The Court on Racial Discrimination (Part I): M. and Others v. Italy and Bulgaria
It’s fair to say that the Court’s record on racial discrimination is hesitant. Only as late as 2004 did the Court for the first time find that a State was guilty of racial discrimination. This was in the Chamber judgment of Nachova v Bulgaria, which was later partly rescinded by the Grand Chamber in 2005. Since then, the Court’s jurisprudence on the topic of racial discrimination has rapidly expanded. The Court has delivered some strong judgments in the past years, most notably D.H. and Others v. the Czech Republic(2007). Yet the Court remains reluctant to find a violation of Article 14 of the Convention on the basis of race discrimination.
In the past few months, the Court has delivered several judgments on the topic. These cases illustrate the difficulties of the Strasbourg jurisprudence on race discrimination, but they also contain some promising new points of departurein the Court’s legal reasoning. First was B.S. v. Spain (24 July), concerning a sex worker of Nigerian origin who was harassed by the Spanish police. Then came M. and Others v. Italy and Bulgaria (31 July), about a Bulgarian Roma girl who alleged that she was trafficked to Italy and abused there by several men who held her hostage in a villa. Most recent is the case of Fedorchenko and Lozenko v. Ukraine (20 September), concerning a Roma man who complained that a police officer had set fire to his house. Five of the applicant’s family members died because of that fire.
In a two-post miniseries, Lourdes Peroni and I will discuss these three cases, which have to our knowledge not been picked up by other blogs. In the process we will revisit some of the major factors that continue to hamper the Court’s case law in the field of racial discrimination. In this post – the first half of the series – I will discuss M. and Others v. Italy and Bulgaria, which raises the question what racial discrimination is (or what counts as discrimination) in the eyes of the Court. Next week, Lourdes will discuss the Court’s standard of proof in cases that concern the investigation of racist violence.
M. and Others v. Italy and Bulgaria – contended facts
The facts of M. and Others are complicated and disputed: the applicants (a Roma family) have one version of the events and the Italian authorities another. These are the facts based on the press release:
According to the applicants, on 12 May 2003 the three of them, daughter and parents, went to Milan following an alleged promise of work in the villa of a Roma man of Serbian origin. M.’s parents alleged that six days later, beaten and threatened with death, they were forced to go back to Bulgaria, leaving their daughter at the villa. She was then allegedly kept under constant surveillance, forced to steal, beaten, threatened to be killed and repeatedly raped. On 24 May 2003 M.’s mother returned to Italy and reported that her daughter had been kidnapped. On 11 June 2003 (17 days later) the Italian police raided the villa and rescued M. M. was a girl of 17 years old at the time.
What the press release does not mention, but what is apparent from paragraph 25 of the judgment, is that on the same day that the authorities rescued M. from the villa, they questioned her and then decided to turn the proceedings against unknown persons for kidnapping into proceedings against M. and her mother for perjury and libel. Apparently, the authorities thought that the applicants had made false accusations about kidnapping. The authorities concluded on the basis of some photographs they found during the raid of the villa that what actually had taken place was a Roma marriage; part of the marriage contract was that M.’s parents received a sum of money.
The proceedings against M. and her mother for perjury and libel were eventually discontinued in 2005 and 2006 respectively.
The applicants complain that Italy has breached Article 3 (prohibition of torture and inhuman or degrading treatment), both because the authorities did not prevent further ill-treatment by securing M.’s speedy release and because the investigation into M.’s alleged ill-treatment by private individuals was not effective. They also complain about trafficking, based on Article 4 (the slavery prohibition) and about racial discrimination (Article 14: prohibition of discrimination). The Court finds just the complaint based on Article 3 admissible, and finds only a violation on the grounds of ineffective investigation. Though the Court’s discussion about trafficking and Article 4 of the Convention is interesting given the scarcity of case law on that topic, in the rest of this post I will confine myself to discussing the inadmissible discrimination complaint.
What is discrimination? Of inappropriate assumptions about “Roma marriage”
In my view, one of the major obstacles in the Strasbourg jurisprudence on race discrimination is the Court’s narrow conceptualization of what counts as race discrimination (see on that issue also my post on the Grand Chamber judgment in Aksu v. Turkey). In cases of direct discrimination (as opposed to indirect discrimination, which is held to exist when a neutrally formulated measure has a disproportionate prejudicial impact on a certain ethnic group) the Court seems to look for explicit racist remarks or abuse. Thus, the Court holds in the present case:
the Court notes that while it has already held above that the Italian authorities failed to adequately investigate the applicants’ allegations, from the documents submitted, it does not transpire that such failure to act was a consequence of discriminatory attitudes. Indeed, there appears to be no racist verbal abuse by the police during the investigation, nor were any tendentious remarks made by the prosecutor in relation to the applicants’ Roma origin throughout the investigation or by the courts in the subsequent trials. (M. and Others v. Italy and Bulgaria, par. 179)
What are “discriminatory attitudes”? I think the Court makes a mistake here by equating discriminatory attitudes with “racist verbal abuse” or “tendentious remarks”. In my opinion, the Italian Government has given ample testimony of a discriminatory attitude throughout its handling of this case, by relying repeatedly on the idea that what really happened was a traditional Roma marriage (see paragraphs 23, 92-93 and 105-106). In this respect, I think Judge Kalaydjieva hits the nail on the head in her dissenting opinion:
Seeing that they [the applicants’ submissions] were not only dismissed without any enquiries, but were also followed by an attempt to actively disprove them, I cannot come to any explanation for this treatment other than an assumption on the part of the authorities that the applicants had been telling lies from the outset. . . .
This explanation appears to be more reasonable than that offered to the Court, namely, that the “Italian authorities opined that the circumstances of the present case fell within the context of a Roma marriage”. Even if correct (and I would venture to doubt it), such an “opinion” could not reasonably explain the manner in which the authorities dealt with the applicants’ complaints of ill-treatment, non-consensual sex, forced participation in criminal activities, etc., unless it is seen as an understanding that a Roma marriage constituted an agreement of the parents to sell a bride “for all purposes”.
I find myself unable to accept either of these two explanations for the manner in which the authorities dealt with the applicants’ complaints and find each of them to be based on equally inappropriate assumptions. (from the dissent of Judge Kalaydjieva)
Judge Kalaydjieva makes these remarks in the context of the Article 3 complaint, but I would say that the inappropriate assumptions that she details are in fact the sort of discriminatory attitudes that Article 14 prohibits. The attitudes of the authorities are based on stereotypes about Roma. First is the stereotype that Roma are untruthful, and second – and more prominently – is the stereotype that “a Roma marriage constitute[s] an agreement of the parents to sell a bride ‘for all purposes’.”
In this context, I’m also struck with the difference between this ruling and the ruling in the well-known case of Opuz v. Turkey (2009) about domestic violence. In Opuz the Court ruled that the authorities’ passivity when confronted with complaints of domestic violence amounted to discrimination of women. But whereas in Opuz the Court condemned the authorities for considering domestic violence as a “family matter with which they cannot interfere” (par. 195), the Court lets the authorities in M. and Others v. Italy and Bulgaria get away with not interfering in a situation of alleged abuse because the authorities relied on the idea that this was a “Roma marriage”. The attitude of the authorities in both cases is very similar: they wash their hands off abuse because they consider it private. It is a pity that the Court’s reasoning in M. and Others did not look more like its reasoning in Opuz.
Of course, the case of M. and Others is in many respect different from the case of Opuz. The Court clearly struggled with the case of M. because it is so unclear what actually happened to her – the story of the authorities and the story of the applicants are widely different. On the basis of the ‘facts’ of the case, it was indeed difficult to deliver a strong judgment on trafficking and discrimination. Moreover, in Opuz the Court was aided by numerous reports and statistics showing a clear problem with the authorities’ response to domestic violence in south-east Turkey. In the case of M. and Others the Court could not rely on statistics.
And yet . . . The dissent of Judge Kalaydjieva makes clear that there was a problem with the attitude of the authorities in this case. If the Court were not so stuck on verbal racist remarks/abuse, it could have recognized that these are the kind of attitudes that harm Roma. The Court holds that “a possible “Roma marriage” cannot be used as a reason not to investigate in the circumstances” (par. 106) – but it should have added that when negative views about Roma marriage inform the authorities’ whole handling of the case this raises the issue of racial discrimination.
Next week, Lourdes will pick up where I left off, namely at the topic of the standard of proof in racial discrimination cases. She will discuss the role of international reports in establishing a requirement on the part of the domestic authorities to investigate whether a crime had racist motives.
 Marie-Bénédicte Dembour, Who Believes in Human Rights? Reflections on the European Convention (2006), p. 133.