The law is the most mercurial liberator and enslaver of history. The world’s most oppressive and brutal systems—the Nazi regime, Apartheid, and American slavery—were strongly rooted in the legal infrastructures of their countries. Yet evolutionary legal codification—the Geneva Conventions, Dredd Scott v. Sandford, the Universal Declaration of Human Rights—were instrumental in overturning the legacy of political failure and tyranny. But the evolution of the law has not taken away its dualism. For the Roma, Europe’s largest transnational minority, the law remains a double-edged sword.
Despite its limitations, most of us would like to see the law in western liberal countries today as a shield against societal ills and an equalizer in the face of injustice. Of the three branches of government we are all so familiar with in the US, the courts are the least political, maintaining their discipline while a polarized Congress fails to function and the White House implodes in scandals. However, the legal system often traps itself in its own web of bureaucracies and technical minutiae, developing a complicated relationship with those in society that need the law the most. This is manifest in the case of the Roma.
During spring break, I co-led a trip to Czechia, Hungary and Romania to learn about Roma communities and their challenges. Long-running court battles, legal inequalities and progressive legislation were recurrent themes in our conversations across all three countries. Moreover, we were quick to discover that some problems were befuddling tragedies.
I start here with a positive—one of the hallmarks of the European Union legal protections is the European Court of Human Rights (ECHR). Seated in Strasbourg, the court has existed since 1959 and passed over 10,000 judgments. For a supranational body, the court is surprisingly powerful; since 1989, the court does not need the blessing of the European Commission to pursue cases and victims can directly submit their complaints to the Court when domestic remedies fail them. There is no cost to lodge a case and financial assistance is available for representation.
Given these conducive conditions, it is not surprising that a large number of Roma legal cases have ended up in the hands of ECHR judges. Among the EU’s newer members in Eastern and Central Europe, where human rights institutions are weaker, these cases are even more common. In a published list of about 80 cases related to “Roma and travelers” heard by the ECHR, a whopping 66 were in Eastern and Central Europe. Today, many of these cases are considered landmark victories for the Roma community.
From community organizing leader Martina and Romanian think-tank analysts to local law students and social housing workers, everyone we met had some of these cases at their fingertips. I.G. and Others v. Slovakia (2004) brought to light the forced sterilization of Romani women in Slovak hospitals and compelled the Slovak government to pay substantial monetary compensation given the grave nature of the violations. D.H. and Others v. the Czech Republic (2007) exposed the devious placement of Roma children in schools for children with special needs, creating de facto segregation and educational inequalities. Vona v. Hungary (2013) confirmed the legality of banning an anti-Roma hate group and reaffirmed the need for a democratic society to protect the values that are fundamental to its functioning. The Roma community’s problems come as an anachronistic shock for modern European societies given their prevalence across Europe. Luckily, the people have access to a rare avenue for protection independent of the politics and prejudices of their national populations.
However, the European Roma Rights Center, a frontline legal advocacy group, was quick to remind us that some things are too good to be true. The ECHR, while powerful, has struggled to make an impact on the ground. For example, with D.H. and Others v. the Czech Republic, schools have been desegregated in honeymoon periods after landmark legal decisions but have returned to former prejudicial practices after that short-term period is over. Moreover, given the current polarizing climate of European politics, overreach by the ECHR will only push countries further in the direction of Brexit-like exits and Hungary-style “illiberal democracy.”
Statute of Limitations
The statute of limitations is not special to the European system but is particularly damning for some Roma injustices. In fact, the statute of limitations is so mundane that every country has it in some sense. The statute “bars [criminal and civil] claims after a certain period of time pass after an injury.” The certain period of time varies from country to country but tends to average between 10 and 25 years. In Europe, the time period is 10 years.
This means any injuries to and crimes against Roma people conducted 10 years ago can no longer be easily filed in court. This is a major obstacle because the movement for Roma rights has been a gradualist process. Roma groups are often secluded, migratory and distrustful of outside authorities. It is not very common to see Roma victims voluntarily and actively approach official institutions like the ECHR for help. At the same time, Eastern and Central European Countries have become conscious of their own minority problems sluggishly. The biggest tragedy in this regard has been that of hundreds of Roma women who were forcibly sterilized but didn’t come forward in time to benefit from the law, according to Gwendolyn Albert, a major Roma activist we met in Prague. It has taken years of community organizing to convince Roma women sterilized against their will to step up and give the authorities a chance. However, at the same time, many women suffered in the early 2000s and will not find it easy to trust a court that says their victimhood is invalid because it has been 10 rather than 9 years since their sterilization.
In the context of Roma women, the statute of limitations seems oppressive and imprudent. However, it certainly exists for several compelling reasons. The statute technically protects the defendant because it prevents the trial of cases where evidence has been eroded by time and disallows frivolous old lawsuits that are not fair to all parties. Prosecuting parties are normally expected to be able to be sufficiently diligent to file the case in time before the time period expires. However, in this case, the statute is protecting a party known to have wronged in several analogous, proven cases (I.G. and Others v. Slovakia and similar). Moreover, intimidated and persecuted Roma women’s inability to file the case in time is barely a question of lack of diligence on the part of the Roma women. The statute of limitations is as controversial as it is normalized but there is little question that it lets wrongdoers in Eastern and Central Europe off the hook.
Ethnic Classification and Differentiation
Countries are more diverse than they would sometimes like to believe. Unlike the US and UK, where censuses ask people to tick a box about ethnic origin and racial differentials in data are openly discussed, it is illegal in most of Europe to collect data on ethnic or racial lines. The foundation of this rule is that a secular and united nation in which every citizen is equal and “homogeneous,” there should no distinctions by caste, race or color. The UK is the only European country (along with perhaps Estonia) to include the “ethnic origin” question in its census while others like Hungary make such inquiries optional. For others like France and Germany, the rule has roots in republican ideals and the horrors of Jewish labeling during Nazi collaborationism. But a good-intentioned law that rubber-stamps equality on paper can do little to hide the de facto discrimination that undoubtedly exists in these societies.
This was first pointed out to us at our meeting with the Czech Council for National Minorities’ Roma Unit, a governmental body that advises on affairs of minorities. Most of the data they rely on upon regarding Roma demographics is estimated. Moreover, social inclusion and welfare policies are always broad-based and cannot specifically cater to any community like the Roma. We were told of recent Czech legislation mandating compulsory pre-school education and sponsoring “social housing” that would target all the excluded and underprivileged populations rather than specific ethnic minorities. Affirmative action is not allowed in employment or education.
Although the policy seemed absolute, we noticed certain loopholes. The very existence of national lists of minorities, bodies like the “Inter-ministerial Commission for Roma Community Affairs” and directives such as a landmark report in the 1990s in Czechia suggest that there is often an unwilling admittance of ethnic divisions. While ethnic data may reinforce division, it is also necessary to track the impact of inclusion policies—once again, the laws on ethnic origin data create a web of contradictions for the Roma and policymakers seeking to help them.
Recent shoot-downs of executive immigration orders in the US have displayed the legal muscle of US courts. This has echoed years of criticism in the US that the judiciary, particularly the Supreme Court, has become too powerful. On the other hand, when we visited the European Roma Rights Center (ERRC) in Budapest, we were informed of the weakness of European counterparts. For example, many court decisions regarding school segregation have seen little to no de facto implementation in Czechia. In particular, the ERRC team quoted that European courts either lack “remedial powers” or are far more conservative in exercising said remedial powers compared to those in the US. Although the exact intricacies of remedial powers are complex and probably vary by type of court, one example from US courts is: “The court may make such additional orders or judgments as may be necessary to restore to any person in interest any moneys or property, real or personal, of which the person was deprived by means of any practice declared to be unlawful in ORS 646.607 (Unlawful business, trade practices) or 646.608 (Additional unlawful business, trade practices), or as may be necessary to ensure cessation of unlawful trade practices.”
Although many are familiar with the prejudices of judges and juries built into judicial systems, the law’s own procedures and rules can also be a handicap for upholding the spirit of the law. How ambitious should supranational jurisdiction be? How can the rights of both plaintiffs and defendants be protected under the statute of limitations? How do we understand ethnic differences in countries with complicated pasts without inadvertently institutionalizing differences? How do we regulate courts while making sure they have adequate remedial powers to punish offenders? These questions are responsible for the mixed experience of Roma communities in Central and Eastern Europe with the law.
This piece is the second in a multi-part series on Roma Rights. For an introduction to the topic, see Megan McQueen’s photo essay, and for more information on non-profits and Roma Rights, please see Lisa Qian’s piece.