Abstract
It is well-recognised in human rights law and discourse that the Roma community is one of the most ‘vulnerable’ groups in Europe today, but what remains less developed is why and how the Roma are recognised as vulnerable, and what ‘Roma vulnerability’ means. This article posits that a structural account of Roma vulnerability may help in answering these questions. Such a structural account captures the vulnerability of Roma in the past and the present, as taking economic and cultural forms, spread across laws, policies, and actions, and fundamentally linked to the role of the State. The European Court of Human Rights (ECtHR) is, however, yet to acknowledge the structural nature of Roma vulnerability. Without such a structural engagement, there is a risk that human rights violations committed by the State will go unaddressed. The article thus seeks to introduce this structural account in the Court's jurisprudence to better capture the nature, causes, and extent of the vulnerability experienced by the Roma community.
Keywords
INTRODUCTION
In 2013, Peroni and Timmer observed that although each and every move of the European Court of Human Rights is intensely followed these days, one recent development in the front lines of its reasoning has so far escaped scholarly attention: the emergence of the concept of vulnerable groups.
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Despite calls from within the Court itself, 9 the meaning of vulnerability remains unclear in the Court's jurisprudence. Even so, vulnerability is considered ‘nevertheless powerful’ in the ECtHR's reasoning. 10 There is, however, a real risk that the power of vulnerability is diluted when the conception of vulnerability remains thin. The aim of this article is to interrogate these thin conceptions by reengaging with what it means when the Court recognises an individual or group as vulnerable, using the case study of Roma vulnerability.
The Roma community is not the only group that the ECtHR considers ‘vulnerable’, but it is the first group to be labelled vulnerable in the Court's jurisprudence. 11 In fact, vulnerability was invoked in the ECtHR's very first case concerning Roma rights. 12 There is ample acknowledgement of Roma vulnerability in scholarship; so much so that one commentator describes ‘the Roma’ as ‘the classic example of a vulnerable group’. 13 However – and perhaps precisely because this labelling is considered ‘classic’ and uncontroversial – the story of Roma vulnerability has received little academic attention.
Although this story is relatively understudied, the choice to engage more deeply with Roma vulnerability jurisprudence is defensible from at least three angles. First, it allows us to consider the value of the vulnerability framework to the advancement of Roma rights at the Court more broadly, beyond individual judgments, and across thematic areas such as education, police brutality, forced sterilisation, and forced evictions. 14
Second, the Court appears more willing to comment in the abstract on vulnerable groups that have ‘suffered considerable discrimination in the past’, been ‘historically subject to prejudice with lasting consequences’, and experienced ‘social exclusion’. 15 However, the Court often does not apply these observations to concrete cases involving specific vulnerable groups. Therefore, there is value in zooming in on specific instances, 16 such as the case of Roma vulnerability.
Third, a deeper engagement with Roma vulnerability jurisprudence promises a better understanding of the relationship between vulnerability and non-discrimination under the Convention, thereby refining the legal effects of vulnerability reasoning as well. It is well-documented that the prohibition of (racial) discrimination is significantly underdeveloped in ECHR law. 17 One reason is that the Court often refuses to separately examine complaints under Article 14 ECHR, after having examined it under another Convention guarantee. The entry of the concept of group vulnerability for Roma communities offered some hope that the Court would become more open to examining complaints of vulnerable groups under Article 14. However, a survey of the case law reveals that declarations of Roma vulnerability do not manifestly lead to substantive examinations, or findings, of discrimination against the Roma. 18 As Kim observes, ‘Article 14 still fails to tackle discrimination against vulnerable and disadvantaged groups, despite the Court's introduction of the vulnerability criterion’. 19 This gap between the ECtHR's sustained recognition of Roma vulnerability, on the one hand, and its reticence to simultaneously recognise and tackle anti-Roma discrimination on the other might, at least in part, have something to do with how the Court conceptualises Roma vulnerability itself.
This article suggests that examining the relationship between Roma vulnerability and structures may elucidate why and how the Roma experience vulnerability in Europe. A structural framework enhances our understanding of Roma vulnerability as not attributable to a single law, private actor, or solely historical factors. Instead, Roma vulnerability persists in a dynamic, dispersed, and routine manner across cultural and economic dimensions, and is fundamentally linked to the power of the State – specifically, the Council of Europe Member States, or, more generally, European States. The article demonstrates how the ECtHR's jurisprudence falls short of identifying the structural nature of Roma vulnerability, and why this matters for Roma rights under the ECHR. Section 2 of the article introduces a structural framing of Roma vulnerability. Section 3 maps the lack of a structural analysis in why and how the Court recognises the Roma community as vulnerable. Finally, Section 4 explores the consequences of this analytical gap in ECHR case law.
I should make three brief notes at this stage. First, the term ‘Roma’ requires some explanation. Initially adopted at the World Romani Congress in 1971, Roma is the international appellation used to refer to a range of different ethnic groups, sedentary and nomadic, who identify variously as Roma, Gypsy (in the UK), Travellers (in Ireland), Sinti (in Germany), Cigani, Gitano, Kalderash, Lovara, Manouche, Zigeuner, and so on. 20 The use of the term ‘Roma’ in the article should not, however, be regarded as a way of essentialising a single Romani identity.
Second, on dataset, the article analyses all decisions and judgments of the ECtHR––totalling 46 at the time of writing––that explicitly recognise Roma vulnerability from 1996 to 2023. 21 Of them, 10 are inadmissibility decisions, while the remaining 36 are judgments delivered by the ECtHR. Since the aim of this article is to reflect upon what findings of Roma vulnerability mean, and not necessarily the authoritative weight of these findings, 5 of the 36 judgments are included because Roma vulnerability was referenced in dissenting opinions. 22
Finally, it is important to note that I do not take the frame of vulnerability as inherently positive or negative. Given that the meaning of vulnerability is contested and unclear, the premise of this article is that the Court's use of vulnerability means little of itself. 23 Rather than advocating for more or less use of vulnerability reasoning within (European) human rights law, the article seeks to embrace the ambivalence of the concept. 24 In this process, it considers how the Court frames Roma vulnerability, what aspects of this vulnerability are emphasised or obscured in this framing, how the role of the State in structuring Roma vulnerability is presented, and the significance of each of these elements for Roma rights under the ECHR.
A STRUCTURAL ACCOUNT OF ROMA VULNERABILITY
The Roma are a heterogenous group with a complex history marked by migration, forced settlement, slavery, expulsions, exterminations, displacement, forced sterilisation, and assimilation in Europe since at least the fourteenth century. 25 Roma rights scholars employ various terms, such as antigypsyism, Romaphobia, and antiziganism, to describe manifestations of anti-Roma racism and Roma vulnerability. 26 This section presents a structural account of Roma vulnerability, which will facilitate in subsequently mapping how these structures are reflected in the case law of the ECtHR. Recent attempts to incorporate critical race theory in Europe have generally highlighted the pervasiveness of structural racism and its close connection to structures of the State. 27 This section applies and extends this scholarship to the specific context of Roma vulnerability and outlines four characteristics of a structural account of Roma vulnerability.
First, Roma vulnerability is grounded in history, but continues to be perpetuated to date. Having been enslaved for over 500 years in the area of present-day Romania, 28 the Roma were integral to the Romanian feudal political economy till 1856 when they were officially ‘emancipated’. 29 Fearing the potential re-establishment of slavery, the Roma migrated shortly thereafter to countries such as Hungary, Serbia, Russia, and Ukraine. 30 Despite the formal end of their enslavement in Romania, they were still subjected to forced labour and treated as property of landowners in several European States. 31 In addition, they were expelled from Western Europe to the Americas, 32 and faced the constant risk of imprisonment and persecution. 33 States also resorted to the use of punitive measures against nomadism to force the Roma to settle down and prohibited the use of Romani languages. 34 During the first half of twentieth century history – particularly in Nazi Germany – the Roma endured forced sterilisation, persecution, and deportation, leading to the genocide of the Roma. 35 After the Second World War and under newly established state socialist regimes in Eastern Europe, the Roma suffered under aggressive assimilationist policies, education segregation, and continued forced sterilisation programmes. 36 The end of the Cold War and the end of communism in Eastern Europe is considered to have left the Roma as ‘among the biggest losers’. 37 This period, marked by post-socialist deindustrialisation, resulted in widespread unemployment among the Roma. When employed, they were often exploited in low-paid, insecure, and informal jobs, such as street cleaning, recycling, and construction work. 38 Presently, racial hierarchies in the workforce are perpetuated by workfare policies, leading State authorities to assign unemployed Roma to the lowest-paying jobs. 39 Cheap labour is used in countries such as the Czech Republic as a ‘selling point’ to attract investors, but it comes at the cost of exacerbating Roma vulnerabilities. 40 Simultaneously, racial segregation processes render the Roma highly vulnerable to violence and hostility, and facilitate their removal from political, economic, and social advancement.
Although Roma vulnerability is not a recent phenomenon, the underlying structures—racism, colonialism, neoliberalism— 41 are not simply remnants of the past; they persist to this day. Notably, these structures are not static. 42 As the brief survey of Roma marginality above illustrates, they are continuously reproduced in new forms in the pursuit of accumulation. 43 The Roma are also racialised in different ways across Europe, from being racialised based on skin colour in Slovakia, for example, to being racialised in cultural terms as migrants from Eastern Europe in Britain. 44
Second, the structural causes of Roma vulnerability are considered to be widespread, rather than concentrated in any single individual, institution, law, or policy. The structural discrimination endured by the Roma is described as ‘endemic’ by Marinaro and Sigona. 45 McGarry captures the sheer breadth of this issue, noting that ‘Roma communities face entrenched structural injustices such as endemic unemployment, discrimination, poverty, racism, and inadequate access to basic services such as health and education’. 46 Many iterations of Roma rights focus not on isolated instances of anti-Roma racism, but on the pervasive nature of their discriminatory experiences. NGOs collect and present evidence of the everyday lives of Roma across Europe. 47 According to the European Roma Rights Centre, antigypsyism applies ‘to many experiences which would be extraordinary in the lives of most Europeans, but are all too common for Roma’. 48 The marginalisation and disadvantage of the Roma are not considered exceptional, but mundane and routine. 49
Third, the structures perpetuating Roma vulnerability have both cultural and economic dimensions. On the one hand, the Roma endure cultural injustices due to prejudice, stereotypes, and stigma that cast them as dangerous, security threats, thieves, and beggars. 50 The mainstream view is that the Roma are ‘incapable of integrating [into] any nation on the grounds of cultural and social difference’. 51 On the other hand, the Roma suffer economic injustices in the form of high rates of unemployment, exploitation in the labour market, low health and education levels, material deprivation and poverty, and low life expectancy. 52 Drawing on Goldberg's idea of racial neoliberalism, 53 Kóczé shows how Roma representation as less worthy, dangerous, ‘undeserving poor’, and criminal is premised on the idea of neoliberal market potential. 54 For example, within the neoliberal framework, the disadvantage experienced by the Roma is constructed as something of their own doing, ‘since they are portrayed as workshy, lazy, parasitic etc.’ 55 Similarly, Trehan and Sigona situate the Roma within a ‘neoliberal conception of European governance’ 56 to unpack their catastrophic unemployment and declining household incomes in the 1990s. Accordingly, Vincze observes that there is a need to think ‘in an integrated way [of] the structural (cultural and economic) causes of marginalization and exclusion’ of the Roma. 57
Fourth, in all this, the State plays a crucial role in producing the dispersed causes and forms of Roma vulnerability. 58 Over the years, Council of Europe Member States have enacted various laws to distinguish between nomadic and sedentary forms of settlement, which has contributed to a narrative of danger, immorality, and criminality surrounding nomadic Roma. 59 Legal rules regarding permanent settlement run parallel to the persecution of the Roma, including police brutality, evictions and deportations, racialised representations, as well as economic and social policies on education, housing, work, and social security. 60 Furthermore, the Roma lack political empowerment in Europe: ‘public authorities neglect Roma concerns at best, and actively persecute Roma at worst’. 61 European States are also described as using Roma communities to shape ideas about belonging and identity, which serve to exclude the Roma. 62 In this way, the State machinery becomes central to the process of presenting the Roma as ‘others’ and ‘foreigners’, 63 ‘outsiders’ within Europe, and ‘a people that exist everywhere but belong nowhere’. 64 Of course, legal rules, institutional action, and official State discourse are supplemented with widespread hostility by private actors. However, the structural frame allows us to make the State visible: to see when and how the State condones and contributes to Roma vulnerability.
Characterised in this way, a structural framework helps us appreciate how Roma vulnerability has persisted across both time and space. Temporally, it is historically produced yet enduring, evolving and manifesting in various forms over time. Spatially, ‘[w]herever the Roma population lives in Europe, their presence is marked by the stigma created during long periods of racialisation and de-territorialisation’. 65 In that human rights law—and specifically human rights adjudication—brings forth specific instances of Roma vulnerability before a court, it is crucial to situate these instances within the broader structural context of vulnerability as discussed in this section.
EUROPE'S MOST VULNERABLE: 66 THE CONCEPT OF ROMA VULNERABILITY IN ECtHR CASE LAW
The ECtHR has recognised the Roma as a vulnerable group in Europe, but much more remains to be done. In particular, this recognition has remained disjunct from a structural account of Roma vulnerability. This section shows this disjuncture at two points: first, in the Court's superficial engagement with why the Roma are vulnerable; and second, in its methodological reliance on a ‘European consensus’ to find the Roma to be vulnerable.
Root causes of Roma vulnerability
According to Marks, the recent turn to the study of ‘root causes’ in international human rights law allows us to focus on the reasons behind human rights violations. 67 Root causes can be understood as the ‘basis on which a circumstance rests’, a method by which we keep asking ‘why’ till we get to the heart of the problem. 68 However, Marks continues, as practiced so far, ‘human rights institutions and officials have grappled only partially and rather problematically with the question of why abuses occur, how vulnerabilities arise, and what it will take to bring about change.’ 69 These principal problems take different forms, including prematurely halting investigations into the underlying causes and misinterpreting the effects as if they were the causes themselves. 70 Although Marks was writing in a specific context of human rights reports, these problems are equally relevant when analysing the ECtHR's explanations for finding Roma vulnerability.
As a starting point, the Strasbourg Court has concerned itself more with different contexts of Roma vulnerability and less with the causes of Roma vulnerability. While initially the Court focused largely on the cultural context—for example, the ‘cultural heritage and traditional lifestyle’ of Gypsies in the UK— 71 over time it expanded its contextual breadth to include socioeconomic manifestations too. 72 Although these efforts to view different manifestations of Roma vulnerability are welcome, the ECtHR is yet to make the analytical shift from showing how vulnerability manifests to explaining why vulnerability exists. 73
To begin with, the Court's explanations for why the Roma are vulnerable are all too brief. According to Judge Repik's partly dissenting opinion in Buckley v UK, ‘where a fundamental right of a member of a minority is concerned, especially a minority as vulnerable as the Gypsies, the Court has an obligation to subject any such interference to particularly close scrutiny.’ 74 This 1996 opinion hints that the source of vulnerability may not be solely attributable to the minority status of Gypsies, but rather to an additional factor that compounds their minority status (a minority-plus factor). There is, however, a discursive shift in the 2001 case of Chapman v UK, where the Grand Chamber—drawing upon Buckley—acknowledges ‘the vulnerable position of Gypsies as a minority’. 75 Here, the Court appears to consider Gypsies to be vulnerable through the lens of their minority status, or perhaps even because they are a minority. In other words, the Court appears to conflate vulnerability with minority status, while leaving ‘minority’ undefined, thus prematurely halting the investigation into the causes underlying Roma vulnerability as such.
When investigating causes more explicitly, the Grand Chamber in Orsus v Croatia declared in 2010 that the Roma are vulnerable ‘as a result of their history’. 76 Otherwise, the ECtHR has consistently referred to the Roma as a vulnerable minority ‘as a result of their turbulent history and constant uprooting’. 77 The brevity of these explanations raises several unanswered questions: what did ‘their history’ entail? What factors made it turbulent? Which actors were responsible for creating these conditions of turbulence? Importantly, the ECtHR leaves scope to interpret ‘their history’ as a product of the Roma's own actions.
Such a conception risks personalising responsibility for Roma vulnerability and departs from how vulnerability is understood in feminist legal and political philosophy. For example, according to Fineman, the vulnerable subject is an alternative to the abstract legal subject of liberal democracies. 78 This abstract legal subject, typically characterised as independent, autonomous, and self-sufficient, is regarded as responsible for their own individual circumstances. Such a ‘neoliberal fixation on personal responsibility’ 79 enables political and public rhetoric to focus on poverty, and Roma poverty, as attributable to private moral failings, laziness, criminality, deviance, welfare dependence, and cognitive deficiency. 80 In contrast to the abstract legal subject, Fineman describes the vulnerable subject as an embodied being, and as a social being embedded in the webs of economic, social, cultural, and institutional relationships. According to Fineman, understanding human vulnerability within these institutional contexts ‘allows us to see that a state of dependency is not deviant, but natural and inevitable’. 81 Indeed, in adopting a vulnerability lens, it is the responsibility of institutions, through which resources are channelled, and not the responsibility of individuals, that takes centre-stage. 82 The Court's thin accounts of why the Roma are vulnerable, however, do not address the risks of personalising responsibility for Roma vulnerability. On the contrary, in the 2004 case of Connors v UK, the Court explicitly states that it is ‘nomadism’ that forms the ‘raison d’être’ of the vulnerability of, and the special treatment that needs to be afforded to, the Roma. 83 In other words, the Court finds Roma vulnerability as not socially induced, but rather a product of their own lifestyle (of nomadism). 84
Notably, Judge Keller's dissenting opinion in Bagdonavicius and others v Russia refrains from personalising responsibility for Roma vulnerability by acknowledging that ‘the Roma have become, by force of circumstances, a specific minority that is particularly vulnerable and disadvantaged’. 85 However, there remains a lack of structural analysis regarding the kinds of circumstances and the nature of the force involved. Similarly, the ECtHR recursively mentions the ‘turbulent history’ of the Roma. 86 These references, however, hide why the Roma experienced such turbulence and at the hands of whom. From fleeing Romania shortly after the abolition of slavery, to continuously escaping conditions of war, or threats of violent persecution in post-socialist States, Roma history is certainly rife with turbulence. 87 In the Court's reasoning, however, power structures and their specific manifestations in Roma history are left unnamed. 88 Similarly, the Court rehearses the ‘constant uprooting’ of the Roma in its case law, but this articulation treats the effect of constant uprooting as a cause of vulnerability. The question remains: why were the Roma subjected to constant uprooting in the first place? What was the broader framework within which this constant uprooting was systematically produced and sustained? For example, in Connors v UK, the Court acknowledges the ‘apparent shift in habit in the gypsy population which remains nomadic in spirit if not in actual or constant practice’. 89 This language not only reduces a fundamental aspect of Roma life to a ‘habit’, but also omits any discussion of why this ‘apparent shift’ occurred. At its core, the Roma never had a distinct territory of their own. The close nexus between land tenure and economic security – particularly in Central and Eastern Europe – meant that the Roma faced constant uprooting by various European States due to the ‘lack of a “residential anchorage”’ and growing racist violence that was both overtly and subtly imbricated within the social structures of European life. 90 Nevertheless, for the ECtHR, it seems to suffice to attribute responsibility to an unmarked and actor-less history.
Finally, in locating the cause of Roma vulnerability in the undefined frame of ‘history’, the Court's reasoning avoids contextualising their turbulent ‘present’, which continues to be rife with prejudice, violence, stereotyping, oppression, exclusion, and disadvantage. 91 In this way, the vulnerability of the Roma becomes accidental and remote, as though it ‘belonged to the order of nature’. 92 The judicial disengagement with, and break from, the context of the present obscures the role of European States in perpetuating and exacerbating Roma vulnerability today.
European consensus on Roma vulnerability
Although the Court renders invisible the role of European States in creating conditions of Roma vulnerability, these States come to occupy a central position in how the Court arrives at the conclusion that the Roma are vulnerable. In particular, the ECtHR relies on the interpretive method of European consensus to accept the vulnerability of the Roma, which comprises the second challenge in the Court's existing jurisprudence on Roma vulnerability. In Chapman v UK, the ECtHR first observed that ‘there may be said to be an emerging international consensus amongst the Contracting States of the Council of Europe recognising the special needs of minorities’. 93 Soon after, in Chapman itself, it recognised the ‘vulnerable position of gypsies as a minority’. 94 In this manner, the Court can be said to have acknowledged Roma vulnerability and the related requirement that ‘some special consideration should be given to their needs and their different lifestyle’ by drawing on, inter alia, the existence of an emerging consensus amongst Contracting States of the Council of Europe. 95
The source of this emerging consensus in Chapman lies not in the domestic law of the Contracting States, but in the fact that these States had begun to sign and ratify the Framework Convention for the Protection of National Minorities. 96 Indeed, the Court's reliance on European consensus—based on the Framework Convention aimed at the protection of national minorities—explains the discursive shift (see Section 3.1 above) from viewing Roma vulnerability as something additional to, and distinct from, their minority status in Judge Repik's dissenting opinion in Buckley, to conceptualising Roma vulnerability as inherently linked to minority status in Chapman. In this manner, European consensus enables the ECtHR not only to recognise Roma communities as vulnerable, but also to (re)define what that vulnerability entails.
Admittedly, declaring that Roma communities are vulnerable is ‘hardly a revolutionary insight’. 97 And yet, the Court found it necessary to rely on an emerging European consensus to make this declaration. 98 This is perhaps unsurprising, given that European consensus is largely accepted as a legitimacy-enhancing tool at the disposal of the ECtHR. 99 However, there is a need to critically examine the reliance on consensus amongst European States as the basis for recognising the vulnerability of a group that has historically suffered at the behest of those very States.
At the outset, the authority- and not reason-oriented tool of European consensus continues to mask the (structural) causes of Roma vulnerability. Instead of providing substantive deliberative reasoning to explain Roma vulnerability, the ECtHR suspends any further interrogation of the underlying rationale in favour of relying on authority. 100
A second line of critique stems from the position that the degree of judicial protection to be afforded to disenfranchised groups should not lie in the hands of the very States that contribute to their disenfranchisement. Kagiaros sums up this ‘anti-majoritarian’ critique as: […] if the purpose of human rights protection is to provide a counter-majoritarian barrier to ‘the tyranny of the majority’, appeals to European majority opinion through a [European consensus] analysis seem counterintuitive, if not outright problematic, when determining the rights of unpopular social groups and minorities.
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Scholars, such as Dzehtsiarou, dismiss this anti-majoritarian critique as ‘far-fetched’ and ‘exaggerated’.
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These dismissive responses are largely based on the favourable outcomes of using European consensus for minority rights.
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This claim that consensus-based reasoning has enhanced the protection of minority rights in Strasbourg can, however, be refuted. At the most immediate level, the ECtHR relied on a lack of European consensus in Chapman itself to widen the margin of appreciation for the UK and return a finding of non-violation. In that case, the Court first identified an emerging consensus to recognise Roma vulnerability and the special needs of minorities at a general level.
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Subsequently, however, the ECtHR reasoned that there was no ‘sufficiently concrete’ consensus on minority rights to guide State conduct, citing that the ‘signatory States to the Framework Convention were unable to agree on means of implementation’.
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This, according to the Strasbourg Court, reinforces [its] view that the complexity and sensitivity of the issues involved in policies balancing the interests of the general population, in particular with regard to environmental pollution, and the interests of a minority with possibly conflicting requirements renders the Court's role a strictly supervisory one.
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Relying on (the absence of) European consensus at a more concrete level, the Court concluded that the Convention was not violated.
The criticism against relying on European consensus to classify individuals and groups as vulnerable extends beyond the merits of specific (‘good’ or ‘bad’) outcomes. Methodologically, the reliance on European consensus as the principled basis for determining the political, economic, cultural, and social vulnerability of individuals, such as the Roma, is questionable irrespective of the outcome. 107 This is particularly pertinent within both historical and present contexts, which expose the structural forces that produce, and perpetuate, Roma vulnerability in areas such as—to name a few—housing, education, health, work, social security, and criminal justice. The Court's reasoning not only detaches Roma vulnerability from its structural roots—whereby the State plays a central role—but also hinges on the very acceptance of this vulnerability by those very States. 108
To take stock: on the one hand, the Court avoids acknowledging the role of European States in creating and sustaining the conditions of Roma vulnerability, both in the past and in the present. By referring to ambiguous notions of ‘history’, ‘turbulent history’, and ‘constant uprooting’, the Court obscures the actors who created, mediated, and benefited from Roma vulnerability. Notably, the Court makes no mention of how European States were implicated, in this unmarked history, as causes of Roma vulnerability. On the other hand, the ECtHR relies on an emerging consensus amongst those very European States—that perpetuated Roma vulnerability—to recognise the special needs of Roma as a vulnerable minority. In this latter sense, it underscores the centrality of the State, almost making it hypervisible in the adjudication of Roma vulnerability. Thus, the State moves in and out of the Court's framing of Roma vulnerability, and these movements highlight the absence of a structural grounding in the Court's approach to Roma vulnerability.
THE DOCTRINAL SIGNIFICANCE OF A STRUCTURAL ACCOUNT OF ROMA VULNERABILITY
This section examines four ECtHR judgments to demonstrate the significance of grounding Roma vulnerability in a structural framework within legal doctrine. While not an exhaustive examination, the aim of this section is to explore the doctrinal consequences of neglecting a structural perspective when analysing Roma vulnerability, using the four judgments as case studies. 109 A key premise of this exercise is that the Court can adopt a structural lens in individual cases. Article 34 ECHR allows the Court to hear applications from individuals claiming a rights violation. However, this does not prevent the Court from recognising that such violations may result from structural vulnerability. Admittedly, the ECtHR has previously disentangled the task of ascertaining whether ‘the case at hand … was the result of racism’ (which it considers to be its ‘sole concern’) from the broader structural framework in which the case arose. 110 However, this line of jurisprudence often strengthens an acontextual and narrow interpretation of the issues at hand. This section offers a critical analysis of such interpretations.
One implication of not engaging with the structural causes of Roma vulnerability is that the Court is selective and inconsistent in finding Roma vulnerability. 111 In Nacic and others v Sweden, for example, the Court did not explicitly find the Roma to be a vulnerable group. In this case, Roma migrants suffering from mental health problems challenged their deportation to Kosovo and Serbia on the grounds that they would be subject to discrimination because of their Roma identity. 112 The applicants explained that they would not have access to healthcare in these countries as eligibility for healthcare required registration with the authorities, which, in turn, necessitated proof of accommodation. In response to their non-removal claims under the right to private and family life (Article 8 ECHR) and the prohibition of torture or inhuman and degrading treatment or punishment (Article 3 ECHR), the majority at the Court neglected to even mention the vulnerability of the Roma community. This is despite the applicants’ extensive submissions on their traumatic experiences fleeing war in Kosovo, and reports from independent international bodies confirming pervasive discrimination against Roma. 113 The majority not only failed to acknowledge Roma vulnerability but also appeared to selectively emphasise and prioritise the applicants’ migrant identity in their handling of the case. Specifically, the majority's reasoning under its Article 8 examination begins by asserting that ‘Contracting States have the right as a matter of international law and subject to the treaty obligations, including the Convention, to control the entry, residence and expulsion of aliens’. 114 In its migration jurisprudence, Dembour observes a pattern of ‘Strasbourg reversal’, whereby the ECtHR typically begins by affirming the State's right to control the entry, residence, and expulsion of ‘aliens’, which subsequently frames its examination of the human rights complaint. 115 In this case, the Court concealed Roma vulnerability and, instead, followed the path of Strasbourg reversal.
Along with concealing Roma vulnerability in Nacic, the Court also essentialised Roma identity. The Swedish migration authorities had rejected the applicants’ residency applications, observing that ‘none of the family members spoke Romani or had any contact with other Roma’. 116 This observation homogenised the Roma as those that speak one language and live amongst other Roma. This is despite the fact that it is well-documented, for instance, that not all Roma speak Romani or its dialects. 117 According to the domestic body, however, ‘it was difficult to conclude in these circumstances that the applicants would be seen as Roma upon return’ to Kosovo and Serbia. 118 Instead of questioning the Swedish authority's findings, the Court expressly endorsed it. In returning a finding of no violation, the Court asserted that it had not determined that the ‘applicants’ Roma ethnicity would have such consequences that their rights under the Convention would be disrespected if they were deported to Kosovo or Serbia’. 119 But what does it mean to be seen as Roma, and how does racialisation of the Roma operate in Kosovo and Serbia? Regardless of whether the Roma speak Romani or interact with other Roma, they continue to face widespread discrimination in Serbia based on, for example, their skin colour or surnames. 120 The diversity of Roma identities and the complexity of Roma discrimination were inadequately addressed by the Court in Nacic.
Moreover, the Court's disengagement with structural racism against Roma is evident in its examination of access to healthcare in Kosovo and Serbia. The Roma applicants argued that ‘it was in practice very hard for them to obtain health care’ because eligibility for health care was contingent on registering with the authorities, ‘which presupposed a house or apartment contract’. 121 This, in and of itself, seems unproblematic. However, due to the destruction of homes and personal documents during the conflict in the 1990s, the Roma were not provided with resettlement opportunities in Kosovo for very long. 122 According to a 2015 UNHCR report, at least 2,700 Roma residents in Serbia faced the risk of statelessness in Serbia due to their lack of personal documents, which was attributable to institutional barriers to registration. 123 The Roma were largely considered ineligible to apply for social housing if they could not present documents proving their registration at birth. 124 Rampant discrimination against the Roma thwarted their attempts to access housing, documentation, and healthcare. In Nacic, the claim based on the principle of non-refoulement highlights a more elaborate and structural vulnerability of the Roma in Kosovo and Serbia, all of which eluded the Court. The Court merely remarked that ‘medical treatment is available in Kosovo and Serbia’, 125 without grasping the relevance of structural barriers that impede the Roma's access to medical treatment.
In stark contrast to the majority, the partially dissenting opinion of Judges Spielmann and Power-Forde acknowledged the Roma identity of the applicants, and highlighted their ‘added vulnerability of mental health problems’. 126 Drawing from international reports, the Judges took cognisance of the ‘highly problematic’ situation facing the Roma in Kosovo and Serbia, including the pervasive institutional and societal discrimination, and the registration requirements: ‘Being without a home, the applicants in this case are likely to face insurmountable difficulties in attempting to access social security benefits’. 127
In decontextualising the claim related to the violation of the principle of non-refoulement for the Roma applicants, the majority in Nacic considered the case in a vacuum, rather than situated within the broader structural workings of State practices. This tendency by the Court to remove cases from their contextual and structural settings pervades the Court's jurisprudence, as demonstrated by its treatment of the second case, Lăcătuş v Switzerland, which dealt with a blanket ban on begging in public places. 128 The Court held that the ban, and subsequent imprisonment as a result of non-payment of a fine, violated the right to private and family life of a Romani woman under Article 8 ECHR. Briefly, the Court recognised the ‘precarious and vulnerable situation of the applicant’, 129 who was also ‘illiterate, […] did not have a job and […] did not receive social assistance’. 130 It swiftly found the State to have interfered with the right to a private and family life as begging enabled the applicant, who did not have sufficient means of subsistence, to acquire an income, and the ban prevented her from being able to support herself. At the justification stage, the Court accepted the Swiss government's aims of protecting public order, ensuring public safety, and combating human trafficking as legitimate. At this stage, it concluded that the blanket ban was not necessary in a democratic society and, thus, contravened Article 8 ECHR.
The Court, however, found ‘no need to rule separately on the complaint based on Article 14 taken together with Article 8’, 131 even though Judges Lemmens and Ravarani recognised, in separate opinions, that the case raised an issue of discrimination. 132 Notably, the Geneva anti-begging legislation was targeted at the Roma, as was pointed out in the third-party intervention of the European Roma Rights Centre. 133 During the debate over the bill, several legislators clearly justified the need for the law by referring to ‘begging tourism’ purportedly practiced by the Roma, who were, in turn, described as ‘false’ foreign beggars from Romania. 134 At the same time, the Committee on Migration, Displaced Persons, and Refugees reported that the Geneva police used the newly enacted legislation to systematically target Romani beggars. 135 That the applicant in Lăcătuş was Romani is also no coincidence. Roma are disproportionately poor—the EU Fundamental Rights Agency found that 90% Roma in 11 EU Member States had an income below the national poverty level, and 40% Roma children experienced malnutrition. 136 According to the UN Development Programme, the Roma are twice as likely to be unemployed than non-Roma. 137 In Lăcătuş itself, the European Roma Rights Centre submitted that the Roma are often required to resort to begging, because of their poverty, which is a ‘consequence of abiding discrimination and exclusion’. 138 The Court, however, individualised the facts of the case to a single applicant, who simply happened to be poor, Romani, and vulnerable, rather than recognising these specifics as indicative of a broader, structural manifestation of Roma vulnerability. In summarily disposing the Article 14 complaint, the Court implicitly evaluates whether a ‘clear inequality of treatment’ is a ‘fundamental aspect of the case’. 139 The decision in Lăcătuş suggests that, without a structural view of Roma vulnerability, some clear inequalities of treatment recede from the view of the Court.
The structures underlying Roma vulnerability are closely tied to racial discrimination, which is best addressed under Article 14 ECHR. In Lăcătuş, by refusing to address complaints of vulnerable Roma under Article 14, the Court fell short of holistically examining their complaints, and neglected to recognise the extent of their vulnerability to discrimination.
140
This also transpired in the third case of Aksu v Turkey.
141
Here, a Turkish Roma applicant argued that three publications—which had been funded by the Turkish government—included definitions and statements that reflected anti-Roma sentiment and were offensive to his Roma identity. The applicant argued that this resulted in a violation of his rights under Article 8 alone, as well as in conjunction with Article 14 ECHR. The dictionary under challenge defined a ‘Gypsy’ as ‘(metaphorically) miserly’, ‘becoming a Gypsy’ as ‘displaying miserly behaviour’, a ‘Gypsy wedding’ as ‘a crowded and noisy meeting’, a ‘Gypsy tent’ as a ‘dirty and poor place’, and a ‘Gypsy fight’ as ‘a verbal fight in which vulgar language is used’.
142
One of the impugned books stated that the Roma make a living from ‘pickpocketing, stealing and selling narcotics’, or ‘from stealing, begging, … zercilik [robbing jewellery stores]’.
143
In its response, the majority at the Court at the outset declined to examine the complaint under Article 14 ECHR. The Grand Chamber's terse response to the discrimination complaint is telling: 45. The Court observes that in the present case the applicant, who is of Roma origin, argued that a book and two dictionaries that had received government funding included remarks and expressions that reflected anti-Roma sentiment. He considered that these statements constituted an attack on his Roma identity. However, the Court observes that the case does not concern a difference in treatment, and in particular ethnic discrimination, as the applicant has not succeeded in producing prima facie evidence that the impugned publications had a discriminatory intent or effect….
144
This normalisation is also apparent in how the Court considered the claim under Article 8 ECHR. Here, the Court upheld the government's argument that the statements were ‘not insulting’, but were, instead, ‘of general nature’ and ‘based on scientific data’. 150 In masking these statements in the language of generality, the State continues to sustain structures that racialise the Roma as inferior in Turkish society. Ultimately, the ECtHR held that the State had not violated the rights of the Roma applicant under Article 8 ECHR. However, in this process, the Court abandoned a structural lens. For one, it failed to appreciate how the definitions reduce structural aspects of Roma vulnerability into inherent traits of the Roma. The conflation of ‘Gypsy tent’ with ‘dirty and poor place’, for instance, went unchallenged, without drawing the link to the role of the State in demolishing Roma housing in Turkey, not providing alternative accommodation, perpetuating residential segregation, and forcing the Roma to live in substandard conditions. 151 Similarly, defining ‘Gypsy’ as ‘(metaphorically) miserly’ is premised upon their economic deprivation, yet this connection remains unlinked to the State that perpetuated these conditions of deprivation. Moreover, in Timmer's words, ‘[t]hese derogatory comments and dictionary entries about Roma are not private speech acts; they are sponsored by the State. The State sponsors the conservation and distribution of these old and harmful ideas about Roma: the State does the stereotyping’. 152 That this State is written out of the Court's reasoning in Aksu may, in part, be due to the absence of a structural analysis of Roma vulnerability within ECHR law.
In principle, the State is clearly part of the Court's recognition of Roma vulnerability. In the early case of Chapman v UK, the Grand Chamber held that ‘the vulnerable position of Gypsies as a minority means that some special consideration should be given to their needs and their different lifestyle’. 153 Effectively, the very idea of vulnerability means that special consideration must be given to the Roma by the State. For one, this wording underscores the Court's approach to vulnerability: as a heuristic device, a functional tool, or a ‘vehicle’. 154 At the same time, there is cause for concern regarding the extent to which the State is required to respond under this formulation of Roma vulnerability. This concern is evident in the last example of Hudorovič and Others v Slovenia, where Roma applicants argued that the State refused to provide their informal settlements with equal access to basic public utilities, including drinking water and sanitation facilities, in violation of Articles 3 and 8 read in conjunction with Article 14 ECHR. 155 On the one hand, the Court adopted an overly formalistic approach to the ‘illegality’ of the Roma settlements—the government claimed that this illegality had led to restrictions on public utilities in these areas. However, as the applicants rebutted, ‘a considerable part of the Roma population in Slovenia […] live in illegally built settlements that are often outside of the densely populated areas with a public water-distribution system’. 156 The partly dissenting opinion of Judge Pavli, joined by Judge Kūris, was right to point out that ‘denial of access to basic public services to Roma settlements has been used historically by less-than-friendly local authorities as a method of pressuring the Roma to move elsewhere, or with similar discriminatory motives.’ 157 This pressure tactic is neither confined to history, nor to a few local authorities. As highlighted by the third-party intervention, ‘forms of unequal treatment in Slovenia included preferential treatment of non-Roma in the development of infrastructure and the systemic failure to develop infrastructure in Roma communities’. 158 Instead of examining the systemic context that perpetuates Roma vulnerability, the Court personalised the responsibility of the Roma for inhabiting and remaining in ‘illegal’ settlements ‘by choice’. 159 Furthermore, by ‘reiterating … that the applicants received social benefits which could have been used towards improving their living conditions’, 160 the Court furthered a narrative that ultimately blames the Roma for their plight. As a recurring theme, the State's role in creating and sustaining the Roma's adverse living conditions is written out of the narrative again.
The Court also diluted the procedural obligation that accompanies the recognition of Roma vulnerability. In a wide range of contexts, the ECtHR has otherwise reproduced—almost mechanically—that the vulnerable position of the Roma means that ‘some special consideration should be given to their needs and their different lifestyle’, 161 or that it requires the State to take ‘into account their special needs as members of a disadvantaged class’. 162 This obligation—to ‘take account of’ and give ‘some special consideration’ to the needs of the Roma—is described as a procedural obligation that States must fulfil in their domestic decision-making processes. 163 However, since the Court's explanation for Roma vulnerability remains divorced from the role of the State, the forward-looking responsibility of the State to respond to Roma vulnerability risks becoming a mere box-ticking exercise. In Hudorovič, the Court thus expressed satisfaction with Slovenia's efforts to take into account the needs of the Roma population, such as providing water tanks, ‘irrespective of how and whether it was realised’. 164 Despite specific submissions by third-party intervenors, 165 the Court hesitated to impose substantive positive obligations on European States to alleviate Roma vulnerability. This hesitation risks rendering the obligation to ‘take into account’, or give ‘some special consideration’, insufficiently robust.
To summarise, a structural understanding of Roma vulnerability is important because, without it, human rights law is unable to identify concrete violations, as was the case in Nacic, Aksu, and Hudorovič. It remains important even beyond concrete outcomes: despite an overall positive outcome for the Roma applicant in Lăcătuş, in the absence of such a structural understanding, the Court fell short of capturing the nature, and extent, of Roma vulnerability in its totality. These choices by the ECtHR become legible only when seen through a structural lens. Five particular consequences emerge from the analysis of these case studies. In the absence of a structural lens, first, the Court decontextualised the claims of vulnerable Roma in how it examined access to healthcare in Nacic, and how it overemphasised the ‘illegality’ of Roma settlements in Hudorovič. Second, beyond narrowing its frame of reference, the Court tended to marginalise discrimination that is central to Roma vulnerability, as demonstrated by the judgments in Lăcătuş and Aksu. This approach further individualised the experiences of Roma applicants, as a matter of coincidence, rather than acknowledging the endemic, widespread, and routine nature of Roma vulnerability. A structural view of Roma vulnerability, in contrast, would place renewed emphasis on not only examining Article 14 complaints but also returning findings of racial discrimination against Roma. Third, a structural lens would expand the Court's perspective on various forms of racialisation against the Roma, across time and space, thus, avoiding the essentialisation of Roma identity and their discriminatory experiences, as observed in Nacic. Fourth, without such a structural lens, the Court is unable to identify the backward-looking responsibility of European States in contributing to Roma vulnerability in the past and present, be it in legislative debates over a blanket ban on begging in Lăcătuş or in the financing of discriminatory publications and participating in the stereotyping of the Roma community in Aksu. Finally, without a structural account that explains the causes of Roma vulnerability, the Court risks diluting the forward-looking responsibility of European States to respond to Roma vulnerability, as demonstrated in Hudorovič.
CONCLUSION
The recognition of Roma vulnerability means little without a clear understanding in European human rights law of what makes the Roma vulnerable. This article has shown the need to engage with not only what the recognition of vulnerability does but also why and how the Roma are recognised as vulnerable by the ECtHR. A structural account reveals the underlying causes of Roma vulnerability, which are historical yet dynamic, economic and cultural, and dispersed yet rooted in the role of the State. In the absence of such a structural engagement, the Court is unable to provide a fuller account of Roma vulnerability, and key Roma rights violations risk going unidentified. Therefore, this article serves as an invitation for the Court to thicken its conception of vulnerability, by embracing its relationship with structures of the State, both conceptually and doctrinally. The concept of vulnerability is not inherently incompatible with a structural conception; rather, the definitional openness and ambivalence suggest that it can accommodate such a conception.
More broadly, it is hoped that incorporating a structural account will serve as a helpful nudge for the Court to conduct Article 14 assessments more keenly and build bridges between the discursive recognition of Roma vulnerability and concrete findings of racial discrimination. Finally, although this article is decidedly about Roma vulnerability, it also offers insights into what a structural account might look like more generally, for other vulnerable groups, and, in this way, underscores the importance of such structural engagements within human rights law as such.
Footnotes
Acknowledgement
An early draft was presented at the Centre for Fundamental Rights (The Hertie School) Research Seminar in October 2023, and the Postgraduate Researcher Conference on ‘Law v Humanity’ (Warwick Law School) in February 2024. Sincere thanks to all participants, particularly Başak Çalı, Joseph Finnerty, and Vera Wriedt, and the anonymous reviewers for their generous inputs..
Declaration of Conflicting Interests
The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.
Funding
The author received no financial support for the research, authorship, and/or publication of this article.
