MINELRES: ERRC: European Court of Human Rights Confirms Racial Discrimination

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


European Court Affirms State's Obligation to Investigate Racially
Motivated Violence; Compensation Ordered for Victims of Racist Killing

Strasbourg, July 7, 2005 - The Grand Chamber of the European Court of
Human Rights yesterday affirmed in substantial part its first ever
finding of racial discrimination in breach of Article 14 of the European
Convention of Human Rights. The Court's ruling makes clear that European
states have an obligation to investigate possible racist motives behind
acts of violence.

In holding that the Bulgarian government's failure to investigate the
fatal police shooting of two Romani men infringed the European
Convention, the Court observed:

"Racial violence is a particular affront to human dignity and, in view
of its perilous consequences, requires from the authorities special
vigilance and a vigorous reaction. It is for this reason that the
authorities must use all available means to combat racism and racist
violence, thereby reinforcing democracy's vision of a society in which
diversity is not perceived as a threat but as a source of its
enrichment."

The case, Nachova and Others v. Bulgaria, concerns the July 19, 1996,
fatal shooting by military police soldiers of two Roma conscripts. The
victims, recently absconded from a military construction crew, were
known to be unarmed and not dangerous. The killing, by automatic weapon
fire, took place in daylight in a largely Roma neighborhood, where the
grandmother of one of the victims lived. Immediately after the killing,
a military police officer allegedly yelled at one of the town residents,
"You damn Gypsies!" while pointing a gun at him.

Relatives of the victims, represented by counsel, sought redress before
the European Court. In February 2004, a seven-judge panel of the Court
unanimously found that both the shootings and a subsequent investigation
which upheld their lawfulness were tainted by racial animus. In
particular, the panel found breaches of the right to life (Article 2 of
the European Convention) and non-discrimination (Article 14). The
judgment, the first in the Court's history to find a violation of
Article 14 on grounds of racial discrimination, made clear that, in
certain cases, the Court may, when examining complaints alleging
discrimination, draw negative inferences or shift the burden of proof to
the respondent government.

On the request of the Bulgarian government, the Court's Grand Chamber -
consisting of 17 judges - agreed to review the initial panel decision.
Third party written submissions were filed by the European Roma Rights
Centre, Interights, and the Open Society Justice Initiative.

The Grand Chamber upheld the February 2004 panel ruling that Bulgaria
had breached the victims'  right to life under Article 2 of the
Convention in two ways: by failing to adequately regulate the use of
firearms by military police, and by failing to properly investigate the
young men's deaths.

In addition, the judgment also affirmed in part the earlier finding of
racial discrimination in breach of Article 14. In doing so, it broke new
ground in European human rights law.

The Grand Chamber unanimously held that the prohibition of
discrimination under Article 14 has a procedural component, which
required the state to investigate whether discrimination may have played
a role in the killings. The failure to do so in this case, despite
indications of racial motivation, amounted to discrimination. The
judgment affirmed several important principles that should guide
domestic authorities in future cases involving violence arguably
motivated by racial hatred. These include the following:

* Acts of racially induced violence and brutality are "particularly
destructive of fundamental rights."

* Where there is suspicion that violence is racially motivated, "it is
particularly important that the official investigation is pursued with
vigor and impartiality."

* 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 racial hatred or prejudice may have played a role in the
events. "In this respect, regard should be had" to the need to reassert
continuously society's condemnation of racism and ethnic hatred and to
maintain the confidence of minorities in the ability of the authorities
to protect them from the threat of racist violence."

* Failure to accord such incidents the investigative care required may
constitute unjustified treatment at odds with Article 14 of the
Convention.

* Where evidence of racist verbal abuse being uttered by law enforcement
agents in connection with an operation involving the use of force
against persons from an ethnic or other minority comes to light in the
investigation, it must be verified and - if confirmed - a thorough
examination of all the facts should be undertaken in order to uncover
any possible racist motives.

* The positive duty on the authorities is to "do what is reasonable in
the circumstances to collect and secure the evidence, explore all
practical means of discovering the truth and deliver fully reasoned,
impartial and objective decisions, without omitting suspicious facts
that may be indicative of a racially induced violence."

With respect to the killings themselves, the Grand Chamber, by an 11-6
vote, overturned the prior ruling that they had been motivated by racial
hatred. In doing so, the Grand Chamber elaborated the following
principles concerning the standard and burden of proof:

* The "beyond reasonable doubt" standard of proof for determining
whether a state has violated the European Convention is distinct from
standards employed in national legal systems to rule on criminal guilt
or civil liability.

* In proceedings before the Court, "there are no procedural barriers to
the admissibility of evidence or pre-determined formulae for its
assessment." Instead, "the level of persuasion necessary for reaching a
particular conclusion and, in this connection, the distribution of the
burden of proof, are intrinsically linked to the specificity of the
facts, the nature of the allegations made, and the Convention right at
stake."

* In certain circumstances, where the events lie wholly, or in large
part, within the exclusive knowledge of the authorities, the burden of
proof may be regarded as resting on the authorities to provide a
satisfactory explanation. In cases of discrimination, the Court may
require the respondent government to disprove an arguable allegation of
discrimination and "if they fail to do so" find a violation of Article
14 of the Convention on that basis.

However, the Grand Chamber declined to reverse the burden of proof in
this case, where it was alleged that a violent act was motivated by
racial prejudice. Reversing the earlier panel decision, the Grand
Chamber held that the authorities' failure to carry out an effective
investigation did not justify shifting to the government the burden of
proof on the issue of discrimination. Six judges dissented from the
majority's finding of no substantive violation of Article 14 finding
that the government's conduct taken as a whole disclosed a breach of
Article 14.

For more on the case of Nachova v. Bulgaria, and the text of the ruling,
visit: http://www.justiceinitiative.org/advocacy/litigation.

_____________________________________________

The European Roma Rights Centre 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 Centre, visit the ERRC on the web at
http://www.errc.org.

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

Phone: +36 1 4132200
Fax: +36 1 4132201
E-mail: office@errc.org
_____________________________________________

The Open Society Justice Initiative, an operational program of the Open
Society Institute (OSI), pursues law reform activities grounded in the
protection of human rights, and contributes to the development of legal
capacity for open societies worldwide. The Justice Initiative combines
litigation, legal advocacy, technical assistance, and the dissemination
of knowledge to secure advances in five priority areas: national
criminal justice, international justice, freedom of information and
expression, equality and citizenship, and anticorruption. Its offices
are in Abuja, Budapest, and New York.

www.justiceinitiative.org.

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