MINISTERS’ DEPUTIES

Notes on the Agenda

CM/Notes/1406/H46-22

9 June 2021

1406th meeting, 7-9 June 2021 (DH) Human rights   H46-22 Lingurar v. Romania (Application No. 48474/14) Supervision of the execution of the European Court’s judgments Reference documents DH-DD(2020)198, DH-DD(2021)426

 

Application	Case	Judgment of	Final on	Indicator for the classification
48474/14	Lingurar	16/04/2019	16/04/2019	Structural problem

Case description

The case concerns the disproportionate use of force against the applicants during a police raid on a Roma[1] community in 2011, an operation found by the Court to disclose discriminatory ethnic profiling (violations of Article 3 in its substantive limb alone and in conjunction with Article 14).

It further concerns racial bias displayed by the prosecutorial and judicial authorities and their failure to conduct effective investigations and proceedings into these events, including into the applicants’ allegations of ethnic profiling and racially motivated ill-treatment by law-enforcement (violation of Article 14 in conjunction with Article 3 in its procedural limb).

Status of execution

This is the Committee’s first examination of this case.

The authorities submitted an action plan on 20 February 2020 (DH-DD(2020)198), followed by updated information on the individual and general measures on 23 April 2021 (DH-DD(2021)426).

The Committee of Ministers also received a Rule 9.2 submission from the European Roma Rights Centre (“ERRC”) on 4 March 2020 (DH-DD(2020)253).

Individual measures

The just satisfaction awarded by the Court for non-pecuniary damage and costs and expenses was paid to the applicants.

The relevant prosecutorial authorities examined of their own motion whether it was feasible to reopen the domestic criminal investigation and concluded that the statutory limitation period precluded it.

General measures

1) New legislative and policy framework to fight racial and other forms of discrimination

The Committee has received information, in the context of other cases,[2] that the Criminal Code punishes, abuse of authority by State agents and incitement to hatred and discrimination against a category of individuals, notably on racial or ethnic grounds. It further makes discriminatory motives for an offence, including racial or ethnic, a statutory aggravating factor, which entails an obligation for the authorities to investigate of their own motion its incidence in a given case.

In their April 2021 submissions, the authorities highlight that the President of Romania has expressed public support to Roma citizens and their communities, as he condemned discrimination against and marginalisation of this community and its members and called for firmer measures and more effective public policies to combat hate and extremism and for a better implementation of the relevant legislation.^[3]

Accordingly, the authorities inform the Committee of further legislative action to combat discrimination against Roma and enhance more generally the protection against hate speech. A new law on “preventing and combatting anti-gypsyism” was enacted in 2021 to clamp down on anti-Roma rhetoric and organisations.^[4] In addition, a Senate-approved bill put forward by the government last year to enhance the criminal law protection against hate speech is currently examined by the Chamber of Deputies.[5]

Romania is moreover about to launch its first National Strategy on preventing and combatting antisemitism, xenophobia, radicalisation and hate speech, which includes actions to combat anti-Roma racism, to be implemented over 2021-2023. This will provide a framework to assess the need to further enhance the relevant legislation; to strengthen the capacity of the domestic authorities to fight against these phenomena; to promote tolerance, civic education and resilience of the Romanian society against them; and improve data collection (for details, see DH-DD(2021)426).

2) Measures to combat anti-Roma bias and stereotyping in law enforcement

In their latest submissions, the authorities underline that human rights protection and non-discrimination feature prominently on the curricula for initial and in-service training for police staff, to promote a fair and impartial conduct in their interaction with people belonging to vulnerable groups.

The authorities provide, by way of example, information on recent capacity building action by the Romanian Police, in cooperation with other relevant public authorities, national human rights institutions and civil society, with focus on combating hate crime, preventing interethnic conflicts and discrimination, interacting with vulnerable victims, and preventing torture and ill-treatment. They highlight that the Centre for Advanced Training and Education for police staff offers annual training in Romani language and culture as part of a project promoting the concept of proximity police in rural areas, most notably in Roma communities (for details, see DH-DD(2021)426).

The authorities further indicate that the Romanian Police General Inspectorate (“RPGI”) is consistently delivering to its staff a message of zero tolerance towards torture and ill-treatment and has taken action to prevent ethnic profiling when organising and conducting law-enforcement operations. Police staff belonging to the relevant units must undergo periodic psychological assessments, which seek to detect, inter alia, prejudice and stereotypes about Roma communities and are, where necessary, referred to counselling to address these.

The RPGI does not consider it necessary to collect data on operations carried out in Roma communities, as this factor cannot come into play in the decision-making on such operations (see
DH-DD(2021)426).[6]

3) Measures to ensure an effective response by the criminal justice system to allegations of hate crime by law enforcement

a. Capacity building and awareness-raising

In their latest submissions, the authorities include detailed information about the capacity-building action taken for judges and prosecutors in combatting discrimination, hate crime and ill-treatment. Many of these activities have been organised together with the national equality body (the National Council for Combatting Discrimination (“CNCD”)), based on a protocol concluded in 2016 between this authority and the National Institute for Judiciary. Further targeted capacity-building will be carried out in 2021-2023, with support from the Norwegian Authority for Court Management. It will include training sessions, seminars and conferences on topics related to the prohibition of discrimination, torture and ill-treatment and the enforcement of criminal decisions, including aspects concerning the access to justice for and equal treatment of the Roma community and its members (for details, see DH-DD(2021)426).

Further to the dissemination of the present judgment by the Office of the Government Agent, the General Prosecutor’s Office (“GPO”) has more recently issued guidelines to the prosecutorial authorities across the country cautioning against racial or ethnic stereotyping or profiling and drawing their attention to the requirements of Article 14 of the Convention.

b. Specific measures to enhance the effectiveness of criminal investigations

In their February 2020 action plan, the authorities referred to the measures adopted for the execution of judgments concerning the lack of effective investigations into allegations of ill-treatment of persons, including of Roma origin, placed under the authority of State agents, whose supervision had been closed by the Committee (see Final Resolution CM/ResDH(2016)150 in Anghelescu Barbu (No. 1) group).

In their latest submissions, the authorities highlight that the General Prosecutor of Romania has recently renewed the relevant instructions.^[7] By derogation to the common rules on competence, investigations into allegations of torture and ill-treatment by State agents continue to be carried out by specially appointed prosecutors within the prosecutor’s offices attached to the higher courts (and not by the judicial police). They are moreover subjected to a two-tiered monitoring first by specially appointed prosecutors in the offices attached to the Courts of Appeal and then by the GPO, whose specialised department can, if necessary, issue general guidance to improve their effectiveness.[8]

As of October 2020, prosecutors can also draw on a methodology on investigating hate crime, developed by the GPO.

To assess the prosecutorial response to allegations of hate crime in general, the GPO carried out two thematic reviews of cases resolved between 2016 and 2019. These found deficiencies, such as the low number of investigated cases, the lack of a proactive attitude to identify the perpetrators and prosecute hate crime, insufficiently reasoned decisions adopted by some prosecutors’ offices and the lack of cooperation with the authorities involved in combatting discrimination. The GPO disseminated these conclusions to the offices across the country with a view to remedying them and will carry out a follow-up review in second semester of 2021, with focus on the cases resolved in 2020.

4) Action by the national equality body

In their latest submissions, the authorities stress that since 2005, the CNCD has devoted constant attention and resources to enhancing the capacity of the criminal justice system to fight discrimination, racism, hate crime and hate speech. The submissions provide details on the action taken and envisaged in this regard by the CNCD alone and in cooperation with the relevant authorities, their respective training structures, and civil society (see DH-DD(2021)426).

The judicial authorities have more recently been seeking the CNCD’s expertise in cases of discrimination: it has received one request in 2018, two in 2019 and three in 2020.

5) Measures to improve data collection on hate crime

While the authorities acknowledge the need to improve their data collection on hate crime in general, they also explain that the existing IT case management system for courts and prosecutors’ offices allows collection of data on every punishable offence in the Criminal Code, the suspect or the perpetrator (such as the quality of law enforcement officer), and the general aggravating factor of a discriminatory motive. Improvements to this system are underway notably to allow collection of data on the precise motivating factor in a case (see DH-DD(2020)609 in M.C. and A.C. v. Romania).

Submissions received from ERRC (Rule 9.2)

The ERRC draw attention to the strong wording in the judgment related to “institutionalised racism” (§ 80) and its findings of discriminatory use of ethnic profiling by law enforcement. They consider that this is not an isolated case, as attested by previous judgments of the European Court and reports of the United Nations’ and Council of Europe’s monitoring bodies. In their view, the judgment rather reflects a systemic issue related to the discrimination against Roma in Romania and, more specifically, to the Romanian authorities’ failure to investigate anti-Roma violence and allegations of discrimination by law enforcement. They consider that this requires the adoption of procedures and measures to ensure that (a) the police and other law enforcement bodies do not act in a discriminatory way while planning, organising and conducting operations and (b) allegations of discrimination are properly investigated. These measures should include training targeting all law-enforcement agencies; a policy of “zero tolerance” towards serious human rights violations and discriminatory police conduct; the establishment of an independent complaints mechanism, and the compiling of data on racially motivated crimes (for details, see DH-DD(2020)253).

Analysis by the Secretariat

Individual measures

In the light of the information provided by the authorities, it regrettably appears that no further individual measure is possible in the present case.

General measures

1) Preliminary remarks

In this judgment, the Court found for the first time discriminatory ethnic profiling of Roma communities by law enforcement agencies in Romania. As regards the other findings, of racially motivated ill-treatment by law enforcement and ineffective criminal justice response to allegations of such serious human rights violations, the Committee supervised in the past the adoption by Romania of measures to address similar issues, in the framework of the execution of the judgments in the group Anghelescu Barbu (No. 1).[9]

Yet, after the Committee decided to close its supervision, indications have emerged of persisting deficiencies in the criminal justice system’s response to allegations of hate crime, including by State agents. In particular, the European Commission against Racism and Intolerance (ECRI) drew attention in its latest Report on Romania (CRI(2019)20) (5 June 2019) to reports and allegations of racial discrimination and misconduct by the police and racial profiling, against Roma in particular. It also found that the criminal law provisions making racist motive an aggravating factor were rarely applied in practice and that the lack of prosecutions did not provide an effective deterrent against such crimes.

Accordingly, in their bilateral contacts, the Execution Department has advised the Romanian authorities that the situation calls for renewed efforts to address all the problems revealed by this judgment.

In their response, in addition to the specific measures analysed below, the authorities have outlined recent changes in the relevant legal and policy framework. These changes, backed by the Head of State’s strong message of support for Roma citizens and their communities, are promising, as they attest to the authorities’ commitment to fight against racial and other forms of discrimination and can foster the conditions for a full, effective and prompt execution of this judgment.

2) Issues related to ethnic profiling, anti-Roma bias and stereotyping in law enforcement

It appears from the judgment that the raid was organised for some general protection of public order and crime prevention considerations (§ 12). The Court noted, however, that 85 law-enforcement officers belonging to various police units and to the gendarmerie had carried out the raid based on an intervention plan which identified the ethnic composition of the targeted community and referred to the alleged anti-social behaviour of ethnic Roma and high criminality among them (§ 75). The Court concluded that the applicants had been targeted because they were Roma and because the authorities perceived the Roma community as anti-social and criminal. This conclusion, supported by the general reports of racial stereotyping of Roma presented to the Court in a third-party intervention, went beyond a simple expression of concern about ethnic discrimination in Romania. It showed concretely that the decisions to organise the raid and to use force had been made on considerations based on ethnic origin, which the authorities had automatically connected to criminal behaviour (§ 76). This amounted to discriminatory ethnic profiling (ibidem).

The problem outlined in the judgment, as found more recently by ECRI and pointed out by civil society, is not confined to this case. Preventing similar violations therefore requires far-reaching action to eradicate ethnic profiling and, more generally, racial bias and stereotyping in law enforcement. It also requires ensuring accountability for the same, including when bias affects the decision-making on the necessity to conduct large-scale operations, the way these are organised, and the strength deployed.

The information the authorities have provided and that available in the public domain[10] shows that they have made efforts to tackle racial bias and stereotyping in the police in more recent years.

While recognising these efforts, it must be also observed that the authorities have themselves acknowledged being ill-equipped to monitor and measure their impact. It is particularly worrying that, relying on a general statement from the Romanian Police General Inspectorate (“RPGI”) that ethnic/racial considerations cannot come into play in decisions to conduct law-enforcement operations, the authorities envisage no specific action to determine whether the measures adopted have sufficed to eradicate discriminatory ethnic profiling in the police. It is also regrettable that they have not provided information about any measures to that effect taken or envisaged at the level of the gendarmerie, which was also involved in the raid. 

This must be addressed as a priority and with full consideration to the gravity of the Court’s findings in the present case, which relate to acts the Court has found “particularly destructive of fundamental rights”.[11] Drawing on the example set by the GPO, it is crucial that the authorities swiftly undertake an objective and impartial review of the activities and operations of the police and other law enforcement agencies and scrutinize also how reports and allegations of discriminatory treatment and abuse have been dealt with by the relevant disciplinary bodies to determine whether and what action may still be necessary to guarantee non-repetition of the serious human rights violations found. To this end, they may usefully draw on the Council of Europe relevant works and expertise.[12]

As concerns accountability for how law enforcement operations are decided, prepared, and directed, recent information provided in another group of cases (Soare and Others v. Romania, CM/Notes/1406/H46-24), shows that in domestic law,[13] officials can be held criminally accountable for abuse (or negligence) in performance of duties, only if these are prescribed by primary legislation.

To prevent impunity for actions such as those which have triggered the violations in this case, it appears thus necessary to include in the relevant statutes provisions laying down the duties and responsibilities of the staff who decide on and oversee such operations. An explicit prohibition of racial/ethnic profiling, recommended by ECRI,[14] could also be considered. The authorities, who have stated their commitment to improving the relevant legislation if necessary, could be asked to provide their assessment on these matters.

3) Issues related to the criminal justice system’s response to allegations of hate crime by State agents

The Court noted the evidence and available material showing that Roma communities were often confronted with institutionalised racism and prone to excessive use of force by law-enforcement in Romania (§ 80). It also noted that the applicants had complained about what they perceived to be frequent and unwarranted acts of violence by law enforcement against this community (§ 79). Despite this, the prosecutorial authorities and the domestic courts had dismissed their allegations without any in-depth analysis and had failed to censure what seemed to be a discriminatory use of ethnic profiling. They moreover themselves fell back on references to unrelated instances in which members of the Roma community had been violent towards law enforcement (ibidem). The authorities had thus failed to meet the higher standard of response to alleged bias-motivated incidents imposed in situations where “there is evidence of patterns of violence and intolerance against an ethnic minority” (§ 80).

The problem identified by the Court is two-fold: the lack of thorough examination of the applicants’ allegations, including of ethnic profiling and racist motives for the ill treatment they had suffered, and the racial bias and stereotyping displayed by the judicial authorities. Similar issues, as explained above, have been examined by the Committee in the context of other judgments, whose supervision has been closed. However, the more recent findings in the ECRI 2019 report and conclusions of the reviews carried out by the GPO, show that the response of the prosecutorial authorities to allegations of hate crime, including when these are made against State agents, remains inadequate.   

It is therefore positive that the authorities envisage pursuing their capacity-building action for officials in the criminal justice system, and the measures planned in this regard appear indeed promising. It is likewise positive that the GPO has renewed its commitment to fighting against impunity for acts contrary to Article 3 perpetrated by State agents and has also taken action to address the more general problem of non-application of the criminal law provisions punishing racist and other forms of hate crime.

However, given that the specific measures put forward by the GPO have been in effect for some time now and have not sufficed to guarantee an adequate prosecutorial response to allegations of hate crime by law enforcement, stronger action appears required to address this problem. Building on the strategy developed by the GPO, which relies on specialised prosecutors appointed in the higher offices to conduct criminal investigations and to monitor their compliance with the relevant Convention requirements, more targeted and comprehensive capacity building for these officials could be pursued. This could encompass training on the requirements for an effective response to allegations of abuse by State agents when there are indications or suspicions of discriminatory motives, on detecting bias motivation, including racist, and on handling hate crime. In these efforts, the relevant authorities could usefully draw on the Council of Europe’s relevant expertise and technical cooperation programmes and pursue and strengthen their cooperation with the national equality body.

It is moreover crucial that the authorities rapidly complete the envisaged upgrades to the relevant data collection system and monitor closely the impact of their strategy, including to assess the need for any additional or corrective action to ensure that this problem is swiftly and definitively resolved.

Financing assured: YES