March 03, 2023
Jonathan McCully
The European Court of Human Rights (‘the Court’) has acknowledged on a number of occasions that ‘racial discrimination is a particularly egregious kind of discrimination and, in view of its perilous consequences, requires from the authorities special vigilance and a vigorous reaction’ (Sejdić and Finci v. Bosnia and Herzegovina, para. 43). Nonetheless, over the last few months, the European Court of Human Rights has handed down a number of disappointing decisions on racism in policing.
A recent example of this is M.B. and Others v. Slovakia (No. 2), a case which concerned the ill-treatment of six Roma boys at the hands of the Slovak police. Although the Court did find violations against the Slovak government on some grounds, its approach to racial discrimination in the case was cursory. It did not adopt the vigorous and vigilant approach that, as the Court itself acknowledges, should follow claims of racist policing. This piece will examine how the Court failed to confront the issue of structural and systemic racism in policing in the case and, in doing so, displayed its limitations in being an anti-racist court.
This case concerned six Roma boys, who were aged between ten and sixteen years old, who were arrested by the Slovak police after a woman had been ‘assaulted and robbed by six individuals’ near ‘a housing estate mainly inhabited by Roma.’ After their arrest, the boys were taken to a police station, where their identities were checked, they were searched, and their statements were recorded.
Whilst under arrest, the boys were held in common areas under the control of law enforcement and were forced to slap and then kiss each other in turn. Some of this treatment took place in the presence of barking dogs without muzzles, while an officer swore at them and called them a ‘Gypsy gang.’ Furthermore, they were made to strip naked and shake their clothes out in front of police officers.
This incident was followed by a long-drawn-out process before the Slovak courts. A few weeks after the incident, seven police officers were dismissed on the grounds of serious misconduct, but this decision was later quashed by the administrative courts. Criminal proceedings were then taken against ten police officers, who had been charged with ‘abuse of official authority and blackmail committed with a “specific motive” consisting of ethnic hatred.’ These proceedings lasted over five years and eventually ended in the officers’ acquittal. On the final occasion that the officers were acquitted, the District Court found that the boys’ evidence was contradictory and inconsistent, that nobody noticed any injuries and, based on a mobile phone recording of the incident, it could not determine whether the accused officers were involved.
The six boys would later take their case to the European Court of Human Rights, claiming violations of Articles 3 and 14 ECHR. They claimed they had been ill-treated by police and that the State had failed to protect them from such ill-treatment by conducting an effective investigation into it. They also claimed that their Roma ethnicity had been a decisive factor in their ill-treatment, and that in the ensuing investigation the authorities had failed to take all reasonable steps to unmask the racist motive behind it.
The Court found violations of Article 3 ECHR, both in terms of the fact that the applicants were subjected to inhuman and degrading treatment at the hands of the police and because of the inefficiency of investigations that followed the incident. When it came to Article 14 ECHR, the Court only found a violation in relation to one of the claims. It found that the State did not 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 complained about.’ This is what is referred to as the ‘procedural aspect’ of Article 14 ECHR.
In finding that the applicants had been subjected to inhuman and degrading treatment under Article 3 ECHR, the Court reiterated that where an individual is deprived of their liberty by police, any recourse to physical force ‘which has not been made strictly necessary by the person’s conduct diminishes human dignity’ and is an infringement of Article 3 ECHR. In finding a procedural violation of Article 3 ECHR, the Court criticised the length of the criminal proceedings flowing from the incident, and observed that the passage of time ‘inherently limited’ the effectiveness of any potential further investigation into the ill-treatment.
In finding a procedural violation of Article 14 ECHR, the Court reaffirmed that authorities should not treat ‘racially induced violence and brutality on an equal footing with cases that have no racist overtones’ as, to do so, would be to ‘turn a blind eye to the specific nature of acts which are particularly destructive of fundamental rights.’ The Court, considering the description of the ill-treatment provided by the domestic courts and the reference to the applicants as a ‘Gypsy gang,’ found sufficient ‘plausible information’ to alert the authorities to the need to carry out an investigation into whether racism played a role in the ill-treatment. The Court was particularly critical of the fact that, instead of seeking to establish who was responsible for ‘possibly racially motivated ill-treatment,’ the domestic authorities satisfied themselves with the conclusion that the officers being tried had not been proven guilty of such an offence.
The Court refused to find a substantive violation of Article 14 ECHR. In other words, it did not find that there was indeed a racial motive behind the ill-treatment by police. It reasoned that there was a lack of ‘contextual evidence’ available to find that racist attitudes played a role in the ill-treatment, even though it did acknowledge that the boys were referred to as a ‘Gypsy gang’ during the arrest. It noted that the European Roma Rights Centre, in their intervention before the Court, presented evidence of institutional racism and ‘anti-Gypsyism’ in policing in Slovakia. However, it went on to state that its ‘sole concern’ was to ‘ascertain whether in the case at hand the applicant’s ill‑treatment was the result of racism.’ The Court concluded, on this basis, that it had not been established that racist attitudes played a role in this particular case of ill-treatment.
This judgment comes at a time when jurisdictions across Europe have shown an interest in trying to reckon with their colonial and racist legacies. Although the Court’s approach to racial discrimination cases has developed in recent years, including using the term ‘ethnic profiling’ about police action for the first time in 2019, there is still a lot of work it could be doing to push for racial justice in Europe.
The Court, like other international courts, has a bench on which white, male judges from privileged socioeconomic backgrounds have been historically over-represented. It has also been called out for ‘failing’ racialised communities in the past. More recently, the Court dealt with the question of racial profiling in police checks for the first time in Basu v. Germany and Muhammad v. Spain and their decisions in these cases have been referred to as ‘disappointing’ and leaving ‘room for improvement.’ As with M.B. and Others v. Slovakia (No. 2), these decisions deprived the applicants of judicial recognition that racism played a role in their cases by not finding a substantive violation of Article 14 ECHR.
An anti-racist approach to the Court’s work could address some of these shortcomings, as well as strengthen and better ground its decision-making in racial discrimination cases. As has been observed by Ibram X. Kendi, in How to be an Antiracist, ‘[t]he opposite of racist isn’t “not racist.” It is “anti-racist.” What’s the difference? One endorses either the idea of a racial hierarchy as a racist, or racial equality as an anti-racist. One either believes problems are rooted in groups of people, as a racist, or locates the roots of problems in power and policies, as an anti-racist. One either allows racial inequities to persevere, as a racist, or confronts racial inequities, as an anti-racist. There is no in-between safe space of “not racist.”’ [Emphasis own]
In M.B. and Others v. Slovakia (No. 2), the Court refused to locate the roots of the case in systemic and institutional racism. In fact, the Court summarily dismissed evidence of institutional racism and ‘anti-Gypsyism’ in policing in Slovakia and seemed to conclude that it had no bearing on whether racism was a motivating factor in the case at hand. In doing so, it ignored the impact institutional racism has on achieving justice in these types of cases. Take these two aspects of the decision in which the Court could have done more: evidence and language.
First, the Court failed to engage with the difficulties and complexities of proving racism in specific instances of police ill-treatment. The incident in the case took place in a location that was under the law enforcement authorities’ control. Contexts like this give rise to an information monopoly and asymmetry privileging the police. It is often the word of the person claiming ill-treatment against the word of police. This is an asymmetry that facilitates and sustains racist policing and makes it all the harder to challenge before the courts.
The impact of this information asymmetry on access to justice has been recognised by the Court itself, in D.H. and others v. the Czech Republic, where it noted that not all cases lend themselves to rigorous application of the principle ‘he who alleged something must prove that allegation.’ In that decision, the Court went on to reiterate the principle that ‘where the events in issue lie wholly, or in large part, within the exclusive knowledge of the authorities, the burden of proof may be regarded as resting on the authorities to provide a satisfactory and convincing explanation.’ This principle was conspicuously missing from the judgment in M.B. and Others v. Slovakia (No. 2).
Racism can be overt, and it can be covert. It can be conscious, and it can be unconscious. The racist motive behind ill-treatment can lie in the minds of the person or persons carrying out the conduct. It is, therefore, inherently difficult to prove. This is especially true where there is institutional racism, as organisational- or societal-level racism can take many subtle and concealed forms. It is contexts like the one in M.B. and Others v. Slovakia (No. 2) which require an alternative approach to proof, as racist motives can rarely be established by direct evidence (see, for example, the Quebec Superior Court reasoning in Luamba v. Attorney General of Québec, para. 45; see also Stoica v. Romania, para. 119: ‘proving racial motivation will often be extremely difficult in practice’). Yet the Court, in this instance, determined that there was not enough ‘contextual evidence’ to conclude that racism was a causal factor in the ill-treatment and, for this reason, refused to shift the burden of proof onto the Government.
Second, the Court failed to meaningfully reflect on the ‘contextual evidence’ of the language used by the police in referring to the boys as a ‘Gypsy gang.’ These two words carry a lot of relevant context, and embody the dynamics of collective punishment inflicted on Roma communities. In Europe, collective punishment is frequently deployed against racialised communities and it has its roots in colonialism and imperialism. One way in which collective punishment manifests itself in policing strategies today is in the racialised construct of the ‘gang.’ As has been observed by Adam Elliott-Cooper in Black Resistance to British Policing, policing policies and moral panics around ‘gangs’ reproduce ‘racist mythologies’ through the portrayal of groups of people as criminal. Quoting the work of Hortense Spilliers, he refers to the term ‘gang’ as ‘racist “grammar”’ that emanates ‘from the semantic and iconic folds buried deep in the collective past, that come to surround and signify the captive person.’
The Court seemingly did not consider the role that collective punishment, which has been described as lying at the heart of ‘anti-Gypsyism,’ played in the present case. Nor did it draw any inferences from the explicit use of language and stereotyping (i.e. ‘Gypsy gang’) by a police officer that is frequently used to legitimise racist policing practices.
Furthermore, the treatment of the boys as a collective or ‘gang’ can be starkly contrasted with how the domestic authorities viewed the police in the case. In the criminal proceedings, the courts acquitted the accused police officers because they were not satisfied that they were individually responsible for the ill-treatment. The Roma boys were treated as a ‘gang,’ yet the police were treated as individuals. Parallels can be drawn with the overused reference by authorities in the US and Europe to ‘a few bad apples’ when excusing racialised policing.
The ill-treatment in M.B. and Others v. Slovakia (No. 2) cannot be assessed in isolation from the context of structural racism in which they took place, and much more could have been done by the Court to draw inferences from the evidence presented to it. Applying too high a threshold of proof in claims of substantive violations of Article 14 ECHR will result in racism going unchecked and unacknowledged. Moreover, it will place significant limits on the Court’s ability to address structural racial inequities in policing and criminal justice. Ultimately, it will be a denial of racial justice.
Strasbourg Observers is an academic blog that discusses recent developments at the European Court of Human Rights. The editorial team of Strasbourg Observers is based at the Human Rights Centre of Ghent University and the Centre for Government and Law of Hasselt University.
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