ROMA AS A VICTIM OF BREACH OF ARTICLE 14 IN CONJUNCTION WITH ARTICLE 2 OF THE EUROPEAN CONVENTION ON THE PROTECTION OF HUMAN RIGHTS AND FUNDAMENTAL FREEDOMS

Abstract

Aforementioned selection of ECtHR`s case-law indicates systemic problems of certain States parties to the ECHR with respect to violation of right to life, set forth by the Article 2 of the Convention, in cases where victims were of Roma origin, specifically Turkey and Bulgaria. However, the authors find the fact that the Court has not yet ever found violation of Article 14 in conjunction with substantive aspect of Article 2, much more significant for the purposes of this paper. Furthermore, even today, after more than 20 years since the Anguelova decision, justice Bonello`s dissenting opinion in this judgement is still applicable in present day conditions, referring to the need of revision of this practice. As justice Bonello states, it is particularly disturbing that the Court, in over fifty years of pertinacious judicial scrutiny, has not, to date, found one single instance of violation of the right to life (Article 2) or the right not to be subjected to torture or to other degrading or inhuman treatment or punishment (Article 3) induced by the race, colour or place of origin of the victim. Hence, even the uninformed observer would be justified to conclude that, for over fifty years, democratic Europe has been exempt from any suspicion, racism, intolerance or xenophobia, while this practice energises that delusion.

Bearing in mind aforementioned, the Court`s stance on “beyond the reasonable doubt” standard should be revised, since is stunting European human rights protection in areas where the highest level of protection, rather than the highest level of proof, should be the priority. Such an approach has proved decisive in Čonka v. Belgium, in which the Court, rather than requiring from the applicants proof beyond reasonable doubt that their expulsion was in pursuance of a collective expulsion policy, found a violation by holding that “The procedure followed by the State authorities did not enable the Court to eliminate all doubt that the expulsion might have been collective” (Conka v. Belgium, 2002). This would help bring the Court in line with its own case-law that “very weighty reasons would have to be put forward by the Government before the Court could regard a difference in treatment, based exclusively on the ground of nationality, as compatible with the Convention” (Gaygusuz v. Austria, 1996:42).