European Justice and the Rights of Russian Roma

As it is well-known, Russia is a member of the Council of Europe and actively signs and ratifies many conventions and agreements obligating Russia to ensure that the rights and freedom of its citizens are protected. The same protections apply to those who are not citizens but who are on Russian territory for one reason or another.

One must avoid the common misconception that the defense of human rights is purely negative, that is, that the state somehow promises not to violate someone’s rights – not to kill, not to deprive of freedoms, not to torture, steal, deny legal defense, or discriminate. Of course, all these requirements are guaranteed by European human rights law. Each relates to one of the articles of the European Human Rights Convention – the most important European law, compliance with which is monitored by the European Human Rights Court (Strasbourg), which investigates complaints regarding violations of the Convention’s articles and delivers verdicts on every case it considers to be founded. When the European Court finds a state guilty of violating one of the statutes of the European Convention, the decision becomes a precedent and must be taken into account in national legislation in the future and considered law (or an amendment to existing laws).

But alongside these important European laws addressing what is forbidden, there are many other laws that define what is required. For example, the “Convention on the Protection of National Minorities” is very important in defending the rights of Roma. Russia ratified this convention, thus promising to pass a number of laws on the national level and guarantee compliance with many additional requirements related to the particularities of the position of people belonging to national, religious or language minorities. Laws guaranteeing the absence of discrimination in education, work, and social and medial help must be in effect in countries that have signed and ratified this convention. Moreover, the state’s obligation is not simply to declare that it is theoretically possible for such groups to benefit from the blessings of a civilized society but also to guarantee real things: qualified teachers and native-language textbooks for use in schools attended by national minorities, the creation of conditions that allow those belonging to language minorities to communicate in their native languages in all government institutions, providing places for minorities to hold cultural and religious activities, financing and supporting publications made by members of various minority groups in their national languages.

The Russian Federation is a multi-cultural country. Tens of groups living in Russia are national minorities, and far from all of them have territorial autonomy. Even autonomous republics frequently have national problems, but matters with “landless” peoples are even more complicated. We know how frequently Russian Roma struggle with direct and indirect forms of discrimination – with what difficulty they get an education, how few chances they have to find good jobs, how they are at times denied social and medical assistance, the problems they face with accommodation.

Even more terrible is the fact that Roma do not feel that they are protected by the state, even in matters of life and death. Vulnerability to aggression from racists frightens “non-Russians” in our country just as much as the threat of violence from the guardians of the peace themselves – those who work in the country’s power structures.

None of this is recorded in the rosy picture of a harmoniously developing multi-ethnic society that our authorities regularly report to the European Council. On ratifying the convention on the protection of national minorities’ rights, Russia had to prove that it had a legislative basis for carrying out the demands of the “Framework Convention” (the name of which reflects the fact that the statutes of the convention are composed from already existing anti-discrimination laws). The authors of the Russian national report (2000) affirmed that the Russian Federation possessed the necessary legal basis, using highly general laws as evidence (in the spirit of “no one can be denied his rights because of his nationality or religion”). Of course, such laws were very progressive in the beginning of the 20th century, when, after Tsarism, the official persecution of people belonging to other nationalities and religious groups ended. But the new century demands more precise and practically applicable formulations that would allow minorities to stand up for their rights in court and which would force employers, police officers, government officials, and teachers to think long and hard before encroaching on anyone’s rights. Anti-discrimination laws of this sort have long been in effect in many European countries, and they truly change how minority groups are treated, even in places where some peoples (including Roma) have been persecuted for centuries.

The European Consultation Committee on carrying out the “Framework Convention on the Protection of National Minorities” noted in its evaluation of the Russian report (2002) that the Russian Federation’s anti-discrimination legislation is inadequate. The absence of any evidence that existing legal norms had ever been applied in court to defend members of minority groups also upset the Committee. It was recommended that Russia pass additional anti-discrimination laws and guarantee their effective use. Each country must report on its compliance with the “Framework Convention” once every five years. This considerably long period is given so that each country will have time to consider the committee’s recommendations and correct any non-compliances. The Russian Federation is scheduled to make its next report in March 2005.

But what has changed since the last report? Not a single new anti-discrimination law has been passed on the national level. The St. Petersburg Legislative Assembly, apparently ashamed of our city’s record number of racially motivated crimes, did pass a reasonably fair “Law on Interethnic Relations in St. Petersburg.” But St. Petersburg, after all, does not make reports to the European Council, and we have not heard of the law being applied in our city. Nonetheless, the Russian Federation’s report reads: “…the currently existing legislative basis allows us to protect the legal rights of national minorities in the Russian Federation adequately…” It goes on to tell rather confusedly about the RF’s successes in guaranteeing the rights of native peoples of the North and Far East. A far from complete list of Russian minorities is also provided. Roma are not listed… And few of the minorities listed were favored with a single word describing their current position.

According to the European Council’s regulations, the state’s report is followed by an alternative report composed by social and human rights organizations. Doubtless, the alternative report on Russia will reveal quite a few scandalous facts that human rights activists have collected over the last few years – information on violations of the rights of minorities throughout our country, in the Caucasus and in Siberia, in big cities and villages, in the Far North and in Kuban.

Materials on discrimination against Roma in Russia will certainly find a place in the alternative report – the Northwest Center for the Social and Legal Protection of Roma and our colleagues from other Russian and international human rights organizations will make sure of it.

Informing international legal institutions about the actual state of affairs in their country is the responsibility of human rights activists, but the results of their informative work is not felt by those who suffer from discrimination immediately. Thankfully, there are also more effective mechanisms of protection, at least when the problems at hand are concrete. We asked Olga Pavlovna Tseitlina, a St. Petersburg lawyer who is well acquainted with defending the rights of national minorities, including Roma, about ways of obtaining legal assistance and the right to fight for equality in the human rights court in Strasbourg.

–Olga, a year and a half ago, at my request, you took it upon yourself to represent the interests of Northwest Center employee Aleksandr Klein, whose 23-year-old wife Fatima Aleksandrovich died in 2002 at the Pskov police station. It seems that this was the first case related to Roma rights in our region that went all the way to the court in Strasbourg. Tell us about this case please.

–We conducted the case with the European Roma Rights Center. Human rights activists from Budapest took an interest in the case from the very start because they believed that Fatima Aleksandrovich, who was detained in Pskov and died inside the city police station, was not only a victim of the arbitrary rule of the police but also of ethnic discrimination as a Romani woman. Together with her husband Aleksandr Klein – an unrecognized victim in the case – we demanded that a criminal case be opened against the police for intentionally causing the death of Fatima Aleksandrovich. She entered the police station alive and well and as a result we are left with a disfigured corpse and a weak story from law enforcement agencies that she jumped from the window.

Unfortunately, a timely and serious investigation of the causes of Aleksandrovich’s death was not carried out. As a result many pieces of evidence and testimony were lost. A criminal case was not opened. According to definitions set out in the European Convention, conducting effective investigations is primarily the responsibility of the state.

In connection with the lack of an effective and independent investigation of the circumstances of Aleksandrovich’s death, and also due to the many violations of correct procedure that took place, we have reason to believe that she was killed intentionally and that the inaction of law enforcement bodies is dictated not by their desire to investigate the case and punish those guilty but by a desire to hide the crime committed by the police. By acting as they did, the police violated a number of articles of the European Convention on human rights: Article 2 – the right to life, Article 3 – on the illegality of torture and other inhumane treatment, and Article 13 – on the absence of effective investigation.

In the preliminary letter that we sent to the European Human Rights Court, we justified our complaint on the basis that these articles had been violated. Now the European Roma Rights Center is preparing their charge — they might add Article 14, on the unacceptability of discrimination, to the list of violated articles.

–On a related matter, we would also like to hear your opinion on the European Human Rights Court’s decision in the case of Nachev vs. Bulgaria. It seems that this case was the first in which the court ruled that the 14th Article as well as the 2nd Article of the Convention had been violated.

–Yes, I was present at the hearings on this case. The court’s ruling was remarkable. The police not only killed a person who was fleeing from them by shooting him in the spine, they also called him a “dirty gypsy” in the presence of a witness, expressing hostility toward the victim because of his ethnicity. The court considered this sufficient basis for ruling against Bulgaria for violating Article 2 (for violating the man’s right to life) as well as Article 14 (for ethnic discrimination). This precedent has already become a legal norm; it will necessarily be used in other cases in which violation of the right to life is accompanied by discrimination.

–So you’re saying that contesting the rulings of local authorities in the European Court in Strasbourg is a real chance for Roma to defend themselves from discrimination and from the arbitrary rule of the authorities. The only bad thing is that the whole procedure takes a great deal of time. Some situations are just too urgent.

–There are also a few ways of getting faster decisions. In extreme cases, when, for example, a person’s right not to be sent (deported, extradited) to a country where his or her life and liberty are in danger (a serious issue for Roma today) the person should appeal to the Court directly. A short, faxed letter, headed “Rule 39. Urgent,” should inform the court of what has happened, make reference to rule 39 of the court’s regulations, and ask that the court halt the expulsion (deportation, extradition). If the appeal is successful, the court will immediately take measures to stop the expulsion, at which point a formal case can be brought.

–When a ruling on deportation is made officially in the court?

–One can even appeal to the court when a decision has been issued by the administration rather than the courts. If we believe that the person against whom a decision has been made might be sent to a country where he will be punished cruelly or where there is danger to his life or health, then we simply appeal to the Strasbourg court by fax, making reference to Article 3 of the European Convention. Within literally five days, they make a decision on whether to halt the expulsion, deportation, extradition, etc. Of course, it is better if the decision is made in court; one has to contest a court’s ruling in order to exhaust all possible means of defense offered by the national government. But sometimes a person is going to be deported or extradited during the complaint procedure. For example, they wanted to send one person we were defending to Turkmenistan. Before the public prosecutor’s office had made a decision on the deportation, we employed the Rule 39 procedure of the Court’s regulations and appealed to the European Court who issued an urgent ruling that the applicant’s deportation should be halted. He had been under arrest, but he has been released because we made the appropriate appeals. The deportation process has been stopped – he cannot be deported and so he must be released. Although a decision as such on his deportation had not been made by the general prosecutor’s office, and it was, accordingly, never appealed in court, the fact that he had already been detained for deportation made it possible for us to appeal to the European court because the measure on deportation had already been passed.

This is of great importance to Roma, and here’s why: Article 18.8 of the legal code (KAP) says that a citizen can be expelled from the Russian Federation or sent to the territory of another subject of the RF for lacking registration. Moreover, it often happens that a person is deported to a country of which he or she is not a citizen. Court rulings do not even indicate where a person should be sent – only that they should be expelled from the territory of the RF. This is a serious issue for citizens of the former Soviet Union who have no documentary evidence that they are citizens of a particular state but have been living on Russian territory for many years. They have all the rights and responsibilities of a citizen, but because they lack registration they are not recognized as Russian citizens. They are refused new passports and are not included in processes of legalization because they have no documents confirming their identities. The result is a vicious circle. But if the person comes from Turkmenistan or Tajikistan, for example, where there are a mass of human rights violations and where the person may be in danger, especially if he or she belongs to a national minority (Romani, for example), then he or she may appeal to the European court and say that expulsion (deportation, extradition) could present a serious threat to his or her life and liberty. If the person is to be sent to Turkmenistan, for example, he could be imprisoned and possibly tortured. In this case, one should appeal to the European court on the basis of rule 39 of the court’s regulations. You have to use this procedure because it is the fastest and most effective. Within 3-5 days, the court will make a ruling on whether to prevent the extradition or not and will inform the Russian administration accordingly. Then the administration cannot deport the person and he or she can stay on Russian territory until the case is resolved in the European court. This is a long procedure that takes up to several years and at least three years. The following precedent exists: a person was detained, but now he has been freed. This means he can stay in Russia, not in detainment, and wait for a decision from Strasbourg. And if rule 39 had not been used he would long ago have been sent to Turkmenistan since he had already been detained for deportation.

Moreover, this rule can be used when we believe that Article 8 of the Convention has been violated, that is, if, for example, the person’s wife and children are Russian citizens. Deportation would be an illegal interference in private and family life. This, too, could be important for Roma. Many of them have families but have not got passports, sometimes the authorities illegally refuse them passports. They have no documents confirming their identity and the authorities try to deport them to a country where their life and freedom will be under threat – this would be a violation of not only Article 3, but also Article 8 because in the situation the unity of the family is violated. In this case, it is imperative to appeal to the European Court and make reference to these articles of the Convention. The procedure is free of charge. Appealing to the Strasbourg court is free, and if a person is unable to pay for his defense, the court will pay for the services of his lawyer. The person should fill out a special “legal aid” form, send a declaration that he has no means to pay for his defense. He needn’t do anything special to prove this. He should just sent proof such as pay slips. If the person has no such proof, he need only fill out a special declaration provided by the court and sign it. For example, “I work in such and such organization and have the following income / have no income / have no work / have children, a wife, my mother, etc. in my care. If confirming documents are available, you should enclose them and ask the court to allocate funds for your legal costs. Then the European court will pay for your lawyer’s work.

–It that because even in urgent cases it’s better if a lawyer makes the appeal?

–That’s not necessary at all. When the appeal is being examined and during correspondence with the court, a person must be represented by a lawyer, but the initial statement can be very brief, one to two pages plus court or administrative rulings that confirm the statement. For example, the statement could say that a person is being deported or extradited to his or her country of origin or to another country that is unsafe for the person, but our administration has nonetheless decided to deport him and the court has ruled to this effect.

–And how are mass deportations viewed from a legal perspective? I know that rulings on deportation should always be made on an individual basis and that there have been a few instances in which the Strasbourg court found Italy and Belgium guilty of illegally deporting whole tabors of Roma.

–This would be a violation of Article 4 of Protocol 4 of the European Convention, on the illegality of collectively deporting foreigners.

–So how should we view the Tabor police operation that was carried out last year in St. Petersburg? When Roma who were living here illegally, Ukrainian citizens, were deported en masse from the Russian Federation…

–And where were they sent – to another country?

–Yes, they were taken to the Ukrainian border somewhere near Kharkov. There were also cases of mass deportations of Tadjiki and Uzbeki Roma. Buses were brought directly to their settlements and all the Roma were taken away.

–If it was a collective expulsion or deportation it was definitely illegal. It is also possible, however, that individual documents were prepared for each of them, and because they were told nothing about it they didn’t know what rulings had been passed on them and as a result could not appeal the rulings. This violates other articles of the Convention – Article 1 of Protocol 7 on the rules for carrying out administrative matters, that is, violation of the norms of national legislation. –In conclusion, I would like to ask: despite the difficulty and length of appealing administrative rulings in the European court in Strasbourg, do you believe that this means of resolving problems is correct, necessary, and useful?

–Yes! Of course – it is the only means of effectively protecting not only the rights of individuals but also human rights in general. So that we never have to repeat the events of 1937.

Stefanija Kulaeva spoke with Olga Tseitlina

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