chapter  10
27 Pages

The opportunities and challenges of using public interest litigation to secure access to justice for Roma in Central and Eastern Europe

ByJAMES A. GOLDSTON, MIRNA ADJAMI

The Roma in central and eastern Europe (CEE)2 are the largest and arguably the most impoverished and marginalized ethnic minority group on the European continent. In some CEE countries, Roma are 10 times poorer than the majority population. In Bulgaria and Romania, nearly 80% of Roma live on less than $4 a day (Ringold et al. 2005: xiv). The average lifespan for Roma in CEE is about 10 years less than for non-Roma; in the Czech Republic and Slovakia, infant mortality rates for Roma are double that of non-Roma (Ringold et al. 2005: 48). Unemployment rates for Roma in some CEE countries are multiples of five and that of non-Roma; in Bulgaria, between 60 and 80% of the community suffers permanent unemployment (UNDP 2005: 11). Far fewer Roma complete primary and secondary education than non-Roma. Only one-third of the Roma children in Kosovo go to school, and barely 2% are in a position to continue their education after primary school.3 These statistics are but snapshots of the systemic societal discrimination Roma suffer. This paper examines the use of litigation in national and regional European

courts to secure equal rights for Roma in CEE. The transformation of law, legal culture and judicial systems wrought by the fall of communism opened the way for, and was in part fuelled by, public interest litigation. Over the past nearly two decades, independent-minded lawyers, advocacy-oriented nongovernmental organizations (NGOs) and concerned individuals in CEE countries have sought to use litigation to impact social change to address many problems. But nowhere has public interest litigation developed more quickly or gained greater traction than in the field of “Roma rights”, the pan-European movement aimed at reclaiming the universal human rights of Roma. Addressing the plight of Roma in CEE presents a compelling test for the

value of public interest litigation because of the nature of the Roma as claimants, on the one hand, and of the European political and legal order, on the other. From the standpoint of the public interest litigator, Roma plaintiffs possess a number of positive attributes, including citizenship and a distinctive ethnic identity. The nature of the discrimination at issue in most Roma

legal complaints rests on a clear factual foundation, and invokes a clear remedy in law. On the other hand, political and legal developments in CEE have created an

ideal framework in which to pursue public interest litigation on behalf of marginalized groups like the Roma. Most joined the Council of Europe and the European Union, which placed the issue of Roma high on their human rights agenda and have the normative framework and legal mechanisms (including regional courts) to challenge discrimination against them. The efforts of regional institutions have been complemented by a constellation of private donors, advocacy NGOs and grassroots activists working to forge community alliances, promote rights education and intensify political engagement on behalf of Roma rights in a way unimaginable until recently.