Methodology
KEY FINDINGS
4. THE WAY FORWARD: RULE OF LAW EMBEDDED TRUST BUILDING MECHANISMS ADDRESSING ANTIGYPSYISM
4.1. Post-2020 EU Framework for NRIS more fully embedded in the Rule of Law Framework
The Rule of Law, Democracy and Fundamental Rights are core elements of the EU founding values. Their triangular relationship needs to be preserved, at all times, when certain governments, parties or politicians aim to increase their powers, often at the costs of the rights and freedoms of national minorities, migrants and persons of darker skin colour. However, the ‘Copenhagen dilemma’ remains unresolved: the EU does not have comprehensive tools to monitor and safeguard the rights of minorities across the EU, once Member States have joined the Union.
The previous CEPS study concluded that the EU needs to elaborate its own Rule of Law mechanism that could capture and prevent or remedy institutional forms of discrimination, as for example, high-level politicians spreading hate-speech towards Roma and other ethnic, linguistic and religious, minorities or are misusing EU funds allocated for Roma integration.672 EU Member State practices, violating the founding values enshrined in the Article 2 of TEU, including the institutional forms of antigypsyism could be comprehensively addressed in a way that shows EU added value and avoids duplication with other existing international and regional monitoring systems. For example, at the United Nations level there are Special Procedures, Treaty bodies, the High Commissioner of Human Rights, while at the Council of Europe level the Venice Commission, the Human Rights Commissioner and Special Rapporteurs, the European Commission against Racism and Intolerance (ECRI), or the CoE Advisory Committee on the Framework Convention for the Protection of National Minorities (ACFC), OSCE Office for Democratic Institutions and Human Rights (ODIHR) that are monitoring and warning countries when they are violating the rights of Roma and other minorities.
In 2016, the European Parliament called on the European Commission to establish a new EU Rule of Law mechanism, which would aim at ensuring permanent monitoring and comparable rule of law, democracy and fundamental standards across the EU that would take into account the specificities of the EU legal system.673 However, the abovementioned proposal has not been followed up so far by the European Commission.674 In the current context of Rule of Law back-sliding in Poland, Hungary and other Member States, as well as right-wing populism rising and targeting migrants and ethnic minorities alike, reflections over the need for independent Rule of Law-based monitoring are gaining the momentum. For example, the European Commission has proposed Rule of Law conditionality for the new Multi-Annual Financial Framework (MFF) for the purpose of sound financial management.675 The European Parliament also made a proposal for an European Values Instrument to enable civil society to uphold EU values.676
The previous CEPS study on minorities raises and investigates very serious and timely challenges facing European integration.677 It explored ways and promising practices in which the EU could better bridge existing gaps
672 Carrera S., E. Guild, L. Vosyliute and P. Bard (2017) “Towards a Comprehensive EU Protection System for Minorities.” Study for the European Parliament LIBE Committee, August.
673 European Parliament (2016) Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL), Strasbourg, 25 October.
674 Bárd, P., Carrera, S. (2017) “The Commission’s Decision on ‘Less EU’ in Safeguarding the Rule of Law: A play in four acts. CEPS Policy Insights, No. 2017/08, March 2017.
675 European Commission (2018) Fact-sheet “The EU Budget For Future: Sound Financial Management and the Rule of Law”, Brussels, 5 of May. (see: https://ec.europa.eu/commission/sites/beta-political/files/budget-proposals-financial-management-rule-law-may2018_en.pdf). 676 European Parliament (2018) Resolution on the need to establish European Values Instrument to support civil society organisations which promote fundamental values within the European Union on local and national level (2018/2619(RSP)).
677 Carrera S., E. Guild, L. Vosyliute and P. Bard (2017) “Towards a Comprehensive EU Protection System for Minorities.” Study for the European Parliament LIBE Committee, August.
towards the fulfilment of its commitments towards human rights and equality of treatment of minorities as laid down in Article 2 of the Treaty of the European Union (TEU).678
The general principles of the EU’s legal system, the values embedded in the EU Treaty Article 2, the EU’s Charter of Fundamental Rights injects equality before the law and non-discrimination at the centre of attention when assessing their accessibility to civic and political, as well cultural, social and economic rights for Roma across the EU. European citizenship is another basis for protection for both national Roma and Roma EU citizens that live in another EU Member State. Freedom of movement679 and other achievements of European citizenship seem to be increasingly compromised and narrowed for Roma EU citizens.
This study puts the EU Framework for NRIS in the context of a broader commitment to democratic rule of law and fundamental rights, including non-discrimination, as overarching pillar of the analysis. A well-functioning rule of law, fundamental rights and democratic accountability framework are considered as playing a fundamental role and as a pre-condition for properly ensuring minority rights protection. Moreover, democracy, the rule of law and fundamental rights are co-constitutive, therefore they shall be discussed together, with due regard to their triangular relationship.680 Deterioration of any of the elements hits Roma citizens particularly hard. Under the rule of law, in-builtcorrection mechanisms compensate for the deficiencies of a majoritarian government by making good on the consequences of misrepresentation or non-representation of certain segments of the population, on the prohibited grounds of discrimination as discussed above.
Members of minority groups who have been excluded from “we, the people” may for example be granted participation in the democratic process by the courts,681 or their interests may be represented by them.682 Accordingly we regard international and EU norms and enforcement mechanisms as external tools of rule of law and democracy whereby the unrepresented – whether an unrepresented majority in a state of constitutional capture or an oppressed minority – are granted protection against their substandard representatives, when all domestic channels of criticism have been effectively silenced and all domestic safeguards of democracy have become inoperative – in short, when the rule of law has been efficiently deconstructed in the national setting. The EU should however not only prevail ex post facto, but in an ideal case, both supervise and actively promote establishment and maintenance of EU values. Beyond mechanisms for responding to national crises with regard to foundational European values, there should also be permanent and periodic monitoring ensuring objective, independent and regular scrutiny and evaluation processes of EU Member State compliance with Article 2 TEU.683 A case study on antigypsyism is provided below as a further illustration of this issue. We further elaborate on the added value of linking the Rule of Law approach with a Truth and Reconciliation mechanism across the EU.
678 Carrera S., E. Guild, L. Vosyliute and P. Bard (2017) “Towards a Comprehensive EU Protection System for Minorities.” Study for the European Parliament LIBE Committee, August..
679 Guild, E., S. Carrera, L. Vosyliūtė, K. Groenendijk, E. Brouwer, D. Bigo, J. Jeandesboz and M. Martin-Mazé (2016) “An Analysis of the Schengen Area in the Wake of Recent Developments, DG IPOL, European Parliament, (see:: http://www.europarl.europa.eu/RegData/etudes/STUD/2016/571356/IPOL_STU(2016)571356_EN.pdf).
680 Carrera S., Guild E. and Hernanz N. (2013) The Triangular Relationship between Fundamental Rights, Democracy and the Rule of Law in the EU,
Towards an EU Copenhagen Mechanism, CEPS 2013, (seet http://www.ceps.eu/system/files/Fundamental %20Rights %20DemocracyandRoL.pdf) ; the original study done for the Directorate General for Internal Policies of the European Parliament, PE 493.031; 2013, is available at http://www.europarl.europa.eu/RegData/etudes/etudes/join/2013/493031/IPOL-LIBE_ET(2013)493031_EN.pdf ; Council of Europe (Parliamentary Assembly) (2007) Report of the Committee on Legal Affairs and Human Rights: The Principle of the Rule of Law, Doc. No. 11343, 6 July 2007, para. 5.
681Hirst v the United Kindom, Application no. 74025/01 [Grand Cgamber], 6 October 2005, Greens and M.T. v the United Kindom, Application no. 60041/08, 23 November 2010, Alajos Kiss v Hungary, Application no. 38832/06, 20 May 2010.
682 In particular in relation to persons who are excluded from voting rights, such as minors, foreigners, disabled persons and convicts deprived of their voting rights, etc.
683 For such an attempt see European Parliament (2016) Resolution of 25 October 2016 with recommendations to the Commission on the establishment of an EU mechanism on democracy, the rule of law and fundamental rights (2015/2254(INL)), P8_TA-PROV(2016)0409. See also Ballegooi W. and Evas T. (2016) “An EU Mechanism on Democracy, the Rule of Law and Fundamental Rights”, Interim European Added Value Assessment accompanying the Legislative initiative report (Rapporteur Sophie in ‘t Veld), European Parliamentary Research Service, October 2016, PE.579.328.
4.1.1. Links between a Rule of Law mechanism and an EU Truth and Reconciliation Commission on Antigypsyism
The previous CEPS study on antigypsyism already evidenced the need for an EU level mechanism capturing institutional malpractices at local and national level. A subsequent CEPS study elaborated what a comprehensive EU protection system for minorities could look like. We conclude that without such a Rule of Law embedded mechanism it is difficult if not impossible to address antigypsyism and to deliver equality effectively and efficiently, irrespective of the size of EU funds allocated or number of programmes and policy initiatives to implement the EU Framework for NRIS up to 2020.
Roma in the EU are experiencing institutional and structural forms of racism and discrimination, which have rarely been challenged via socio-economic measures targeting the Roma population. This is illustrated by the recent findings of the FRA EU MIDIS II study conducted in 2016. The EU MIDISII study supports CEPS findings, that despite various EU level and national initiatives “the European Union’s largest ethnic minority [Roma] continues to face intolerable discrimination and unequal access to vital services”. For example, “80 % of Roma surveyed live below their country’s at-risk-of-poverty threshold; every third Roma lives in housing without tap water; every third Roma child lives in a household where someone went to bed hungry at least once in the previous month; and 50 % of Roma between the ages of six and 24 do not attend school”.
This study suggests, in light of the EU’s commitment to advance the Rule of Law, Democracy and Fundamental Rights, to place the current situation of Roma in a wider historical perspective. It further addresses ‘historically rooted’ injustices perpetrated by national and local authorities against Roma with transitional justice tools that aim to build a common narrative and build trust. Therefore, in addition to a Rule of Law mechanism, the subsequent chapter elaborates on the broader societal process of Truth and Reconciliation within the EU, that aims at providing ‘majority society’ with a better understanding and greater sensitivity about the ‘historically’ rooted and systemic nature of injustices and to propose ways for communities to work together towards reconciliation based on principles of fairness and cooperation.
4.1.2. A ‘right to truth’ as a condition for effective justice and dignity
There is a close relationship between the right to know the truth and that of effective remedies or justice of victims of human rights violations. That relationship becomes most intimate and crucial when perpetrators are state governments and/or authorities, or when human rights violations result from, or find their roots in, rule of law backsliding or systematic rule of law deficits.
Previous Sections have argued that antigypsyism must be read and addressed from the perspective of a triangular relationship between rule of law, democracy and fundamental rights, which are co-constitutive in EU Treaties and national constitutional and legal traditions. The existence of a ‘right to the truth’ had been acknowledged and recognised by relevant international and regional human rights standards and actors. Yet, what does a ‘right to truth’ actually entail in the scope of European human rights law and jurisprudence? And what are its scope of application and potential advantages for the EU legal system and the EU Charter of Fundamental Rights, especially at times of addressing antigypsyism and scaling up Roma inclusion strategies?
• The role of truth in upholding human rights: the Strasbourg Court’s contribution
The right to truth in cases of human rights violations has recently been at the heart of a set of subsequent judgments by the European Court of Human Rights (ECtHR) dealing with the complicity of several European governments with the US CIA-led extraordinary renditions and secret detentions programme, in particular those in Macedonia, Poland, Italy, Lithuania and Romania.684
In these cases, the ECtHR recognised the existence of the right to truth for the first time and put particular emphasis on its importance not only for the applicant and their family, but also for other victims of similar crimes and the general public, who had the right to know what had happened.685 Its ‘ownership’ does not only belong
684 For an overview of all relevant cases refer to European Court of Human Rights (2018), Factsheet – Secret Detention Sites, October, Press Unit: Strasbourg.
to specific individual victims and their families, but also “to other victims of similar violations and the general public, who have the right to know what has happened”.686 The right to know the truth therefore comprises both an individual as well as a general public or public accountability dimension. It also comprises private and public ownership. According to the Strasbourg Court:
An adequate response by the authorities in investigating allegations of serious human rights violations may generally be regarded as essential in maintaining public confidence in their adherence to the rule of law and in preventing any appearance of impunity, collusion in or tolerance of unlawful acts. For the same reasons, there must be a sufficient element of public scrutiny of the investigation or its results to secure accountability in practice as well as in theory.687
The same case-law has clarified that the ‘right to truth’ entails a duty (or ‘positive obligation’) by relevant state authorities to bring to light and allow for “effective, prompt and thorough” investigations into the alleged human rights violations, as well as to ensure a “sufficient element of public scrutiny”.688 The underlying principle in the Strasbourg Court’s assessment has been the need to prevent impunity in cases of serious human rights violations, which according to the Council of Europe689 “…must be fought as a matter of justice for the victims, as a deterrent to prevent new violations and to uphold the rule of law and public trust in the justice system”.
The Strasbourg Court found in its review of various CIA-led secret detention sites that the European governments involved had been negligent or obstructed the truth, which in turn undermined the effectiveness of remedies for victims. They had not only unjustifiably failed to properly secure an effective and independent investigation on the human rights violations of the victims of the CIA-led programme. In some cases, these same governments had also actively put serious obstacles aimed at preventing the search for truth and justice, in particular in what concerns well-documented cases of torture and ill-treatment of victims (Art. 3 European Convention of Human Rights, ECHR).
The ECtHR has in this way positively contributed towards a better understanding of the linkage between truth and justice in cases of grave human rights violations. In a Joint Concurrent Opinion (JCO) several Judges rightly pointed out the “timid” and over-cautious approach by the Court in not acknowledging more expressly the relation to Art. 13 ECHR.690 The JCO underlined that “the right to the truth would be more appropriately situated in the context of Article 13 of the Convention, especially where, as in the present case, it is linked to the procedural obligations under Articles 3, 5 and 8” ECHR.691 The same judges reiterated that “for society in general, the desire to ascertain the truth plays a part in strengthening confidence in public institutions and hence the rule of law”.692 The ECtHR has recently acknowledged the central role played by the ‘right to truth’ in maintaining public confidence in state’s compliance with the rule of law, and that the “gravity of the issues involved requires particularly intense public scrutiny of the investigation”.693
686 Case Husayn (Abu Zubaydah v Poland, Application no. 7511/13, 24 July 2014, § 489.
687 See para.489 of Case Husayn Abu Zubaydah v Poland, Application no. 7511/13, 24 July 2014. The judgment made reference here to see
Anguelova v. Bulgaria, no. 38361/97, § 140, ECHR 2002-IV; Al-Skeini and Others, § 167.
688 Ibid, para. 192. See also Case Nasr and Ghali v. Italy, application no. 44883/09, 23 February 2016.
689 Refer to Council of Europe, Guidelines of the Committee of Ministers of the Council of Europe on eradicating impunity for serious human rights violations, 30 March 2011.
690 See Joint Concurrent Opinion of Judges Tulkens, Spielmann, Sicilianos and Keller, which highlights that the Court however did not expressly acknowledged “that in the absence of any effective remedies – as conceded by the Government – the applicant was denied the “right to the truth”, that is, the right to an accurate account of the suffering endured and the role of those responsible for that ordeal” or “the right to ascertain and establish the true facts”. Reference was here made to Association “21 December 1989” and Others v. Romania, nos. 33810/07 and 18817/08, § 144, 24 May 2011.
691 See para. 4 of Joint Concurrent Opinion. On the general principles deriving from the ECtHR case law on Art. 13 ECHR refer to Case Abu
Zubaydah v. Lithuania, Application no. 46454/11, 31 May 2018, § 672-675. 692 Ibid, para. 6,.
693 Case Al Nashiri v. Romani, Application no. 33234/12, 31 May 2018, § 654 states that:
“In that regard, the Court would emphasise that the securing of proper accountability of those responsible for enabling the CIA to run Detention Site Black on Romanian territory is conducive to maintaining confidence in the adherence by the Romanian State’s institutions to the rule of law. The applicant and the public have a right to know the truth regarding the circumstances surrounding the extraordinary rendition and secret detention operations in Romania and to find out what happened at the material time. A victim, such as the applicant in
Art. 13 ECHR must be therefore read in accordance with the effective exercise of all relevant ‘substantive’ human rights enshrined in the ECHR, and a ‘right to truth’ makes little sense without being acknowledged as one its emblematic manifestations. While the ECtHR has been somewhat too prudent, it is clear that there is an intrinsic relationship between truth and justice, which takes specific features and relevance in cases of institutional or state-led human rights violations, and which entails a duty to allow for investigation, reparation and democratic and public accountability of past and current wrong-doings against Roma communities as part of or as a