The European Convention on Human Rights and the Protection of the Roma as Controversial Case of Cultural Diversity

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European Diversity and Autonomy Papers

EDAP 5/ 2004

The European Convention on Human

Rights and the Protection of the Roma as

a Controversial Case of Cultural Diversity

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Managing edit ors:

Emma Lant schner / Francesco Palermo / Gabriel N. Toggenburg

Edit orial Board:

In al phabet i cal or der :

Crauf urd Smit h Rachel (Universit y of Edinburgh, UK) Dani Marco (Universit à di Trent o, I)

De Wit t e Bruno (European Universit y Inst it ut e, I) Gamper Anna (Universit ät Innsbruck, A) Henrard Krist in (Universit y of Groningen, NL)

Kuj ovich Gil (Vermont Law School, US) Kymlicka Will (Queens Universit y, CAN)

Marko Joseph (Universit ät Graz, A) Nic Shuibhne Niamh (Universit y of Edinburgh, UK)

Ort ino Sergio (Universit à di Firenze, I) Packer John (Tuf t s Universit y, US) Poggeschi Giovanni (Universit à di Lecce, I) Sasse Gwendolyn (London School of Economics, UK)

Tarr William (Rudgers Universit y, US) Teachout Pet er (Vermont Law School, US)

Toniat t i Robert o (Universit à di Trent o, I) Woelk Jens (Universit à di Trent o, I)

Europäische Akademie Bozen Drususallee, 1

39100 Bozen - It alien Tel. +39 0471 055200 Fax +39 0471 055299

edap@eurac. edu www. eurac. edu/ edap

Accademia Europea Bolzano Viale Druso, 1 39100 Bolzano - It alia Tel. +39 0471 055200 Fax +39 0471 055299

edap@eurac. edu www. eurac. edu/ edap

Copyright Informat ion:

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Abstract

The Roma are of t en t he vict ims of syst emic discriminat ion which is closely relat ed t o t he prej udices against t hem and t heir part icular way of lif e, t heir own minorit y ident it y. When st udying t o what ext ent t he Roma and t heir own way of lif e are prot ect ed on t he basis of individual human right s in t he European Convent ion on Human Right s, it becomes clear t hat slowly but surely t he European Court of Human Right s acknowledges t he vulnerable posit ion of t he Roma and t heir concomit ant need of special prot ect ion. While signif icant development s have t aken place concerning t he preliminary issues of non-discriminat ion and t he prot ect ion of physical int egrit y, t he act ual prot ect ion concerning language right s or educat ional right s is st ill rat her meagre. Nevert heless, t he gradual emergence of a right t o an own way of lif e f or Roma and t he ensuing posit ive st at e obligat ions might very well enhance t he lat t er incipient prot ect ion. The overall t endency of t he lat est j udgement s of t he Court is t o increasingly rest rict t he margin of appreciat ion of st at es, also in t he sensit ive domain of minorit y prot ect ion.

Author

Krist in Henrard is senior lect urer at t he Universit y of Groningen where she t eaches human right s, ref ugee law and const it ut ional law. Her main publicat ions pert ain t o t he areas of human right s and minorit y prot ect ion (see e. g. Devi si ng an Adequat e Syst em of Mi nor i t y Pr ot ect i on. Indi vi dual Human Ri ght s, Mi nor i t y Ri ght s, and t he Ri ght t o Sel f -Det er mi nat i on, Mart inus Nij hof f Publishers, The Hague, 2000). She is t he managing edit or of t he Net herlands Int ernat ional Law Review and member t o various bodies such as t he advisory board of t he Global Review of Et hnopolit ics, t he Int ernat ional Advisory Board of t he Human Right s Cent re of SEE- Universit y (Tet ovo, Macedonia) or t he Expert Team on Minorit y Ombudsmen of ECMI.

The aut hor can be reached at : K. Henrard@recht en. rug. nl

Key words

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The European Convention on Human Rights and

the Protection of the Roma as a Controversial

Case of Cultural Diversity

1

Krist in Henrard

1. Introduction

The part icular predicament of t he Roma all over t he world, but also in most European count ries, is well document ed. Problems of pervasive discriminat ion in several areas of lif e, especially regarding access t o employment , educat ion, healt h care and housing, go hand in hand wit h numerous inst ances of racial violence, and mist reat ment by t he police. All t hese negat ive f act ors f or t he overall living condit ions of t he Roma can mainly be at t ribut ed t o negat ive percept ions about t he Roma ident it y, t heir own way of lif e, values and t radit ions.

Not wit hst anding t he f act t hat t he Roma are generally acknowledged t o const it ut e a minorit y, which would invit e an invest igat ion of possible avenues of prot ect ion f or t he Roma on t he basis of minorit y right s, t his chapt er will be f ocused on t he ext ent t o which individual human right s provide prot ect ion f or Roma.

A brief ‘ preliminary’ sect ion concerning t he meaning of t he concept s ‘ cult ural diversit y’ and ‘ cult ural right s’ , j ust if ying t he exact scope of t his art icle, and a succinct f act ual descript ion of t he sit uat ion of t he Roma, is f ollowed by an analysis of t he way in which individual human right s cont ribut e t o t he prot ect ion of t he Roma and t heir own way of lif e. In view of t he excellent reput at ion of human right s prot ect ion under t he European Convent ion on Human Right s (ECHR), t his second part will be const ruct ed around t he lat t er t reat y and t he j urisprudence of t he European Court of Human Right s (ECt HR).

Two preliminary issues t hat are elaborat ed upon are t he equalit y principle, more specif ically t he prohibit ion of discriminat ion, as well as t he prot ect ion of t he right t o lif e and physical int egrit y. When st udying t he degree t o which

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Roma’ s cult ural right s are prot ect ed, t he f ocus will be on t he right t o one’ s own way of lif e, t he use of one’ s own language in t he public sphere and t he right t o educat ion, including access t o educat ion and t he right t o mot her t ongue educat ion. In several regards, import ant development s can be gleaned f rom t he j urisprudence of t he European Court of Human Right s, even t hough not always in cases concerning Roma. Nevert heless, t his case law is of obvious relevance f or Roma in view of t he principl es t hey cont ain. In any event , it is equally obvious t hat t here is st ill ample scope f or improvement .

2. Cultural Diversity (Cultural Rights) and

Factual Background on the Situation of the Roma

2. 1. Cul t ur al Di ver si t y (Cul t ur al Ri ght s)

When speaking in t erms of cult ural diversit y, it is always advisable t o give an indicat ion about t he meaning of t he concept s of cult ure and cult ural right s. A narrow and a broad, ant hropological meaning of t he concept of cult ure can be dist inguished. Whereas t he f irst mainly concerns t he highest int ellect ual achievement s of humans, like philosophy, lit erat ure et c. , t he second is much wider and includes aspect s of one’ s own, separat e way of lif e such as f ood, clot hing, housing, t he learning of f amily values and t he like.2

Arguably, language is a component of cult ure, and t his can also be put f orward regarding religion. An enumerat ion of cult ural right s conf irms t he broad scope of cult ure and it s int rinsic relat ion t o t he ident it y of minorit ies. Cult ural right s def init ely t end t o include t he right t o educat ion,3

which is crucial f or minorit ies in view of it s socializat ion f unct ion, while access t o and adequat e coverage in t he media can also be added t o t he list of import ant issues concerning t he reproduct ion of a cert ain cult ure.4

As already indicat ed in t he int roduct ion, t his art icle will mainly address t he prot ect ion of t he own way of lif e of t he Roma, right s pert aining t o language use and educat ion more generally. When ment ioning t he own way of lif e of t he Roma, one t hinks immediat ely of living in caravans and of t en, but not necessarily any more, an it inerary lif e st yle. Regarding t he right t o educat ion,

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2

Linda V. Prot t , “ Cult ural Right s as Peoples’ Right s” in Jack Crawf ord (ed. ), The Ri ght s of Peopl es i n Int er nat i onal Law (Clarendon Press, Oxf ord, 1988), 93-106, 94. See also Jack Donnelly, “ Human Right s, Individual Right s and Collect ive Right s” in Jan Bert ing et al. (eds. ), Human Ri ght s i n a Pl ur al i st Wor l d: Indi vi dual s and Col l ect i vi t i es (Meckler, West port , 1990), 39-62, at 55.

3

Yoram Dinst ein, “ Cult ural Right s” , Isr ael Year book on Human Ri ght s (Mart inus Nij hof f Publishers, The Hague, 1979), 58; Prot t , “ Cult ural Right s …” , 96-97; Vernon van Dyke, “ The Cult ural Right s of Peoples” , 2 Uni ver sal Human Ri ght s (1980), 13; Collin H. Williams, “ The Cult ural Right s of Minorit ies: Recognit ion and Implement at ion” , in Jana Plicht ova (ed. ), Mi nor i t i es i n Pol i t i cs: Cul t ur al and Language Ri ght s (Czechoslovac Commit t ee of t he European Cult ural Foundat ion, Brat islava, 1992), 112.

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severe problems exist as regards de f act o access t o educat ion, especially t he higher echelons of educat ion, while educat ion in t he/ a Roma language is also an issue. The problems regarding t he use of t he/ a Roma language in t he public domain might come less t o t he f oref ront but t hey def init ely belong t o t he realm of cult ural right s and are an issue t hat should not be overlooked.

Not wit hst anding t he f ocus on cult ural diversit y and t he prot ect ion of cult ural right s, it seems appropriat e and even necessary t o f irst consider some so-called ‘ preliminary’ issues. Indeed, cert ain right s do not qualif y as cult ural right s but are nevert heless right s t hat can play a cent ral role regarding t he enumerat ed cult ural right s or t hat can be considered as pre-eminent right s t hat need t o be guarant eed t o be able t o enj oy t hese cult ural right s. In general when one discusses t he posit ion of Roma, t he f ocus is on t heir overall disadvant aged, vulnerable posit ion, and t he relat ed syst emic prej udice against t hem, which t ranslat es int o mult iple manif est at ions of racial violence and syst emic discriminat ion. This obviously colours t heir lives and inf luences t he way t hey exercise t heir cult ural right s and can live t heir own way of lif e.

The most import ant of t he so-called ‘ preliminary right s’ are t he right t o lif e and t he prohibit ion of t ort ure and inhuman or degrading t reat ment or punishment . The right t o lif e is undoubt edly t he nat ural f irst right t hat should be guarant eed t o individuals as it is a necessary condit ion f or t he enj oyment of t he ot her f undament al right s and f reedoms. Members of minorit ies have by def init ion a vulnerable posit ion in societ y, in view of t heir numerical minorit y posit ion and non-dominant posit ion. They t end t o be almost nat ural vict ims of t hese of f ences so arguably, t heir vulnerabilit y amplif ies t he need f or an ef f ect ive prot ect ion of t he (overall) physical int egrit y of t he persons involved.5

Because of t he special import ance of t he ef f ect ive prot ect ion of t he right s at issue, it is crucial t hat t hey are considered absolut e or quasi absolut e right s in view of t he very limit ed scope of legit imat e limit at ions, derogat ions and except ions.

As will be elaborat ed inf ra, it is well known t hat t he Roma are of t en vict ims of police mist reat ment , which even result s in deat hs in cust ody. Furt hermore, Roma t end t o be t he t arget of more pervasive problems of racial violence, also at t he hand of privat e individual s. In t he lat t er respect , t he quest ion arises t o what ext ent t he st at e has posit ive st at e obligat ions t o prevent inf ringement s of t he right t o lif e at t he hand of privat e part ies or in ot her words how wide t he indirect horizont al applicabilit y of human right s reaches.

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Secondly, anot her kind of preliminary right of crucial relevance f or Roma concerns t he prohibit ion of discriminat ion. Indeed, t he Roma are of t en subj ect t o pervasive, syst emat ic discriminat ion in many count ries in Europe, bot h east and west . Equalit y or equal t reat ment are j ust if iably said t o be key issues in relat ion t o t he prot ect ion of Roma. Furt hermore, t he absence of discriminat ion is arguably a prerequisit e t o t he f ull enj oyment of cult ural right s as it det ermines t he act ual scope of t he accommodat ion of t he Roma.

Also here prot ect ion against privat e act s of discriminat ion, including violent manif est at ions of prej udice by privat e persons, and t he required st at e act ivit ies in t his respect are very import ant . Furt hermore, as will be developed inf ra, issues of indirect discriminat ion are crucial, especially regarding t he separat e, own way of lif e of t he Roma, in relat ion t o, f or example, general t own planning regulat ions. An awareness of indirect discriminat ion already implies a cert ain openness t owards subst ant ive equalit y, which would be f urt her enhanced by t he grant of ‘ special’ measures, at least special prot ect ion, f or Roma, in view of t heir part icularly disadvant aged posit ion.

2. 2. Fact ual Backgr ound on t he Roma

An ext ensive coverage of t he Roma, inf ormat ion on t heir own language, cult ure, religion and way of lif e (including a nomadic lif e st yle), t heir early root s, t heir arrival in Europe in t he 14t h Cent ury, t he development of t he policy of t he aut horit ies in t heir regard and t he ensuing sit uat ion f or t he Roma as regards t heir social-economic sit uat ion, educat ion, discriminat ion and et hnic violence, has been done elsewhere6

and does not need t o be repeat ed here. It suf f ices t o indicat e here t he generally miserable living condit ions of t he Roma, due t o t heir weak economic posit ion and dif f icult access t o employment . Furt hermore, several obst acles t o schooling of Roma children can be point ed out , which are all relat ed t o a host ile school environment t o pupils wit h a dif f erent social and cult ural background.7

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As ECRI point s out in t he preamble t o it s General Policy Recommendat ion no 3, ent it led Combat ing racism and int olerance against Roma/ Gypsies: “ Roma/ Gypsies suf f er t hroughout Europe f rom persist ing prej udices, are vict ims of racism which is deeply root ed in societ y, and t arget of somet imes violent demonst rat ions of racism and int olerance and t hat t heir f undament al

6

Marcia Rooker, The Int er nat i onal Super vi si on of Pr ot ect i on of Romany Peopl e i n Eur ope (Universit y Press, Nij megen, 2002), 9-17 and 53-66. See also Pet er Bakker and Marcia Rooker, “ The Polit ical St at us of t he Romani Language in Europe”, Working Papers of t he Of f ice of t he High Commissioner on Nat ional Minorit ies, 3-7, at ht t p: / / www. osce. org/ hcnm.

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right s are regularly violat ed or t hreat ened” and “ t he persist ing prej udices against Roma/ Gypsies lead t o discriminat ion against t hem in many f ields of social and economic lif e, and t hat such discriminat ion is a maj or f act or in t he process of social exclusion af f ect ing many Roma/ Gypsies” .8

Indeed, alt hough general xenophobia may exist , t he Roma st ill suf f er special vilif icat ion. It should f urt hermore be not ed t hat alt hough t here are serious concerns t hat Roma t end t o suf f er persecut ion in several European st at es, special measures are apparent ly t aken t o preclude Roma in part icular t o have access t o a subst ant ive ref ugee det erminat ion.9

3. The Protection for the Roma and their Separate Identity at

the Level of Individual Human Rights

As will be demonst rat ed in t he f ollowing paragraphs, several development s have t aken place in t he general human right s f ramework, and more specif ically in t erms of t he European Convent ion on Human Right s, t hat have pot ent ial t o improve t he prot ect ion of Roma and t heir separat e ident it y at t he level of individual human right s. Nevert heless, it has t o be acknowledged t hat so f ar t he progress has been mainly one of t heoret ical principle, as t he act ual applicat ion t o t he f act s has remained rat her rest rict ive. Moreover, cert ain crit ical remarks can be made concerning t he admissibilit y hurdles present in many cases brought bef ore t he ECt HR by Roma. The most problemat ic of t hese hurdles is obviously t he f inding by t he European Court of Human Right s t hat a case is manif est ly ill f ounded10

because t here would be no reason t o depart f rom t he conclusions reached by t he nat ional aut horit ies as t hey are bet t er sit uat ed t o evaluat e t he applicant ’ s complaint s or because t he minimum level of severit y f or Art icle 3 would not be reached (concerning cases of alleged excessive police violence). The reasoning of t he Court in t hese inst ances f urt hermore arguably depart s f rom it s own j urisprudence as regards t he need f or t he St rasbourg organs t o re-examine t he f act s when t here are disagreement s in domest ic court s about t hem or as regards inj uries sust ained when in police cust ody (e. g. Ri bi t sch11

and Tomasi12

).13

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8

See also John Whooley, “ Inequalit y and t he St ruggle f or Roma Right s” (1999), at ht t p: / / www. errc. org

9

See t he advocacy piece, “ Migrat ion, Asylum and Roma Right s Policy: a 3-part Basis f or Good Governance” , 2 Roma Ri ght s (2002), at ht t p: / / www. errc. org .

10

See in t his respect t he dif f erence bet ween t he same case bef ore t he Commit t ee against t he Eliminat ion of all Forms of Racial Discriminat ion and bef ore t he ECt HR: t he f ormer considered it admissible (para. 6. 5) but t hen concluded t o t he non violat ion because of t he condemnat ion of t he alleged perpet rat or (para. 10) wit h t he decision of non admissibilit y by t he ECt HR t o t he same f act s because t he claim would be manif est ly ill f ounded (Lacko v. Sl ovaki a, CERD/ C/ 59/ D/ 11/ 1998 and Lacko v. Sl ovaki a, Applicat ion No. 47237/ 99. See f or t his and any f urt her ref erence t o a j udgment of t he ECt HR t he Court ’ s websit e at ht t p: / / www. echr. coe. int.

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3. 1. The Pr ot ect i on of Physi cal Int egr i t y

Concerning t he preliminary issues ident if ied above, namely t he prot ect ion of physical int egrit y and t he equalit y principle, one can point t o signif icant development s or at least development s wit h a great deal of pot ent ial.14

Alt hough most of t hese development s have been ext ensively covered elsewhere,15

it seems appropriat e t o t ake up t he broad lines here, while adding import ant recent development s where necessary. The complaint s bef ore t he ECt HR most ly concern t ort ure, inhuman and degrading t reat ment , also during det ent ion, and discriminat ion. Because t he relat ed act s t end t o st em f rom prej udice against Roma because of t heir own, separat e way of lif e, cult ure et c, it is relevant t o t reat t hem brief ly here.

Whereas unt il now most Roma cases against Hungary have not been successf ul, several cases of police violence against Roma have led t o condemnat ions of Bulgaria. Recent ly t he ECt HR has conf irmed it s case law of

Assenov16

and Vel i kova17

in Anguel ova18

. In t he lat t er case, t he Court concluded t o mult iple violat ions, which concerned t he deat h of Anguelova’ s son af t er ill-t reat ment in police cust ody. The Court did not only est ablish a violat ion of Art icle 2 because a person died in police cust ody while being healt hy bef ore and t he st at e being unable t o provide a plausible explanat ion,19

but also of Art icle 2 because t he invest igat ion int o t he deat h of t hat person was not suf f icient ly obj ect ive and t horough.20

A violat ion of Art icle 3 was f ound because t he inj uries t o t he person’ s body “ were indicat ive of inhuman t reat ment beyond t he t hreshold of severit y under Art icle 3” ,21

while t he “ unacknowledged det ent ion of an individual is a complet e negat ion of t he f undament ally import ant guarant ees cont ained in Art icle 5” .22

This line of j urisprudence seems t o indicat e a growing acknowledgement of t he

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12

ECt HR, Tomasi v. Fr ance, j udgment of 27 August 1992.

13

See also Lilla Farkas, “ Knocking at t he Gat e: t he ECHR and Hungarian Roma” (2000), at ht t p: / / www. errc. org.

14

No cases of racially inspired violence have come bef ore t he Human Right s Commit t ee (HRC) or t he CERD.

15

Int er al i a Florence Benoit -Rohmer, “ Observat ions: A propos de l’ aut orit é d’ un ‘ précédent ’ en mat ière de prot ect ion des droit s des minorit és” , Revue Tr i mest r i el l e de Dr oi t s de l ’ Homme (2001), 905-915; Rooker, The Int er nat i onal Super vi si on …, 140-142, and 172-178.

16

ECt HR, Assenov. v. Bul gar i a, j udgment of 28 Oct ober 1998. .

17

ECt HR, Vel i kova v. Bul gar i a, j udgment of 18 May 2000.

18

ECt HR, Anguel ova v. Bul gar i a, j udgment of 13 June 2002.

19

ECt HR, i bi d., paras. 110-121.

20

ECt HR, i bi d. , para. 145.

21

ECt HR, i bi d. , para. 149.

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vulnerable posit ion of Roma and t he relat ed st rict er st ance of t he ECt HR t owards act ion (or inact ion) by t he st at e aut horit ies.23

Not wit hst anding t he f act t hat Nachova v. Bul gar i a24_{does not concern}

Art icle 5 but Art icle 2, it also concerns excessive police violence against Roma and hence can be considered here (in addit ion t o it s seminal import ance as regards Art icle 14, see inf ra). The case concerns a complaint of close relat ives of t wo Roma men who were shot by police of f icers who t ried t o arrest t hem, while being unarmed and not suspect ed of having commit t ed a violent crime. The Court conf irms it s st rict st ance as regards violat ions of Art icle 2, and act ually adds an addit ional requirement t o Art icle 2(2)(b) when it argues t hat t he legit imat e aim of ef f ect ing a lawf ul arrest cannot j ust if y put t ing human lif e at risk where t he f ugit ive has commit t ed a non violent crime and does not pose a t hreat t o anyone.25 In t he process t he Court also reveals it s ‘ height ened scrut iny’ of police violence against Roma in view of t heir disadvant aged posit ion in many societ ies.

3. 2. The Equal i t y Pr i nci pl e

A second import ant development concerning t he prot ect ion of Roma on t he basis of individual human right s pert ains t o recent j urisprudence of t he ECt HR as regards t he equalit y principle. There have in any event been import ant development s in ECHR’ s Art icle 14 j urisprudence, which reveal an openness t owards subst ant ive equalit y, as cont rast ed wit h mere f ormal equalit y.26

First of all, it should be highlight ed t hat t he Court recent ly accept ed in t heory allegat ions of indirect discriminat ion. As t he lat t er are f ocused on norms and pract ices wit h disparat e impact on cert ain groups, and as indirect discriminat ion of t en occurs on t he basis of race/ et hnic origin, t he principled

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23

Not e t hat in Cypr us v. Tur key, t he original complaint bef ore t he European Commission on Human Right s comprised complaint s about t he discriminat ory t reat ment of Romany people which would amount t o a violat ion of Art . 3. However, t he Commission held t he complaint inadmissible in t his respect as being manif est ly ill f ounded and hence it did not f eat ure in t he merit st age bef ore t he Court .

On t he ot her hand, ref erence should def init ely be made t o Conka v. Bel gi um (j udgment of 5 February 2002) in which t he ECt HR f ound f or t he f irst t ime a violat ion of Art . 4 of Prot ocol 7 as relat ed t o t he collect ive expulsion of a group of Roma. The Court here seemed t o give enhanced prot ect ion t o t he Roma in view of t heir ext ra vulnerable posit ion in societ y. See also Lilla Farkas, “ Knocking at t he Gat e: …” , 3; Judy Garland, “ Case not e: Conka v. Bel gi um – Inroads int o Fort ress Europe?” , at ht t p: / / www. errc. org; Elspet h Guild, “ The Borders of Legal Orders: Challenging Exclusion of Foreigners” , 2 Roma Ri ght s (2002), at ht t p: / / www. errc. org.

24

ECt HR, Nachova v. Bul gar i a, j udgment of 26 February 2004.

25

ECt HR, i bi d., para. 103.

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st ances in Kel l y v. UK27 and Mc Shane v. UK28 are import ant . An even more import ant development has manif est ed it self in Thl i mmenos v. Gr eece29

as t he Court indicat es here f or t he f irst t ime t hat st at es are obliged t o adopt dif f erent ial measures concerning persons who f ind t hemselves in signif icant ly dif f erent sit uat ions: “ t he right not t o be discriminat ed against in t he enj oyment of t he right s guarant eed under t he Convent ion is also violat ed when st at es wit hout an obj ect ive and reasonable j ust if icat ion f ail t o t reat dif f erent ly persons whose sit uat ions are signif icant ly dif f erent ” .30

This opening t owards subst ant ive equalit y,31 arguably ext ends t he changing approach concerning indirect discriminat ion, and t ends t o augur well f or t he det erminat ion of st at e obligat ions t o t ake special measures f or t heir minorit y populat ions generally and t he Roma more specif ically, t hat t ake t heir specif ic charact erist ics and needs int o account .

Even t hough t he ECt HR used t o be rat her conservat ive in ruling on racial discriminat ion, one can point t o cert ain older case law exposing at least a special at t ent ion and concern f or manif est at ions of racially inspired act ions and violence (e. g. Jer si l d v. Denmar k32). For many decades t he Commission’ s decision in t he Asi an Af r i cans cases in t he lat e 60s was not f ollowed by explicit st at ement s by t he Court t hat ident if ied race as a suspect class in it s non-discriminat ion j urisprudence. Nevert heless, t he growing concern in member st at es, as ref lect ed in t he EU’ s Race Direct ive (direct ive 2000/ 43 EC) and as in st at es worldwide, t o eradicat e racial discriminat ion has exert ed pressure on t he ECt HR also t o t ake a more explicit st ance in t his respect , which has arguably mat erialised (t o some ext ent ) in Nachova v. Bul gar i a (see inf ra). The adopt ion on 4 November 2000 of t he 12t h Addit ional Prot ocol t o t he ECHR, which int roduces a general, aut onomous prohibit ion of discriminat ion, should also be highlight ed. Not wit hst anding t he slow rat if icat ion process (by end of Oct ober 2004 only 6) which will delay it s coming int o f orce, t he posit ive expect at ions about it s impact on t he overall equalit y j urisprudence of t he ECt HR are rat her high. The development s regarding t he Court ’ s height ened awareness of and concern f or t he t reat ment of minorit ies and of Roma more specif ically, discussed i nf r a, will hopef ully lead t he Court t o f urt her reorient it s j urisprudence t owards uncovering and recognizing also less obvious f orms of racial and et hnic discriminat ion wit h which Roma are

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27

ECt HR, Kel l y v. UK, j udgment of 4 May 2001.

28

ECt HR, Mc Shane v. UK, j udgment of 28 May 2002.

29

ECt HR, Thl i mmenos v. Gr eece, j udgment of 6 March 2000 .

30

ECt HR, i bi d., para. 44.

31

See also Janneke H. Gerards, “ Noot bij het Thlimmenos arrest van het EHRM” , Eur opean Human Ri ght s Cases (2000), 45-46.

32

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conf ront ed.33 In t his respect , t he Court could f or example in t he f ut ure accept more easily complaint s of discriminat ion in relat ion t o complaint s of violat ions of Art icle 3 because of mist reat ment by police of f icers (in cont rast t o it s posit ion so f ar, e. g. Anguel ova v. Bul gar i a).34

Nachova v. Bul gar i a is undoubt edly very import ant f or t he European Court ’ s

j urisprudence pert aining t o Art icle 14 in several respect s. It is not only t he f irst case in which t he Court concludes t o a violat ion of Art icle 2 in combinat ion wit h Art icle 14 but it also seems t o announce some kind of height ened scrut iny f or dif f erent iat ions on t he basis of race. Considering t he broad int erpret at ion given t o t he concept ‘ race’ as encompassing et hnic origin t his height ened scrut iny works in f avour of et hnic minorit ies, including t he Roma. As already emphasized supra, t he f act t hat t hese development s t ake place in a case concerning police viol ence against Roma f urt her demonst rat es t hat t he Court acknowledges t he special prot ect ion needs of Roma in view of t he severe prej udices against t hem and t heir own way of lif e.

In it s evaluat ion of t he complaint of violat ion of Art icle 14 in combinat ion wit h Art icle 2 ECHR, t he Court point s out , in line wit h it s st eady j urisprudence, t hat t he prohibit ion of discriminat ion of Art icle 14 also applies t o t he procedural dimension of Art icl e 2, concerning t he dut y of public aut horit ies t o conduct ef f ect ive invest igat ions in case of suspect deat hs. In an earlier case pert aining t o a racist murder by privat e individuals (Menson v. UK, recevabilit y decision 6 May 2003), t he Court already underlined t hat “ where [ an] at t ack is racially mot ivat ed, it is part icularly import ant t hat t he invest igat ion is pursued wit h vigour and impart ialit y, having regard t o t he need t o reassert cont inuously societ y’ s condemnat ion of racism and t o maint ain t he conf idence of minorit ies in t he abilit y of t he aut horit ies t o prot ect t hem f rom t he t hreat of racist violence” (p. 13-14). Arguably t his holding already signals a special st at us f or racial discriminat ion which is acknowledged t o be of part icular relevance f or minorit ies and minorit y prot ect ion. In casu t he Court adds t hat in case it concerns a killing by st at e of f icials “ St at e aut horit ies have t he addit ional dut y t o t ake all reasonable st eps t o unmask any racist mot ive and t o est ablish whet her or not et hnic hat red or prej udice may have played a role in t he event s” .35 In t his respect it should be highlight ed t hat t he Court act ually draws on t he Thl i mmenos

rat ional t o underline t hat special at t ent ion should be given t o invest igat ions of possible racial violence: “ a f ailure t o make a dist inct ion in t he way in which sit uat ions t hat are essent ially dif f erent are handled may const it ut e unj ust if ied

13

33

See also Endre Sebok, “ The Hunt f or Race Discriminat ion in t he European Court ” , 1-2, at ht t p: / / www. errc. org.

34

See also Rooker, The Int er nat i onal Super vi si on …, 140-142.

35

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t reat ment irreconcilable wit h Art icle 14 of t he Convent ion” .36 Furt hermore, t he Court decides t o reverse t he burden of proof in view of it s own broader vision of t he prohibit ion of discriminat ion as indicat ed in Thl i mmenos and t he broader European t rend37

t o do so regarding discriminat ion complaint s. Even t hough t he Court does not explicit ly t ake up it s ‘ very weight y reasons’ t erminology which it normally uses t o indicat e a ‘ suspect class’ of dif f erent iat ions, t his reversal of t he burden of proof (in combinat ion wit h it s ot her st at ement s on racism and racial discriminat ion) arguably amount s t o a similar inst ance of st rict er scrut iny, ent ailing a drast ic reduct ion of t he st at es’ margin of appreciat ion.

According t o t he Court , t he public aut horit ies had not made adequat e ef f ort s t o unveil whet her or not racial mot ives had played a role in t he killing of t he Roma, despit e numerous indicat ions t o t hat ef f ect . Consequent ly t he Court decides t o reverse t he burden of proof , requiring Bulgaria t o proof t hat t he police of f icers were not inf luenced by discriminat ory at t it udes during t he shoot ing incident .38

It should be underlined t hat in it s evaluat ion and conclusion t o a violat ion of Art icles 14 and 239 t he Court also t akes t he broader cont ext int o account , more specif ically t he numerous inst ances of police violence against Roma, which had already ent ailed mult iple convict ions of Bulgaria by t he Court . This considerat ion of t he broader pict ure, t he broader realit y in a count ry was not one of t he Court ’ s st rongest point s in t he past and is part icularly import ant f or minorit y prot ect ion purposes, int er alia because it allows t o unveil inst ances of indirect discriminat ion (see also inf ra t he discussion of Buckl ey v. UK).

3. 3. The Ri ght t o Educat i on

A f irst human right wit h clear connot at ions t o cult ural diversit y is t he right t o educat ion.40

Not wit hst anding t he f act t hat educat ion has been ident if ied as a specif ic problem area f or Roma, t here is hardly any int ernat ional case law t o be f ound on t his t opic, none at all act ually at t he websit es of t he Human Right s Commit t ee and t he Commit t ee on t he Eliminat ion of All Forms of Racial Discriminat ion. Nevert heless, on 18 April 2000 a complaint was f iled wit h t he ECt HR against t he Czech Republic because of t he syst emat ic racial discriminat ion in Czech schools where Romany children t end t o get relayed t o special schools f or ret arded children, while t he maj orit y of t hem are not

14

36

Ibi d.

37

The Court ref ers explicit ly t o t he EU’ s Race Direct ive (paras. 167-168), which can be underst ood as a case of synergy bet ween t he respect ive organizat ions’ st ance regarding racial discriminat ion.

38

ECt HR, Nachova v. Bul gar i a, paras. 169-171.

39

ECt HR, Nachova v. Bul gar i a, para. 175.

40

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ment ally def icient .41 This would amount t o degrading t reat ment under Art icle 3, t he denial of t he right t o educat ion as well as discriminat ion in t he enj oyment of t he right t o educat ion (in t erms of Art icle 2 of t he second addit ional prot ocol and Art icle 14). The case is st ill pending in Oct ober 2004 but it s out come will reveal t he degree of prot ect ion individual human right s of f er against t hese widespread ant i-Roma pract ices in several East ern European count ries.

The remaining claims concerning Roma and t heir right t o educat ion were direct ed against t he Unit ed Kingdom. In all t hese cases, t he complaint pert aining t o educat ion was relat ed t o t he f undament al problem of t he inabilit y f or Romany t ravellers t o f ind a caravan sit e or plot of land t o set t le down on. The quest ion of language in educat ion, which is also relevant f or Roma, will be discussed inf ra.

3. 4. Language Ri ght s

Secondly, one could have regard t o t he ext ent t o which individual human right s guarant ee language right s t hat cont ribut e t o t he accommodat ion of linguist ic diversit y, and hence also prot ect and promot e t he use of t he Roma language, t o some ext ent . In view of t he f act t hat t here is no Roma specif ic case law in t his respect , it seems appropriat e t o merely give a quick summary here of a more ext ensive st udy.42

The degree t o which t he ECHR accommodat es t he wishes and needs of (members of ) linguist ic minorit ies is minimal. Not only does t he Convent ion cont ain hardly any explicit language right s, but t hese are also int erpret ed rest rict ively while t he Court has been in general reluct ant t o deduce meaningf ul language right s f rom ot her provisions like t he Art icles 8-10. The prot ect ion is indeed explicit ly limit ed t o t he implicat ions of t he non-discriminat ion principle, which is only one of t he pillars of a f ull-blown syst em of minorit y prot ect ion – t he second being special measures aimed at prot ect ing and promot ing t he separat e ident it y of minorit ies. However, t he recent development s in t he j urisprudence revealing a great er awareness of and concern f or minorit y needs might inf luence also

15

41

This pract ice of segregat ing Roma pupils f rom ot her pupils is a wide spread problem in many East ern European count ries. See i nt er al i a papers at t he ERRC websit e (ht t p: / / www. errc. org): European Roma Right s Cent re, “ Barriers t o t he Educat ion of Roma in Europe: A Posit ion Paper by t he European Roma Right s Cent er, (5 May 2002); Margaret a Illieva and Daniela Mihaylova, “ Court Act ion against Segregat ed Educat ion in Bulgaria: A Legal Ef f ort t o Win Roma Access t o Equalit y“ , (2003). A posit ive development in t his regard is t he February 2004 Act ion Plan on t he Educat ional Needs of Roma and Ot her Nat ional Minorit ies in Bosnia Herzegovnia which also set s out t o incorporat e aspet s of t heir cult ure and language in t he exist ing curricula. For an in dept h discussion of t he f act ual background and t he legal and st rat egical approaches t o count er t his pract ice, see Edwin Rekosh and Maxine Sleeper (eds. ), Separ at e and Unequal : Combat i ng Di scr i mi nat i on agai nst Roma i n Educat i on: A Sour ce Book (Budapest Law Cent er, Budapest , 2004).

42

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t his j urisprudence, as was already t o some ext ent visible in t he paragraphs on t he right t o educat ion in t he Cypr us v. Tur key case of 10 May 2001.43

The Court seems indeed t o be moving away f rom it s rigid st ance wit h respect t o t he prot ect ion of mot her t ongue educat ion visible in t he Bel gi an

Li ngui st i cs case44 of 1968 in it s Cypr us v. Tur key j udgment .45 In t he lat t er case

t he Court not es t hat “ children of Greek-Cypriot parent s in nort hern Cyprus wishing t o pursue a secondary educat ion t hrough t he medium of t he Greek language are obliged t o t ransf er t o schools in t he sout h, t his f acilit y being unavailable in t he TRNC ever since t he decision of t he Turkish-Cypriot aut horit ies t o abolish it ” .46

Alt hough t he Court at f irst seems t o repeat it s st ance t hat t he provision on t he right t o educat ion “ does not specif y t he language in which educat ion must be conduct ed in order t hat t he right t o educat ion be respect ed” ,47 it does conclude t hat “ t he f ailure of t he TRNC aut horit ies t o make cont inuing provision f or [ Greek-language schooling] at t he secondary-school level must be considered in ef f ect t o be a denial of t he subst ance of t he right at issue” .48

Because t he children had already received t heir primary schooling t hrough t he Greek medium of inst ruct ion, “ [ t ] he aut horit ies must no doubt be aware t hat it is t he wish of Greek-Cypriot parent s t hat t he schooling of t heir chil dren be complet ed t hrough t he medium of t he Greek language” .49

Consequent ly, it seems t hat because t he aut horit ies assumed responsibilit y f or t he provision of Greek-language primary schooling, t hey have t he obligat ion t o do t he same f or t he secondary school level in view of t he wishes and expect at ions of t he parent s t o t hat ef f ect .

Even t hough t his reasoning does not rely explicit ly on t he import ance of mot her t ongue educat ion f or t he cognit ive development of t he st udent s and relat ed subst ant ive equalit y considerat ions, and alt hough it does not read int o t he art icle on t he right t o educat ion a right t o mot her t ongue educat ion, it clearly at t aches more weight t o t he parent s’ convict ions about t he benef it s of a cert ain medium of inst ruct ion and should t hus be welcomed. It is t o be hoped t hat in subsequent j urisprudence t he European Court on Human Right s will f urt her elaborat e and enhance t he prot ect ion of mot her t ongue educat ion f or minorit ies.

16

43

ECt HR, Cypr us v. Tur key, paras. 277-278.

44

For a crit ical analysis of t he Belgian linguist ics case see i nt er al i a Henrard, Devi si ng an Adequat e Syst em of Mi nor i t y Pr ot ect i on: Indi vi dual Human Ri ght s, Mi nor i t y Ri ght s and t he Ri ght t o Sel f -Det er mi nat i on (Mart inus Nij hof f Publishers The Hague, 2000), 119-121; Christ ian Hillgruber and Mark Jest aedt , The Eur opean Convent i on on Human Ri ght s and t he Pr ot ect i on of Nat i onal Mi nor i t i es (Verlag Wissenschaf t und Polit ik, Köln, 1994), 25-31.

45

ECt HR, Cypr us v. Tur key, j udgment of 10 May 2001.

46

Ibi d., para. 277.

47

Ibi d.

48

Ibi d., para. 278.

49

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3. 5. The Ri ght t o an Own Way of Li f e

Finally, t here has been a signif icant shif t in t he j urisprudence in t erms of Art icle 8 ECHR, in t he sense t hat t he Court f inally acknowledged t he right t o an own way of lif e in Chapman v. UK,50

a case concerning Roma’ s dif f icult ies t o st at ion t heir caravans. The Court explicit ly depart ed f rom it s previous case law in Buckl ey v. UK51

and in t he process made some pot ent ially f ar reaching st at ement s concerning minorit y prot ect ion more generally, denot ing a more f avourable st ance t o t he special needs of minorit ies.52

The (now ext inct ) European Commission on Human Right s had already held in 1983, in a case concerning t he Lap mi norit y in Norway, t hat alt hough t he ECHR does not guarant ee any specif ic right s f or members of minorit ies, t hey can rely on Art icle 8 ECHR since t hat would imply a right t o a t radit ional way of lif e as part of privat e lif e, f amily lif e or home.53

However, t he Commission underlined immediat ely t hat t his right would not be absolut e and is subordinat e t o more import ant public int erest s. In casu t he int erf erence would be proport ional t o t he legit imat e aim and hence t he Commission decided t hat t he applicat ion was manif est ly ill f ounded and t hus inadmissible.54

Consequent ly, t he Court did not have a chance t o pronounce it self on t he mat t er in t his case. However, t his was dif f erent in at least one of t he several cases concerning Roma it was conf ront ed wit h (prior t o Chapman).

Buckl ey v. UK dealt also wit h Roma’ s dif f icult ies t o st at ion t heir caravan as

a result of a combinat ion of nat ional regulat ions, and hence wit h int erf erences wit h t heir t radit ional lif est yle. The Commission declared t his complaint admissible under Art icle 8 in respect of and t he right t o respect f or privacy, and t he right t o respect f or f amily lif e and t he right t o respect f or home. However, t he Court limit ed it s assessment t o t he lat t er right as it would be unnecessary t o assess whet her t his case would also deal wit h t he right t o respect f or one’ s privat e and f amily lif e.55

The Court t hus chose not t o pronounce it self on t he possibilit y suggest ed by t he Commission in t he case regarding t he Lap minorit y, t hat Art icle 8 would imply a right t o a t radit ional way of lif e. In view of t he f act t hat t he Commission had declared t he case admissible as regards t he t hree right s explicit ly ment ioned in Art icle 8, t he Court could have combined t hese t hree right s t o deduce t he right t o respect

17

50

ECt HR, Grand Chamber, Chapman v. UK, j udgment of 18 January 2001.

51

ECt HR, Buckl ey v. UK, j udgment of 25 Sept ember 1996.

52

Farkas, “ Knocking at t he Gat e… ” , 3; Sebok, “ The Hunt f or Race Discriminat ion…” , 2. For an ext ensive discussion of t he implicat ions of Chapman, see Benoit -Rohmer, “ Observat ions: A Propos de . …” , 905-915.

53

ECommHR, Appl. No. 9278/ 81, G. and E. v. Nor way, decision of 3 Oct ober 1983, D. R. 35, 35-36.

54

Ibi d. , 36.

55

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f or one’ s own, dist inct way of lif e.56 It was f urt hermore st riking t hat t he Court limit ed it s evaluat ion complet ely t o t he individual right of Ms. Buckley t o respect f or her home on t he one hand and t he int erest s of societ y t hat t he planning regulat ions would be respect ed on t he ot her hand.57

This at t it ude arguably ref lect s a posit ive predisposit ion t owards t he st at e and it s int erest s by ignoring t he issue t hat t ranscends t he individual case of Ms Buckley, which concerns t he Roma minorit y as a group and implies indirect discriminat ion. In t he end, t he Court concluded t hat Art icle 8 was not violat ed i n casu. However, t wo j udges expressed in t heir dissent t he wish t hat t he Court would be more f ocused on achieving f ull equalit y of right s via special measures f or t he Roma minorit y.58

In Chapman v. UK, t he Grand Chamber of t he European Court of Human

Right s, set s t he st age f or a signif icant development concerning minorit y prot ect ion in t wo respect s, while st ill l eaving crucial problems as t o t he act ual rest rict ive assessment of t he f act s. The f irst posit ive development is t hat t he Court f or t he f irst t ime recognizes t hat Art icle 8 ECHR indeed enshrines a prot ect ion f or t he t radit ional lif e of a minorit y group.59 Secondly, t he Court remarks, while emphasizing t he part icularly vulnerable posit ion of Roma, t hat Art icle 8 also ent ails posit ive obligat ions f or t he st at e in t his respect :

… al t hough t he f act of bei ng a member of a mi nor i t y wi t h a t r adi t i onal

l i f est yl e di f f er ent f r om t hat of t he maj or i t y of a soci et y does not conf er an i mmuni t y f r om gener al l aws i nt ended t o saf eguar d asset s common t o t he whol e soci et y such as t he envi r onment , i t may have an i nci dence on t he manner i n whi ch such l aws ar e t o be i mpl ement ed. … [ T] he vul ner abl e posi t i on of gypsi es as a mi nor i t y means t hat some speci al consi der at i on shoul d be gi ven t o t hei r needs and t hei r di f f er ent l i f est yl e bot h i n t he r el evant r egul at or y pl anni ng f r amewor k and i n ar r i vi ng at deci si ons i n par t i cul ar cases. To t hi s ext ent t her e i s t hus a posi t i ve obl i gat i on i mposed on t he Cont r act i ng st at es by vi r t ue of Ar t i cl e 8 t o f aci l i t at e t he gypsy way of l i f e.60

It should f urt hermore be highlight ed t hat t he Court , in it s assessment whet her t he int erf erence was in line wit h t he condit ions of paragraph 2 and hence proport ional t o t he legit imat e aim, expl icit ly t ook int o account t he “ emerging

18

56

Henrard, Devi si ng an Adequat e Syst em . . ., 103; Olivier de Schut t er, “ Observat ions: Le droit au mode de vie t sigane devant la Cour europeenne des droit s de l` homme: droit s cult urels, droit s des minorit es, discriminat ion posit ive” , 29 Revue Tr i mest r i el l e des dr oi t s de l ’ homme (1997), 76-77.

57

ECt HR, Buckl ey v. UK, paras. 64-85.

58

The dissent of Judges Lohmus and Pet t it i is given immediat ely af t er t he maj orit y j udgment at ht t p: / / www. echr. coe. int.

59

ECt HR, Buckl ey v. UK, para. 73.

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int ernat ional consensus amongst t he Cont ract ing st at es of t he Council of Europe recognizing t he special needs of minorit ies and an obligat ion t o prot ect t heir securit y, ident it y and lif est yle (see … in part icular t he Framework Convent ion f or t he Prot ect ion of Minorit ies), not only f or t he purpose of saf eguarding t he int erest s of t he minorit ies t hemselves but t o preserve a cult ural diversit y of value t o t he whole communit y” .61

The est ablishment of some kind of European common st andard t ends t o limit t he margin of appreciat ion lef t t o t he st at es and t hus leads t o st rict er scrut iny by t he Court , which i n casu would be f avourable t owards a more pronounced minorit y prot ect ion. The explicit ref erence t o t he Framework Convent ion is f urt hermore in it self import ant as t his might announce t hat t he Court will t ake t he provisions of t hat Convent ion more generally int o account when int erpret ing t he right s enshrined in t he ECHR, which would surely st rengt hen t he minorit y prot ect ion regime in t erms of t he lat t er.

Nevert heless, t he Court immediat ely adds t hat it is not persuaded t hat t he consensus is suf f icient ly concret e t o derive specif ic rules on t he kind of act ion which is expect ed f rom t he st at es in any part icular sit uat ion.62 More specif ically, it would be impossible t o int erpret Art icle 8 t o involve a f ar reaching posit ive obligat ion of general social policy, such as providing suf f icient number of adequat e housing and camping f acilit ies f or t he Roma.63

This analysis obviously ent ails a balancing act which seems t o reduce t he act ual, immediat e cont ribut ion t owards an enhanced minorit y prot ect ion f lowing f rom t he ref erence t o minorit y right s provisions and emerging common European st andard.

Even t hough t he act ual out come of t he case was not t hat Roma f riendly due t o t he minimal supervision exercised by t he Court ,64

t he f act t hat t here was a signif icant dissent (seven of t he sevent een j udges of t he Grand Chamber), concluding t o a violat ion of Art icle 8 in t he circumst ances, crit icizing t he maj orit y t o be t oo caref ul and reserved, indicat es a clear pot ent ial f or f urt her, more posit ive development s pro minorit y prot ect ion generally.65

The relat ed complaint in t erms of Art icle 14 cum Art icle 8 should also be ment ioned as it put s a gloss on t he Thl i mmenos case discussed above. The claim was also f ormulat ed in t erms of a f ailure t o make a dist inct ion bet ween qualit at ively dif f erent sit uat ions because t he general laws and policies did not

19

61

Ibi d., para. 93.

62

Ibi d., para. 94.

63

Ibi d., para. 98.

64

For a crit ical assessment of t he problems as regards t he kind of supervision exercised by t he Court , see Benoit -Rohmer, “ Observat ions: A propos de . . . ” , 911-913.

65

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t ake int o account t he special needs of t he Roma f lowing f rom t heir t radit ion t o lead a non sedent ary lif e, t ravelling in caravans. The maj orit y of t he Court ref erred explicit ly t o t he Thl i mmenos reasoning but f ound t hat t here was an obj ect ive and reasonable j ust if icat ion f or t he absence of t his dif f erent ial t reat ment . To est ablish t hat t he proport ionalit y principle was f ulf illed t he reasoning in t erms of legit imat e limit at ions t o Art icle 8 was ref erred t o.66

Consequent ly t he applicat ion t o t he f act s of t he Thl i mmenos rat ional remains limit ed, in line wit h t he overall st ill predominant ly f avourable at t it ude t owards st at es and t heir j ust if icat ions.67 The dissent ing j udges disagreed as t hey underlined t hat t he aut horit ies had f ailed t o t ake t he specif ic circumst ances and needs of Roma int o account in t he applicat ion of t he planning regulat ions, which also logically f ollows t heir analysis in t erms of Art icle 8. Also here, t he considerable dissent does carry pot ent ial f or alt erat ions in t he j urisprudence in t he not t oo dist ant f ut ure.

It can be argued t hat Connor s v. UK68_{appears t o provide building blocks f or}

a f urt her shif t in t he j urisprudence of t he European Court in t his respect , even t hough t he f act s of t he case diverge in import ant respect s f rom Chapman.

Connor s concerns a part icularly harsh evict ion of a Roma f amily f rom a

municipal gypsy sit e, and t he main issue was t he absence of procedural guarant ees t hat were available f or t enant s of ot her municipal f orms of housing or privat e gypsy sit es. The t radit ional gypsy case in t erms of Art icle 8 against t he UK concerns Roma who st at ion t heir caravan on own plot s in violat ion of nat ional planning regulat ions. Nevert heless, t he Court ’ s evaluat ion of t he complaint t hat Art icle 8 is violat ed and more part icularly t he argument at ions t o grant t he UK only a narrow margin of appreciat ion are arguably of wider relevance in cases concerning Roma. The Court appears t o acknowledge t he cont inuat ion of an al ready exist ing line of j urisprudence it self when it ref ers in it s reasoning explicit ly t o t he st at ement s in Chapman

and Buckl ey t hat “ t he vulnerable posit ion of gypsies as a minorit y means t hat

some special considerat ion should be given t o t heir needs and t heir dif f erent lif est yle bot h in t he regulat ory f ramework and in reaching decisions in part icular cases“ , which would ent ail t hat “ t here is t hus a posit ive obligat ion imposed on t he Cont ract ing St at es by virt ue of art icle 8 t o f acilit at e t he gypsy way of lif e” .69

This posit ive st at e obligat ion obviously has in impact on t he assessment of t he proport ionalit y of t he int erf erence and t he relat ed det erminat ion of t he margin of appreciat ion. However, t he import ant ‘ innovat ion’ of Connor s,

20

66

ECt HR, Chapman v. UK, para. 129.

67

See also Henrard, Devi si ng an Adequat e Syst em …, 144.

68

ECt HR, Connor s v. UK, j udgment of 27 May 2004.

69

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which was somehow announced in Nachova, is t he f act t hat t he Court now seriously considers t he broader cont ext , more specif ically t he general sit uat ion of Roma in t he UK f lowing f rom t he overall regulat ory f ramework. This is indeed a signif icant depart ure f rom t he Court ’ s reasoning in t he previous Roma cases.70

When considering t he Court ’ s j urisprudence concerning t he margin of appreciat ion of st at es, it can be point ed out t hat over t he years t he Court has ident if ied various f act ors t hat are relevant f or t he det erminat ion of t he scope of t his margin. Even t hough t hese f act ors do not always pull in t he same direct ion, t he Court t ends not t o provide much explanat ion about t he relat ive weight of t he various f act ors. In Connor s t he Court act ually elaborat es quit e ext ensively on t he det erminat ion of t he exact scope of t he margin of appreciat ion in t he concret e case. The Court does not only clarif y t hat a case concerning general economic policy considerat ions does not necessarily result in a broad margin of appreciat ion f or st at es71 but also t hat a severe int rusion int o t he personal sphere of t he applicant requires part icularly weight y reasons of public int erest , correspondingly narrowing t he st at es’ margin of appreciat ion. It should f urt hermore be emphasized t hat t he Court at t aches part icular import ance t o t he f act t hat t he Roma did not benef it in any way f rom t he special regime f or municipal gypsy sit es, because t he municipal aut horit ies did not have any obligat ion t o ensure t hat t here are suf f icient plot s f or Roma on t hese sit es.72

Finally, t he Court denounces t he various hurdles f or Roma t o lead t heir t radit ional nomadic st yle of lif e, while t he more sedent ary Roma are excluded f rom procedural prot ect ion as regards t heir housing. Even t hough Connor s t urns around adequat e procedural saf eguards against evict ion, t he Court does seem t o ref er t o t he st at e obligat ion ‘ t o f acilit at e t he gypsy way of lif e’ it recognized in Chapman when it crit icizes t he lack of adequat e plot s f or Roma et c.

The Connors j udgement in any event appears t o conf irm t he ever increasing at t ent ion of t he European Court f or t he vulnerable posit ion of Roma as minorit y and t heir ensuing prot ect ion needs. Furt hermore, Connor s and t he ensuing f irst f inding t hat t he UK has violat ed Art icle 8 in a case concerning Roma housing, might announce similar f indings also in t he more t ypical Roma cases in t erms of Art icle 8. Indeed, even t hough Connor s does not concern t he own lif est yle of Roma, t he argument at ion of t he Court reveals t hat t he Court does pay at t ent ion t o t he dif f icult ies f or Roma t o conduct t heir own way of lif e as result ing f rom t he general regulat ory f ramework.73 In Connor s t he Court

21

70

See de Schut t er, “ Observat ions: Le Droit de Mode de Vie Tsigane . . . “ , 83-87.

71

ECt HR, Connor s v. UK, para. 82.

72

Ibi d., para. 92.

73

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seems t o build on t he principles it had set out in Chapman. Arguably t he emergence of a more explicit policy concerning t he prot ect ion of minorit ies (and Roma in part icular) in t he f ramework of t he ECHR comes a lit t le closer.

4. Conclusion

It is generally known t hat t he Roma encount er severe problems, most of which are relat ed t o t he percept ions about t heir separat e ident it y and way of lif e. Their exclusion and discriminat ion as regards access t o employment , educat ion and healt h care of t en lead t o deplorable living condit ions. Furt hermore, severe prej udice against t he Roma ident it y in t he wider societ y is ref lect ed in and worsened by t he media, which only aggravat es t he sit uat ion and compounds t he mult iple inst ances of racially inspired violence against Roma. This art icle assesses t o what ext ent individual human right s cont ribut e t o t he prot ect ion and promot ion of t his highly cont roversial case of cult ural diversit y.

It should be acknowledged t hat as it st ands individual human right s provide an import ant but of t en st ill minimal and hence insuf f icient prot ect ion f or t he Roma and t heir own ident it y. Not wit hst anding several development s wit h considerable pot ent ial as regards t heoret ical principles, only very recent ly t hese have been t ranslat ed in act ual f indings of violat ions. Not only does t he j urisprudence of t he ECt HR reveal an increasing concern about act s of discriminat ion and out right violence against Roma, but t here is also an explicit recognit ion of t he right t o a t radit ional way of lif e in t erms of Art icle 8 ECHR.

Thl i mmenos demonst rat es f urt hermore an import ant openness t owards

subst ant ive equalit y, of special relevance f or minorit ies; while Nachova v.

Bul gar i a announces some kind of height ened scrut iny of racial dif f erent iat ions

(or, f ollowing Thl i mmenos, lack of t hose). It is t o be hoped t hat t he slowly emerging pract ice of more rigorous scrut iny of t he f act s in concret e cases, will cont inue t o enhance t he act ual prot ect ion f or t he Roma.

For t he t ime being, t he Roma remain a most cont roversial case of cult ural diversit y in Europe, as elsewhere.

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