geraldine scullion geraldinescullion@hotmail.co · geraldine scullion...

Geraldine Scullion

geraldinescullion@hotmail.co.uk

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Roma are EU’s most vulnerable ethnic minority:

◦ human rights abuses

victims of crime

coercive sterilization of women

e.g. VC v Slovakia

trafficking

◦ restrictions on movement

◦ poverty, exclusion and marginalisation

◦ segregated housing and education

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discrimination against Roma is denied

FRA - Impact of the Racial Equality Directive, views of Trades Unions and Employers, 2010: ◦ treatment not conceptualised as

discrimination

◦ didn’t see RED as applicable to Roma

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Reg 1612/68 on freedom of movement for workers within the Community

rights of citizenship under A17 of the Treaty establishing the EC ◦ no discrimination on nationality grounds

◦ right to move and reside within EU (Art 18)

Directive 2004/38/EC – the ‘free movement directive’ ◦ equal treatment, including the same social and

tax advantages, with MS nationals

Ibrahim C-310/08 and Teixeira C-480/08

Zambrano v Office National De L'Emploi C-34/0

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nationality excluded ◦ RD protects 3rd country nationals from

discrimination on racial grounds

racial or ethnic origin ◦ not defined

◦ concept of ‘race’ rejected

◦ differing interpretations in MSs

E.g. UK and Northern Ireland

◦ different protected grounds under ECHR

◦ ECJ recognised right to cultural identity in relation to choice of surnames Garcia Avello, C-148/02 [2003] ECR I-11613

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A14, European Convention of Human Rights 1950 - race, colour, descent, or national or ethnic origin, birth or other status

UN ICERD 1965, Article 1 - race, colour, descent, or national or ethnic origin

EU Social Charter, 1996 Part V Article E

Art 21 Charter of Fundamental Rights of European Union 2000

European Commission against Racism and Intolerance, General Policy Recommendation 7, 2002

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European Court of Human Rights ◦ Timishev v. Russia, 55762/00 and

55974/00 December 13, 2005 ‘ethnicity has its origin in the idea of societal groups marked by common nationality, tribal affiliation, religious faith, shared language, or cultural and traditional origins and backgrounds’

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‘as a result of their history, the Roma have become a specific type of disadvantaged group and vulnerable minority .. therefore require special protection..special consideration should be given to their needs and their different lifestyle both in the relevant regulatory framework and in reaching decisions in particular cases.. not only for the purpose of safeguarding the interests of the minorities themselves but to preserve cultural diversity of value to the whole community’(15766/03)

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associative discrimination ◦ Coleman v Attridge Law C-303/06 ECJ

carer discriminated against on grounds of her son’s disability

‘on grounds of’ includes another’s grounds

also covers perceived or assumed racial or ethnic origin

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what is the reason for the treatment? consequence of individual characteristics

lack of qualifications or skills

lack of personal documentation – Sampanis v Greece ECtHR 32526/05

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discriminatory advertisements included within RD concept of direct discrimination ◦ Centrum voor gelijkheid van kansen en

voor racismebestrijding v Firma Feryn NV, C-54/07, ECJ 2008

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ERRC research confirms employment discrimination – why no cases?

barriers include: ◦ obtaining proof of discrimination

use of ‘testing’

short time limits compounded by literacy, language, knowledge

of rights

cost, length and complexity of proceedings

lack of support to bring cases

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includes social security ◦ ECtHR Munoz Diaz v Spain 49151/07

healthcare – access to health care and social assistance ◦ ECSR complaints v Bulgaria

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social advantages ◦ E.g. discount rail cards, social grants for funeral

costs, guaranteed minimum income, student grants

education ◦ limited access to education

disproportionate numbers of Roma in schools for disabled

systematic educational segregation

separate schools or separate classes within mainstream schools

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access to and supply of goods and services which are available to the public ◦ services not defined

including housing ◦ not fully implemented in some MSs

◦ indirect discrimination covered

Roma experience: ◦ segregation in housing, discrimination in letting,

sale of property

◦ ECSR housing complaints – Italy, Portugal, France, Bulgaria

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multiple identities of Roma: women

◦ coercive sterilisation

◦ segregation in pre and post-natal health care

◦ dirty jobs etc

older Roma

children

disabled, gay, etc

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inadequate national law implementing directives ◦ E.g. not applied to public and private

sectors (Hungary), not outside employment (Latvia, Lithuania, Poland, Ireland), self-employment (Netherlands) etc

Kücükdeveci v Swedex GmbH & Co C-555/07, ECJ 2010

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need for legal representation

lack of support to bring cases ◦ Article 7(2) RED and A9(2) EED permit

organisations to engage in proceedings

victim led ◦ alternative models place statutory duty on

public authorities to eliminate racial discrimination

◦ actio–popularis (Bulgaria, Hungary)

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knowledge of rights

confidence in law ◦ Todorova v Bulgaria 37193/07 March

2010, ECtHR - racist stereotyping in sentencing violated Art6 & A14

victimisation protection ◦ Article 9 RD and A11EED

◦ reactive rather than proactive

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effective, proportionate and dissuasive ◦ Article 15 RD and A17 EED

ECJ principles established in Von Coulson [1984] ECR 1891 ◦ sanctions must guarantee real and effective

judicial protection and have a deterrent effect

imaginative approach ◦ proper financial awards

◦ ask national courts to order changes

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Articles 5 RED and A7 EED permit MSs to maintain or adopt specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin, or the grounds in the EED

examples:

◦ Czech R – subsidies for Roma in higher education

◦ Hungary – support Roma employment

◦ Decade of Roma Inclusion

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obligation on MSs to provide information and dialogue with social partners ◦ Article 10 &11 RD and Articles 12 & 13 EED

work with Roma activists ◦ Vesnicak Souziti, Czech Republic

◦ An Munia Tober, Northern Ireland - Irish Travellers’ equality and human rights training programme

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European Roma Rights Centre www.errc.org

Fundamental Rights Agency www.fra.europa.eu

Migration Policy Group www.migpol.com

European Court of Human Rights www.echr.coe.int

COE European Commission on Racism and Intolerance www.coe.int/ecri

European Roma Information Office www.erionet.org

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