B Explanatory memorandum
by Mr Jean-Pierre Grin, rapporteur
1 Introduction
1. This report deals with grave
violations of human rights, including violent raids and other forms
of police brutality committed against Roma and Travellers in Europe,
as well as ethnic profiling. These harmful practices, as well as
harassment, marginalisation and provocation are part of daily life
for too many Roma and Travellers on our continent and form part
of their shared experience of law enforcement authorities.
2. Other measures such as systematic stops of caravans and the
criminalisation of begging or of the illegal occupation of land
punish persons who are already victims of discrimination and create
conditions in which Roma and Travellers are brought into contact
to a disproportionate degree with law enforcement authorities; at
the same time, these measures increase their distrust of the authorities.
3. Such blatant human rights violations destroy the confidence
of Roma and Travellers in law enforcement authorities, which should
protect their safety and security as they do for all citizens. Discrimination
in access to justice further worsens this situation and deprives
the victims of abuse of adequate remedy.
4. States have a duty to prevent and combat these human rights
violations. The European Commission against Racism and Intolerance
(ECRI) recently concluded, however, based on findings from its country monitoring
work, that racism in police forces and racist behaviour in police
interaction with members of the general public are an ongoing problem,
and underlined that this phenomenon has negative effects not only
on its individual victims but also on the relevant communities as
a whole.
Note
5. With regard specifically to Roma and Travellers, both the
judgments of the European Court of Human Rights and the monitoring
work of ECRI and the Advisory Committee on the Framework Convention
for the Protection of National Minorities (ETS No. 157) regularly
bring to light human rights violations committed against them by
members of law enforcement authorities across all Council of Europe
member States. United Nations human rights bodies have also been
finding violations of the rights of Roma and Travellers over many decades
and addressing recommendations to States, urging them to take decisive
measures to put an end to these forms of racism.
6. Despite these repeated findings and the recommendations addressed
to States to end the practices at issue and prevent similar cases
from arising, new and serious human rights violations continue to
occur.
7. In referring the motion for a resolution, which is at the
origin of my work, to the Committee on Equality and Non-Discrimination
for report, the Parliamentary Assembly recognised the need to take
effective measures to put an end to this intolerable situation.
8. I am honoured to have been appointed rapporteur by the committee
at its meeting of 1 December 2022. During a visit to Strasbourg
in January 2023, I was able to meet the Heads and some members of
staff of the Secretariats of ECRI and the Framework Convention for
the Protection of National Minorities, as well as of the Council
of Europe’s Roma and Travellers Team, who were able to present to
me the main findings and lines of action of the bodies which they
work for. I have also carried out documentary research in this context,
and presented a detailed introductory memorandum to the committee
on 24 March 2023. In addition, we held three exchanges of views
in the committee as part of the preparation of this report: first,
on 26 January 2023, with Ms Oana Taba, Principal project officer
in the Roma and Travellers Team, Directorate General of Democracy and
Human Dignity (DGII), Council of Europe; then on 24 March 2023,
with Mr Bernard Rorke, Advocacy and Policy Manager, European Roma
Rights Centre (ERRC), Brussels, and finally on 20 June 2023 with
Ms Sarah Mann, Director, Friends, Families and Travellers, United
Kingdom. I wish to thank these three speakers, as well as my interlocutors
within the Secretariat of the Council of Europe, for their crucial
contributions to my work. I also wish to thank the committee for
their various contributions during our exchanges on the preparation
of this report.
2 Terminology
and overall approach taken in the report
9. As is the case in all Council
of Europe documents on this subject, I would first like to underline
that the terms “Roma and Travellers” are used at the Council of
Europe to encompass the wide diversity of the groups covered by
the work of the Organisation in this field: on the one hand a) Roma,
Sinti/Manush, Calé, Kaale, Romanichals, Boyash/Rudari; b) Balkan
Egyptians (Egyptians and Ashkali); c) Eastern groups (Dom, Lom and Abdal);
and, on the other hand, groups such as Travellers, Yenish, and the
populations designated under the administrative term “Gens du voyage”,
as well as persons who identify themselves as Gypsies. This indication is
explanatory, and not a definition of Roma and/or Travellers.
10. It is also important to clarify from the outset that while
law enforcement authorities reflect society and therefore may, unfortunately,
include racist persons within their ranks, the use of the term “institutional
racism” in no way implies that every individual working within the
institution in question is racist. On the contrary, this term refers
primarily to the discriminatory effects of the functioning of the
institution as a whole. These effects are first and foremost the
result of the policies and practices applied by the institution
concerned regardless of the personal convictions of its employees.
This is why I wish to emphasise that speaking of institutional racism –
or, as ECRI does, of systemic racism
Note –
within law enforcement authorities in no way means that all officers are
racist, and is not intended to stigmatise members of law enforcement
authorities. Rather, this term allows for a better understanding
of some structural shortcomings, in order to find effective responses.
11. I also consider it crucial to examine these issues holistically.
Thus, a very first question is to understand in what circumstances
Roma and Travellers come into contact with law enforcement authorities
– for example, excessive checks, which are sources of fear and tension;
criminalisation of begging, while at the same time insufficient
measures are taken to fight poverty; targeting of Roma villages
during the lockdowns put in place to fight the Covid-19 pandemic;
Note criminal proceedings
or fines for illegal occupation of land, when municipalities have
not respected their obligation to provide adequate halting sites,
which however does not dispense Travellers of the obligation to
announce their arrival and to respect municipal requirements.
12. These questions will be examined in more depth in the next
chapters of my report. I wish however to emphasise from the outset
that the criminalisation (or not) of certain behaviours and the
allocation of resources to welfare or, on the contrary, to repressive
measures, are not inevitable, but result from political choices.
As parliamentarians, we must be conscious of this reality.
3 Police
brutality and excessive use of force by members of law enforcement
authorities
13. The case law of the European
Court of Human Rights reveals a staggering picture of the relations
of law enforcement authorities with Roma and Travellers. It is true
that the cases that reach Strasbourg are in principle those which
raise the most human rights problems and that have not been able
to be resolved at national level; it would of course be wrong to
think that all contacts between law enforcement authorities and
Roma and Travellers resemble these cases. At the same time, it is
well known that only a small proportion of problematic cases reaches
the Court.
14. From this point of view, the number of cases concerning the
treatment of Roma and Travellers by law enforcement authorities
and in which violations are found of the substantive and/or procedural
limb of Articles 2 (right to life) and/or 3 (prohibition of torture)
of the European Convention on Human Rights (ETS No. 5, “the Convention),
and the sheer repetition of similar cases throughout the continent,
are very worrying.
15. Despite these repeated findings, similar cases continue to
occur.
16. I wish to draw attention, in this chapter, to the most worrying
trends that emerge from the case law of the Court and other sources,
as well as to more recent cases, which are currently being dealt
with at national level.
3.1 Torture
and inhuman or degrading treatment
17. Many States have been condemned
by the European Court of Human Rights for cases of ill-treatment, even
torture, of Roma and Travellers while the victims were in the hands
of members of the law enforcement authorities. Bulgaria, Greece,
Hungary, North Macedonia, Romania and the Slovak Republic are all
concerned by at least two similar judgments, and in some cases many
more.
Note
18. The facts described are often shocking. Depending on the case,
they involve the unjustified use of potentially lethal force (the
use of firearms against unarmed persons); acts of brutality committed
against persons in police custody, resulting in serious injuries
requiring hospitalisation in some cases, or even death; other serious
physical injuries; or violence committed against a person who has
already been physically restrained and is not resisting. Such facts,
when confirmed, represent a clear violation of the substantive limb of
Article 3 of the European Convention on Human Rights (and sometimes
also of its Article 2).
19. In the vast majority of these cases, the Court found a violation
of the procedural limb of Article 3 of the Convention, owing to
the failure of the authorities concerned to conduct an effective
investigation into the allegations of ill-treatment. In some cases,
the Court also emphasised that the failure of the national authorities to
act and their reluctance to effectively investigate the applicant’s
allegations of ill-treatment were the main reasons why the Court
was unable to determine whether or not there had been a violation
of the prohibition of torture and inhuman and degrading treatment
in its substantive limb. For example, in the case of
X. and Y. v. North Macedonia, the
public prosecutor waited two years before opening an investigation,
which ultimately proved inadequate; this was the third case in which
such violations had been found.
Note Yet
it has been clearly established that such inaction on the part of
the authorities is in breach of the Convention, as tolerating the contrary
would render the prohibition of torture and inhuman or degrading
treatment ineffective in practice and would amount to accepting
impunity.
Note
20. In most of the cases mentioned above, the applicants also
complained under Article 14 of the Convention (prohibition of discrimination),
arguing for example that at the relevant time the members of the
law enforcement authorities concerned had made racist statements
with respect to them due to their prejudice against Roma and/or
Travellers. Here too, the violations found by the Court mostly concern
the procedural limb of Article 14 taken in conjunction with Article 3
of the Convention, and not its substantive limb. In other words, in
most of these cases, the authorities had quite simply not conducted
an effective investigation capable of establishing whether the facts
at issue had been based on racist attitudes.
21. These patterns keep repeating themselves, over and over again.
Since 2019, the Court has communicated several other cases, notably
concerning Greece and the Slovak Republic, to the relevant national
authorities, and new facts continue to be reported by the press.
Note
22. Since the start of 2023, several cases of police abuse of
Roma have for example been reported in Türkiye. In late June, in
Çerkezköy, police officers intervened during a Roma wedding, insulting
and then beating those present with batons; some of the persons
who were beaten had to have recourse to medical care. In another
incident, in Hendek, several Roma were beaten with batons by police
officers and security guards. Prior to these incidents, criminal
proceedings for defamation and resisting arrest had been brought against
two Roma who had lodged complaints against members of the law enforcement
authorities for torture and acts of racist violence committed against
them during their detention in May 2022 in the Istanbul area.
Note
23. Beyond these individual cases, which are already shocking
in themselves, a very worrying overall picture emerges. To mention
just one country for which figures are available, in Bulgaria, Roma
are twice as likely to be victims of police brutality as non-Roma
and constitute 50% of persons in detention although this minority only
makes up 10% of the population. Moreover, two thirds of Roma minors
questioned in the framework of the study on police brutality published
by the ERRC reported having suffered physical violence during their arrest.
Note Unfortunately,
this appalling figure is fully consistent with the Court’s case
law, as in a striking number of its judgments, the violence was
committed against minors.
24. As the ERRC has emphasised, commenting on a judgment condemning
North Macedonia, here is every reason to believe the repetition
of similar cases is the result of institutional racism – even though,
unfortunately, the European Court of Human Rights only very rarely
looks into this aspect of the cases it is called upon to examine.
Note
25. The persistence of police brutality against Roma and Travellers
throughout Europe is all the more intolerable given that some of
the judgments of the European Court of Human Rights concern very
old facts, dating back to the middle of the 1990s. It is quite simply
unacceptable that problems that have been identified for so long
have not yet been resolved. Within each Council of Europe member
State, we can and must do better.
3.2 Violence
or ill-treatment having resulted in death
26. The worst instances of police
brutality are those which have resulted in the victim’s death. As
concerns Roma and Travellers, the European Court of Human Rights
has been called upon to examine such events in several cases concerning,
notably, Bulgaria (Anguelova and Iliev
v. Bulgaria, application no. 55523/00, judgment of 26 July
2007; Nachova and others v. Bulgaria, applications
nos. 43577/98 and 43579/98, judgment of 6 July 2005 (Grand Chamber),
Romania, Carabulea v. Romania (application
no. 45661/99, judgment of 13 July 2010), as well as France (Guerdner and others v. France, application
no. 68780/10, judgment of 17 April 2014).
27. These cases notably concern the excessive use of force by
members of the law enforcement authorities, resulting in death;
in one case, the torture of the applicant by members of the law
enforcement authorities, resulting in death; failure by the authorities
to fulfil their obligation to conduct an effective investigation;
and/or the lack of an effective investigation capable of determining
whether racist attitudes played a role in these deaths.
28. Unfortunately, new cases raising similar questions continue
to arise. Over the past 20 years, the ERRC has recorded, on a (non-exhaustive)
interactive online map, dozens of deaths of Roma and Travellers
that have occurred during their contacts with police in 14 countries
(Albania, Bulgaria, Czech Republic, France, Greece, Hungary, Italy,
North Macedonia, Portugal, Romania, Slovak Republic, Spain, Türkiye
and Ukraine).
Note It is unfortunately
impossible for me to mention each of these cases individually in
the framework of this report. I do however wish to refer at least
to some very recent cases, or cases which received significant media
attention in the country concerned or even internationally.
29. On 30 March 2017, Angelo Garand, a man belonging to the community
of
Gens du voyage, was shot five
times in the torso by gendarmes at his parents' home in Seur, France.
He had not returned to prison (where he had been serving a sentence
following a conviction for theft and driving without a licence)
six months earlier following a period of leave. Charges against
the two gendarmes involved were dropped, and his family's appeal to
the Court of Cassation was rejected; his family members have announced
their intention to appeal to the European Court of Human Rights.
Note
30. In June 2021, Stanislav Tomáš died in the Czech Republic,
having been forcibly restrained by police officers at the time of
his arrest. Several members of the Czech delegation to the Assembly
stressed, in a letter dated 7 July 2022 addressed to the Chairperson
of the Committee on Equality and Non-Discrimination, that the facts
of the case did not reveal any racist element. Furthermore, the
official investigation conducted by the General Inspectorate of
Police Services concluded that the arrest had been carried out in
accordance with the law and that no causal link between the use
of force and the death had been established. The Prosecutor General's
Office also found that various decisions not to open an investigation
were in accordance with the law. However, a report by the Deputy
Public Defender of Rights concluded that there had been violations
of the principle of proportionality and of the duty to ensure that
methods of restraint used were proportionate to the dangerousness
of the restrained person’s behaviour and pointed to shortcomings
in the above-mentioned procedures. After the Constitutional Court
rejected the case, the victim’s family seized the European Court
of Human Rights. Civil society emphasised that the above decisions
were likely to undermine the confidence of Roma in the Czech Republic’s
judicial system.
Note
31. In October 2021, in Piraeus, Greek police officers killed
an 18-year-old Roma youth and severely wounded a teenager during
a car chase in which at least seven police officers fired dozens
of shots. In a press release published the next day, the police
stated that all the police officers involved had been injured, that
the young man who had died was 20 years old and had a lengthy police
record, and that the younger boy who had received a bullet wound
had only suffered minor injuries. According to civil society, however,
no police officers were injured, the deceased was 18 years old and
did not have a police record, and the 16-year-old teenager had been
seriously wounded. Subsequently, audio recordings revealed that
the police officers involved had known that the occupants of the
vehicle were Roma.
Note One
year later, in December 2022, a Greek police officer shot in the
head and killed a 16-year-old Roma youth, who the police alleged
had taken 20€ worth of petrol without paying.
Note
32. On 11 May 2023, a Roma man was shot and killed by a police
officer while standing on the balcony of a home in Konak, in the
Izmir region. Fearing violence, his wife (from whom he was separated)
had called the police when he went to her home; according to civil
society, however, nothing seemed to justify the use of firearms
in this case.
Note
33. On 7 August 2023, the mother and sister of a Roma man who
died while in police custody in Arad, Romania, lodged a criminal
complaint against Romanian police officers involved in the relevant
events, alleging that the victim had been beaten to death.
Note
34. While it is important to bear in mind that each of these cases
occurred in specific circumstances, only a detailed examination
of which would enable a determination as to whether or not human
rights violations were committed, I wish to underline the especially
serious nature of these types of incidents, which continue to occur far
too often throughout our continent. To avoid similar events occurring
again, we must recognise that the problems at stake go far beyond
apparently isolated cases and examine the systemic nature of such
violence, as the European Court of Human Rights did in the above-mentioned
case of Lingurar and others v. Romania.
3.3 Violent
raids and attacks against Roma villages and settlements and places
where Travellers have halted
35. One of the serious problems
reflected
inter alia in the
judgments of the European Court of Human Rights are violent raids
carried out against Roma villages and settlements as well as places
where Travellers have halted.
Note This question was examined as part
of the work carried out for the Assembly by our former colleague František
Kopřiva (Czech Republic, ALDE) in the context of a report, from
the perspective of respect for the right to housing of Roma and
Travellers; Mr Kopřiva had already drawn attention to several worrying
cases that occurred in Bulgaria, Ireland and Ukraine in the past
few years.
Note
36. As the Assembly has already underlined, where Roma do not
have legal title to their homes or to the land on which they are
built, they are highly vulnerable to forced evictions and to the
demolition and destruction of their property. Likewise, in many
States, insufficient halting sites are provided for Travellers wishing
to maintain an itinerant lifestyle, forcing them to stop in unauthorised
locations, whether on public or private property, and exposing them
to being violently expelled and moved on – but with nowhere to go.
Such evictions are moreover frequently conducted under high and
negative media scrutiny, which fuels antigypsyist and antinomadist
stereotypes and sentiments. The failure to provide long-term solutions
to these problems not only prolongs the human rights violations
experienced by Roma and Travellers but also exacerbates tensions
and sources of conflict within communities.
Note Such
evictions are carried by law enforcement authorities and create additional
situation of tense or even violent contacts between these actors
and Roma and Travellers.
37. Sometimes violent racist attacks or even pogroms are perpetrated
by fellow citizens against villages, settlements, halting sites,
houses, dwellings, caravans and other places where Roma and Travellers
live, without sufficient intervention by the law enforcement authorities
to prevent or put an end to these attacks.
38. The Assembly has already strongly condemned such attacks,
while also underlining that segregated living conditions aggravate
the risks of such criminal actions, by making these areas easy targets
for attack.
Note
3.4 The
obligation to conduct an effective investigation
39. The authorities’ failure to
conduct an effective investigation into allegations of offences
committed by members of the law enforcement authorities against
Roma and Travellers has frequently been pinpointed by the European
Court of Human Rights (see above the violations of the procedural
limb of Articles 2 and 3 of the European Convention on Human Rights,
most often taken separately, but sometimes read in conjunction with Article
14).
40. The principles that must be respected in conducting such investigations
can be summarised as follows: independence, relevance, diligence,
transparency and participation of victims.
41. Failing to respect these principles deprives the victims of
an effective remedy, means the authorities are not held accountable
and undermines victims’ trust in the criminal justice system.
42. These issues have often been examined by the ECRI in the framework
of its country monitoring activities. In Ireland, for example, ECRI
expressed concern about the lack of competence of police officers,
who allegedly misinterpreted racist incidents committed against
Travellers and expressly refused to record the statements of witnesses
of such offences. In the case of the Slovak Republic, ECRI noted
in 2020 that despite the high number of complaints concerning serious
acts of violence committed by police officers against Roma, none
of the subsequent investigations had resulted in criminal convictions
or disciplinary sanctions.
43. In Hungary, the authorities’ reluctance to implement the rulings
of the European Court of Human Rights to put an end to ill-treatment
by police and ensure any complaints were investigated has also attracted international
criticism. As the Hungarian Helsinki Committee has emphasised, human
rights violations left without remedies are at risk of recurring.
44. As regards Italy, the United Nations High Commissioner for
Human Rights has noted that the Italian police have not put in place
an investigation procedure for hate-motived offences and that victims
of such offences do not receive any particular support. Regarding
the reporting of and follow-up given to such offences, difficulties
in having access to a lawyer and the refusal to register and conduct
investigations into these offences, except where the facts at issue
are particularly serious, are also cause for concern.
45. As a result of this situation, there is a high level of mistrust
among Roma and Travellers as to the capacity of the system to protect
them in the same way as the rest of the population.
3.5 Impunity,
a violation of human rights
46. Tolerating persistent failures
by the authorities to respect their obligation to conduct an effective investigation
into allegations such as those described above would amount to accepting
impunity for serious violations of the European Convention on Human
Rights, which would clearly be unacceptable.
Note
47. The fact that police officers often act in groups is one of
the factors that may foster the culture of impunity. This is what
happened in the Slovak Republic when five young Roma boys were taken
into police custody, stripped, beaten and forced to slap one another
while being threatened by dogs. When it was brought to the European
Court of Human Rights, this case gave rise to a series of findings
of human rights violations – but, like all the cases previously
mentioned, justice should have been delivered at domestic level.
Note
48. During the exchange of views of 24 March 2023, Mr Fourat Ben
Chikha (Belgium, SOC) rightly asked how to break the omerta within
police forces themselves and protect whistle-blowers. In fact, while
the majority of police officers do their jobs without showing racism,
it can be extremely difficult for them to speak up when they witness
racist acts, as they risk retaliation or even having no option but
to resign. This can act as a strong brake on the carrying out of
an effective investigation and can contribute to a culture of impunity.
49. Replying to this question, Mr Bernard Rorke pointed out that
the culture of silence within police forces was unfortunately not
specific to any country. While civil society organisations kept
on taking offenders to court, what was important was that those
who have the power and the responsibility within the authorities
concerned act. As Mr Rorke pointed out, this kind of work is never
finished, but must be constant.
4 Ethnic
profiling and police stops
50. In its
Resolution 2364 (2021) “Ethnic profiling in Europe: a matter of great concern”,
the Assembly defined this practice as follows: “Ethnic or racial
profiling occurs when people are stopped, checked or investigated
without any reasonable or objective grounds, because of their colour,
appearance or perceived nationality, ethnicity, origin or religion.”
51. This is not merely an abstract concept, but a practice that
has negative consequences in daily life. For Travellers who lead
an itinerant lifestyle, contact with law enforcement authorities
is constant, from an early age, because trucks and caravans mark
out Travellers as individuals who need to be stopped and checked. On
a journey of a few hundred kilometres, a single caravan might be
stopped up to 19 times.
Note
52. The Assembly underlined that ethnic profiling “can have a
negative impact on both the people being stopped and on society
at large”, that it “promotes a distorted view of, and stigmatises,
parts of the population” and that it “can also reflect deeply rooted
racism”. It also noted that, unfortunately, despite the fact that
it is “discriminatory by nature and ... therefore illegal, [ethnic
profiling] is a widespread ... phenomenon across Europe”.
53. According to the conclusions of survey published in 2021 by
the European Union’s Fundamental Rights Agency, ethnic minorities,
and notably Roma and Travellers, continue to suffer from the effects
of ethnic profiling. Over the 12 months preceding the survey, 22%
of persons who self-identified as belonging to an ethnic minority
had been subjected to a police stop, versus 13% of people who did
not self-identify in this way. In several countries, the proportion
of Roma and/or Travellers who had been stopped by the police was
much higher than that among the general population. This contrast
was particularly striking in Croatia (33% compared with 19% respectively),
Greece (33% and 18%), Hungary (22% and 10%) and Spain (32% and 4%),
as well as the United Kingdom (10% of Gypsies and Travellers compared
with 3% of the overall population) and the Netherlands (29% of Roma
and 10% of the overall population).
Note
54. In 13 of the 15 countries in which data disaggregated by ethnic
origin included distinct figures for Roma and Travellers, the proportion
of individuals stopped when they were on foot was much higher among
these groups than for the general population. The European Union
Agency for Fundamental Rights underlined in this respect that police
stops of individuals were often perceived in a far more negative
light than stops of vehicles. Moreover, 34% of persons belonging
to an ethnic minority who had experienced a police stop while they
were on foot had also been searched, as compared with only 14% of
the general population.
Note
55. In several countries, Roma and Travellers reported being treated
with respect by the police far less often than the general population.
This finding was especially striking in the Netherlands (3% of Roma
or Travellers compared with 76% of the overall population), Portugal
(10% compared with 92%) and Sweden (30% as against 84%). The level
of confidence that people belonging to an ethnic minority may have
in the police is however closely linked to their experience of police
stops and their perception (or not) of such stops as a form of ethnic
profiling. Amongst the various minorities covered in the framework
of this survey, Roma and Travellers had the lowest levels of trust,
reaching only 4.7 (on a scale of 0 to 10) amongst persons who had
not been stopped over the five years preceding the survey and dropping
to the deplorable score of 2.8 amongst those who had been stopped
in a context of ethnic profiling.
Note
56. I can but echo in this context the clear position already
taken by the Assembly, according to which “[the] attitude of police
officers towards the population, and the methods they use to carry
out their tasks [of protecting the population and contributing to
peaceful coexistence], are of utmost importance in ensuring the
public’s trust and overall support”.
Note Police
officers must not only be exemplary but also be held accountable
for their actions. For beyond the human rights at stake in each
specific contact between citizens and members of the law enforcement
authorities, the level of trust in these authorities that may be
felt by persons belonging to minorities, and in particular Roma
and Travellers, has a strong influence on their willingness to turn
to these institutions when they are victims of criminal offences
themselves (see also below, Access to justice).
5 Criminalisation
of begging and homelessness
57. Certain political choices may
result in a proliferation of tense or even conflictual situations
in which law enforcement authorities come into contact with Roma
and Travellers – in particular those persons among these minorities
who live in poverty – while sparing the rest of the population.
This is especially the case when the relevant authorities choose
to criminalise behaviour or situations that mostly occur due to
the marginalisation, social exclusion or disadvantaged socio-economic
situation still experienced by too many Roma and Travellers, instead
of addressing the root causes of such behaviour and situations.
5.1 Begging
58. In my country, Switzerland,
Article 11A of Geneva Criminal Law Act prohibits begging in public
places, and establishes penalties of a fine or deprivation of liberty
if the fine is not paid. The European Court of Human Rights has
found that the application of this provision to a Roma woman, who
was convicted and fined 500 CHF and subsequently detained for five
days due to her failure to pay the fine constituted a violation
of Article 8 of the Convention. The Court considered that the penalty
imposed was proportionate neither to the aim of combating organised
crime nor to that of protecting the rights of passers-by, residents
and shop-owners. Moreover, bearing in mind that the applicant most
probably did not have other means of subsistence and therefore had
no choice but to beg in order to survive, this penalty had infringed
her human dignity and impaired the very essence of the rights protected
by Article 8 of the Convention.
Note
59. The measures taken by the Swiss authorities to execute this
judgment are currently being examined by the Committee of Ministers
of the Council of Europe, and it is not my role to replace this
process.
60. I do however wish to draw States’ attention to the fact that
nothing obliges them to treat begging as a criminal offence. Indeed,
as the European Court of Human Rights emphasised in the above-cited
judgment, when States or local authorities regulate begging, they
mostly prohibit only its aggressive or intrusive forms, and simply
focus on protecting public order through simple administrative measures.
Note
61. In this respect I can only agree with the analysis of the
former United Nations Special Rapporteur on extreme poverty and
human rights. As she underlined as far back as 2011, criminal or
regulatory measures that make begging unlawful have a disproportionate
impact on persons who live in poverty without sufficient support
and assistance from the State, as these persons have no other option
than to beg in order to stay alive. They also contribute to the
perpetuation of discriminatory societal attitudes towards the poorest
and most vulnerable persons, instead of combating these attitudes.
Moreover, by giving law enforcement officials wide discretion in
applying the law while increasing the vulnerability of persons living
in poverty to harassment and violence, criminalising begging violates
the principles of equality and non-discrimination.
Note
62. The question could be asked in the following terms: rather
than mobilising the entire criminal justice system (members of law
enforcement authorities, prosecutors, criminal courts) against individuals
living in extreme poverty, and thus further marginalising these
persons, might it not be wiser to devote more resources to ensuring
their social inclusion?
5.2 Homelessness
63. I have mentioned above violence
committed against Roma and Travellers by members of the law enforcement
authorities in the context of forced evictions, as well as cases
where these authorities failed to protect their villages or settlements
against violent attacks by other citizens.
64. However, I would also like to draw attention here to the negative
impact of certain other policies and practices put in place in the
field of access to housing, and the consequence of which is to regularly
expose Roma and Travellers to tense contacts with the law enforcement
authorities. Indeed, as the Assembly has already pointed, in many
countries, insufficient halting sites are provided for Travellers
who wish to maintain an itinerant lifestyle. This forces them to
stop in unauthorised locations and exposes them to criminal prosecution,
with nowhere to go.
Note The problems are of course
more acute when such stops are prohibited under the criminal law.
65. By way of example, and as was explained to us by Ms Sarah
Mann, during the exchange of views held on 20 June 2023, around
one third of the Gypsy and Traveller community in the United Kingdom,
that is 100 000 people, live in caravans. Within this group, around
25 000 people have nowhere to stop, due to a chronic national shortage
of lands and halting sites for Gypsy and Travellers sites and stopping
places and a lack of will among local authorities to identify land
for these. The national government is failing to hold local authorities
to account on this matter, and discrimination within the planning
system means that applications by Gypsies and Travellers to build
private or family sites are routinely rejected at local level. This
created a vicious circle in which the authorities’ failure to respect
the right to housing of Gypsies and Travellers exposes the persons
concerned to negative or even violent contacts with law enforcement
authorities, and to legal proceedings. Persons in this situation
often become the focus of policing as well as of certain political
and media rhetoric, which exacerbates prejudice among the population,
as the general public ends up having the impression that all Gypsies
and Travellers are in this situation.
66. Amendments made to the Criminal Justice and Public Order Act
in 2022 have worsened this situation by conferring new powers to
confiscate the vehicle (namely the home) of a family stopping on
land without permission, to imprison the lead family member for
up to three months and to impose a fine of up to 2 500 GBP.
Note In
other words, the 25 000 people living in caravans in the UK, with
nowhere to stop are, in essence, liable to prosecution because the
housing policies implemented by local and national authorities have left
them homeless.
67. I note with interest that according to Friends, Families and
Travellers, some police forces opposed the introduction of this
legislation (viewed as disproportionate), and that so far, it has
not been used much. However, some local police forces are allegedly
under pressure from local authorities to enforce it. Moreover, while
the government has recently made available funds to refurbish existing
sites – which is welcome – such refurbishments do nothing to resolve
the lack of stopping sites. As a direct consequence of this situation, Gypsies
and Travellers face criminal prosecution although they are in no
way responsible for the lack of stopping sites and have no means
of improving the situation.
6 Roma
and Travellers as victims of criminal offences
68. While ethnic profiling and
the criminalisation of begging and homelessness lead to excessive
police intervention against or surveillance of Roma and Travellers,
conversely, police responses are often inadequate when persons belonging
to these communities are the victims of criminal offences.
69. As Ms Mann pointed out during the exchange of views held on
20 June 2023, in the United Kingdom, Gypsies and Travellers are
less likely to be taken seriously or seen as victims of racism or
discrimination when they are victims of crime. On the one hand,
race and hate incidents against Gypsies, Roma and Travellers are common,
but such offences are under-reported due to low levels of confidence
in police forces. On the other hand, it is often difficult to find
evidence of how criminal offences against this population are dealt
with as police officers do not record the ethnic origin of victims
of crimes and do not always know how to handle such offences.
70. The Advisory Committee on the Framework Convention for the
Protection of National Minorities made similar findings in a recent
opinion on Norway. Roma and Romani/Tatar persons continue to be
victims of discrimination in Norway due to their itinerant lifestyle
and report high levels of hostility and violence against them. They
are hesitant to report hate-motivated offences to the police, due
to a lack of confidence in them, and report that the police often
drop proceedings in such cases due to insufficient evidence.
Note
71. The Advisory Committee has made similar findings of reluctance
of Roma and Travellers to report hate-motivated offences committed
against them, and insufficient responses by law enforcement authorities
when such offences are reported, in recent opinions on North Macedonia,
the Slovak Republic, Croatia and Bulgaria.
Note
72. We must take effective measures to put an end to this unbalanced
and discriminatory situation, in which, on the one hand, Roma and
Travellers are over-policed, and on the other, criminal offences
committed against persons belonging to these minorities are under-policed.
7 Access
to justice
73. Roma and Travellers who are
victims of police ill-treatment and other violations of their rights
also face multiple forms of discrimination in access to justice
as well as prejudice and negative attitudes towards them that exist
among professionals working in the judicial system. This situation
aggravates the already high level of mistrust that exists towards
the criminal justice system, but also more broadly the justice system
as a whole, among Roma and Travellers.
74. In its Recommendation CM/Rec(2017)10 to member States on improving
access to justice for Roma and Travellers in Europe, the Committee
of Ministers of the Council of Europe already recommended taking
a very detailed series of measures in this field, calling on States
to facilitate the equal access of Roma and Travellers to legal aid
or other legal services, free or paid, to quasi-judicial methods
of conflict resolution, and to courts, and to ensure vis-à-vis Roma
and Travellers the effectiveness of judicial remedies, while taking
full account of the forms of intersectional discrimination that
may come into play in this field.
75. Other practical means of action also exist to overcome this
situation. We had the opportunity to look at one of these – the
series of JUSTROM programmes co-financed by the European Union and
the Council of Europe and implemented by the latter between 2016
and 2022 – during the exchange of views held with Ms Oana Taba on
26 January 2023.
76. This programme had the specific objective of promoting Roma
women’s access to justice. Beyond the lack of confidence in the
justice system, the programme aimed to overcome the main obstacles
to Roma women’s access to justice, namely the lack of information
about mechanisms of redress and legal aid schemes, illiteracy, language
barriers, and, sometimes, perceptions of associated costs.
77. I note with interest that, based on three pillars – the empowerment
of Roma women, enhancement of professional resources and increased
synergies and partnerships – the programme, which ended in 2022,
was of direct benefit to over 10 000 Roma women in four countries
(Bulgaria, Greece, Italy and Romania) during the period when it
was implemented. It enabled hundreds of cases in the fields of discrimination
and civil law as well as gender-based violence to be brought before
justice, while raising Roma women’s awareness of how to report discrimination
and empowering them to use existing mechanisms and seek legal aid.
Importantly, it will also have a positive impact in the longer term
too, because it led to the development of tools that may continue
to be used in future, as well as to the establishment of new NGOs
in Greece and Romania.
78. I also note with interest that the programme was not limited
to strengthening legal aid lawyers’ capacities in the field of antidiscrimination,
but that it also helped train legal professionals in order to overcome
negative attitudes towards Roma women.
79. On the latter point, we discussed during the hearing on 26
January 2023 the lack of trust in institutions as an obstacle to
Roma women’s access to justice, specifically in the field of combating
violence against women and domestic violence. Ms Taba noted that
Roma women who have experienced gender-based violence often have
even lower levels of trust in the police and judicial system. Far
too often, police still tell Roma women who have come to report
these kinds of offences that such practices are just part of their
culture and that the police do not deal with them.
80. This example clearly shows that the onus to overcome problems
must not be placed only on the most marginalised groups: the empowerment
of Roma women – and more broadly that of all Roma and Travellers in
their contacts with the judicial system – must go hand in hand with
training to overcome negative attitudes within law enforcement authorities
and the judicial system. The last point is crucial as if prejudices
existing within the judicial system are not broken down, efforts
to promote Roma and Travellers’ access to this system will have
no effect, no matter how considerable such efforts may be.
8 The
persistence of marginalisation, antigypsyism and anti-nomadism
81. As the Assembly recently observed,
Note antigypsyism and anti-nomadism
are frequently at the heart of grave violations of the human rights
of Roma and Travellers. Still too often, the authorities use the
prevalence of these phenomena amongst the general population as
an excuse for taking no action to remedy violations of Roma and
Travellers’ rights. This perpetuates the marginalisation of these
groups and fuels the vicious cycle of tense relations with law enforcement
authorities.
82. In parallel, the media and social networks fuel hatred, and
some political leaders normalise inflammatory language. These actors
often use images of Roma and Travellers living in inadequate conditions
to further fuel racist sentiments amongst the population, and it
is often difficult to have online hate speech taken down.
83. The failure to provide long-term solutions to these problems
also increases tensions and sources of conflict within our societies.
To put it another way, in the words of our colleague Fourat Ben
Chikha during the hearing of 24 March 2023, if Roma and Travellers
were less marginalised, they would be attacked less often by the
police.
84. As our former colleague František Kopřiva stressed it in another
context, “inertia, indifference, inaction, neglect, resistance or
outright hostility, whether amongst the general public or within
authorities themselves, are all expressions of antigypsyism and
anti-nomadism”.
Note Just as
in the field of housing, which was the subject of his report, overcoming
these sentiments and the direct or indirect harms that they cause
is crucial to successfully tackling the institutional racism against
Roma and Travellers that persists within law enforcement authorities.
I fully share the view of Mr Kopřiva – which also corresponds to
longstanding positions of ECRI, the Advisory Committee on the Framework
Convention for the Protection of National Minorities and other international
bodies – that combating antigypsyism and anti-nomadism must form
an integral part of all strategies designed to overcome discrimination
against Roma and Travellers, including where it is committed by
members of law enforcement authorities.
9 Good
practices and possible solutions
85. My report is not intended only
to shed light on human rights violations, but also to identify effective courses
of action to prevent them and to redress them when they occur. I
have already drawn attention to one very promising programme that
served to improve Roma women’s access to justice in the countries
where it was implemented, and which could provide inspiration in
other countries. In this chapter, I would like to mention briefly
some other potentially useful lines of action.
9.1 Collection
of reliable data
86. In the first place, the collection
of reliable data that enables the extent of the problem to be understood is
a sensitive but important line of action. This forms part of the
Assembly’s regular recommendations when it comes to combating discrimination.
87. Concerning ethnic profiling specifically, in its General Policy
Recommendation No. 11 on combating racism and racial discrimination
in policing, ECRI recommended that States carry out research on
racial profiling and monitor police activities in order to identify
racial profiling practices, including by collecting data broken
down by grounds such as national or ethnic origin, language, religion
and nationality in respect of relevant police activities. Such data
could include, for example, identity checks, vehicle inspections,
personal searches, searches of homes and other premises and police
raids.
88. This recommendation is part of the broader need for data to
monitor the situation of minorities and the forms of direct and
identify possible patterns of indirect discrimination that they
may face. Collecting such data with regard to police activities
and the criminal justice system fosters accountability within these
authorities and provides a common foundation of knowledge for policy
making. As is the case for all sensitive personal data, such data
must be collected with due respect to the principles of confidentiality,
informed consent and of voluntary self-identification of persons
as belonging to a particular group.
9.2 Dialogue
and confidence-building measures
89. Measures to (re)build trust
between Roma and Travellers, on the one hand, and law enforcement authorities,
on the other, are also crucial, as are measures to overcome the
phenomenon of under-reporting of criminal offences committed against
these persons.
90. Maintaining public order must never be based solely on repressive
measures; relations between the police and the rest of the population,
including Roma and Travellers, must be based first and foremost
on mutual trust. This starts with the recognition of potential problems.
In Ireland, the authorities’ willingness to take on board the conclusions
of a report of the Ombudsperson into potential racism within law
enforcement authorities, to recognise failings and to follow up
on the recommendations is considered positive.
91. Dialogue is also essential, notably between Roma and Travellers,
on the one hand, and police, on the other. Daily realities experienced
by police officers must not be forgotten, bearing in mind that a
high proportion of police officers come into contact with Roma and
Traveller communities only in the framework of policing activities
and repression. Similarly, we must not ignore the feelings of those
targeted by ethnic profiling and excessive checks, practices which
fuel mistrust and are likely to lead to strained relations or even
violent confrontations. Moreover, when class prejudice (against
marginalised people) is combined with antigypsyism and/or anti-nomadism,
the road to (re)building trust can be a long one.
92. Some positive initiatives have been taken. In the United Kingdom,
for example, an association of police officers from the Gypsy, Roma
and Traveller communities has been set up with the support of senior
police officers, with the aim of tackling these problems. Cities
such as Derby and Sheffield, where Roma arrivals are more recent,
have specialist liaison officers. In other countries, efforts are
being made to recruit more Roma and Travellers into the police force.
93. Mediators can also be appointed to establish dialogue where
uniforms are likely to create barriers and inflame tensions. In
the canton of Vaud in Switzerland, for example, in the past, policemen
and policewomen were generally the first people Travellers had to
deal with when they arrived in a village or town. Today, the presence
of mediators makes it possible to establish a relationship of trust
from the outset and avoid many sources of conflict.
94. Stops negotiated in advance on specific plots of land can
also prevent tensions. For example, in Yverdon, still in the canton
of Vaud, a Yenish group was able to settle on municipal farmland
for several weeks in the spring of 2023, at the suggestion of the
town council.
Note
95. Broader mediation programmes are also being set up by local
authorities in some countries, and can play an important role in
strengthening mutual trust. During the exchange of views on 24 March
2023, Mr Rorke underlined certain points that must however be respected
if these initiatives are to bear fruit. For example, mediators must
be properly remunerated, qualified and not be silenced as soon as
they make a disturbing statement. Their role must be seen as temporary,
and local authorities must not use them as an alibi for not resolving
long-term problems.
9.3 Independent
mechanism tasked with handling complaints against members of the
law enforcement authorities
96. Beyond these efforts, independent
and effective mechanisms for reporting police abuse must also be
in place, and must be able to command the confidence of Roma and
Travellers. The establishment of a body independent of the police
and the public prosecutor's office, responsible for investigating
allegations of racial discrimination and racially motivated misconduct
by the police, is thus an integral part of the measures recommended
by ECRI in its above-mentioned General Policy Recommendation No.
11.
9.4 Training
97. It goes without saying that
it will not be possible to combat racism in policing without involving
the police in this effort. Training, designed on the basis of existing
efficient models, should be put in place.
98. I take note nonetheless of Mr Rorke's warning in this regard,
that an individual "therapeutic" approach will not be enough to
overcome institutional racism, as no amount of training can prevent
individuals from being racist. Members of the police force must
however be trained to exercise their prerogatives and duties with
full respect for all human rights. This training should be compulsory
for all those who exercise a public function and have means of coercion
at their disposal.
99. People from racialised communities must also benefit from
training or awareness-raising campaigns, so that they can defend
their rights and have the means to have them respected. The JUSTROM
programme mentioned above is a very interesting example of this
type of initiative.
9.5 Knowledge
of the history and culture of Roma and Travellers
100. Finally, as part of the fight
against the antigypsyism and anti-nomadism that exist more generally
in our societies, teaching the history and raising awareness of
the culture of Roma and Travellers are areas for action that should
not be neglected.
10 Conclusions
101. Institutional racism of law
enforcement authorities towards Roma and Travellers can be summed
up, in its simplest form, as a terrible discriminatory imbalance:
on the one hand, Roma and Travellers are very often subject to excessive
surveillance, controls and use of force by members of law enforcement
authorities, which violate their rights; on the other hand, when
these populations are victims of criminal offences (whether committed
by persons holding public authority or by private individuals),
the responses provided are very often inadequate.
102. The case law of the European Court of Human Rights in this
regard confirms that this situation can lead to serious human rights
violations – in particular the right to life, the prohibition of
torture, and the prohibition of discrimination. All too often, when
acts likely to constitute such offences are committed against Roma
or Travellers, no effective investigation is carried out to elucidate
the facts, leaving the victims without recourse or remedy, which
is also a violation of their rights.
103. We will only be able to combat these problems effectively
if we recognise that racism against Roma and Travellers goes far
beyond isolated cases of police brutality. Indeed, antigypsyism
and anti-nomadism are evident in the way in which Roma and Travellers
are policed and in the culture of impunity that still too often prevails
for such practices.
104. Other policies – such as the criminalisation of begging or
homelessness – as well as racial profiling have the effect of aggravating
this situation, by increasing the situations in which Roma and Travellers,
especially members of these communities who live marginalised and/or
in poverty, come into contact with law enforcement authorities.
105. Council of Europe member States must redouble their efforts
to prevent these human rights violations, and to respond appropriately
when they occur. They must hold all perpetrators to account and
dismantle the institutional systems and cultures and the prevailing
climate of antigypsyism and anti-nomadism that allow these practices
to continue. They must also learn from and build on the good practices
developed and implemented in some States.