CUPS + AIRE Centre Monitoring Discrimination in Serbia

1. CUPS + AIRE CentreMonitoring Discrimination in Serbia AIRE Centre Belgrade 8 February 2012

2. Mission: to promote awareness of European law rights and assist marginalised individuals and those in vulnerable circumstances to assert those rights. Two main activities: • Litigating cases before the European Court of Human Rights. • Providing free legal advice on EU law rights (mostly EU law on the free movement of persons).

3. Importance of Monitoring From a lawyer’s perspective – some AIRE cases: • M v United Kingdom • LR v United Kingdom • N v United Kingdom

4. Testing and the ECHR No case law using testing, but there is a need for it. Possible uses: • Create cases to take to Strasbourg. • Provide evidence to help applicants overcome their burden of proof. • Provide information to the Committee of Ministers about compliance with judgments.

5. Objectives of this Session • Familiarise you with key non-discrimination cases of the European Court of Human Rights to improve your ability to identify violations of the European Convention on Human Rights when monitoring and reporting on cases of discrimination in Serbia. • Produce a testing plan for a specific circumstance.

6. Overview of the Session • Relevant Provisions of the Convention • Article 14 • Protocol 12 • Article 3 • Burden of Proof in Discrimination Cases • Positive obligations: hate crimes • Positive obligations: violence against women • Thlimennosprinciple • Discrimination against Roma (and other vulnerable groups) • Indirect discrimination • Sexual-orientation discrimination and family life • Disability and health discrimination • EU Standards • Monitoring • Workshop

7. Article 14 ECHR The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

8. Protocol 12(1) ECHR • The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language , religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status. • No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1. No judgments yet, only inadmissibility decisions.

9. Article 3 ECHR No one shall be subject to torture or to inhuman or degrading treatment or punishment. • East African Asians Case (against the UK) • Moldovan and others v Romania Key phrase: ‘discrimination based on race can of itself amount to degrading treatment within the meaning of Article 3’.

10. How Article 14 Works – Basic Cases Sexual Orientation and Freedom of Expression • Baczkowski v Poland • Alekseyev v Russia Key phrase: ‘even appearances may be of a certain importance in the administrative proceedings where the executive powers exercise their functions relevant for the enjoyment of these freedoms’.

11. Positive Obligations: Hate Crimes • Šečić v Croatia • Milanović v Serbia Key phrase: ‘Treating racially/religiously motivated violence and brutality on an equal footing with cases that have no such overtones would be turning a blind eye to the specific nature of acts that are particularly destructive of fundamental rights’.

12. Positive Obligations: Violence Against Women Opuz v Turkey Key phrase: ‘[T]he State's failure to protect women against domestic violence breaches their right to equal protection of the law and that this failure does not need to be intentional’. (Opuz, § 191) But see A v Croatia

13. Thlimmenos v Greece Key phrase: ‘The right not to be discriminated against in the enjoyment of the rights guaranteed under the Convention is also violated when States without an objective and reasonable justification fail to treat differently persons whose situations are significantly different.’

14. Roma and other Vulnerable Groups • Oršuš v Croatia (Roma) • M.S.S. v Belgium and Greece (asylum seekers) Key phrase: ‘[A]s result of their history, the Roma have become a specific type of disadvantaged and vulnerable minority…. They therefore require special protection’.

15. Indirect Discrimination • D.H. and Others v Czech Republic • Sampanis and Others v Greece • Oršuš v Croatia Key phrase: ‘[A] difference in treatment may take the form of disproportionately prejudicial effects of a general policy or measure which, though couched in neutral terms, discriminates against a group … [S]ucha situation may amount to “indirect discrimination”, which does not necessarily require a discriminatory intent.’ D.H. (§ 184)

16. Sexual Orientation Discrimination in Family Life • E.B. v France • Schalk and Kopf v Austria Key phrases: ‘[I]t artificial to maintain the view that, in contrast to a different-sex couple, a same-sex couple cannot enjoy “family life” for the purposes of Article 8. Consequently the relationship of the applicants, a cohabiting same-sex couple living in a stable de facto partnership, falls within the notion of “family life”, just as the relationship of a different-sex couple in the same situation would’.

17. Health, Disability and Discrimination Kiyutin v Russia Key phrase: ‘Although Article 14 does not expressly list a health status or any medical condition among the protected grounds of discrimination, the Court has recently recognised that a physical disability and various health impairments fall within the scope of this provision…. a distinction made on account of one’s health status, including such conditions as HIV infection, should be covered – either as a form of disability or alongside with it – by the term “other status” in the text of Article 14’. (Kiyutin, § 57)

18. EU Standards – Race Discrimination • Directive 2000/43 (the race directive) – a complete legislative scheme for prohibiting race discrimination in a wide rang of areas • See Case C-54/07 Firma Feryn (attempt to rely on others’ discrimination: ‘I won’t hire them because my customers won’t let them in their homes’).

19. EU Standards: Employment Discrimination • Directive 2000/78 (the employment directive) – a complete legislative scheme for prohibiting discrimination on a wide range of grounds in employment. • See Case C-267/06 Maruko (discrimination between same-sex couples in registered partnerships and married couples) • See Case C-303/06 Coleman (discrimination against a mother because of her son’s disability)

20. Monitoring Two key skills: • Straightforward writing: short sentences; simple vocabulary. Take inspiration from how the European Court writes the facts of cases. • Weaving the language of the European Court of Human Rights into monitoring.

21. Example: AIRE Describing Roma Being Evicted from Their Housing

22. Dimitrova Facts Continued The three families had lived in a house in 1a Borimechkata Street in the Mladost borough of Varna, Bulgaria, for twenty years. Like other Roma families in Bulgaria, they had been accommodated in dilapidated houses owned by the municipality. The Applicants allege that the homes were in such a state of disrepair that they posed a danger to their inhabitants. Despite the substandard living conditions the applicants attempted throughout the years to improve the living conditions within the property by making renovations.

23. Dimitrova Facts Continued For over fifteen years, the first twenty-three Applicants had applied for adequate housing, without success. Roma housing applicants have been told by the mayor of the Mladost borough of Varna, Ms Iordanka Yunakova, that there are houses available in the Mladost borough of Varna, but that non-Roma inhabitants of the area do not like Roma neighbours, for which reason the Applicants could not be accommodated there. In any event, the fact that the Applicants were housed at 1a Borimechkata Street meant that they could not be included on the housing list, in accordance with the Ordinance on the Identification of Citizens' Housing Needs, Accommodation and Sale of Municipal Houses.

24. Dimitrova Facts Continued The municipality of Varna planned to demolish the building the first twenty-three applicants were living in, along with several other buildings in the street, allegedly to build a kindergarten. The first to twenty-third Applicants were informed of the demolition one year before it was supposed to take place. The Applicants, after taking legal advice, decided not to challenge the demolition order. Based on experience from earlier demolitions of Roma-inhabited municipal housing, however, the first to twenty-third Applicants, with the assistance of the twenty-fourth Applicant, explicitly requested that the local authority provide them with alternative housing by the time their building was to be demolished.

25. Dimitrova Facts Continued On 21 November 2008, demolition works started on the first building. Following an intervention by the twenty-fourth Applicant, the municipality orally granted a ten-day postponement for the demolition in order to find alternative housing for the first twenty-three Applicants. This agreement was reported in a newspaper article in “Pozvanete” of 22 November 2008 (Annex A). The council also announced over the radio that alternative accommodation would be found, especially for the children, given that it was winter. During the ten-day period, the council refused to meet with the twenty-fourth Applicant to solve the accommodation problem. No accommodation was found for the Applicants.

26. Dimitrova Facts Continued On 5 December 2008, the council proceeded with the demolition. The Applicants were evicted by police forces and a private security firm, ‘Spartak’. At 7 o’clock in the morning on 5 December 2008, police surrounded the building and entered it. They destroyed household items with clubs and poured water over the burning stove. The Applicants were ordered to go out into the street, including the small children. Among them was Sava Zyumbyulkov Savov, aged about one month (date of birth: 20 October 2008), the youngest child of the eighteenth and nineteenth Applicants.

27. Dimitrova Facts Continued The building was then demolished by firms hired by the municipality; they did not remove the Applicants’ belongings first or allow the Applicants to remove them. The demolition officials as well as the mayor of the Mladost Borough of Varna, who was present, made insulting remarks to the Applicants, such as “Take that back home” and “You’re too dirty, go take a shower and then come back”. The children witnessed their home being destroyed and their parents’ distress.

28. Dimitrova Facts Continued Although the council claimed to have plans for the demolition of multiple buildings to make room for the kindergarten and claimed to have demolished the houses which were in the worst shape, the twenty-fourth Applicant, which continues to monitor the situation, has noted that only buildings inhabited by Roma were demolished. Other, more dilapidated buildings in the street remain standing at present. None of the rubble from the demolition has been cleared. There is no sign of the supposed construction project, for which the cleared space appears to be insufficient. (The area of the construction site is approximately 600 square metres.)

29. Dimitrova Facts Continued The Savov family were not directed to new housing. At approximately noon on 5 December 2008, the eighteenth Applicant, concerned about the situation of her newborn son, enquired with the borough authorities where they could move. The borough authorities directed them to the house at 115 Pop Hariton Street. They began to move, but it was not until 11 o’clock in the evening that they were able to do so. They were left on the street for 16-17 hours in the meantime. They took shelter under a block of flats, where they had to change the baby’s nappies and clean their children in the open.

30. Dimitrova Facts Continued The Savov family were accommodated in one room of the house. At that point, ten members of the family occupied the same room (the Applicants along with their now-deceased child and some of their relatives). The building at 115 Pop Hariton Street is a single-storey house with a total of three rooms. On 5 December 2008, the fifth room was uninhabitable. The Savov family renovated the room to make it habitable and now three people live in that room, while the six Applicants (18-23) live in the room in which they were all originally living. When the families moved into the building, there was no electricity supply and no hot water. The only toilet was an external, destroyed toilet, and there was no place to bathe. There was only one sink. Photographs of the house are attached (Annex K). Six months after they moved in, the roof collapsed in the Dimitrova family’s room and they had to patch it up themselves. Now the roof leaks when it rains. They requested on several occasions for the house to be supplied with electricity, which it was for a brief period, but at present there is no electricity.

31. Dimitrova Facts Continued The Applicants allege that because the one-month-old child had to remain outside on 5 December, and because of the inadeaquate accommodation the authorities provided the Applicants after the demolition of their building, Sava Zyumbyulkov Savov contracted pneumonia. He died shortly after the eviction, on 30 December 2008, aged two months and ten days. The death certificate indicates that cause of death was a bilateral pneumonia and acute respiratory and cardiac failure (Annex B). The child was healthy at birth (see Annex C).

32. Dimitrova Facts - Summary The first twenty-three Applicants were forcibly evicted from their homes in a building in Varna, Bulgaria, on 5 December 2010. The building was demolished in front of them. No plan had been made to re-house them. They had to wait for several hours before alternative housing was located for some of them. Those for whom alternative housing was located (two families) moved into substandard premises, where they have remained ever since. The others (a third family) are living in a makeshift home in conditions of extreme poverty.  The twenty-forth Applicant, an NGO, attempted to bring discrimination proceedings in the administrative court on behalf of the other Applicants, on the basis that they were victims of discrimination based on their Roma ethnicity. The complaint was refused at first instance because, in the court’s view, failing to identify an administrative act complained of, failing to comply with time deadlines and because an NGO was not able to represent the other Applicants in such proceedings. The ruling was upheld on appeal.

33. Dimitrova – Article 3 The Applicants were forcibly evicted from their homes at 7 o’clock in the morning on 5 December 2008. They were not permitted by the authorities – and the private security officers under the authorities’ control – to take their belongings with them. The buildings were demolished with all of their possession still inside. The Applicants included young children and their parents, who stood by while the events occurred. Some of the Applicants were then forced to take shelter under the terrace of a block of flats, where they had to change their children’s nappies and clean them in the open. They were given no assistance until some of them, several hours later and after insistence on their part, they were housed in substandard accommodation. The Applicants submit that these circumstances were sufficiently traumatic to constitute treatment contrary to Article 3 (see, e.g., Selçuk and Asker v Turkey (1998), § 77: “the exercise... was carried out contemptuously... and no assistance was provided to them afterwards”).

34. Dimitrova – Article 3 The Applicants note that ‘discrimination based on race itself can of itself amount to degrading treatment within the meaning of Article 3’ (Moldovan and Others v Romania (2005), § 111; East African Asians v the United Kingdom (Commission Report, 1973, page 62). In this regard, the Applicants recall the Grand Chamber’s recent statement on the situation of Roma in Europe in its judgment in Oršuš and others v Croatia (Grand Chamber, 2010), § 147: [insert quotation]

35. Testing Plan Let’s find a situation that would be good for testing, e.g.: • Lesbians applying for in vitro. • Single gay men/lesbians applying for single-parent adoption. • Roma applying for State housing or other State services. Take 20 minutes to describe such a situation, and then let’s develop a testing plan together.