Strasbourg Observers

Racial Discrimination in Strasbourg (Part II): Intersectionality and Context

October 17, 2012

In this post, I would like to discuss two recent cases dealing with the investigation of racial/sexual violence, as both of them offer promising legal reasoning on the topic. The first case, B.S. v. Spain, represents a key step in the recognition of intersectional discrimination. The other, Fedorchenko and Lozenko v. Ukraine, puts strong emphasis on contexts of widespread discrimination (as evidenced by international reports) in determining whether states have complied with their duty to investigate if violence was racially motivated.

I will not discuss the Court’s reasoning on Article 3 (violation of procedural aspect in B.S.) and Article 2 (violation of procedural aspect in Fedorchenko and Lozenko). Rather, I will limit my comments to the Court’s discrimination analysis (procedural aspect of Article 14). In both cases, the Court found that the States failed to comply with their positive duty to investigate possible racist motives. My post is part of our blog mini-series on racial discrimination in Strasbourg, which Alexandra started last week with her comments on M. and Others v. Italy and Bulgaria.

B.S. v. Spain: Towards an Intersectional Assessment of Discrimination?

B.S., a female sex worker of Nigerian origin legally resident in Spain, alleged that the Spanish police mistreated her physically and verbally on the basis of her race, gender and profession. The claim was that, unlike other sex workers of European origin, she was subject to repeated police checks and victim of racist and sexist insults (“black whore”).

Articles 14 and 3 (procedural limb)

One preliminary interesting aspect of B.S. is that two third-party interveners – The AIRE Centre and the European Social Research Unit of the University of Barcelona – asked the Court to recognize intersectional discrimination (see paragraphs 65 and 66).

Though the Court’s reasoning is short and does not use the term “intersectionality,” it contains a clear intersectional approach. The Court says:

A la lumière des éléments de preuve fournis en l’espèce, la Cour estime que les décisions rendues en l’espèce par les juridictions internes n’ont pas pris en considération la vulnérabilité spécifique de la requérante, inhérente à sa qualité de femme africaine exerçant la prostitution (paragraph 71, emphasis added).

To my knowledge, the Court has not yet shown much awareness of intersectional discrimination in its case law. In this regard, B.S. represents an important development. The Court is here clearly aware that the specific vulnerability of the applicant is shaped neither by her sex nor by her race alone but by the intersection of the two (with her professional status). Hence her “condition of African woman practicing prostitution” renders her vulnerable to discriminatory violence in a way different from that which women of other origins or men of African origin may experience.

The Court’s message in B.S. is that the Spanish State should have taken into account the specific vulnerability arising from these intersecting grounds in the investigation of the possible discriminatory motives behind the incident. True, in this case there were allegations of racist insults – which the Court thought should have been investigated (para. 70) – and witnesses – whom the Court thought could have been heard (paras. 8 and 46). It is therefore unclear what weight the Court would give to this sort of intersectional vulnerability in other circumstances. The question I am left with then is: what precise weight should the Court attach to this factor in assessing whether states have complied with their duty to unmask possible discriminatory motives? Can (and should) intersectional vulnerability alone be enough to trigger such a duty?

Fedorchenko and Lozenko v. Ukraine: The Role of International Reports in Assessing States’ Compliance with their Duty to Investigate Racist Motives

Fedorchenko and Lozenko concerns an arson attack on a house inhabited by a Roma family. The applicants claimed that the attack, which resulted in their relatives’ deaths, involved a state agent, Police Major I. Major I had allegedly visited one of the applicants’ houses to ask for money in exchange for not initiating criminal proceedings against them for drug trafficking. Two other houses of Roma inhabitants were set on fire the same day.

Articles 14 and 2 (procedural limb)

One key question the Court faces in this part of Article 14 reasoning is whether the authorities had before them sufficient information to bring into play their obligation to investigate possible racist motives. The Court’s task seems easier when there are elements suggesting racial verbal abuse by the state agents involved (see e.g., Bekos and Koutropoulos v. Greece) or evidence of tendentious remarks on applicants’ Roma origin during the investigations (see e.g., Petropoulou-Tsakiris v. Greece, Cobzaru v. Romania). In Bekos and Koutropoulos, for example, in finding a violation of the Greek State’s positive duty to investigate possible discrimination, the Court weighed a number of elements. One of them was the applicant’s sworn testimony that the police used racist language towards him. Other elements included letters from NGOs protesting about the ill-treatment of the applicants and international reports on alleged discrimination by the police in Greece against Roma.

The question however is what happens when there appears to be no such other evidence? Can and should the Court rely only – or at least largely – on reports of international organizations to establish states’ procedural responsibility under Article 14? Well, if one looks at cases like Carabulea v. Romania, the answer seems to be no. In this case, though the Court includes in its judgment reports on alleged police brutality towards people of Roma origin, it does not even examine the Article 14 complaint separately (paragraph 168). The picture gets blurrier in Mižigárová v. Slovakia. In this case, the Court includes several paragraphs referring to international reports. Later on, it states: “In respect of persons of Roma origin, it would not exclude the possibility that in a particular case the existence of independent evidence of a systemic problem could, in the absence of any other evidence, be sufficient to alert the authorities to the possible existence of a racist motive” (paragraph 122). Yet – and to the dissenter’s surprise[1] – it concludes that it was “not persuaded that the objective evidence is sufficiently strong in itself to suggest the existence of such a [racist] motive” (paragraph 122).

In Fedorchenko and Lozenko v. Ukraine things are certainly clearer. Though the context of widespread discrimination against Roma in Ukraine is not the only element in the Court’s reasoning, it definitely plays an important role. The Court says in Fedorchenko and Lozenko:

[G]iven the widespread discrimination and violence against Roma in Ukraine as noted, in particular, by the report of the ECRI, it cannot be excluded that the decision to burn the houses of the alleged drug traffickers had been additionally nourished by ethnic hatred and thus it necessitated verification (paragraph 68).

In the next paragraph, the Court notes that there was no evidence that the authorities conducted any investigation into the possible racist motives.

In earlier cases, several dissenters have found that reports showing widespread discrimination against Roma at the relevant time, taken alone, should be enough to trigger states’ duty to unmask possible racist motives. One example is the partly joint dissenting opinion of Judges Power and Gyulumyan in Carabulea:

[W]e are cognisant of the abundant evidence of an internationally recognised problem of discrimination against Roma within Romania. Taken alone, that 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 (paragraph 3).[2]


In sum, both B.S. and Fedorchenko and Lozenko hold out the promise of a more robust case law on racial discrimination.[3] Fedorchenko and Lozenko puts spotlight on the context of widespread discrimination against Roma. The paragraph quoted above seems to suggest that if an act takes place in a broader context of widespread discrimination then this automatically places upon the authorities the obligation to investigate whether the act was indeed racially motivated. In B.S., the Court’s discrimination reasoning makes clear room for future intersectional assessments. Whether these approaches will be taken further is a different matter.

[1] Partly dissenting opinion of Judge David Thór Björgvinsson.

[2] See also, Judge David Thór Björgvinsson, partly dissenting in Mižigárová.

[3] For those interested in a more exhaustive and critical analysis of this area of the Court’s case law, see these great Articles: Marie-Benedicte Dembour, ‘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. Mathias Möschel, Is the European Court of Human Rights’ Case Law on Anti-Roma Violence ‘Beyond Reasonable Doubt’?, Human Rights Law Review (newest issue).

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