Nachova v. Bulgaria

Court:
European Court of Human Rights
Country:
Bulgaria
Status:
Closed

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Justice Initiative, November 2004
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Duty to Investigate Racially Motivated Killings

The European Court of Human Rights held that the killings of two unarmed Roma conscripts by military police in Bulgaria and the subsequent failure to investigate the killings, amounted to a breach of Bulgaria's obligation to investigate racially motivated crimes. (Keywords: Roma - Police killing - Discrimination)

Facts

In 1996, military police soldiers shot dead two Roma conscripts who had recently absconded from a military construction crew and were known to be unarmed and not dangerous. They were shot with automatic weapons in broad daylight in a largely Roma neighborhood. Immediately after the killing, a military police officer allegedly yelled at one of the town residents, "You damn Gypsies!" while pointing a gun at him.

In February 2004, the First Section of the European Court of Human Rights unanimously found that both the shootings and a subsequent investigation which upheld the lawfulness of the killings were tainted by racial animus, and that this constituted a breach of Article 2 (the right to life) read in conjunction with Article 14 (the right to non-discrimination) of the European Convention on Human Rights. The judgment was the first in the Court's history to find a violation of Article 14 on grounds of racial discrimination, and made clear that the right to non-discrimination requires States not to discriminate and to investigate allegations that discrimination has taken place.

At the request of the Bulgarian government, the Court's Grand Chamber agreed to review the initial panel decision, which it largely upheld.

Open Society Justice Initiative Involvement

In November 2004, the Justice Initiative filed an amicus brief addressing the obligation of states to thoroughly investigate racial motives underlying acts of violence.

Arguments

Procedural Obligation to Investigate Racially Motivated Violence. Under international and comparative law, as well as the European Convention of Human Rights, states have a procedural obligation to investigate and prosecute racially motivated violence. In this case, failure to do so constituted a breach of Article 2 (right to life) and Article 3 (prohibition of torture) read in conjunction with Article 14 (non-discrimination) respectively. Furthermore, this obligation arises without the need for a complaint and applies when there is reasonable suspicion that a racially motivated crime has occurred.

Scope of Investigation. The Justice Initiative also argued that the scope and contours of the obligation to investigate and prosecute violations of Article 14 should be no narrower than similar obligations under other articles of the convention.

Timeline

February 2004. The First Section of the European Court of Human Rights unanimously finds that both the shootings and a subsequent investigation which upheld their lawfulness were tainted by racial animus, constituting a breach of Article 2 (the right to life) and Article 14 (the right to non-discrimination) of the European Convention on Human Rights.
March 2004. At the request of the Bulgarian government, the Court's Grand Chamber agrees to review the initial panel decision.
November 2, 2004. The Justice Initiative files an amicus brief to the Grand Chamber addressing the obligation of states to thoroughly investigate racial motives underlying acts of violence.
July 6, 2005. The Grand Chamber issues a final judgment.

Findings

The Grand Chamber affirmed in substantial part the landmark finding of racial discrimination in breach of Article 14 of the European Convention. The Court's ruling made clear that European states have an obligation to investigate possible racist motives behind acts of violence.

The Grand Chamber held that Bulgaria had breached the victims' right to life (Article 2) by failing to regulate the use of firearms by military police, and by failing to properly investigate the deaths; it also unanimously agreed that the prohibition of discrimination under Article 14 of the Convention has a procedural component which required the state to investigate whether discrimination may play a role in the killings. The failure to do so, despite indicators of racial motivation, amounted to discrimination.

With respect to the killings themselves, the Grand Chamber, by an 11-6 vote, overturned the prior ruling that the killings had been motivated by racial hatred. In doing so, the Grand Chamber reasoned that although in certain circumstances (where the events 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 explanation, the authorities' failure to carry out an effective investigation did not justify shifting to the government the burden of proof as to the motive of the killing.