MINELRES: ERRC: Strasbourg Court Condemns Discrimination Against Roma

[MINELRES moderator]

Original sender: European Roma Rights Center <errc@errc.org>


The European Roma Rights Center welcomes a landmark decision of the 
European Court of Human Rights

- 26 February 2004 -

On 26 February 2004, the European Court of Human Rights announced its 
judgment in the case of Nachova vs. Bulgaria. The Court unanimously
found the Bulgarian state responsible for the deaths of two Romani men
as well as its subsequent failure to conduct an effective official
investigation, in violation of Article 2 (right to life). For the first
time in its history, the Court also found a violation of the guarantee
against racial discrimination contained in Article 14 taken together
with Article 2, and in doing so stressed that the Bulgarian authorities
have "failed in their duty ... to take all possible steps to establish
whether or not discriminatory attitudes may have played a role" in the
events at issue.

On 19 July 1996 military police Major G. shot dead two Romani men, Mr
Kuncho Angelov and Mr Kiril Petkov, conscripts in the Construction Force
of the Bulgarian army, in the village of Lesura, north-west Bulgaria. Mr
Angelov and Mr Petkov had escaped from prison and hid in the house of Mr
Angelov's grandmother in Lesura. Four military police officers under the
command of Major G. were dispatched to locate and arrest the two men. Mr
Angelov and Mr Petkov, both unarmed, were shot with an automatic rifle
by Major G. while trying to escape from the house of Mr Angelov's
grandmother and running through a neighbor's yard. The wounded men were
then taken to hospital where they were pronounced dead. Subsequent
investigation into the case by the Bulgarian authorities found that the
use of firearms had been lawful.

The applicants, Ms Anelia Nachova, Ms Aksiniya Hristova, Ms Todorka
Rangelova and Mr Rangel Rangelov, all Bulgarian Roma, represented by
lawyers of the European Roma Rights Center, in cooperation with the
Bulgarian Helsinki Committee and the Human Rights Project, alleged that
their relatives Mr Kuncho Angelov and Mr Kiril Petkov were deprived of
their lives in violation of Article 2 of the Convention, as a result of
inadequate legislation and practice which permitted the use of lethal
force without absolute necessity. They also complained that the
authorities failed to conduct an effective investigation into the
deaths, in violation of Article 2 and Article 13 (right to an effective
remedy). Finally, the applicants alleged that prejudice and hostile
attitudes towards people of Roma origin played a decisive role in the
events leading up to the deaths of Mr Angelov and Mr Petkov and that no
meaningful investigation was carried out, relying on Article 14 in
conjunction with Article 2.

The European Roma Rights Center (ERRC) also intervened in the case
requesting the Court to reassess its approach to interpreting Article 14
of the European Convention. In its written comments the ERRC argued
that:

* The Court's current standard of proof under Article 14 with respect to
claims of racial discrimination of "beyond reasonable doubt"is
inconsistent with other international human rights standards and renders
the Convention's protection illusory.

* The Court has not hesitated to lighten or shift the burden of proof in
other contexts as needed in order to reach a just result.  Such an
approach should apply with equal force to cases brought under Article
14.

* International and comparative jurisprudence and legislation with
respect to claims of discrimination reflects a clear and growing trend
of shifting the burden of proof to the alleged perpetrator.

* In view of the particularly invidious nature of race discrimination
and the "special importance" attached thereto, the right to be free from
such discrimination is a fundamental right requiring a high level of
protection.

* Consequently, the Court should impose an obligation on the respondent
state to conduct an investigation capable of proving or disproving the
discrimination complaint. The state's failure to do so should support an
inference that Article 14 has been violated.

In its judgement the European Court of Human Rights agreed with the
applicants.

With respect to the inadequacy of Bulgarian legislation it observed
that:

" ... the relevant regulations on the use of firearms by military police
were not published, did not make use of firearms dependent on an
assessment of the surrounding circumstances, and, most importantly, did
not require an evaluation of the nature of the offence committed by the
fugitive and of the threat he or she posed. The regulations permitted
use of firearms for the arrest of every petty offender ... Although the
Supreme Court has stated that a proportionality requirement existed
under criminal law as interpreted by legal commentators, the matter was
not clearly regulated ... and the Supreme Court's interpretation was
apparently not applied in practice, as evidenced by the conclusions of
the investigator and the prosecutors in the present case ..."

Finally, the Court then went on to explain its historic ruling under
Article 14 taken together with Article 2:

"The Court considers that when investigating violent incidents and, in
particular, deaths at the hands of State agents, State authorities have
the additional duty to take all reasonable steps to unmask any racist
motive and to establish whether or not ethnic hatred or prejudice may
have played a role in the events. Failing to do so and treating racially
induced violence and brutality on an equal footing with cases that have
no racist overtones would be to turn a blind eye to the specific nature
of acts that are particularly destructive of fundamental rights. ... In
order to maintain public confidence in their law enforcement machinery,
contracting States must ensure that in the investigation of incidents
involving the use of force a distinction is made both in their legal
systems and in practice between cases of excessive use of force and of
racist killing ... the Court considers that in cases where the
authorities have not pursued lines of inquiry that were clearly
warranted in their investigation into acts of violence by State agents
and have disregarded evidence of possible discrimination, it may, when
examining complaints under Article 14 of the Convention, draw negative
inferences or shift the burden of proof to the respondent Government
..."

For additional details regarding the above case, please contact 
Branimir Plese, Legal Director, European Roma Rights Center 
(email: branko@errc.org, 
phone:+361 413 2200) 
and Krassimir Kanev, Chair, Bulgarian Helsinki Committee 
(email:krassimir@bghelsinki.org, 
phone: +3592 943 9060).
_____________________________________________

The Bulgarian Helsinki Committee was established in July 1992. The
Committee monitors the human rights situation in Bulgaria and engages in
litigation before domestic and international courts.

_____________________________________________

The European Roma Rights Center is an international public interest law
organisation which monitors the rights of Roma and provides legal
defence in cases of human rights abuse. For more information about the
European Roma Rights Center, visit the ERRC on the web at
http://www.errc.org.

European Roma Rights Center
1386 Budapest 62
P.O. Box 906/93
Hungary


Phone: +36 1 4132200
Fax:   +36 1 4132201

_____________________________________________

SUPPORT THE ERRC!

The European Roma Rights Center is dependent upon the generosity of
individual donors for its continued existence. If you believe the ERRC
performs a service valuable to the public, please join in enabling its
future with a contribution. Gifts of all sizes are welcome; bank
transfers are preferred. Please send your contribution to:

European Roma Rights Center
Budapest Bank Rt.
99P00402686
1054 Budapest
Bathory utca 1
Hungary

For correspondence, to subscribe and unsubscribe from this list, please
use 
office@errc.org.