In an earlier article, I have argued that there are two main problems with the current standards of identifying and treating hate crimes by legal means in Hungary. The first is the tremendous extent of institutional racism and the lack of professional preparedness of the authorities compared to international standards. The second problem is part of the corresponding section in the Criminal Code, which allows for a problematic interpretation, (Várnagy, 2016) by allowing prosecution and courts to use minority protective measures precisely against these marginalized groups. I have dealt with this problem in the aforementioned article and here I will discuss a recent case of the European Court of Human Rights (hereinafter ECtHR or the Court) against Hungary, which concerns procedural issues in detecting and prosecuting hate crimes. The ruling in ECtHR, Balázs v Hungary, 2015 (Application no. 15529/12) was delivered in October 2015 and finalised in March 2016. 

In what follows, I will lay out the facts of the case, introduce some of the most important factors from the Court’s case-law and examine how they are applied in the present case. In the second part I will look at a third party intervener, European Roma Rights Centre’s proposals and critically analyse the judgment in light of ERRC’s recommendations. As a conclusion, I will offer my view on a possible way forward, taking into account the vast moral debate that is partially outlined in the article.

The facts of the case stem from a grapple between a young man and three others on the streets of Szeged, in 2011. The three were insulting the applicant on racial grounds, when a fourth man, claiming to be a police officer (in fact a penitentiary officer) arrived and, upon the applicant’s questions regarding the officer’s use of vulgar language, started beating the applicant. The incident was followed by a criminal complaint, asking the prosecution to initiate the investigation for the offence of ‘violence against a member of the community’. Considering the evidence of openly racist comments posted on the perpetrator’s Facebook profile, where he explicitly stated that he ‘had been kicking a gypsy in the head’ the day before. This process was eventually discontinued due to lack of evidence to establish beyond doubt the causal link between the racial hatred and the fight, the latter of which the perpetrator was convicted for disorderly conduct. (The section on hate crimes and the section on  disorderly conduct in the Hungarian Penal Code are apparently worded in the same way, the latter not making any reference to the victim belonging to a protected group. 

The maximum punishment for disorderly conduct as a misdemeanor is up to one year imprisonment, whereas violence against a member of the community is punished as a felony by imprisonment not exceeding three years.) Subsequently the applicant filed a complaint to the ECtHR contending that the Hungarian authorities had failed in their obligation to conduct an effective investigation into the racist attack which he had suffered. He relied on Article 3 (prohibition of torture) and of the Convention (prohibition of discrimination). 

Before exploring why this specific judgment is of a dual importance, let us devote a few words to explain some generalities of the Court’s Articles 3 and 14 case-law. Prohibition of torture is the only absolute right in the Convention, meaning that there is no possible situation in which a derogation from this can be allowed. However, the Court has held from the beginning that ill-treatment must attain a minimum level of severity to fall within the scope of Article 3. As reiterated among the Court’s general principles on the applicability of the article, this minimum severity is relative by definition and it depends on the specific circumstances of the case, with explicit reference to the underlying intention or motivation. State parties have an obligation to protect everyone within their jurisdiction from ill-treatment, as well as to criminalise and effectively investigate allegations of ill-treatment. The article on prohibition of discrimination, however, does not have an independent standing. In any case where discriminative conduct is involved, the article has to be read in conjunction with another article, although the application does not imply a substantive violation of that article. The leading authority on the procedural aspects of Article 3 read in conjunction with Article 14 is EctHR, Nachova and Others v Bulgaria, 2004 (Application no. 43577/98). The Court held that any evidence of racist verbal abuse is highly relevant to the question of whether unlawful, hatred-induced violence has taken place. This statement was also reiterated in the present judgment of Balázs. Treating racially induced violence on an equal footing with cases that have no racist overtones by failing to make distinctions where the situations are essentially different is particularly destructive of fundamental rights. (ECtHR, Balázs v Hungary, 2015, para 52, 61) However evident the above reasoning may seem, the ECtHR case-law on anti-Roma violence has not made much doctrinal progress. In fact, the Grand Chamber decision in Nachova and Others v Bulgaria, 2004, while noticing that the Court’s role is to rule on the contracting states’ responsibility under the Convention, still referred to a high standard of proof to acknowledge the racial motivation(Rubio-Marín, Möschel, 2015:889).

Therefore, it remains a question of how findings of substantial violations will come about in Article 3 and 14 cases. However, the Court’s ruling in the case of Balázs v Hungary is important on the one hand, because it realises the difficulty of marginalised people seeking redress in situations where the authorities are likely biased. On the other hand, by stressing in the judgment the necessity of a vigorous investigation into allegations of racist violence against Roma and condemning the Hungarian authorities for their failure to do so is a big step from a national point of view. Although massive assistance is likely to be necessary to perfect the situation, third party intervener proposals of the European Roma Rights Center (ERRC) seem to have been acknowledged by the Court. This initiated a strong effect on both national and international implementation of this communication.

The ERRC in its intervention urges the Court explicitly to acknowledge the phenomenon of anti-Gypsyism, as defined and recognised by other Council of Europe bodies. According to the European Commission against Racism and Intolerance, anti-Gypsyism is a ‘specific form of racism, an ideology founded on racial superiority, a form of dehumanization and institutional racism nurtured by historical discrimination, which is expressed, among others, by violence, hate speech, exploitation, stigmatization and the most blatant kind of discrimination.’ (ECRI, 2011)  This specific form of racism underlies both the very fact of anti-Roma violent events and the breaches of equal treatment in the procedures that follow. This latter phenomenon should also be explicitly acknowledged as institutional racism, which, according to The MacPherson Report represents ‘the collective failure of an organisation to provide an appropriate and professional service to people because of their color, culture, or ethnic origin’ (MacPherson Report, 1999). Due to this failure, Roma applicants face serious difficulties convincing the authorities ‘ beyond reasonable doubt’ about their rights being violated. Shifting the burden of proof was among Judge Bonello’s strategic propositions to improve the Court’s assessment of anti-Roma violence cases. This solution was set out in his strong dissenting opinion in Anguelova v Bulgaria, (Application no. 38371/97) a case similarly important in Article 2 and 3 jurisprudence as Nachova. Lessened burden of proof should be applied, at least, in cases where ‘a member of a disadvantaged minority group suffers harm in an environment where racial tensions are high’. (Möschel, 2012). The problem of compelling allegations of victims from vulnerable groups to pass such a high standard arises both at domestic and international levels. (ERRC, 2015, p.16). ECtHR acknowledges the heightened burden on vulnerable groups in interaction with public authorities. As a result, a facilitative measure was recognised in its recent case law by allowing the omission of private prosecution as a requirement of exhaustion of domestic remedies. This is an important step because finding otherwise would risk the applicants’ exposure to reprisals on behalf of the authorities. Moreover, it would also imply that the officials do not have a serious duty to duly investigate discriminative violence cases. (ERRC, 2015). Taking this idea one step further, the Court should consider whether a failure in carrying out an effective investigation in general was the result of institutional racism (ERRC, 2015).

These are just some of the underlying facts, which show various instances of continuing discrimination against vulnerable groups even after violent attacks have actually taken place. It is extremely important to notice that violence itself is only a partial manifestation of deep rooted racial discrimination and negative attitudes towards Roma amounting to anti-Gypsyism in Central-Eastern European countries. 

This fact is exactly what Judge Kjølbro overlooks in his dissent in the present judgment. He is right insofar the ‘ Convention cannot be interpreted as requiring the prosecutor to indict and press criminal charges against a person, but he seems to be blinded to the threats of institutional racism when demanding that the Court accepts the findings where the investigation performed at domestic level has been effective in the sense of gathering all the relevant evidence’.(Balázs v Hungary, p.24). It also arises from Kjølbro’s dissent that he differentiates ‘between violence against a person who is of Roma origin, and violence against a person because of the persons Roma origin’and urges his colleagues to recognize ‘ that the fact that a person has expressed views that may be interpreted as racist does not imply that everything the person does is racially motivated’ (Balázs v Hungary, p.25).

These statements may give rise to massive scholarly debate over whether criminal law can be viewed as a viable instrument of combatting discrimination or on the validity of various theoretical standpoints, such as character theory (versus choice theory) or the offense principle (versus harm principle). Nevertheless, we need to realize that an ECtHR judgment, by the Court’s operational nature, is a powerful tool in calling out worrying tendencies among member states and issuing a desired direction towards remedying that tendency. In this regard, it is the Court’s moral obligation to condemn member states, even in issues which are political, just as it is states parties’ obligation to condemn harmful attitudes in the society, even if those might gain a popular momentum at certain times.



By Emma Várnagy 


This article was originally published in issue 4.2 of the magazine, which can be accessed here.


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