By Emma Várnagy (Teaching Assistant at the Faculty of Law, Safety and Governance, The Hague University of Applied Sciences)
The case of X and Y v North Macedonia (Application no. 173/17) concerns the beating of two Roma youths by the police and the subsequent inaction concerning the investigation of their ill-treatment. In fact, it has a strikingly similar fact pattern to a number of cases throughout the last two decades, such as Assenov and Others v Bulgaria (1998); Bekos and Koutropoulos v Greece (2005); Stefanou v Greece (2010); or A.P. v Slovakia (2020). These cases all concern the apprehension of Roma minors for suspected theft and their ill-treatment in police custody. The novelty of X and Y is that it is the first time the discrimination claim was also raised under Article 1 of Protocol No. 12, thereby offering an opportunity that the Court could have taken to formulate its approach to racist violence at the hands of public authorities.
The facts of the case
The case concerns the arrest of two young Roma men (aged 16 and 13 at the material time) 10 minutes after a woman had been mugged in the area. According to the applicants, their fathers and bystanders, the arrest was carried out by four officers using batons and further officers who arrived to the scene some 10 minutes later. The circumstances of Y’s ill-treatment are unclear and less detailed in the judgment, besides one witness statement asserting that he wept, wet himself, and his cheeks were intensely red. Therefore, the following description will focus on the circumstances concerning X. He was taken into custody and interrogated for 2 hours without the presence of his father or a lawyer. During this time, he was further beaten and threatened, which resulted in X admitting to the crime. At his release the following day, together with his father and in the presence of an appointed lawyer, X signed records that stated neither he nor his father had any complaints about the conduct of the police. Nevertheless, a medical record was drawn up in the hospital the same day, stating that X had bruises to his head, neck and chest.
At the request of the applicants’ fathers, the Helsinki Committee for Human Rights submitted a complaint about the applicants’ ill-treatment during their arrest to the Sector for Internal Control and Professional Standards within the Ministry of Interior. The Sector wrote a report of the events, which stated that X had been cooperative during his arrest, and that therefore, no force had been used. The report also stated that, while ‘a large group of Roma people complained loudly’, no further action was necessary. Based on this report and on the fact that the applicant had made no complaint at the police station, the Sector dismissed the Committee’s complaint.
Subsequently, the applicants filed a criminal complaint on account of ill-treatment and racial discrimination against unidentified police officers. At the time the ECtHR judgment was issued, 6 years after the incident in question, this criminal complaint was still pending. The applicants also submitted two sets of civil claims. In the first civil case, they asserted that the lack of reactivity of the public prosecutor’s office was due to their Roma origin. These claims were dismissed by the First Instance Court and later by the Court of Appeals, both of which found that the extensive examination of the complexity of the case required time and, in any event, the complainants’ ethnicity had not influenced the length or the thoroughness of the investigation. The materials submitted to the Court did not make it clear whether the second set of civil proceedings – this time against the Ministry for failing to investigate the use of racial slurs during the arrest – have reached a final conclusion to date.
It is interesting to note that, after a meeting with the local police – years into the domestic procedure and well after his application to the ECtHR had been submitted – X had expressed his wish to withdraw the application (as well as his civil claims before the domestic courts). In order to protect the safety and privacy of the applicants, the Court decided to anonymise the case, and both the Court and the European Roma Rights Centre, which represented the applicants, only made very limited information public. Upon learning about these protective measures, X reaffirmed his wish to pursue the application.
The complaints concern ill-treatment contrary to Article 3, both in its substantive and procedural aspects. Concerning the procedural aspect, the Court reiterated its judgment in Assenov, which was the first anti-Roma police violence case brought before the ECtHR. The Court reaffirmed the implied obligation to conduct an effective investigation when a vulnerable individual raises arguable claims of ill-treatment by the police or other state agents. In the present case, the Court was satisfied that the applicants’ criminal complaints against unidentified police officers, supported by medical evidence (in the case of X) and by copies of the earlier application to the Sector, which contained witness statements, constituted an arguable claim of ill-treatment. Thereby, the Court invoked a positive obligation on the authorities to conduct an effective investigation.
In examining the elements concerning the adequacy, timeliness and thoroughness of the investigation, two main issues arose. Firstly, the public prosecutor’s office failed to address the substance of the case in a timely manner: no explanation had been provided as to why the investigation of the applicants’ complaint against the police officers only took place some three years after the complaint had been lodged. Secondly, there was no evidence to suggest to the Court that the prosecutor had examined any further witnesses in the case X lodged (as a victim), whereas in the case against X (as an accused), serious attempts were made to uncover all evidence. These aspects lead the Court to the conclusion with regards to both applicants that there has been no effective investigation into the claims of ill-treatment. Therefore, the Court found a violation of Article 3 in the procedural aspect.
Turning to the substantive limb of Article 3, the Court found that ‘owing largely to the national authorities’ inactivity and failure to carry out an effective investigation into the applicant’s allegations, the Court is not in a position to establish which version of the events is more credible’ (§62). The Court concluded that it could not be established beyond reasonable doubt that the applicants had been ill-treated in custody. Consequently, no substantive violation of Article 3 was found.
Regarding the discrimination claim, even though the applicants submitted their discrimination claims under Article 1 of Protocol no. 12 as well as Article 14 in conjunction with Article 3, the Court decided to solely consider the latter combination. It reiterated the Grand Chamber judgment in the case of Nachova and Others v Bulgaria, the leading authority on anti-Roma police violence cases. In this judgment, the Court distinguished a substantive and procedural limb of Article 14 for the first time, similar to the procedure from Assenov concerning Article 3, as described above. However, immediately after setting out the relevant principles, the Court stated that the discrimination claim was inadmissible. The Court argued that, from the procedural point of view, the claim was inadmissible because the ill-treatment was never established beyond reasonable doubt. From the substantive point of view, it argued that the claim was manifestly ill-founded, because the evidential material presented to the domestic authorities were not sufficient enough to trigger the obligation to investigate racist motives.
This judgment is unfortunate most notably because of the missed opportunity to address, for the first time, the violence, racism and discrimination aspect of the case under Article 1 of Protocol no. 12. As opposed to Article 14, this is a self-standing and general prohibition of discrimination. In particular (according to paragraph 22 of the Explanatory Report), its scope of protection includes cases where the discrimination occurs in connection with an obligation resting on public authorities, or with a specific act or omissions by a public authority. The Protocol has only been ratified by less than half of the Council of Europe Member States, which one might argue to be a potential reason for a degree of restraint. However, looking at the growing list of communicated cases concerning police violence against Roma people, disregarding Protocol no.12 in these cases cannot be considered a viable solution.
This missed opportunity must be understood within the context of a very long history of anti-Roma police violence and of the Court’s corresponding case law under Article 14 which has been heavily criticized. At the beginning of this post, I mentioned four very similar cases concerning the arrest and detention of Roma minors throughout the last twenty-three years, which highlight how the Court’s approach developed. In the first case, Assenov, the issue was whether the bruises had in fact been inflicted by the police – whether with a racist motive or not was out of the question altogether, considering that the applicants themselves did not raise a discrimination claim. Assenov is a landmark judgment in highlighting the vulnerability of a detainee under Article 3. The Court easily shifted the burden of proof to the authorities, and recognized the seriousness of the State’s duty to investigate allegations of custodial violence. However, in subsequent cases, in which discrimination claims were raised under Article 14 in conjunction with Article 3, the Court’s approach was ambiguous at best. Following Assenov, more and more cases emerged, from several member states and with strikingly similar fact patterns. The cases concerned severe injuries sustained by Roma in custody, sometimes resulting in death (see e.g. Mizigarova. v Slovakia, which this blog analysed here); use of excessive force during arrest; extracting confessions by torture; raiding of settlements, or letting pogroms happen (see e.g. Koky and Others v Slovakia, which this blog analysed here). In these cases, the discrimination claims, when not rejected, were subject to a ‘beyond reasonable doubt’ standard – no matter the number and authority of third party interveners submitting reports to provide evidence on the wide-spread racism and institutional anti-Gypsyism in several member states, and no matter the Court’s very own case docket expanding to several dozens of applications concerning Roma leaving custody injured – or dead.
A partial solution to this problem, one that made it possible to signal the problem without having to accuse a Member State of racism, was to examine the procedural and substantive aspects of the discrimination claims separately, similar to the practice relating to Article 2 and 3. This separation lead the Court to finding some procedural violations, for example in the case of Bekos and Koutropoulos v Greece, the second case mentioned in the introduction. Here the Court was of the opinion that the officers’ racially biased language viewed against the background of wide-spread anti-Roma violence, as evidenced by a number of reports, should at least have triggered an investigation into the racist motives. The last two highlighted cases, Stefanou and A.P., are examples of the contrary. In both cases the discrimination claims – although contextualized thoroughly by reports and the Court’s own case-load concerning violence against Roma people – were rejected because of their general nature.
In its short reasoning regarding the rejection of the discrimination claims in X and Y, the Court reiterated that ‘while potentially relevant, the general information about the alleged police abuse of Roma in the respondent State voiced by the Helsinki Committee and intergovernmental bodies, is an insufficient basis for a conclusion regarding the concrete events in the present case’ (§73). Due to its continued approach of looking for an explicit ‘racial element’ rather than considering the societal and institutional context of the events, ‘the Court is also unable to conclude that the lack of an investigation was in itself racially motivated’ (§77). The question remains: if the very shortcomings of the domestic investigations (which, mind you, may or may not be the result of institutional racism) prevent the Court from establishing the circumstances of the ill-treatment by police officers, yet it chooses not to attach importance to the signals of the systemic nature of the issue, when will the Court be in the position to afford effective protection against the discriminative behaviour or omission of duty of a public authority?
Looking at the roughly fifty judgments the Court issued in these cases in the past two decades, it seems like ‘misfortunes punctually visit disadvantaged minority groups, but only as the result of well-disposed coincidence’ (Judge Giovanni Bonello partly dissenting in yet another anti-Roma violence case: Anguelova v Bulgaria, §3). As long as the violations are only addressed in part, and the discrimination aspect is overlooked, no matter how powerful the reasoning is under Article 3, victims, their families and the Roma community, will not be awarded full redress for the wrongs they have suffered. It is therefore with much anticipation that we look forward to the currently pending cases submitted under Article 1 Protocol no.12, such as T.K. and Others v Slovakia, Edmond Balkasi v Albania, or Memedov v FYRM, which will give another opportunity for the Court to revise the restrictive approach it has applied to date.
 The fact or circumstances of making the applicants sign these papers is in itself an interesting and potentially problematic topic, considering the legal relevance of these documents in the domestic and international proceedings. In cases concerning forced sterilization of Roma women, the applicants were often required to sign consent forms while they were in labor or under partial anesthesia, even when these women did not speak or could not read the state’s official language. In the present case, X’s father also had limited command of the Macedonian language, yet there was no interpreter present during the interrogation of his son.