by Lorraine Lally
The cases of the
European Court of Human Rights have illustrated a willingness to articulate
Article 8 in the language of the social model of recognition of nationality and
ethnicity. The Roma cases are an excellent example of the treatments of
migrants which concerned early cases brought against the UK, Ireland and the
Netherlands. The groups involved suffered horrific marginalisation and social
exclusion. In the case of Buckley -v- UK in 1996 there was reference made to
the nature of the discrimination which consisted of layers of restrictions
which had a cumulative effect of discrimination. The addition of the case of Chapman v UK
(2001) The vulnerable position of gypsies as a minority means that some special
consideration should be given to their needs and their different lifestyle both
in the relevant regulatory planning framework and in arriving at the decisions
in particular cases To this extent
there is thus a positive obligation imposed on the Contracting States by virtue
of Article 8 to facilitate the gypsy way of life.
The Dissenting opinion
Judge Bonello. I consider it particularly disturbing that the Court, in over
fifty years of pertinacious judicial scrutiny, has not, to date, found one
single instance of violation of the right to life (Article 2) or the right not to
be subjected to torture or other degrading or inhuman treatment or punishment
(Article 3) induced by the race, colour or place of origin of the victim.
Anguelova v. Bulgaria
(2002)- Leafing through the annals of the Court, an uninformed observer would be
justified to conclude that, for over fifty years democratic Europe has been
exempted from any suspicion of racism, intolerance or xenophobia. The Europe
projected by the Court's case-law is that of an exemplary haven of ethnic
fraternity, in which peoples of the most diverse origin coalesce without
distress, prejudice or recrimination. The present case energises that delusion
In DH v Czech (2007) the Grand Chamber
(13:4) held that there was a violation
of articles of the Convention.
The relevant legislation
as applied in practice … had a disproportionately prejudicial effect on the
Roma community. The Court is not satisfied that the difference in treatment
between Roma children and non-Roma children was objectively and reasonably justified
[or] … that there existed a reasonable relationship of proportionality between
the means used and the aim pursued.
Therefore there is a
requirement based on the vulnerability and social isolation of Migrant on the
State to enact legislation to protect against discrimination against Migrants
living in the State where there status is that they are illegal residents
seeking the protection of the Courts.
In the case of Timishev
v Russia (2005) it can be distilled that there is a duty to combat racism: to
reinforce ‘democracy’s vision of a society in which diversity is not perceived
as a threat but as a source of enrichment’. The same case provided that there
was a duty to combat racism: to reinforce ‘democracy’s vision of a society in
which diversity is not perceived as a threat but as a source of enrichment.
Šečić v Croatia (2007)
it was established that there was a duty to investigate racial motivated
violence, Positive duty to investigate allegations of degrading treatment, Positive
duty to investigate allegations of severe discrimination; Duty to protect
vulnerable groups and to prioritise investigations involving violence against such;
Duty to enable different lifestyles in the relevant regulatory frameworks and
in arriving at the decisions in particular cases. The case law clear shows that
there is a Recognition of indirect discrimination and the Recognition of need
to reverse onus of proof and to accept statistical evidence. There is also a
view that the case law establishing a duty to remove barriers from individuals,
families and groups living within the State.
In conclusion the
European Court of Human Rights case law has been very poor on the issue of race
discrimination. Some of the reasons put forward are that it is largely indirect
in nature and difficult to prove before a Court. There is an issue with Article
14 which is not a standalone article to prevent discrimination it is a
parasitic Article so only argued with other articles in the Convention.
The other issue is what
is defined by lawyers as the Strasbourg burden of proof which can be very
difficult to reach at times. There is a
wonderful link discussing the cases that have been brought and the issues.
The European Roma
Rights Centre has been spearheading and supporting litigation on the issues.
-----------------------------------------------
- Shtukaturov v. Russia (2008)
- Chapman v UK 2001
