Source: https://unsplash.com/fr/photos/W5UJZF4lnIU (Photographer: James Eades)
By Emma Várnagy
Introduction
The fact that the European Court of Human Rights (the Court) is reluctant to find that ill-treatment by the police of members of racialized minority groups amounts to substantive discrimination is not new. Since the early 2000s the Court has heard over 60 cases in which Roma, Europe’s largest ethnic minority group, have been abused or killed at the hands of the police. Yet only a handful of judgments acknowledge the link between the abuse and the victim’s ethnicity.
Scholarly work has taken stock of-, and searched explanations in the Court’s evidentiary standards, its discrimination typology, and in various historical influences on the Court’s subconscious. Others have suggested ways to improve the assessment of these cases, and yet others have critiqued specific elements of relevant judgments (see these case notes e.g. here, here, here, here, and here).
This post aims to highlight how a judgment that lacks engagement with the context of institutional racism sustains the accountability gap wherefrom instances of racist police violence arise in the first place. Even though individual accountability for targeting somebody due to their (perceived) ethnicity is indispensable, this is a matter beyond the individual victim and perpetrator. My main point is: without addressing the issue of institutional racism as one of substantive discrimination, the judgments cannot be viewed as delivering full justice.
What is accountability and why does it matter?
Accountability as defined by Mark Bovens (2007:450) is a relationship where a forum may hear an actor justify certain acts in connection with the actor’s obligations for which the actor may face consequences. Phrases such as hearing, obligation, and sanction sound legalistic, but accountability has other dimensions as well. In particular, in the context of international and regional human rights, the ultimate goal is not to establish criminal liability, sentence individuals, or to stamp states as violators, but to safeguard state’s implementation of its human rights obligations. This is why, following a judgment, member states should not only compensate victims by paying damages but address the root cause of the issue to prevent future violations of the same type. This may entail accounting for a sufficient domestic legal framework and effective procedures, training of law enforcement officials, prosecutors and judges, and disseminating the content of the judgment to other actors and the wider public.
Ultimately it is large scale and structural approaches that lead to the changes that can effectively prevent future human rights violations and remedy past ones. This is state responsibility, but it is a wide range of actors – civil society, media, organizations and communities – which all have a role in making the change envisioned in the judgment. The interplay between the working of accountability mechanisms and legal consciousness has an important role too.
Very simply put, legal consciousness refers to people’s experience and understanding of the law and legal issues: how they believe it is applicable, and in what situations. The link between accountability and legal consciousness is the idea that collective meanings and beliefs can become institutionalized (Silbey 2005:334-5) and thus shape the obligations which the forum may question the actor about in Bovens’ accountability model. Recognizing this two-way relationship is important because, ultimately, it is the collective consciousness that state institutions should be accountable to, but it is also state conduct that has the power to erode or uplift public morals and attitudes.
Why is accountability ‘all or nothing’ in racist violence cases?
It is well known that targeting individual members of a specific group has a symbolic layer. It is not only the person who suffers the attack, but all members of the community who receive the message: this is happening to you because of your skin colour, your religion, your sexual orientation, and so on. The motives of the perpetrators are usually more complex in hate crimes, and the law enforcement officers’ mistreatment of members of racialized minority groups is also more complicated in reality. The rationale is however the same: the abuse is not motivated by personal reason, but the belief that a member of a particular group is less deserving of humane treatment.
The driving force behind this belief in cases of police abuse is arguably institutional racism, “the collective failure of an organisation to provide an appropriate and professional service to people because of their colour, culture, or ethnic origin.” Importantly, this does not mean that everyone in that organization is racist, rather it reflects societal attitudes in an environment where racism is prevalent. This brings us back to the point I made earlier about the relationship between questions of accountability and legal consciousness. Only by naming things what they are does it become possible to address them adequately. In other words, if a judgment engages with the notion of institutional racism as a factor in the abuse, this is more likely to form part of the general measures the member state needs to take when implementing the judgment. If, on the contrary, the general message from actors (be that the police, legislators, courts etc.) is that racist conduct does not trigger any concerns, and the context of institutional racism remains unchallenged even at the highest level of human rights protection, it should not be surprising if such concerns slowly disappear from the forum as well.
What could the Court do to close the accountability gap?
Currently the Court’s approach is to distinguish between substantive and procedural aspects of both the claims concerning the abuse and its discriminative nature. This means that the Court first assesses whether the incident is severe enough to be considered inhuman or degrading treatment, and whether in fact the authorities are responsible. Third it asks whether the incident has been properly investigated, repeating this exercise separately regarding the investigation of any racist elements (which is redundant) Only in a fourth, and very narrow question does it consider whether racism was a causal factor in the abuse. This approach implies that the problem is with individual police officers - “bad apples” - holding racist beliefs. The execution of such judgments could admittedly be satisfied by reopening the investigations and potentially sanctioning specific officers, perhaps by improving investigation procedures in general. However, no measures to combat institutional racism would be necessitated.
As the European Roma Rights Centre has repeatedly suggested to the Court, asking a holistic question of whether the institutional culture and societal context were conducive to inhuman treatment of racialized people would be more realistic. Such an approach would allow the Court to find that antigypsyism permeates police practices manifesting in misconduct or investigative negligence, often going hand in hand. This would then create the possibility to address the issue in the implementation advice and ultimately for mechanisms of accountability to trickle down through all actors and fora.
Conclusion
Accountability is a very complex and elusive concept. Its mechanisms have many layers and actors involved. The institutional context of racist police violence when left unchallenged, perpetuates the accountability gap where incidents emerge from in the first place.
There are multiple different actors besides the Court who have a responsibility in challenging and combating institutional racism. However, as the ‘Conscience of Europe’ – as the Court is seen by many – it should not shy away from this task.
Bio:
Emma Várnagy holds an MA in Human Rights from Central European University, where her thesis focused on legal avenues to tackle involuntary sterilization of Roma women. She also holds an LLM in Public International Law from Utrecht University where her thesis focused on the standard and burden of proof in racist violence cases in the jurisdiction of the European Court of Human Rights. Currently a doctoral candidate at the Ghent University Human Rights Centre she is part of the research project ‘Future-proofing Human Rights: Developing Thicker Forms of Accountability’ focusing on the lack or neglect of evidence in racist police violence cases and its consequences on accountability and legal consciousness.