Why the European Court of Human Rights Would Do Well to Start Using Stereotypes as Evidence – A Critique of the Strasbourg Approach to Anti-Roma Police Violence Cases

By Emma Várnagy

This post is based on a paper which I am thankful to have had the opportunity to present at the ‘Critical Approaches to Romani Studies Conference’ on 18 May 2022 organized by Södertörn University and Central European University. I am also grateful to my doctoral supervisor, Marie-Bénédicte Dembour, for generously commenting on both the paper and this blog post.

Stereotypes tend to reinforce prejudices and discrimination. As such, they are a matter of human rights. Reading the three dozen judgments of the European Court of Human Rights (hereafter, Court) in anti-Roma police violence cases, it is difficult not to form the impression that the ill-treatment suffered by the applicant was racially motivated.  Besides the impression, however, that deeply embedded negative attitudes against Roma drenched the domestic proceedings, it is often hard to put one’s finger on where exactly this conviction comes from. The exception is a handful of judgments of the Court which contain direct quotes from the domestic authorities involved in the incident which reveal strong negative stereotypes about Roma. This raises a series of questions: does the Court notice these stigmatizing remarks at all? If yes, what does it do with them? In particular, does it appreciate their seriousness when it considers applicants’ claims that the incident which triggered the case (recognized by the Court to have violated Article 2 protecting the right to life or Article 3 prohibiting inhuman and degrading treatment) was racially charged (and thus also a violation of Article 14 the anti-discrimination clause)?

These questions arise in a context of evidentiary difficulties. The Court generally relies on a very high standard of proof, formally named “beyond reasonable doubt.” Even though this does not equal the eponymous highest criminal standard applied in Common Law jurisdictions, it still suggests that the applicants must evidence their claims, including the racial element of the abuse, to a high standard. The latter is almost impossible to achieve in practice, however, due to the difficulty of proving bias. This is why it is particularly important for the Court to recognize stereotypes as being in a loop with structural inequalities – as Timmer points out, potentially being both a source and an outcome of the inequality. Accordingly, the Court should identify stereotypes in its judgments, take them into consideration when it assesses applicants’ claims, and directly condemn their harmful effects.

This post will first describe some of the ways the Court could choose to engage with racist stereotypes in violent discrimination cases. It will then contrast two cases in order to illustrate how the Court has/has not applied these tools in practice.

Addressing stereotypes in judicial reasoning

There are different ways for the Court to approach stereotypes in anti-discrimination cases. One possibility, already encountered in the Strasbourg case law, is to make use of the concept of vulnerability, which addresses stereotypes indirectly. A more directly anti-stereotyping approach has also been suggested. The important point is that the Court uses a method which enables it to produce a nuanced anti-discrimination reasoning and thereby thickens accountability for human rights violations stemming from biases.

Timmer and Peroni (2013) have analyzed the concept of vulnerability in the Strasbourg case law (see also Arnardóttir 2017 and Heri 2021). They observe that in cases related to Roma the Court has primarily relied on a vulnerability approach which is informed by histories of prejudice and stigmatization against Roma as a group. They point out, however, that this approach inexplicably has not been applied in cases which specifically involved physical violence against Roma. One point of this blog post is to argue that this approach could, and indeed should, have been applied also in these cases.

When assessing an application through the lens of vulnerability, the Court looks at societal circumstances which underlay the vulnerability of the specific group vis-à-vis the less vulnerable majority. Pervasive stereotypes can be a typical indicator of this. The second step is to focus on the particularity of the experience of vulnerability of the individual applicant within this group. Finally, the Court examines whether this context has exposed the applicant to harm. These steps allow the Court to nuance its anti-discrimination reasoning by addressing several layers of inequality. Proceeding in this way has yielded powerful judgments from the Court in cases which did not concern violent acts of discrimination against Roma.

Timmer (2011) has argued a directly anti-stereotyping approach could also be used. Her articulation of the way this method could work draws on the Court’s gender-discrimination case law and consists of two steps. The first step has the Court naming the stereotype, analyzing its historical and current effects, and highlighting any adverse consequences in the case at hand. The second step allows it to apply the anti-discrimination clause in a specific way, as described by Gerards (2005), which gives heightened attention to preventing (state) actors from acting or justifying their conduct in a biased manner.

Either of these approaches, or indeed any other one which puts the Court on a course to explicitly recognize the presence, context and impact of harmful stereotypes has a twofold importance. First, it makes the complexity of the wrong which the applicant has suffered, including its racial dimension, more likely to be fully addressed. Second, having a judicial reasoning which specifically focuses on stereotyping’s harmful effects should produce a general awareness of the issue, thereby contribute to the fight against stereotyping which leads to human rights violations.

Contrasting illustrations from the Court’s case law

As extensively noted by critics (see e.g. Dembour 2009; Möschel 2012; Rubio-Marin and Möschel 2015; Mačkić 2018), the Court is reluctant to fully address the discrimination aspect of the most devastating manifestations of Roma abuse. While there are examples in non-violent racial discrimination cases to the contrary, there has only ever been just one instance of anti-Roma police violence where the Court has held that the ill-treatment was racially motivated. This was in Stoica v Romania, a judgment where the Court can be said to have used the anti-stereotyping approach (albeit in a truncated way, as we shall see). A second judgment, Cobzaru v Romania, will be reviewed by way of contrast, as an illustration of the way anti-Roma stereotypes are usually taken by the Court not to fit its evidentiary requirements.

The Stoica case originated from an incident between the county police and the residents of a small town. The police came to “teach the Roma ‘a lesson”’ (§7). The parties’ versions differ as to what happened next. The 14-year-old applicant testified that he attempted to flee the scene along with other children, when he was tripped by an officer, pushed into a ditch, kicked and beaten. The Government maintained that it was the locals who had become aggressive towards the police. Despite this allegation no criminal charges had been initiated by the police against the Roma involved in the incident. Explaining this decision, the police asserted that “the way in which some of the Roma acted is pure Gypsy behaviour and does not constitute the crime of insulting behavior [worth pursuing criminally]” (§36).

When assessing the applicant’s discrimination claims, the Court first asked whether the domestic authorities had fulfilled their duty to investigate the violence’s possibly racist motives. It noted with concern that the prosecutor had discarded statements from the villagers because he considered these to be biased and less credible (§73). The Court took this to mean that the domestic authorities’ conclusion that there had been no racial aspect to the incident ignored a reliable testimony about the attitude of the deputy mayor who had also been present at the incident. (This had to do with the deputy mayor failing to deliver on the promises he had made before the elections “to win Roma votes” (§121)). In this context the Court found the domestic investigations unsatisfactory and racially biased. When it then went on to examine the implications of this finding on whether the violence itself (and not only the ineffective investigation) was racially motivated (§125), its answer was positive. The Court found that “the remarks (…) describing the villagers’ alleged behavior as ‘pure Gypsy’, [were] clearly stereotypical and prove[d] that the police officers were not racially neutral” (§128). This led to the conclusion that the applicant’s abuse must also have occurred in such context. This judgment can be taken as an example (albeit not very striking) of the Court 1) recognizing the dehumanizing effect which the “Roma-as-aggressive-characters stereotype” had in this case, and 2) not allowing the Government to justify its conduct with a biased explanation.

In the case of Cobzaru, where the Court was also faced with a stereotype about the applicant’s alleged violent nature, the judgment can be taken as a sharp contrast to Stoica. The applicant had gone to the local police station as he feared his girlfriend’s brother was set to beat him up. The police grabbed, pushed, kicked and beat him with a stick (which the Court had no difficulty finding was in violation of Article 3). He was allowed to leave only after signing a statement according to which he had indeed been beaten by his girlfriend’s brother (§12). His complaints about the police abuse were dismissed by the prosecutor (also on appeal) who reason that a criminal investigation was not necessary, given that “the 25-year old gypsy [was] well known for scandals and always getting into fights” (§31) and that he was “‘prone to violence and theft’ and in constant conflict with ‘fellow members of [his] ethnic group’” (§108).

Such stereotypes indicate the presence of prejudices against people perceived as Roma. When assessing the discrimination aspect of this case, however, the Court immediately stated that the material before it – no direct evidence, but the applicant’s call to evaluate his allegations within the context of anti-Roma attitudes widely documented in Romania – did not suffice to establish that racism was a causal factor in his ill-treatment (§94-95). The Court nonetheless accepted that the “tendentious remarks made by the prosecutors in relation to the applicant’s Roma origin disclose[d] a general discriminatory attitude of the authorities” (§100). This persuaded it to find a violation of the procedural investigatory obligations of the state to uncover potentially racist elements of the incident.

The Court’s own phrasing about the discriminatory attitude of the authorities could have led it to start a vulnerability assessment acknowledging the pervasive discriminatory nature of the stereotype against Roma and the effect it had on the applicant. However, the Court stopped short from making an examination of the applicant’s vulnerable situation or a more nuanced analysis of the stigmatization the stereotypes carried. Instead, the Court essentially said: since it was the prosecutors who held the prejudice against Roma and not the abusive police officers, these statements cannot be taken to indicate a racist motive behind the police’s conduct. Strictly speaking this reasoning is not logically incorrect. Still, this kind of truncated assessment in my view contributes to an accountability gap regarding the acknowledgment of institutional antigypsyism.

Implications from a human rights accountability perspective

Cobzaru represents a common trend in the Strasbourg case law, whereby the Court adopts what could be called a “bad apple” perspective, i.e. one which relies on establishing a causal link between the abusive treatment and the perpetrator’s individual motivation; thereby being essentially blind to other factors of the larger context which play a role in the incident. Leaving aside for a moment the intricacies of legal evidentiary requirements, it does not seem like a huge leap to assume that if somebody in the law enforcement and justice system is openly racist, this is probably because racism exists on a larger scale and is a systemic issue. In other words, if it is okay for prosecutors acting in their official capacity to issue a racist reasoning, this can only be because such conduct is acceptable institutionally and societally. Given this, my argument is that the Court should break away from asking whether the stereotype it encounters can be shown to have constituted a direct causal factor in the perpetration of the violence complained of. Keeping in mind the loop of stereotypes that both stem from and reinforce structural inequality, the Court should put itself in a position to address the heart of the issue in cases brought by Roma applicants who have been insulted, beaten, or killed by the police. To be clear, I am not arguing that the presence in the file of a strong negative stereotype should automatically lead to a violation of Article 14. However, what I am saying is that this should be considered an important evidentiary element which plays a role in the overall assessment of the case.

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