Racism Against Minorities Tests European Rights Court

James A. Goldston, executive director of the Open Society Justice Initiative and Senior Legal Counsel of the European Roma Rights Center, has contributed to the litigation of both of the following cases before the European Court.

The European Court of Human Rights is hearing oral arguments in two of the most important cases in its history. As in Brown v. Board of Education, the case that ultimately broke the back of racial segregation in America half a century ago, the European Court is being asked to give meaning to the fundamental principle of equality.

The resulting decisions could establish clear ground rules to guide future policy toward Europe's increasingly numerous ethnic and religious minorities.

The plaintiffs are members of Europe's poorest and largest minority group—the Roma, or Gypsies, whose ancestors are believed to have migrated from India centuries ago.

One case concerns 18 Roma children from the northeastern city of Ostrava in the Czech Republic who were placed in "special" schools for those deemed mentally deficient, where they receive a markedly inferior education. The children argue that such schools are a barrier to social and economic progress. Many Roma are sent to special schools even though they show no sign of mental disability. Few go on to finish high school or attend university. As a result, Roma unemployment rates in the Czech Republic, as in much of Europe, far exceed those for the rest of the population.

Evidence before the court indicates that, in some Czech communities, Roma children are 27 times more likely to be sent to special schools than non-Roma children. The plaintiffs suggest that this amounts to racial segregation. The government vigorously denies this. The court's hearing was set for yesterday.

The second case comes from Bulgaria. In 1996, military police shot and killed two Roma conscripts. The victims, who had recently absconded from a military construction crew, were known to be unarmed and not dangerous. The shooting, by automatic weapon fire, took place in broad daylight in a largely Roma neighborhood, where the grandmother of one of the victims lived. Immediately after the killing, a military police officer allegedly yelled at one of the town residents, "You damned Gypsies!" while pointing a gun at him.

Last year, one panel of the court found that both the shootings and a subsequent investigation that upheld their lawfulness were tainted by racial animus. At the request of the Bulgarian government, the court's Grand Chamber agreed to review the matter before the end of last month.

Though the facts of both cases are heart wrenching, their importance extends beyond the courtroom. At a time of rising concern about immigration, religious extremism and ethnic violence, what must government do to secure the promise of equal opportunity for all?

Over the past decade, the EU has grown more ethnically diverse. Immigration to Spain, Italy, and Greece has surged, adding to longstanding immigrant populations in northern Europe and to the number of so-called "guest workers" in Austria, Germany, and Luxembourg. The most recent stage of EU enlargement last May added millions of Roma from the new member states of Central and Eastern Europe.

Just as Europe's ethnic makeup has been changing, so have its laws. In 2000, the EU's executive arm—responding in part to the growing popularity of anti-immigrant and neo-Nazi political parties—enacted the most far-reaching anti-discrimination legislation in the world. To date, however, this legislation has lain dormant. In many countries, lawyers and judges lack familiarity with legal concepts of discrimination. Perhaps not surprisingly, acts of exclusion, segregation, and violence often go unpunished.

The two cases soon to be heard in Strasbourg provide an opportunity to change this.

A finding of discrimination would establish a landmark legal precedent, putting core values of non-discrimination and equal justice beyond dispute at a time when Europe's politicians consider how best to absorb millions of new immigrants and minority members. Just as importantly, such a ruling would send a powerful signal that racism and xenophobia have no place in the new Europe.

But perhaps the greatest significance of these cases lies in their very presence on the docket of Europe's highest rights tribunal. A decade ago, few minority victims would have been inclined or able to seek legal remedies for discrimination. The success of some in having their claims heard is testimony to the growing power of law as a force for positive change in Europe.

Copyright: Project Syndicate