Claiming a right that you don’t know – how do Equality Bodies matter?
With a number of 10-12 million in the whole of Europe and some six million living in the EU, the Roma are not only Europe’s largest ethnic minority but at the same time its most disadvantaged group. Throughout the European Union the majority of people with Romani roots suffers from social segregation, stereotyping and wide-spread discrimination. Until today the Racial Equality Directive 2000/43/EC is the key piece of EU legislation to combat discrimination on grounds of ethnicity and racial background. Within the directive the requirement to create specialised Equality Bodies for the promotion of equal treatment in each Member State, who so far did not set up a comparable institution, has been an outstanding example of a precise measure to promote the principle of equality on a pan-European level.
By Janina Granfar
Facing the fact that one of the Equality Bodies’ main strategies is to increase legal complaints of victims of discrimination through direct assistance, it is particular important to ask whether all people exposed to discrimination are equipped with the necessary knowledge to actually take up this option. Can people, who are caught in a vicious circle of discrimination, social exclusion and poverty be expected to be well informed about anti-discrimination laws, human rights and Equality Bodies? And even if ignorance wasn’t the problem, how likely is it that victims of indirect- and/or institutionalized discrimination would think that making a complaint in a public institution could actually better their situation? Does segregation inevitably amount to indirect discrimination? And in which way is legal assistance a tool to protect people from social exclusion and indirect discrimination respectively?
Due to the fact that no other minority group suffers as strongly from social segregation as the Roma do, it is worth to ask whether Equality Bodies should follow a different strategy to ensure equal treatment of people of Roma origin, by focussing more on the contribution to a structural change than on methods to react to ad hoc discrimination. Jörg Gebhard, the policy officer and project manager for Roma and Travellers at the Brussels based Belgian Equality Body made similar considerations. In an interview he presented a set of approaches how to tackle social segregation of the Roma and how to contribute to make the work of Equality Bodies more effective when it comes to an improvement of the situation of many Roma in the European Union. According to him, neither awareness raising of anti-discrimination laws nor information dissemination of Equality Bodies and of human rights to increase the number of complaints of the most vulnerable groups of Roma people, provide an efficient approach to decrease discrimination against the Roma community and to effectively protect them from the consequences of discrimination. An increase in complaints of alleged discrimination of those groups can only be achieved in building up sustainable networks with social workers and NGO’s working directly with Roma on local level. Instead he focusses on pushing forward structural change – most of all in the educational sector- and on taking an active role in the further development of the existing national strategies for the integration of the Roma community. Luckily, Equality Bodies are more or less free to choose on which of their three overall areas of responsibility they wish to focus.
With the entry into force of the Racial Equality Directive 2000/43/EC all Member States of the European Union were obliged to designate at least one Equality Body to assist victims of discrimination in pursuing their complaints, to conduct independent surveys on issues related to discrimination and to publish reports and making recommendations. The overarching goal of that had been to bring the European Union closer to the development of an inclusive, tolerant and democratic European society and to promote equal treatment of all persons without discrimination based on racial or ethnical background. As the Council agreed that an ‘effective implementation of the principle of equality requires adequate judicial protection against victimisation’, Equality Bodies were inter alia entrusted to assist victims of discrimination to claim their rights. However, as Kristin Henrard had already pointed out when she discussed ways to adequately protect linguistic minorities, in 1935 the Permanent Court of International Justice expounded the double track of minority protection, stating that the principle of equality is based on two pillars – namely on legal protection against discrimination but also on mechanisms that enable integration. In this regard the entitlement of Equality Bodies to not only assist victims of discrimination but also to take proactive measures, theoretically provides the institutions with the necessary competences to adopt a full-blown approach towards combatting discrimination. Whereas the assistance of victims aims to narrow down consequences, publishing surveys and reports and giving recommendations to policy makers targets a contribution to a sustainable long-term change of societal conditions.
When focussing on the role of Equality Bodies to support Romani victims of discrimination to sue, the first fundamental question is, whether they actually know about anti-discrimination legislation, human rights and about the possibility to address Equality Bodies in search of legal support.
Updated information about people with Romani background who sought the assistance of Equality Bodies do not speak in favour of it. According to the responsible spokesperson of the German Equality Body (Antidiskriminierungsstelle des Bundes), between 2012 and 2014 mere two Roma that felt discriminated based on their ethnical background contacted the Antidiskriminierungsstelle des Bundes. Even though the Hungarian Office of the Commissioner for Fundamental Rights did not refer to concrete data about exact numbers of incoming complaints, Elisabeth Sándor-Szalay, Deputy Commissioner for Fundamental Rights confirmed, that only very few Roma took advantage of the offer to receive legal advices and general support in cases of discrimination. On average around eight to ten cases of discrimination came in in the past years. A more positive picture was shown in Belgium. In a personal conversation with the Belgian Equality Body (Centre interfédéral pour l’égalité des chances and Centre fédéral de la migration), Jörg Gebhard indicated that according to their annual report in 2013 they registered at least 30 cases of anti-cyganisme. That was twice as much registered cases than in 2012.
A survey conducted in 2011 in the European Union by the European Agency for Fundamental Rights (FRA) and the United Nations Development Programme, revealed that in eight of eleven focus countries the majority of interviewed individuals of Roma origin did not know of a law against discrimination on the basis of ethnicity when applying for a job. Worst results were achieved in Bulgaria, where around 80% of respondents with Roma background lacked awareness of protective laws in the field of employment. In 2010 legal literacy of respondents varied strongly dependent on the country. While in the Czech Republic only 40% of Romani survey participants were unaware of a law against discrimination in relation to goods and services, employment and housing, in Greece it were a whole 84%. On average around 59% in Romania, Bulgaria, Hungary, Slovakia and Poland had never heard of anti-discrimination legislation in any of these fields.
But it is not only a lack of awareness about protective legislation that contributes to a low probability that Roma who suffer from discrimination would contact the national Equality Body.
Most problematic with regard to the absence of legal knowledge is that in many cases a general ignorance of anti-discrimination legislation goes hand in hand with unconsciousness about the very existence of basic human rights. In such cases it is reasonable to assume that many Roma affected by discrimination might not perceive discriminatory action against them as such, and accordingly might not feel an urge to defend themselves. Even if they personally consider certain behaviour towards them as unjust and discriminatory respectively, they would not expect it to be against the law. According to Jörg Gebhard, the programme manager for Roma and Travellers at the Brussels based Interfederal Centre for Equal Opportunities, a lot of Roma who live in segregated areas under severe living conditions perceive unequal treatment by the social majority rather as a standard than as a deviance from the norm. As a survey by FRA in 2010 showed, the Roma community ranks high among minority groups who in practice do not benefit from this theoretical construct called ‘human rights’. Not only do comparable conditions deprive those from exercising fundamental rights, who however would need it the most. They also favour discrimination against the most vulnerable minority group in the European Union and contribute to build invisible walls between the social majority and social minorities. If discriminatory behaviour of the majority is perceived to be kind of a normative standard, this will certainly not bring both sides together.
In the same context, it is not surprising that many Roma do neither know about the existence of Equality Bodies in their country. In 2010 only in the Czech Republic and in Poland over 50% of survey participants declared to be aware of at least one Equality Body or an equivalent institution on a national scale. The percentage of Roma in Greece, Bulgaria, Romania, Hungary and Slovakia that knew about Equality Bodies or equivalent organizations varied between a range of 5% and 35%. Worst results were achieved in Greece, whereas Hungary could stand out for a comparable high percentage of Roma that were informed about the Parliamentary Commissioner for the National and Ethnic Minorities Rights, which however is not an Equality Body in its strict sense.
But how can these institutions help Roma, who experience discrimination, to claim their rights, if the concerned do not equal discrimination with law infringement and/or lack awareness about anti-discrimination laws, human rights and Equality Bodies. In order to find ways to better protect Roma from discrimination, it would be essential to ask from which form of discrimination Roma predominantly suffer, whether legal assistance of victims is an adequate tool to fight social segregation and in relation to that, which role legal support and dissemination of information about rights and laws should play in the overall strategy of Equality Bodies to ensure equal treatment of (in this case) the Roma community. Since social exclusion is predominantly based on deadlocked structures where underlying discrimination is difficult to identify, it seems rather unlikely that within this framework anti-discrimination laws have what it takes to protect victims against moral injustices and to contribute to break through social segregation. Nonetheless, it is important to keep in mind country differences when elaborating a strategy to combat discrimination against the Roma. It is out of question that the same proceedings can be applied regardless of the country context.
Throughout the European Union the Roma community mostly suffers from social exclusion and discrimination, which mainly becomes visible through unequal access to employment, education, housing and healthcare and which in most cases results in poverty. Facing prejudices and intolerance, many Roma live marginalised and in very poor socio-economic conditions. Only in certain situations Roma are directly and blatantly discriminated – most of all in employment. However, this is particularly severe, as unemployment easily leads to deprivation. In 2013 a survey conducted by FRA in 11 EU Member States where the majority of Roma live, revealed that 42% of Roma questioned live under severe housing conditions, with no access either to piped water or sewage or to electricity. Particularly difficult was the situation in Romania, the country that in 2012 was estimated to numerically have the largest population of people with Roma origin. Here, some 84% lived in deprived housing conditions. In education, many Romani children in the European Union are segregated from their non-Romani peers by being placed in special education systems. Unequal treatment in the educational sector is especially devastating with regard to prospective employment opportunities. As the European Union Agency for Fundamental Rights stated, a ‘[l]ack of educational qualifications coupled with residential segregation and discrimination are key factors hindering labour market integration’. In 2014, only 28% of Roma aged 16 and above in 11 EU Member States indicated paid work as their main activity. In the end, spatial segregation, exclusion from the labour market and low access to quality education build a vicious circle of social segregation from which it is not only hard to escape, but where it is also difficult to pinpoint direct discrimination and to blame a concrete ‘perpetrator’. However, if there is no concrete subject to accuse of discrimination, legal assistance of victims would not prove to be helpful. In other words, if social segregation is the predominant form of expression of discrimination against a certain minority group, it is questionable whether raising awareness of the concerned victims about anti-discrimination laws, human rights and Equality Bodies, provides a sound approach to ensure equal treatment of all persons irrespective of the ethnic or racial background. In addition to that, Jörg Gebhard from the Interfederal Centre for Equal Opportunities/Federal Centre of Migration, emphasised that anyway making a complaint and caring about anti-discrimination legislation or human rights is unlikely in situations where people are mainly concerned with questions such as: What can I eat tomorrow and where will I sleep tonight? For that reason his work in relation to the Roma community focusses more on supporting structural changes than on increasing legal literacy. To him it is more important to establish chances that can help affected Roma to escape the vicious circle of social exclusion than to equip them with tools to fight discrimination in it. Indicating that in Belgium both a distorted image of the Roma community through the media, and misinformation of the executives lead to unequal treatment of Roma in Belgium, Jörg Gebhard provides trainings for the police and organizes meetings between journalists and people with Romani background to increase mutual exchange and to give participants the possibility to change their view on Europe’s largest ethnic minority. As far as he could infer from the feedback he received, until today these meetings were highly efficient. Nevertheless, in cooperation with field workers he works towards an increased awareness of the Roma community about their rights, about protective laws and about unlawful behaviour towards them. Not because he expects to cause a rise of complaints from discriminated Roma, but because he wants to set incentives to seek something better.
In the end, discrimination should never be considered a standard – neither by the victims nor by the perpetrators. A main challenge for all social individuals is to debunk discrimination as such. In face of the recent political developments, a constant questioning of one’s own perceptions of social minorities grow all the more important. Discrimination is a one way process and an expression of the denial of fundamental human rights – the impact of what will be noticeable on both sides. By working more towards structural changes than towards protection against ad hoc discrimination, Equality Bodies can play a major role in combatting both hidden and blatant discrimination against Europe’s largest ethnic minority. After all they can help to ensure the development of an inclusive, tolerant and democratic society that – in accordance with Article 2 Treaty on European Union (TEU) – is founded on the values of respect for human dignity, freedom, democracy, equality, the rule of law and respect for human rights, including the rights of persons belonging to minorities.
 See also European Union Agency for Fundamental Rights, UNDP The situation of Roma in 11 EU Member States – Survey Results at a glance, 2012 http://fra.europa.eu/sites/default/files/fra_uploads/2099-FRA-2012-Roma-at-a-glance_EN.pdf
 Article 13 II Racial Equality Directive 2000/43/EC
 See Henrard, Kristin, The Interrelationship between Individual Human Rights, Minority Rights and
the Right to Self-Determination and Its Importance for the Adequate Protection, The Global Review of Ethnopolitics, vol. 1, no. 1, September 2001, p. 41-61
of Linguistic Minorities
 FRA/UNDP, The situation of Roma in 11 Member States – Survey results at a glance, 2012 http://fra.europa.eu/sites/default/files/fra_uploads/2099-FRA-2012-Roma-at-a-glance_EN.pdf
 European Union Agency For Fundamental Rights, EU-MIDIS Data in Focus Report – Rights Awareness and Equality Bodies – Strengthening the fundamental rights architecture in the EU III, 2010
 See Figure 6 in EU-MIDIS 2010
 58% of respondents in the Czech Republic knew about the Defender of Rights and 59% of those questioned in Poland heard of the Office of the Commissioner for Civil Rights Protection. See Figure 9 of FRA EU-MIDIS Data in Focus Report – Rights Awareness and Equality Bodies – Strengthening the fundamental rights architecture in the EU III, 2010
 See FRA Roma survey – Data in focus. Poverty and employment: the situation of Roma in 11 EU Member States, 2014 http://fra.europa.eu/sites/default/files/fra-2014-roma-survey-employment_en.pdf
 See FRA, 2014
 Bulgaria, the Czech Republic, France, Greece, Italy, Hungary, Poland, Portugal, Romania, Slovakia and Spain.
 FRA, Analysis of FRA Roma survey results by gender, 2013 http://fra.europa.eu/sites/default/files/ep-request-roma-women.pdf
 See Roma Education Fund, Pitfalls and Bias: Entry Testing and the Overrepresentation of Romani Children in Special Education, 2012 http://www.romaeducationfund.hu/sites/default/files/publications/pitfalls-and-bias-screen_singlepages.pdf
 FRA, 2014, p.11
 FRA, 2014