Bulletin <http://www.osce.org/inst/odihr/docs/bulle4-4.htm>.

Posted 03 September 1999.



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