H.P Minsky

The Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, abbreviated to the Race Equality Directive 2000/43, provides another angle to deal with anti-Gypsyism at the EU level, namely as an issue of fundamental rights. The Race Equality Directive is steered by DG JUST in the Commission. The report analysing cases before the European Court on Human Rights concerning the segregation of Roma children in education (Farkas, 2014) stressed the need to maintain the political pressure not only via Council of Europe venues, but also via European structures. The Commission has launched infringement proceedings against Hungary, Czech Republic and Slovakia to ensure that Roma children enjoy access to

27 _{See European Commission, Official Project website (http://ec.europa.eu/justice/discrimination/roma/for-roma-with-} roma/index_en.htm).

quality education on the same terms as all other children, based on the Race Equality Directive 2000/43.28

In the case of Hungary, the Commission has urged the government to bring its domestic legislation on equal treatment and the implement its educational policies in line with the Directive. The main concern of the Commission services is that Hungarian law and administrative practices result in Roma children being disproportionally over-represented in special schools for mentally disabled children and are segregated from mainstream schools. The Commission has sent letters of formal notice to two other member states, the Czech Republic and Slovakia, addressing very similar concerns. In this area Hungary and the Czech Republic were previously found to have violated the European Convention on Human Rights by the European Court of Human Rights.

The Council Framework Decision of 2008 on combating certain forms of racism and xenophobia by means of criminal law addresses the most serious manifestations of anti-Gypsyism. Article 4 mandates member states to put in place special provisions combating racist and xenophobic motivations in their criminal codes or in the Court’s determination of penalties. As of 2014, the Commission reported that “fifteen Member States (CZ, DK, EL, ES, HR, IT, CY, LV, LT, MT, AT, RO, FI, SE and SK) have made use of the first option provided for in Article 4 by stipulating in their criminal codes that racist and xenophobic motivation shall be considered an aggravating circumstance with regard to all crimes. Eight Member States (BE, BG, DE, FR, HU, PL, PT and UK) stipulate to certain (often violent) crimes by courts” (European Commission, 2008).29

Of particular relevance in this context is the EU High-Level Group on combating racism, xenophobia and other forms of intolerance,30 _{coordinated by DG JUST C1 “Fundamental rights and Rights of the Child} Unit”. The High-Level Group is composed of Member State’s representatives, international organisations and civil society representatives. It was established in June 2016. In November 2016 it was already acting as a convenor for a conference “Steps towards European Policies against anti- Gypsyism” organised by the German Foreign Office and the Open Society Foundations.31 _Interviews conducted for this Report confirmed that anti-Gypsyism is one of horizontal priorities of this group. The HLG has shown its strength in the areas of tackling hate-speech on-line,32 _{as a separate working group} has been created to work on this particular issue. Another, important achievement is a work of sub- group on hate crimes. 33 _{Whereas the former sub-group is steered by the DG JUST C1 unit and meets in} Brussels, the latter is steered by the FRA and thus meets in Vienna.

The sub-group of ‘Hate Crimes’ in its preparation papers has mentioned ECtHR cases six out of nine cases mentioned, were related with treatment of Roma hate-crime victims and Roma suspects of crime.34 _{The ECtHR cases indicating the existence of the anti-Gypsyism (though the concept was not} used then) among the police in the following cases: Nachova and Others v. Bulgaria, 2005; Bekos and

28 _{See European Commission (2016) Fact Sheet, “May infringements' package: key decisions”, Brussels, 26 May 2016} (http://europa.eu/rapid/press-release_MEMO-16-1823_it.htm).

29 _{IN addition to the Hate Crime Directive, there was also elaborated the Victim’s Rights Directive, which requires that law} enforcement and court staff receive general and special training Directive 2012/29/EU of the European Parliament and of the Council of 25 October 2012 establishing minimum standards on the rights, support and protection of victims of crime, and replacing Council Framework Decision 2001/220/JHA, Art. 25 & para. 61.

30 _{See European Commission’s Official Register:}

http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetail&groupID=3425. 31 _{See https://storify.com/OSFRoma/respect4roma}

32 _{See European Commission, DG JUST, “A New Sub-Group On Countering Hate Speech Online”,} http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetailDoc&id=26468&no=1.

33_Ibid.

34 _{See European Commission, DG JUST (2016), Background Materials for Inaugural Meeting of Subgroup on methodologies for} recording and collecting data on hate crime 18-19 October 2016 (http://ec.europa.eu/transparency/regexpert/index.cfm?do=groupDetail.groupDetailDoc&id=26474&no=2).

Koutropoulos v. Greece, 2005; Ognyanova and Choban v. Bulgaria, 2006; Secic v. Croatia, 2007; Cobzaru v. Romania, 2007; Angel and Illiev v. Bulgaria, 2007).

The promising aspects relate to the increased understanding that police officers are often part of institutional anti-Gypsyisms. Thus, the sub-group called to adequately train the law enforcement and judiciary about non-discrimination and human rights. The Sub-Group’s Report identified that “hate crime training curricula for law enforcement and criminal justice authorities should be based on an equitable balance of different elements in terms of content: <...> challenging and fostering reflection on bias and combating individual and/or structural discriminatory attitudes, policies or practices.” (EU High Level Group on Combating Racism, Xenophobia and Other forms of Intolerance, 2017, p. 9 -10). One of the most interesting components in the Group’s work is its focus in monitoring and evaluating outcomes of such training programmes. There is however a lack of elaboration as to how it could or should be done by responsible Member State authorities.

However, if anti-Gypsyism motivated crimes are among the most common ones as ECtHR case law indicates, the 10 guiding principles produced by the sub-group provide little insight on how to effectively tackle such institutionalised form of anti-Gypsyism. In an additional output the sub-group compiled existing training materials on hate crime is of the value for law enforcement and judicial authorities.35 _{The compilation mentions OSCE ODIHR training manual for Law Enforcement Officers on} “Effective and Human Rights-Compliant Policing in Roma and Sinti

Another weaknesses inherent to this Group relates to the follow-up of its outcomes and the practical application of suggested principles and usage of educational materials, which remain by and large voluntary for each Member State participating in the process. Here also more independent research on the HLG would be necessary to assess its concrete achievements and results.36