When is the duty to investigate possible racist motives triggered in cases of ill-treatment and death in police custody? In one of the latest 2010 judgments (Mižigárová v. Slovakia) dealing with police brutality against a member of an ethnic minority, the Court did not consider that “the authorities had before them information that was sufficient to bring into play their obligation to investigate possible racist motives on the part of the officers” (para. 123).
The victim, a young man of Roma origin apprehended on suspicion of bicycle theft, ended up dead four days after he was shot in the abdomen during police interrogation. The police officer was off-duty and had had previous encounters with the victim. Numerous international organizations’ reports – referred to in the judgment – show that police violence against Roma in Slovakia was systemic at the relevant time. Could independent evidence of a systemic problem be deemed sufficient to alert authorities to the possible existence of racist motives in the absence of any other evidence?
In Mižigárová, the Court says it would not exclude such possibility in a particular case in respect of persons of Roma origin. In the instant case, however, it is not persuaded that “the objective evidence is sufficiently strong in itself to suggest the existence of a racist motive” (para. 122). As a result, the Court does not find a procedural violation of Article 14 in conjunction with Article 2. For the applicant, the fact that her husband was of Roma origin, coupled with the legacy of widespread and systematic abuse of Roma in police custody, was enough to create an obligation to investigate possible racist motives behind his death. In my opinion, she’s got a point.
Judge David Thór Björgvinsson disagrees with the majority. In his partly dissenting opinion, he notes that, although concerned about numerous reports clearly showing that “police brutality in respect of persons of Roma origin was, at the relevant time, systemic, widespread and a serious problem in Slovakia,” the majority is still not persuaded that the objective evidence is sufficiently strong in itself to suggest the existence of a racist motive. The majority’s conclusion is indeed puzzling. As the dissent further notes, the “persistent criticism from international bodies manifested in these reports should have alerted the authorities to the possible existence of such a motive.”
The recent judgment makes me think of an earlier 2010 case – also dealing with police brutality against a man of Roma origin – which I happened to be reading at the time Mižigárová v. Slovakia came out. I am now referring to Carabulea v. Romania where the majority’s decision not to even examine the applicant’s racial discrimination complaints separately is even more puzzling! What I find particularly interesting about Carabulea is Judges Gyulumyan and Power’s great partly joint dissenting opinion pointing to the “abundant evidence of an internationally recognized problem of discrimination against Roma within Romania,” which, in their view, taken alone “should have triggered an obligation on the part of the authorities to open an investigation in respect of the police officers responsible for the death of this young Roma” (para. 3). After regarding to international reports, the awareness of the problem at the domestic level, and the Court’s previous findings in its case law, they conclude that “the authorities had a duty to investigate whether discrimination based on Roma ethnicity played any role in the events leading to the applicant’s brother death” (para. 8). The dissenters contend there is little doubt “that the respondent state is aware of repeated international expressions of concern about discrimination of Roma in Romania” (para. 4).
This line of reasoning makes particular sense in numerous cases of ill-treatment and death during police interrogations in which evidence of racist language is highly unlikely, not to say impossible. As a matter of fact, this was the case of Mižigárová. Like in many others, the victim was alone and there was therefore no witness to report any verbal racist abuse. Thus, when confronted with the question of whether there has been a state failure to investigate possible racist motives in circumstances like those of Carabulea and Mižigárová, the answer should be to investigate.
And, since I have praised several dissenting opinions throughout this post, nothing better than to finish it with a quote from what is arguably one of the most famous dissenting opinions in cases of racially motivated violence. “Misfortunes punctually visit disadvantaged minority groups, but only as the result of well-disposed coincidence” (partly dissenting opinion of Judge Bonello in Anguelova v. Bulgaria, para. 3).