This guest post was written by Mathias Möschel, post-doctoral researcher at Université Paris Ouest Nanterre La Défense. (*)
Abdu v. Bulgaria deals with a fact pattern which the Court has seen many times over the past fifteen years: racist violence. Moreover, it involves a country which has also stood a number of times before the European judges for human rights violations involving either police violence (see e.g. Velikova v. Bulgaria and Ognyanova and Choban v. Bulgaria) or private violence against racial minorities (see e.g. Dimitrova and Others v. Bulgaria, Seidova and Others v. Bulgaria, and Yotova v. Bulgaria).
The facts of the case are quickly told: The applicant, a Sudanese national living in Bulgaria and another Sudanese friend of his were attacked by two Bulgarian skinheads when walking past a shopping centre. As a result of the fight, Mr Abdu suffered a number of minor injuries. An investigation was launched but the prosecutor decided to dismiss the case finding that the information transmitted by the police offered no evidence to establish that there had been racially motivated violence, a criminal offence in Bulgaria. The ensuing appeal was also dismissed. Thereupon Mr. Abdu brought proceedings before the Court. His claim is that Article 3 (prohibition of degrading and inhuman treatment) and Article 14 (prohibition of discrimination) were violated because the authorities had failed to conduct an effective investigation into the racist nature of the violence and that this ineffectiveness was caused by their prejudice.
The Court first analysed whether the minimum level of severity necessary for conduct to fall under Article 3 had been attained and answered affirmatively. Based on previous jurisprudence, it explained that physical injuries are not always necessary to attain such a level, in particular when combined with racism which constitutes a particular attack on human dignity. It then considered the positive obligations of the State in this domain, namely to provide both an effective legislative framework and investigation into the facts. And indeed, Bulgaria sanctions racist violence as a criminal offence. However, with regard to the effective investigation, the judges found that it was limited to establishing who had started the fight and to observing that there was no evidence for the racist background of the violence. Observing that a number of national and international instances documented the rarity of criminal sanctions of racist acts in Bulgaria despite the increase of such violence, the European judges found a violation of a positive obligation and declared a procedural violation of Article 3 in conjunction with Article 14. At the same time, they rejected the claim that the ineffective investigation was caused by the authorities’ racial bias because the applicant had not substantiated his allegations through evidence of tendentious remarks or racist insults.
Two judges (Mahoney from the United Kingdom and Wojtyczek from Poland) partially dissented. Starting point of their argument is that the mandate of the Court has been defined restrictively by Article 19 of the Convention, which provides that the Court ensures the observance of the engagements undertaken by the States in the Convention and its Protocols. Hence, any stricter standards or broader protections of human rights imposed by internal legislation or by other international instruments do not as such broaden the Court’s mandate. This is what the Court supposedly did here, in their opinion. In fact, the dissenters introduce a distinction in the State’s standard of responsibility for human rights violations in conjunction with Article 3 violations: a lower minimum level of severity should apply when racist violence is committed by public agents and a higher one when committed by private individuals. According to them, by applying the same standards indistinctly to both situations the majority distorted the sense of Article 3. Moreover, they also critique the reference to international documents which provide evidence of the specific problem of racism in Bulgaria which in their opinion allows lowering the level of severity of Article 3. The dissenting judges are not convinced by this reasoning given that racism is a general problem in Europe and that the documents only demonstrated generic problems that do not seem pertinent for the assessment of the specific facts in this case.
Altogether this case does not constitute any profound developments or particularities as far as the legal reasoning in this domain is concerned. Indeed, it is by now established case law that Articles 2 and 3 of the Convention but also Article 14 in conjunction with those provisions can entail a procedural violation if it is demonstrated that the authorities did not investigate the alleged racist motives of violence. In a number of cases the Court has declared such a procedural violation (see e.g.: Nachova v. Bulgaria (GC) and Bekos and Koutropoulos v. Greece) and is particularly eager to do so if the aggressors turn out to be right-wing extremists (e.g. Šečič v. Croatia and Angelova and Iliev v. Bulgaria) as was the case here. Substantive Article 14 violations, in which the Court holds that the actual racist violence can be attributed to the State and his agents, are much rarer and so far the Court only once found such a ‘full’ violation (Stoica v. Romania). One welcome novelty in this case is the relative importance which national and international reports on racist violence in Bulgaria occupy in the Court’s reasoning. While such reports played an important role in other race discrimination cases especially dealing with education segregation (e.g. D.H. and Others v. The Czech Republic (GC)), in cases involving racial violence so far their role was almost inexistent.
It is the dissent which provides the more interesting – or disturbing, depending on the point of view – elements. First of all, in most of the racial violence cases which the Court has analysed so far, most of the dissents critiqued the Court for not going far enough (see e.g.: judge Bonello in Anguelova v. Bulgaria and judges Gyulumyan and Power in Carabulea v. Romania). Here instead we have a situation where the dissent critiques the Court for going too far.
This is problematical for a number of reasons. The attempt to provide a general interpretation doctrine for a restrictive reading of the Convention through Article 19 is least to say questionable, especially in cases involving racist violence where the Court cannot be realistically called proactive or progressive. Moreover, how this doctrine links with the second point on Article 3 interpretation is not clear. More than that, the proposed Article 3 interpretation and the introduction of differing standards for private and public (racist) violence is itself questionable. While it is clear that in the former cases, the state’s liability can only be procedural in terms of not investigating the racist motives behind the crime and/or in judicial bias during the ensuing trial (see Paraskeva Todorova v. Bulgaria), establishing two different thresholds of responsibility depending on who perpetrates the violence, potentially reduces racial minorities’ protection against violence instead of increasing it. One should not forget that the lynching of Black people in post-Civil War United States was possibly precisely because the U.S. Supreme Court had excluded private discrimination and segregation from the purview of the XIV Amendment (Civil Rights Cases).
One can only hope that this dissenting opinion will not serve in the future to halt the Court’s timid steps into the direction of sanctioning all kinds of racist violence. What should be retained and increased in the future, on the contrary, is the reference to international documents on racist violence in order to address its systemic nature.
(*) Mathias Möschel’s research focuses on race and gender discrimination at the national and international level from a critical and comparative perspective.