Challenges in Executing Judgments of the European Court of Human Rights: the Case of the Roma

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What does it mean for a judgment of the European Court of Human Rights to be “executed”?  

In European Convention parlance, “execution” is a term that carries within it a great deal of potential, if unexplained, meaning. Article 46 of the Convention provides that “The High Contracting Parties undertake to abide” – not “shall abide” or “must abide” – “by the final judgment of the Court in any case to which they are parties.”  And after the Court issues its final judgment, it “shall be transmitted to the Committee of Ministers, which shall supervise its execution.” It all sounds rather technical.

The Rules of the Committee of Ministers further this impression of a somewhat clinical exercise. Consistent with Article 46, Rule 6 “invite[s]” the high contracting party to “inform” the Committee of the measures taken, but the rules do not “compel” a state to do anything. This makes sense. After all, the European Convention is an international treaty regime to which sovereign states voluntarily bind themselves. And yet, that very truth complicates the notion of what it means for a judgment to be executed, let alone the role of the Committee of Ministers in supervising the process.

What if, for example, a number of Roma children were to decide to take their government to court for failing to secure their right to equal treatment and non-discrimination in the enjoyment of the right to education? And what if that case made its way through the national courts of a Council of Europe member state all the way to the European Court of Human Rights? And what if the Strasbourg Court were to issue a judgment making clear, in substance, that no domestic law mandates discrimination in breach of the Convention, but rather that, taken together, the policies and practices concerning access to education in the country at issue combined to breach the Roma children’s rights to equal treatment in access to education? Do the provisions governing the Committee of Ministers’ responsibility to supervise the execution of the judgment adequately account for what must be done to ensure fulfillment of the rights at issue?

In reality, of course, the execution of judgments is often far from a formulaic exercise. When the European Court issues rulings that address fundamental matters of individual rights and constraints on government power, execution is often messy, and deeply political. And when the question is not simply about payment of just satisfaction, or the adoption of individual measures, but the carrying out of general measures, and in particular the entire web of rules and institutional behavior encompassed within the term “administrative practice” (Aksoy, para. 52), then the challenge of fostering the changes required to comply with the Court’s judgment may be enormous. Though the text of the Convention and the rules of the Committee of Ministers speak in terms of almost mathematical abstraction, the task of moving from judgment to reality on the ground is anything but. (See Harris, O’Boyle and Warbrick, p. 183)

This is the situation that those engaged in human rights litigation – and in particular litigation on behalf of the rights of Roma – confront.

For close to three decades, a small but determined group of activists and practitioners has worked with courageous members of Roma communities to bring forward pathbreaking litigation in support of Roma rights. By necessity, virtually all of that litigation has started before national courts, and some of it has made its way to the European Court of Human Rights.

Most litigation that aims to bring about far-reaching change is complex, time-consuming, and uncertain. And yet it can also lead to pathbreaking declarations of fundamental principle, and shine a spotlight on injustices in a manner that commands attention. In short, what some have taken to call “strategic litigation” is neither a panacea nor an invitation to disaster. Rather, it is one tool among many, a tactic that—under the right circumstances and in combination with other efforts—can improve laws, institutions and lives.

This is no less true for the field of Roma rights litigation.

My experience in litigating the DH case on behalf of 18 Roma children from the Czech Republic who were shunted to so-called “special schools” offering inferior primary-level education and virtually no opportunity to advance to secondary schools has reflected this dual reality. The case took more than eight years from filing in the Czech courts to judgment by the Grand Chamber. By the time the ruling had been issued, none of the children claimants were still in school. They were granted exceptionally modest awards of just satisfaction – 4,000 Euros each in non-pecuniary damages – that could not come close to compensate them for the irrevocable damage done to their personal, educational and professional lives.

The ruling itself was a giant jurisprudential leap forward in recognizing that indirect discrimination could constitute a violation of Article 14, and making clear that the widespread practice of segregating Roma students in separate classes and schools was unlawful.  It changed for the better the public debate about education and Roma in the Czech Republic and perhaps more widely throughout Europe. Never more would it be possible – as had been common – for defenders of segregation to justify their practice as “the way things always worked,” or “in the interest of the Roma.”

The D.H. judgment has spurred more consideration of how to maintain and collect ethnically disaggregated data, though this remains an incomplete goal. The Czech government strengthened informed consent provisions and instituted regular re-diagnostic tests. A decree provided explicitly that children without a disability could not follow curricula for pupils with disability. And the government sought to make diagnostic standards less tied to majority, white culture.

And yet, to this day, a staggering disproportion of Roma remain mired in second-class, often separate education or are otherwise denied equal educational opportunity. In a number of surveys conducted in recent years, Roma in the Czech Republic continue to account for well over a quarter of pupils educated in segregated settings.

If we look at the broader landscape of Roma rights in Europe, the Court has made advances in expanding the protections afforded to Roma under Articles 2, 3, 8 and 14. However, execution of judgments has been a challenge (Eliason, p. 229). Perhaps that should come as no surprise. In the field of access to education, factors include the number of officials and institutions involved in the provision of education to children – from teachers and school administrators to testing bodies, municipal authorities, national ministries, members of parliament and many others. In addition to the multi-faceted nature of primary and secondary education, there are also the complicated ways in which discrimination manifests, from overtly hostile statements to subtle, even implicit or unconscious forms of bias affecting what are often misunderstood to be neutral customs. These can include the use of special classes, misdiagnosis, discrimination in the enrollment process, the choice of tests and how they are normed for different populations, the bullying of Roma children in mainstream schools, pressure on parents to transfer to mainstream schools, and the design of school catchment areas.

Then too, as we have seen, the Strasbourg Court lacks its own enforcement powers. In the education cases in particular, it has declined to issue any specific orders other than the payment of compensation. Absent more specific guidance from the Court, the Committee of Ministers has struggled to compel states to venture beyond the specific measures applicable to individual complainants, to address issues of structural discrimination. It is an open question as to whether the complementary actions of the European Commission – in referring Slovakia to the Court of Justice of the European Union and launching infringement proceedings on similar grounds against both the Czech Republic and Hungary – will have more impact.

The number of cases that the Strasbourg Court has decided concerning Roma, some of them quite positively, has grown substantially over the past 25 years. And at the national level too, we have seen some judgments in favor of Roma. This November, the Olomouc branch of the Regional Court in Ostrava, Czech Republic, awarded compensation to six Romani children who were assaulted for racist reasons by a non-Roma couple. But on the whole, relatively few cases have been brought before national courts to enforce national anti-discrimination legislation or the provisions of the European Union Race Equality Directive. Even in Hungary, which has been a relative exception in having more cases given the existence of actio popularis under national law, the number of cases remains relatively few compared with the scale of the problem. 

Roma rights litigation has been impaired by the specificities of anti-Roma prejudice which inform and infect state policy and private practice in respect of Roma. But it has also been enfeebled by many of the same factors that have diminished the power of strategic litigation to address all forms of racism and discrimination in continental Europe. Let me note several:

  • the prevailing view of law as an impartial realm divorced from politics;
  • the refusal of most political leaders to reckon with the pervasive nature of racism in their midst, abetted by a prevailing view that defines racism so narrowly (often, as what the Nazis did during the Third Reich) that it is unable to recognize, let alone address, the many other manifestations which don’t lead directly to wholesale extermination but nonetheless stunt lives and marginalize ethnic minorities;
  • the continuing aversion to data linked to race or ethnicity reflected in both culture and data protection laws that can make it far more difficult to document and prove patterns of discrimination capable of sustaining legal challenges;
  • tacit and sometimes explicit reluctance on the part of judges to address what are seen to be sensitive questions – and thus a deference to other actors to engage with thorny issues of discrimination and racism;
  • reliance on individual claimants and lawyers, rather than often better-resourced government litigating arms, to assume the bulk of responsibility for enforcing anti-discrimination laws; and
  • the continuing legacy of loser-pay cost allocations that impose often prohibitive financial risks on the vast majority of Roma and other minority communities who might conceivably go to court.

In short, Europe has developed strong legal frameworks which theoretically could be used to tackle the kinds of discrimination that, in fact though not in law, afflict Roma across many spheres of life. But in most countries there is little tradition or legal culture of using law in a consistent and systematic way to tackle deep-rooted problems. As a result, law’s full promise has not yet been realized.

Of course, no country in the world has eliminated racism or discrimination, whether through litigation or other methods, though there are examples from some other countries where litigation has been used to highlight problems, remedy injustices and improve or clarify doctrine. The long, incomplete yet not inconsequential struggle for equality on behalf of African-Americans and other racial minorities in the United States underscores both the entrenched nature of racism and the complexity of trying to tackle it.

But the persistence of discrimination and violence against Roma in many countries in Europe, notwithstanding the number of notable jurisprudential victories won in court, begs the question: Is the effort to address Romani exclusion and marginalization through law worth continuing? Or, should efforts turn primarily to political action – mobilization, registration, voting and running for elective office – to secure equal rights?  

My own view is that both pathways – strategic litigation and political action – are and will remain essential. On the one hand, at issue is a fundamentally political question – the ability of Roma to participate freely and fully in the places and systems of governance where they live. That question demands political accountability from political actors. At the same time, legal pathways remain essential complements for two reasons. First, the reality is that, as numerical minorities, Roma will continue to depend, not only on political majorities, but on the protection of law and courts for the enjoyment of their fundamental rights. Second, the rights at issue – liberty, equality and the right to life itself – are so central to European values that they must not vary with the political winds, but rather must stand securely on legal foundations regardless of the results of partisan elections.

But if legal action is to be pursued, it will require some of the very things that have been in short supply for so long:

  • support for more lawyers and claimants to bring many more well-documented and well-argued cases before national courts and, ultimately to this Court and its sister body in Luxembourg;
  • shifting more of the focus from individual violations to systemic discrimination and structural remedies, in part by empowering and resourcing equality bodies, prosecutors and other government and quasi-government agencies to employ legal tools including litigation in the service of the Roma;
  • research and advocacy before the Committee of Ministers and individual Council of Europe member States to push for more effective execution; and
  • more vigorous action on the part of the European Commission in using the potential powerful levers of European Union law – including infringement procedures – to push EU member states to do better in translating legal rhetoric into actual fact.

The needs are urgent, but the timescale of change required must be measured in decades. It is far too soon to give up.

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