The most significant omission from the
list of fundamental rights and freedoms protected by the European Convention
on Human Rights (ECHR), is a general anti-discrimination article: an omission
all the more striking when one recalls that the Convention was in large
measure a reaction to atrocities inflicted upon minorities. Minority right
is not a marginal human rights question, solely of concern to the individual
or group involved; as Sieghart has concluded, "All human rights exist for
protection of minorities."
Article 14 of the European Convention does not prohibit discrimination
against the membership of a national minority 'per se'; it merely prohibits
discrimination as regards the enjoyment of the rights and freedoms set
out in the Convention. In the 40 years since the Convention came into force
it is possible to discern two general strategies adopted by the European
human rights institutions to overcome this lacuna. The first is the political
strategy - which at its most practical involves the promotion of a separate
protocol for 'national minorities'; and the second is the legal strategy
- an endeavour (through case law) to develop the European Convention on
Human rights (henceforth "the Convention") to a point where it effectively
protects the rights of minorities.
The success of these two approaches is well illustrated by reference
to the position of European Romanies, or Gypsies (henceforth also referred
to as 'Roma'). The history of the Roma is unique and their persecution
has been well documented; during the Second World War it is estimated that
between 300,000 and 600,000 Continental Roma were murdered.
The problems of discrimination and prejudice continue for Roma, who
now number eight to ten million in Europe, and experience "widespread poverty
and economic hardship, massive unemployment, concentration in unskilled
labour, inadequate housing or support for a peripatetic existence, widespread
suspicion and prejudice among the surrounding populations, poor education
and extensive illiteracy and inadequate health care.
The Political Strategy
Attempts to safeguard human rights through international political initiatives
are inevitably slow, arduous and frequently disappointing. Matters of principle
may be compromised in the desire to achieve even minimal progress. As Roma
neither constitute an effective pressure group nor a popular cause for
political vote seekers, their rights command little time or attention within
the political foray.
In 1995 the Council of Europe published two surveys of political initiatives
relating the plight of European Roma, a summary of which appear below.
During the last two years there have been several similar initiatives with
increasing and welcome signs of inter-agency collaboration; for instance,
the OSCE Human Dimension Seminar on Roma in Warsaw (20-23 September 1994)
was organised jointly with the Council of Europe.
The United Nations
In March l993 UN High Commissioner for Refugees published a survey of
'the Roma people of Central and Eastern Europe.' The survey concludes that
"Are for the most part, an 'underclass'; uneducated, unskilled,
unemployed, in poor health primitively housed, and subject to both passive
and active ethnic prejudice ... a 'third-world' people, living under 'third-world'
conditions ... . They are Europe's 'Untouchables'. If the Roma were citizens
of a third-world nation they would be eligible for international aid."
The UNHCR report made a number of recommendations essentially aimed
at creating a network of existing and new Central and Eastern European
organisations to monitor and safeguard the rights of Roma people. Within
the UN, UNESCO has also taken limited steps (in addition to its practical
activities - e.g., literacy projects in Greece and Spain), for instance,
endorsing draft resolutions on Roma education, culture and language. In
August 1991, the Sub-Commission on Prevention of Discrimination and Protection
of Minorities of the UN Commission of Human Rights included the Roma in
its working group on slavery at the request on the International Romani
OSCE - Office for Democratic Institutions and Human
The problems faced by Roma were first specifically mentioned in the
Document of the Copenhagen Meeting of the Conference on the Human Dimension
of the (then) CSCE in 1990, by which the participating States declared
their firm intentions to (inter alia) take effective measures to
combat discrimination against Roma and to protect their property. Similar
expressions of 'unequivocal condemnation' of discrimination against Roma
were reiterated at Geneva and Moscow in 199l, at the Helsinki Follow-up
Meeting in 1992 and at Human Dimension Seminars in Warsaw in 1993 and 1994.
The Human Dimension Seminar on Roma in September 1994 resulted in a proposal
to establish within the ODIHR a Contact Point for communication between
Inter-Governmental Organisations and OSCE NGO's on Roma issues. The Budapest
Summit in December 1994 confirmed the establishment of this Contact Point.
A special report by the High Commissioner on National Minorities was
published in September 1993, dealing with the social, economic and humanitarian
problems faced by Roma in the OSCE region. The report is a valuable analysis
of the problems they face; a number of general and specific recommendations
to safeguard the rights are made in the report. The High Commissioner reaffirmed
the need for participating states to implement the measures agreed to at
the Copenhagen meeting. Special government policies were called for to
deal with Roma-related issues in the areas of employment, education, health
care and general welfare. It was added that policies should not be instituted
in such a manner as to exacerbate Roma and non-Roma community relations
through the appearance of favourable treatment of one group over another.
International co-operation between states was stated to be important in
order to exchange experience and expertise that other states have in dealing
with Roma issues. Finally, the Commissioner voiced the need to avoid duplication
of effort, through co-operation between the CSCE, the Council of Europe,
the EC, pertinent UN agencies and others. Perhaps most striking of all
is the warning made in the report:
"Not to confront these difficulties now is only likely to lead
to even more serious problems for the Roma, and for the region in the coming
years, particularly if economic or political conditions deteriorate sharply."
The European Union
Of the four European Union programmes which have a specific Roma element,
the education programme has been the most conspicuously successful. Due
to its non-controversial nature and the undoubted quality of the programme's
key personnel it has attracted significant EC funds and achieved much.
Whilst the programme is based upon Commission resolutions, these have merely
acted as the mechanism to transform an existing 'political will' into positive
action. There is of course an important point here; political resolutions
do not change anything unless accompanied by a corresponding political
The Council of Europe
Of all the human rights institutions, the Council of Europe has historically
been the most active in promoting resolutions concerning the rights of
Roma. Early resolutions concentrated upon general anti-discrimination measures,
such as full compliance with the International Covenant on the Elimination
of All Forms of Racial Discrimination (ICERD). In more recent years specific
resolutions relating to Roma have followed, culminating in 1993 with two
that have perhaps refined to a new level of purity these high sounding
declarations, full of noble sentiments and good intentions.
On the 2nd February 1993 the Parliamentary Assembly adopted Recommendation
1203 'on Gypsies in Europe.' Paragraph 2 recorded that:
'A special place among the minorities is reserved for Gypsies.
Living scattered all over Europe, not having a country to call their own,
they are a true European minority, but one that does not fit in the definitions
of national or linguistic minorities'.
The text contains the obligatory reference to the "deplorable situation
in which the majority of Gypsies live today," and explains that this situation
is of urgency, as with Central and Eastern European countries now member
states, the number of Gypsies living in the area of the Council of Europe
has increased dramatically.
The Assembly recommendations included the routine reference to ICERD,
the need for member states to ratify the fourth protocol to the ECHR and
the issuance of a further protocol relating to the rights of minorities.
Also included was an appeal to member states to alter any existing legislation
that directly or indirectly discriminates against Roma.
Six weeks following the Parliamentary Assembly's recommendation, a resolution
of the Council of Europe's 'Standing Conference of Local and Regional Authorities
of Europe' (SCLRAE) on 'Gypsies in Europe' was reached. The Conference
correctly emphasised (at par. 7)
"the special responsibility of local and regional authorities
towards Roma/Gypsies, particularly with regard to accommodating Gypsies
in the municipality, their education, training, health, development and
the promotion of their culture."
Whilst the resolution makes the (by now) routine request that the
member states implement previous texts of the Council of Europe, it is
nevertheless written in practical language and suggests specific measures
aimed at breaking down barriers to communication between Roma and non-Roma.
As is discussed below, there is a role for high-sounding European Resolutions
- even when accompanied by no implementation procedures. There is, however,
also a need for such institutions to appreciate that hyperbole alone is
not sufficient; the SCLRAE text to this extent is a welcome entrant to
the school of realism.
A Framework Convention for the Protection of National Minorities was
opened for signature by the Council of Europe on 1 February 1995. The framework
Convention contains many important rights and freedoms relating to national
minorities. The means of enforcement is, however, weak, relying merely
upon state reporting procedures.
The progress of the proposed protocol to the ECHR on the question of
minority rights has also been unsatisfactory. The Convention came into
force in September 1953, and the following year the Consultative Assembly
of the Council of Europe focused attention to the need for "a more precise
definition of the rights of national minorities." This proposal led to
the creation of a Sub-Committee on Minorities in 1957 and a proposal in
1959 for an additional Protocol on Minorities. Since that time the Protocol
has remained on the drawing board for 37 years, with the Parliamentary
Assembly becoming ever more insistent about the need for its adoption.
The current text of the proposed Protocol contains many fine principles,
including the right to express, preserve and develop one's identity, the
right to use of the minority in relations with public authorities and in
education. Central is the equality before the law and non-discrimination
'All persons belonging to a national minority shall be equal
before the law. Any discrimination based upon membership of a national
minority shall be prohibited.'
In 1995 the Parliamentary Assembly called for the Framework Convention
to be "complemented by an additional protocol to the Convention setting
out clearly defined rights which individuals may invoke before independent
The history of Protocols to the Convention has, however, shown that
they are not an effective vehicle for the development of human rights.
With the exception of the first protocol, their ratification by states
has been sketchy at best, and in such cases generally only after decades
of delay. This is even more the case in relation to Protocols that would
have a significant effect upon a particular state. Protocol 4 is such an
example, in that it introduces the right of free movement, and is of a
special relevance to Roma, a point emphasised in Recommendation 1203 (above).
The Protocol was open for signature on 16 September l963, and yet it still
has not been ratified by a number of states of the Council of Europe, including
the UK and Spain.
Even where member states of the Council of Europe agree to take positive
action, there is no certainty that such action will in fact occur. By way
of example, the 1975 Committee of Ministers Resolution (75)13 (concerning
the need to eradicate discrimination against Gypsies) invited each member
state to report to the Secretary General on the action they were taking
towards its implementation; to date it appears that not a single member
state has complied with this resolution.
This lack of practical action is evidenced by the continuing deterioration
in the conditions in which Roma live. The SCLRAE Resolution (above) itself
at paragraph 5 regretted that the earlier resolutions of the Council of
Europe "have as yet been followed up with little concrete action." Further,
the Moderator's Report on the CSCE Human Dimension Seminar in Warsaw on
"acknowledged that no state has yet fully implemented its commitments
on human rights with special relevance to Roma. It was further acknowledged
that most problems confronting Roma would be resolved if states fully implemented
The Legal Strategy
The ECHR together with the first and fourth protocols protect many of
the rights and freedoms of importance to Roma, and in particular:
Article 3. The prohibition of degrading treatment. The
Commission has held that degrading treatment can occur when a group of
persons is publicly singled out for differential treatment, although subsequent
decisions would suggest that such behaviour would probably need to be accompanied
by treatment that aroused a feeling of fear, anguish and inferiority capable
of humiliating and debasing the victim.
Article 8. The right to respect for one's private and family
life, home and correspondence. The convention does not provide a right
to a home, but in general, travelling Roma merely seek respect for their
existing home - their caravan or other vehicle.
Article 11. The right to freedom of assembly and to freedom of
association with others. Assembly at fairs, family weddings. funerals and
other occasions is characteristic of Roma culture. Unreasonable or discriminatory
restrictions upon this right are prohibited by Article 11.
Article 14. Prohibits discrimination in relation to the enjoyment
of the rights and freedoms in the ECHR (and in the protocols ratified by
the particular state). Article 14 applies even in the absence of a violation
of one of the rights contained in one of the substantive Articles; all
that is required is the existence of real and unjustified discrimination
in the way certain individuals are permitted to enjoy that right.
Article l. Protects the right to peaceful enjoyment of possessions
and prohibits arbitrary confiscation or other deprivation of such possessions;
Article 1 is of particular relevance to travelling Roma in that 'possessions'
include the mobile home and equipment.
Article 2. Protects the right to education. With regard to education,
the rights of travelling Roma raise a number of interesting issues. Article
2 protects against unreasonable state interference in parental choice,
and allied to Article 14, a protection against unreasonable discriminatory
provision. Interruptions in normal school education might be seen as an
occupational hazard of travelling Roma life; obviously, however, there
is a difference between parental choice over when to move on and precipitous
moves resulting from forced evictions. Unduly restrictive state attendance
at schools that interfered with traditional Roma travelling could also
amount to a violation of Article 8.
Article 2. Protects the right to freedom of movement within a
Article 3. Protects the right not to be refused entry (or expelled
from) a state of which the person is a national. These two rights are of
importance, not only to traditional travelling Roma, but also in relation
to inter-state Roma movements (forced or otherwise). Roma who are citizens
of a European Union state have separate rights of free movement within
There is a view (possibly a minority one) within the Commission
that complaints that raise minority rights issues are to be approached
cautiously, if not treated differently to those of a purely individual
nature. To an extent, this stems from the unsatisfactory nature of Article
14, in part from the political sensitivity of such complaints, and in part
to the escapist view that such complaints would be better dealt with under
the minority rights protocol when (and if) it comes into being.
This cautious approach of the Commission and Court was evidenced in
the judgement in Belgium Linguistic complaint (1967) which restricted Article
14 to cases of discriminatory treatment in which there was "no reasonable
relationship of proportionally between the means employed by the state
and the legitimate ends pursued." The Court emphasised that (subject to
this) states remained free to choose the measures that they considered
In the unsuccessful application G v Norway (1983), Lapps complained
about a decision to construct a hydro-electric dam and thereby flood part
of the valley where they herded deer. The Commission, in its decision,
reaffirmed that the ECHR does not guarantee the rights of minorities, but
accepted that "under Article 8, a minority group is, in principle, entitled
to claim the right to respect for the particular lifestyle it may lead,
as being `private life,' `family life' or `home.'"
In X v Ireland (1983), 13 Roma living in caravans on two sites
near a special school for travelling children made applications. They had
been evicted from their sites because of the consequent nuisance on the
sites having no basic facilities; they complained that their eviction by
the authorities (without being offered alternative accommodation) violated
Articles 3, 8, 14 and Article 2 of the First Protocol. Despite the complaint's
disclosure of serious Convention issues, the Commission ruled it inadmissible
on the procedural ground of 'non-exhaustion' of domestic remedies. Legal
aid for the possible domestic remedy in question would almost certainly
have been unavailable, however, the Commission placed weight upon the failure
of the parties even to apply for such legal aid. This was objectively a
harsh "inadmissibility" decision.
In 1991 and 1992 the Commission considered the admissibility of two
complaints against the Netherlands made by several mobile home dwellers,
although none claimed Roma status. In both cases the complaints concerned
the applicant's forced removal by virtue of the state's Mobile Homes Act
(Woonwagenwet) of l986.
In Beckers v Netherlands (1991) the applicant was forced to leave
his mobile home dwelling because his occupancy was not permitted by the
Act. Under the Act, a permit to occupy a mobile home could only be obtained
if the applicant practised one of the trades listed in a certain Decree,
or if he (or his spouse) had previously had a permit to occupy a mobile
home. The applicant complained to the Commission, alleging violation of
a number of Articles to the ECHR and Protocols l. & 4. Although the
complaint was declared inadmissible, the Commission's finding in relation
to the Article 8 complaint is of interest. It accepted that in denying
the applicant the right to live in a mobile home, his Article 8 rights
had been interfered with; it however, considered that in the case of the
Netherlands a restriction on the number of persons occupying such accommodation
pursued a legitimate aim (the country is small, overcrowded, etc.). In
concluding that there was no violation of Article 8 it held that since
the "applicant cannot claim to belong to a minority entitled to specific
protection under Article 8 of the Convention, the Commission is of the
opinion that the rules are not disproportionate...." It logically follows
that such an interference would have been looked at in a different light
had the applicant been a Roma.
The willingness of the Commission to accept that the actions by the
state were not disproportionate was a matter of some concern, as it accepted
(without any empirical evidence being submitted) that the population density
of the Netherlands permitted such measures. The effect of the legislation
has been the subject of considerable criticism. Annemarie Cottaar (et
al) comments that caravan dwellers "were literally dragged to larger
camps" and that because of 'the isolated location of the camps ... many
caravan dwellers lost contact with society."
In Van De Vin v Netherlands (1992) a number of mobile home dwellers
were required to have a municipal site that was to be closed; they had
substantial notice of the move and were offered a variety of alternative
sites. The applicants argued that in consequence several Articles of the
ECHR had been violated, including Article 2 of Protocol 4. The Commission
held the complaint to be inadmissible; in relation to Article 2 of Protocol
4 it stated that this provision does not guarantee a right to a specific
place of residence without a title to reside on such a specific place.
In Powell v UK (1990) the applicants were non-travelling Roma
living on a municipal caravan site built specifically to accommodate Roma.
The UK law provided that Roma living on such sites could be evicted more
easily than persons who lived on other mobile home sites. At that time
the UK law also provided that each municipality was under a duty to provide
sufficient sites to accommodate the Roma living in their area. In a poorly
argued "majority decision the Commission ruled the complaint inadmissible,
holding that in view of the municipal obligation to provide sites for Roma
(but not for non-Roma) the difference in treatment did not offend the principle
of proportionality (with regard to the state's margin of appreciation).
Such a decision comes perilously close to legitimising the morally bankrupt
'separate but equal' doctrine.
Subsequent to the Powell decision, two further, equally unsatisfactory
admissibility decisions followed, in the cases of Smith and others v
UK (1991) and Smith v UK (1993), both of these complaints being
made by Roma.
In the 1991 decision the applicants stated that notwithstanding the
(then) duty of UK Municipal Councils to provide sufficient sites for Roma,
there were no such sites in their area, no prospect of such sites and that
they were subject to repeated evictions and threats of evictions.
The applicants had applied to the domestic Courts to compel the Government
to provide sites, but the Court had declined to do this on the basis that
the state was aware of the problem and (in the Court's view) endeavouring
to resolve the difficulty. In holding the complaints to be inadmissible
the Commission asserted that,
"Article 8 does not contain an express right to living accommodation.
Moreover, although Article 8 may require positive action from Contracting
States in certain circumstances, it is inevitable that when questions of
policy and implementation arise, a considerable discretion must be left
to them. The Commission finds that, in the present case questions relating
to immediate provision of gypsy sites in [the municipality] were broadly
canvassed by the Secretary of State and by the Court, and there is no indication
that the authorities acted in such a way as not to respect the applicants'
right under Article 8."
The Commission's decision is unsatisfactory for a number of reasons,
not least that it essentially vindicated the State purely because it had
not deliberately acted to the applicant's detriment - despite it having
allowed a situation to arise where their Article 8 rights were being routinely
The 1993 complaint concerned a specific UK law which made it a criminal
offence for a Gypsy (but not a non-Gypsy) to camp in certain "designated"
areas (unless he or she lived on a legal site). The applicant was a Gypsy
and lived in such an area on a legal site. The Commission held that
"the traditional lifestyle of a minority may, in principle,
attract the guarantees of Article 8 .... However an individual applicant
who is a member of a minority must establish that the measure complained
of has a real and direct effect on his or her pursuit of that lifestyle.
The Commission finds on the facts of the present case that the applicant
has failed to do so."
The Commission's decision imposed a far more severe admissibility
test in this case than applied to many non-Roma complaints.
The Commission's approach to complaints made by Roma could legitimately
be described as disproportionately harsh. In X v Ireland it applied
an unusually stringent requirement in relation to exhaustion of domestic
remedies. In Powell v UK and Smith & others v UK (1991) it appeared
to allow a margin of appreciation to the state, so wide as to amount to
an endorsement of the 'separate but equal' doctrine. In Smith v UK (1993)
the requirement that the applicant be a victim was applied with far more
vigour than has been the case with complaints made by (for instance) homosexuals.
On the positive side, the Commission's decision in Beckers v Netherlands
indicates that the severe actions by the state (which the Commission found
proportionate) might have been viewed otherwise if the victim had been
a number of a minority such as the Roma.
On 11 January 1995 the Commission adopted its Report on the complaint
v UK. The complainant is a Gypsy and her complaint concerns very similar
facts to the Ruby Smith v UK (1993) complaint, save only that in
the Buckley complaint, the applicant was under a threat of eviction from
her encampment (as it lacked planning permission).
In its Report the Commission concluded (by a majority) that the complainant's
rights under Article 8 (right to respect for private and family life, home
and correspondence) had been violated. It accepted that the measures (both
in relation to the criminalisation of Gypsies in designated areas, and
in relation to the planning enforcement measures used by the state) were
in accordance with the law and pursued a legitimate aim However, on the
question of whether the measures were necessary in a democratic society
(in relation to Article 8 (2)) the Commission considered them to be disproportionate.
The Commission contrasted the effect of planning enforcement measures
on Gypsies and non-Gypsies:
"in the general type of planning case ... the assumption is
that an individual has a wide range of accommodation possibilities available
to him or her throughout the country. This case presents the special feature
that, being a Gypsy, the applicant leads a traditional lifestyle which
restricts the options open to her."
The Commission considered the specific circumstances of the complainant's
case in detail and concluded,
"the measures taken against the applicant with regard to her
continued occupation of her land, place her in the position where she is
being required either to move off without any specific lawful place where
she can go or to apply for a future vacancy on a site which she considers,
with reason, to be unsuitable. Both of these alternatives offer the prospect
of insecurity and the threat of disrupting the stability of her home and
her children's existence. Against this, the Commission considers that the
factors weighing in favour of the public interest in planning controls
are of a slight and general nature. ... In these circumstances, the burden
placed upon the applicant by the enforcement measures is, in the Commission's
opinion, excessive and disproportionate. Even having regard to the margin
of appreciation accorded to the domestic authorities, the Commission finds
that the interests of the applicant in this case outweigh the general interest.
It does not consider that this finding is tantamount to rendering Gypsies
immune from legitimate planning controls. Special considerations arise
in the planning sphere regarding the need of Gypsies which are acknowledged
in the Government's own policies."
The Buckley complaint was transferred to the European Court of Human
Rights for a final decision. An oral hearing occurred on 19 February 1996,
and a final judgement is expected before the end of this year (1996).
Both the legal and the political strategies have been slow to produce
any practical benefits for Roma. Buckley v UK may represent the
high water mark of attempts to develop the jurisprudence of the ECHR to
deal with minority rights issues - but (regardless of the eventual court
decision) this seems unlikely. The tide is still flowing, as the many bleak
resolutions from European institutions continue to assert. Indeed, the
prominence of Roma is likely to increase with the accession of the Central
and Eastern European states to the Council of Europe, including perhaps
four million Roma, the majority of whom are living in conditions of poverty
and repression even greater than that documented within western Europe.
The political strategy has yet to deliver much in the way of tangible
benefits to the Roma. They still live in predominantly third world conditions
in which there is a general disregard for their civil and political rights.
States are vying with each other to approve resolutions of high flown rhetoric,
with the implementation of such resolutions then being ignored.
At present the political strategy has `failed to deliver,' rather than
failed. There is no doubt that a widely adopted and directly enforceable
protocol on minority rights is a worthy goal. The question that must be
asked, however, is whether such a quest is being used as a device to bar
Roma and other minority groups from the existing Convention process.
It is equally unlikely that general recommendations emanating from the
Parliamentary Assembly of the Council of Europe will result in any direct
benefit to European minorities in the foreseeable future. Such recommendations
can, however, lend support to specific complaints under the ECHR.
Complaints to the European Commission of Human Rights are made against
individual states, most of which will have (in one way or another) been
partly to the various political resolutions referred to above. The Court
and Commission will accordingly approach the complaint on the basis that
these resolutions form the bench mark for acceptable standards of state
The Court and Commission have repeatedly asserted that the Convention
is a living instrument which must adapt and develop with the changes in
public attitude. Further, they assert that their decisions be informed
by, and take into account, relevant developments within the Parliamentary
Assembly and other institutions concerned with human rights. It is perhaps
through this route that such resolutions will prove to be of most benefit.
The Committee is indeed showing signs of relaxing its past reservations
about admitting complaints that raise minority rights issues. This change
of attitude has perhaps three causes, the first being the general acceptance
that in all probability a fully ratified and enforceable minority rights
protocol will not exist for several decades - if at all. Second, there
exists the expectation of a significant growth in minority rights complaints
as a consequence of the ratification of the ECHR by Central and Eastern
European states (and the relatively recent recognition by Turkey of the
jurisdiction of the Court); and finally, there is a sense of competition,
with the significant minority rights role being developed by the OSCE.
The mechanisms for effective protection of minority rights do exist.
Whether any substantial benefit is to be gained from them remains to be