Violence Against Roma: Unmasking Racist Motives

One case I want to flag among the recent judgments of the Court is Koky and Others v. Slovakia. The case concerns an attack with possible racial overtones at a Roma settlement. In this post, I highlight a couple of interesting aspects of the Court’s reasoning under Article 3 but puzzle over the exclusion of Article 14 analysis.


The attack was perpetrated on 28 February 2002 at around 9:45 p.m. by a group of at least twelve private individuals. Some of them were wearing balaclavas and armed with baseball bats and iron bars. The assault resulted in bodily harms and property damages. The applicants claimed that the violent event was racially motivated. An investigation followed but was suspended twice. It involved, among other criminal offenses, the perpetration of violence against individuals on account of their affiliation to an ethnic group. In the decision to suspend the first investigation, the Police stated that the action did not qualify as a criminal offense with a racial motive but came down only to an act of retribution, as the incident “had been preceded by an assault on a waitress … by a Roma…” (paragraph 72).


The Court finds a violation of Article 3 under its procedural head. The investigation, though structured and substantive in quantitative terms, was not really conducted in a manner determined to establish “the identity of the perpetrators and their motives” (paragraph 234). The Court refuses nonetheless to examine the matter separately under other ECHR provisions, including Article 14.


One aspect I find remarkable in the judgment is the role that context plays in the Court’s reasoning. Especially, the role of two contextual elements: the racial overtones surrounding the attack and the broader situation of Roma in Slovakia. The first element seems to play a role in the assessment of Article 3 threshold; the second, in the determination of the state’s compliance with its duty to effectively investigate the incident.

Context Part I: Ill-treatment Falls within the Meaning of Article 3

In this part of the reasoning, the Court takes into account the situational context (the context of the attack itself) in order to determine whether the ill-treatment was serious enough to reach the Article 3 threshold. The Court not only brings in several factors concerning the time and manner in which the attack was perpetrated (e.g., it took place late at night and in a Roma settlement, it involved a group of partly masked and armed men). Most significantly, the Court looks at an additional element: “the verbal threats and imprecations affronting the applicants’ ethnic dignity” that marked the incident (paragraph 224). Indeed, the statement of facts shows that some people interviewed during the investigations – including some of the applicants – said that the attack was accompanied by racist language. According to these accounts, shouts included “Gypsies, black muzzles, get out!” and “Gypsy whores, today you will kick the bucket.” The applicants alleged all the way up to the Constitutional Court that the assault was racially motivated.

Context Part II: Investigation Is Incompatible with Article 3

Here the Court spots a series of flaws in the investigation: a crucial piece of evidence is missing; no action has been taken to clarify inconsistencies between one of the applicants’ initial and later submissions; substantiation of the claim that records of mobile communications have been requested is lacking. Then – and this is when the broader context comes in – the Court couples these elements with “the sensitive nature of the situation related to Roma in Slovakia at the relevant time” in order to conclude that the authorities have not done all they could have reasonably done to investigate the incident effectively. Note that the Court relies on its own case law to point to the situation of Roma in the country. The cases are V.C.  v. Slovakia (on forced sterilization of Roma women, see joint post with Alexandra here) and Mižigárová v. Slovakia (on police brutality resulting in the death of a Roma man, see my post here).

Finally, the Court gets right down to it:

In reaching this conclusion, the Court has taken into account the particular importance for an investigation into an attack with racial overtones to be pursued with vigour and impartiality, having regard to the need to reassert continuously society’s condemnation of racism and to maintain the confidence of minorities in the ability of the authorities to protect them from the threat of racist violence.

Article 14?

Oddly, and in spite of this reference to possible racist motives, the judgment lacks an Article 14 analysis. Granted, one may say that the matter has already been addressed under Article 3. Still, I must admit I am struggling to reconcile the lack of Article 14 analysis in this case with the Court’s Article 14 jurisprudence saying: “…  when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events […] The Court considers the foregoing to be necessarily true also in cases where the treatment contrary to Article 3 of the Convention is inflicted by private individuals.” (Beganović v. Croatia, paragraphs 93 & 94)

4 thoughts on “Violence Against Roma: Unmasking Racist Motives

  1. Hi Lourdes,
    Thanks for this post.
    The reluctance by the Strasbourg Court to use Article 14 in order to denounce rampant racism is indeed difficult to comprehend.
    In case it is of interest, I have written about this:
    – ‘Postcolonial Denial: Why the European Court of Human Rights Finds it so Difficult to Acknowledge Racism’, in Clarke and Goodale (eds) Mirrors of Justice: Law and Power in the Post-Cold War Era (CUP 2010) 45-66.
    – ‘In the Name of the Rule of Law: The European Court of Human Rights’ Silencing of Racism’, in Bhambra and Shilliams (eds) Silencing Human Rights: Critical Engagements with a Contested Project (Palgrave Macmillan 2009) 184-202 – abridged and revised as ‘Still Silencing the Racism Suffered by Migrants … The Limits of Current Developments under Article 14 ECHR’, in (2009) European Journal of Migration and Law, special issue on The European Court of Human Rights and Immigration: Limits and Possibilities, 221-234.

  2. Thanks for the post drawing attention to this case.

    Consideration of Article 3 and Article 14 together reminded me of the Commission’s statement in the Abdulaziz, Cabales and Balkandali case – the Commission seemed to suggest that discrimination was prohibited because of its degrading nature. If degrading treatment is understood to constitute an attack on one’s status as a human person, as I think it is, and should be, it makes sense to see an overlap between treatment that is degrading within Article 3 and treatment that discriminates on grounds that are a core aspect of identity. The reference to “ethnic dignity”, however, isn’t helpful. To specify a subset of dignity in this way does not add any value that I can see; on the contrary, it might make a concept that is already not very transparent even less so. Perhaps the Court meant something like ‘collective humiliation’, which would fit better with the way that degrading treatment is characterised in the case-law.

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