www.romatogether.org

The following statement was submitted to the HUMAN RIGHTS COUNCIL, Forum on Minority Issues, Geneva, 12-13 November 2009. Many of the participants and experts presentations to the forum were emphasizing the importance of the preconditions needed to the effective political participation of minorities, these includes foremost the importance of social, economic and cultural rights. Full list of statements available for download to be found on the official Forum on Minority issues web page

Intervention for item 5 of the provisional agenda

National practices and real experiences: existing mechanisms for the political participation of minorities.

Dear member’s states representatives, experts and delegates,

I am addressing you on behalf of Bulgarian NGO serving the most marginalized minority in Europe – The Roma. Facing discriminatory attitudes, trapped in poverty, unaware of their rights, Bulgarian Roma minority falls prey to votes shopping and cheap promises during the election process[1].

While shortcomings can be found towards effective political participation for the Roma minority at the Governmental level[2], empowerment of the minority community members to equally participate in the decision making process at the local level, successfully attains at regaining trust in democratic processes and institutions among the Roma minority, assuring adequate and efficient public policies towards their problems and foster Roma efficient involvement in local politics.

Implementing project[3] supported by the OHCHR we succeed to establish an advisory and a consultative body (Municipality Council on Ethnic and Demographic Issues) to the Municipal Council of Polski Trambesh to offer a forum for consultation on developing, monitoring and evaluating local programs and strategies targeting Roma.  Thus to serve as providing an avenue for the local Roma not only to present their existing needs and problems to the Municipal Council but also to influence and monitor local long-term policies and strategies towards Roma. This led to change of the Municipal policy towards Roma minority in acknowledging that actions by the Municipality authorities, including budget allocations, are needed to ensure Roma integration;  700 000 leva (about 350 000 euro) were allocated for activities towards Roma minority.

Based on the lessons learned during our work with different levels of Governmental and Municipal administration, we would like to share the following thematic recommendations to the Forum:

-          States should implement positive actions to assure that minority representatives enjoy cultural, economical, and social rights to the same extend as the majority of the population, to ensure equal ability, capacity and resource for minority communities to exercise their right to political participation[4].

-          Concept of minority rights should be promoted widely among the all political actors in a given State to assure that minority rights activism and movements are correctly perceived not as secessionism motivated but as based on international recognized human rights standards aimed to ensure peaceful and fruitful cooperation between minorities and majority of the population, thus leading to a more stable and just State for all of the citizens;

-          Free and accessible education should be provided for minority members in minority rights as well as in the basic “civic knowledge ”, needed to effectively exercise their right to political participation;

Many Intergovernmental agencies and international nongovernmental organisations reports proves that vast majority of Roma are unemployed and depending on social welfare monthly allowances and relief funds provided by the State to cope with their subsistence. Trapped in poverty, Bulgarian Roma minority members are disproportionally dependant on the Social care system to maintain the minimal living standard but their access to social services are restricted by both discriminatory attitude and prejudices among the governmental officials and legislative requirements constituting barriers towards receiving social services. Roma social rights are violated on daily bases due both – social workers reluctance to pay necessary attention to their struggles and legislative criteria to access social system set for as a barrier that Roma cannot overcome themselves.

Thus, instead of being service providers, officials are perceived by the Roma as barrier to services and this attitude Roma transfer to the State institutions in general. Our experience in acting as a mediator between Roma community members and government and municipal administration shows that authorities aim at ensuring that Roma are made aware of their obligations and do not intend to inform them of their rights and opportunities, which prevents Roma to enjoy fully their right to effective political participation .

[2] Bulgarian state appears to equal minority rights and ethnic political parties with secessionist movements, thus resulting in total ban of ethnic political parties /art.11 (4) of Bulgarian Constitution/, in no recognition of the concept of minority rights and lack of political support towards affirmative measures to assure effective political participation to minorities.

The presence of a constitutional ban on ethnic parties, however, has not meant that no ethnic parties have been present in Bulgarian politics. De facto Turkish-dominated Movement of Rights and Freedoms (DPS), represents the interests of the Turkish minority in Bulgaria and its support is concentrated heavily in the region populated by this minority. The DPS itself and numerous commentators and analysts continuously pointed out the Bulgarian “ethnic model” as represented by the incorporation of the DPS in mainstream democratic politics, the moderation of the DPS policy positions over time, and its law-abiding behaviour (see sources cited by Maria Spirova, University of Milwaukee, paper prepared for presentation at the 2004 Annual meeting of the Association for the Study of Nationalities, April 15-17, 2004, Columbia University, New York). The “ethnic model” has been seen as the major factor for the preservation of ethnic peace in the country, the respect of the civil and political rights of the Turkish minority, and for their relatively good economic well-being. However, the Bulgarian “ethnic model” has excluded any other minority, a fact that has been painfully obvious in the situation of the Roma.

On the other hand, heterogeneous and diverse Roma communities cannot be unified by one national Roma oriented political party to overcome the 4 % threshold of overall votes needed to take seats in the Parliament. Thus since the first democratically conducted elections only 3 MPs were ethnic Roma. /Bulgarian parliament constitutes 240 MPs/

[3] The full project report can be downloaded at http://www.romatogether.org/Download.php

[4] Documented cases representing violations of Roma social rights are available at the  http://www.romatogether.org/Database8.php

angelgetsov@romatogether.org

NGO Roma Together

To freely speak out our ideas, political opinion and social perceptions is one of the basic citizen’s rights protected by the human rights system. This article intends to slightly map some of the aspects of minority rights incorporated within the European Court of Human Rights jurisprudence in regard of the freedom of expression. Minority Rights are wider in scope than non-discrimination, thus dealing with the minority related cases the minorities situation within a given country should be taken in consideration regarding each particular case.

As an introduction – who are  minorities?

Minority situations differ greatly from country to country and consequently require different approaches. There is no agreed internationally definition of minorities exist. No legal definition exists in UN Declaration on the rights of persons belonging to national or ethnic, religious and linguistic minorities or European Framework convention for the protection of national minorities. The word “minority” can sometimes be misleading in itself. Outside Europe, and particularly in Africa, countries are often composed of a large number of groups, none of which make up a majority.

In the jurisprudence however are elaborated several criteria that serves as a definition of minority

Objective criteria:

• Common ethnicity or culture, religion or language
• Non-dominant

Subjective criteria

• Self-identification
• Want to protect and continue their identity

Minorities are to be understood as non – dominant groups. In calling for recognition of their identity as a national or ethnic religious or linguistic minority – such recognition of minority identity is exceedingly important but we should recall that many persons have many identities and we should remain aware of politicians and others who might try to abuse identity for political gain. The importance of recognizing minority identity is to ensure the inclusion of previously excluded groups in the life of the country in which they live and protect diversity and pluralism of culture, religion and language. Thus we must consider the situation of those living in minority situations in regions within the country and not just the whole State.

Minorities face common problems in different part of the world:

They are discriminated against within society, have weak political participation and lack equal access to economic, social and cultural rights. They may be harmed by or excluded from development projects and rarely do strategies to meet the MDGs or poverty reduction account for their needs and rights. They have less access to justice and security and are often implicated in conflict. National legislation may result in direct or indirect discrimination against them and where laws to protect and promote their rights exist these are often not implemented in practice. Marginalised groups within minority communities, in particular women, face additional barriers to overcoming exclusion. Testimonies exists that problems can emerge from a country’s history being written by dominant or majority groups with the history of minorities being neglected or denied.  Other grievances expressed by persons belonging to minorities have been caused by the non-recognition of aspects of their identity, including their language or religion. Other grievances have related to the relative disadvantage of persons belonging to minorities as regards access to employment and public service.

European Court and minority rights

European Convention for the Protection of Human Rights and Fundamental Freedoms introduces one unique mechanism – the European Court for Human Rights. This allows individuals to bring before the Court cases of violation of their human rights proclaimed in the European Convention.

Comparing judicial mechanism means to other approaches for solving the human rights violations shows that protecting human rights trough courts generally differ from the other possibilities of protection.

The logical end of the Court trial is always a judgment. Only a judgment possesses res judicata ones the judgment came into force, its final and it became obligatory for the parties. The real unique value of the Court is that – only through a court procedure it is possible for an individual, by submitting an appeal, to start a process and to summon the State by which the alleged violation of human rights is made on a trial. If the appeal is admissible and the merits are proved, the Court will become with the judgment which is legally binding on the State and the State has to obey to the Court decision even if it doesn’t agree with it.

All other approaches (reconciliation, apology, mediation) depending on the common will of the parties to achieve settlement. This requires, in fact, the violator of the right to recognize the violation and to take measures to redress it.

As an achievement of the Court procedures can be showed that they encourages friendly settlements to be achieved between the parties at all stages of the process, the Court endorses friendly settlements through judgments. Thus the victim of the violation can receive the best from the both judicial and non judicial systems for protection of human rights – speed and clear procedure of friendly settlement and res judicata of the settlement achieved.

Of course along with the pluses of the court system there is a lot of weaknesses within it:

• The speed of the procedure is low, due to the overloading of the Court with cases. The procedure is open to more than 800 million people and at the end of 2005 almost 80.000 cases are pending

• It is not obligatory to individual to be represented by the lawyer before the Court, but due to the complicated procedure and a wide range of possibilities to strike out the case as inadmissible, the representation by lawyer is almost compulsory, in fact. Thus the judicial system for human rights protection is slow and complicated.

• The court system is not a successful mechanism for solving gross violations of human rights. European Court system organized along national courts is hardly the best remedy for gross, serious or systematic violations.

• European Court system is unlikely to be the first forum to which an individual or group may turn, and it cannot consider the general situation of human rights within a country.

• The small scope of the convention itself (only civil and political rights), exclude from the possibility of individual to contest the State if it violates against minority human rights or social human rights.

The protection and promotion of minority rights is not the primary task of the Convention.

At present, the only specific reference to minorities is to be found in Article 14 of the ECHR:

“The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.”

Discrimination has to be understood not limited only to those cases in which a person or group is treated worse than another similar group. It may also be discrimination to treat different groups alike: to treat a minority and a majority alike may amount to discrimination against the minority. Moreover, the European Court of Human Rights has held that if a State takes positive measures to enhance the status of a minority group (for example, with respect to their participation in the democratic process), the majority cannot claim discrimination based on such measures. In general, “a balance must be achieved which ensures the fair and proper treatment of minorities and avoids any abuse of a dominant position”.

FREEDOM OF EXPRESSION AND MINORITIES

The freedom of expression is crucial condition to exercise almost all of minority rights – linguistic, political, cultural and religious. It is important to understand that Integration differs from assimilation in that while it develops and maintains a common domain where equal treatment and a common rule of law prevail, it also allows for pluralism. The implantation of this pluralism requires that freedom to express each one’s own identity exists. Only achieving this freedom of expression of different minority identities it is possible to differ integration from assimilation. To integrate does not mean to make everyone equal – minorities differ from majorities by their own culture or language, religion or kin of state. Furthermore minorities are willing to exercise their identity and to preserve it.

Minority group identity requires not only tolerance but a positive attitude towards cultural pluralism on the part of the State and the larger society. Not only acceptance but also respect for the distinctive characteristics and contribution of minorities to the life of the national society as a whole is required. Protection of their identity means not only that the State should abstain from policies which have the purpose or effect of assimilating minorities into the dominant culture, but also that it should protect them against activities by third parties which have an assimilatory effect. Pluralism surely exists if everyone can express his own identity and ideas, feel equally before the law and can exercise his rights without any interference and discrimination. That process should be an interaction between the persons belonging to the minority themselves, between the minority and the State, and between the minority and the wider national society. The right of expression is crucial to minorities’ rights to have their opinions heard and fully taken into account before decisions which concern them are adopted. The right of expression is crucial to promote minority interests and values and to create an integrated but pluralist society based on tolerance and dialogue. Hence the freedom of expression is sine qua non for minorities to ensure freely exercise their other minority rights.

This freedom is one of the cornerstones of a democratic State and is fundamental to ensuring that minorities participate effectively in public life. Governments sometimes seek to justify restrictions of this freedom on the grounds of national security. These restrictions should be subjected to strict scrutiny to ensure the validity and the proportionality of the restriction. In particular, the effect of the restrictions on the participation of minorities in public life should be analyzed.

The relation between the freedom of expression and minorities can be looked and from the opposite direction. Minority rights are often violated, and minorities became victimized from the State and/or third parties by publicly expressed hateful or insightful speech. The classic definition of “hate speech” is expression which incites hatred, particularly racial, national, or religious hatred. It must be recognized that some speech which is undoubtedly offensive, does not constitute hate speech, even though it may contribute to a climate of prejudice and discrimination against minorities. Such speech would include the tendency by media to report the bad news about minorities when it affects the majority population, for example noting when the perpetrator of a crime is the member of a minority.

The approach on defying borders of the freedom of expression undertaken by the European Court is responded to both mentioned issues – it gives more freedom to criticize to these that are in a non – dominant position and it enters strictly boundaries on the scope of the freedom of expression if it contains any incitement to violence. The freedom of expression is contained in article 10 of the European Convention:

“1. Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This Article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

2.  The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.”

These are the fundamental principles regarding the right of expression emerged in the Court case law.

1. Freedom of expression constitutes one of the essential foundations of a democratic society and one of the basic conditions for its progress and for each individual’s self-fulfilment. It is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend shock or disturb. Such are the demands of that pluralism, tolerance and broadmindedness without which there is no “democratic society”. As set forth in Article 10, this freedom is subject to exceptions, which must, however, be construed strictly, and the need for any restrictions must be established convincingly.
2. The adjective “necessary”, within the meaning of Article 10 § 2, implies the existence of a “pressing social need”. The Contracting States have a certain margin of appreciation in assessing whether such a need exists, but it goes hand in hand with European supervision, embracing both the legislation and the decisions applying it, even those given by an independent court. The Court is therefore empowered to give the final ruling on whether a “restriction” is reconcilable with freedom of expression as protected by Article 10.
3. In exercising its supervisory jurisdiction, the Court must look at the impugned interference in the light of the case as a whole, including the content of the remarks held against the applicant and the context in which he made them. In particular, it must determine whether the interference in issue was “proportionate to the legitimate aims pursued” and whether the reasons adduced by the national authorities to justify it are “relevant and sufficient”. In doing so, the Court has to satisfy itself that the national authorities applied standards which were in conformity with the principles embodied in Article 10 and, moreover, that they based themselves on an acceptable assessment of the relevant facts.

These principles applied to different background leads to different decisions of the Court. The following cases are related to the interaction majority – minority and shows the attitude of the Court regarding freedom of speech boundaries.

Case of ZANA v TURKEY

The facts:

Since approximately 1985, serious disturbances have raged in the south-east of Turkey between the security forces and the members of the PKK (Workers’ Party of Kurdistan). This confrontation has so far, according to the Government, claimed the lives of 4,036 civilians and 3,884 members of the security forces.

At the time of the Court’s consideration of the case, ten of the eleven provinces of south-east Turkey had since 1987 been subjected to emergency rule.

Mr Mehdi Zana, a Turkish citizen born in 1940, is a former mayor of Diyarbak?r, where he currently lives. In August 1987, while serving several sentences in Diyarbak?r military prison, the applicant made the following remarks in an interview with journalists:

“I support the PKK national liberation movement; on the other hand, I am not in favour of massacres. Anyone can make mistakes, and the PKK kill women and children by mistake …”

That statement was published in the national daily newspaper Cumhuriyet on 30 August 1987. The applicant’s statement coincided with the murders of civilians by PKK militants.

Merits of the decision:

The Court found that there was no breach of article 10 of the Convention by the State in this particular case because of two major reasons.

1 – The situation in the area

2 – The nature of the applicant and his act

As regarding to the act conducted by Mr. Zana the Court estimates it as an act that can “exacerbate an already explosive situation in that region”. It is not necessary the statement of the applicant to lead to some concrete action that will put in danger interests of national security, territorial integrity or public safety, to apply measures against him. It is enough his act to be from such a manner that can foment such a tensions to apply measures against him restricting his rights. The second sentence of his statement “Anyone can make mistakes and the PKK kill women and children by mistake” cannot be interpreted as opposite to violence. In fact this statement appreciates violent means to reach political aims.

In the light of the surrounding situation – existence of tensions between the security forces and the members of the PKK a statement that appears to be in favour of that the PKK uses of arms for political aims certainly raise up the Turkish officials concerns regarding interests of national security, territorial integrity or public safety.

Furthermore being a famous politician Mr. Zana can provoke more tensions that threatening national security and public safety by giving legitimacy to a terrorist attacks in a statement made public.

The Court found that the restrictive measures came out from the pressing social needs because in fact the statement is incitement to violence that is done through a mass media by the famous politician in an instable environment. Thus the Court founds that Mr. Zama actually foment to violations against security so the measures applied by the Turkish authorities are not a violation of the art.10 of the Convention.

Case of INCAL v TURKEY

The facts:

Mr Ibrahim Incal, a Turkish national born in 1953, lives in ?zmir. A lawyer by profession, he was at the material time a member of the executive committee of the ?zmir section of the People’s Labour Party (“the HEP”). On 1 July 1992 the executive committee decided to distribute in the ?zmir constituency a leaflet criticising the measures taken by the local authorities, in particular against small-scale illegal trading and the sprawl of squatters’ camps around the city. The text contained a number of virulent remarks about the policy of the Turkish government and made serious accusations, holding them responsible for the situation. Appealing to “all democratic patriots”, it described the authorities’ actions as “terror” and as part of a “special war” being conducted “in the country” against “the Kurdish people”. It called on citizens to “oppose” this situation, in particular by means of “neighbourhood committees”

In the present case the ?zmir executive committee of the HEP submitted one copy of the leaflet to the ?zmir prefecture on 2 July 1992 with an application for permission to distribute it

The leaflet hasn’t been issued ever.

Merits of the decision:

This case differs from the Case of Zana in two major spheres:

1 – The act of the applicant does not contains any incitement to violation

2 – Situation in the area of Izmir – at the time when the leaflet were prepared there were no disturbances to rise up concerns regarding the national security or public safety.

The Court found that there was ? breach of article 10 of the Convention mainly because it founds that there was no need of restriction.

The leaflet contains criticism to the programs and measures undertaken by the Turkish officials that concerns the Kurdish minority in Izmir. It presents this measures applied as a war against Kurds and calls among other to oppose this war and with the creation of neighbourhood committees The Court notes, however, that in considering the question of compliance with Article 10 it did not discern anything in the leaflet which might be regarded as incitement of part of the population to violence, hostility or hatred between citizens – pluralism of opinions is one of the foundations of a democratic societies and if we forbid the opposition political parties the possibility to criticize we will lost some of  these foundations.

The Court does not discern anything which would warrant the conclusion that Mr Incal was in any way responsible for the problems of terrorism in Turkey, and more specifically in ?zmir. No terrorist acts was reported, furthermore the Government failed to provide evidences is there any objective reasons to fear that such a tensions can exist in Izmir at all.

The scope of the freedom of expression related to minorities in regard European Court Case Law

As the Courts reiterated several times in different judgments, “the freedom of speech is applicable not only to “information” or “ideas” that are favourably received or regarded as inoffensive or as a matter of indifference, but also to those that offend, shock or disturb.” As the Court states in the case of Arslan v Turkey “The limits of permissible criticism are wider with regard to the government than in relation to a private citizen or even a politician. In a democratic system the actions or omissions of the government must be subject to the close scrutiny not only of the legislative and judicial authorities but also of public opinion. Moreover, the dominant position that the government occupies makes it necessary for it to display restraint in resorting to criminal proceedings, particularly where other means are available for replying to the unjustified attacks and criticisms of its adversaries.” And that the “freedom of expression nevertheless included the right to engage in open discussion of difficult problems with a view to analysing the underlying causes of the situation or to expressing opinions on possible solutions”. These rights have to be applied especially in favour of minority politicians who have to represents their opinions freely and without interferences.

Boundaries of this right must be found according art.10/2 and art.17 of the Convention. None of the rights and freedoms set up in the Convention can be used to destruct the rights and freedoms set forth in the Convention. Finally, where exercising of the freedom of expression incite to violence against an individual or a public official or a sector of the population, the State authorities enjoy a wider margin of appreciation when examining the need for an interference with freedom of expression.

However to apply such a restrictive measures the Government undoubtedly have to prove first that the act to whom the measures are applied to is done in a manner that can lead to some threats of the values in art. 10/2. Proving this it has to determine undoubtedly that in applying of such restrictive measures it was lead by existing social need – social environment of each concrete case. Thus existing social need have to be proved by sufficient quality and quantity proves that are objective.

The Court entering straight boundaries regarding the freedom of speech – it ends there where starts the incitement to violence. Nevertheless the Court held an opinion that the limits of permissible criticism are wider with regard to the government than in relation to a private citizen or a politician. And it is even more sensitive to guarantee existence of an opponent of official ideas and positions that must be able to find a place in the political arena. As the Court founds in his decision Özgur Gundem v Turkey – “… effective exercise of this freedom does not depend merely on the State’s duty not to interfere, but may require positive measures of protection, even in the sphere of relations between individuals.” Thus provides way to that the positive measures to protect the freedom of expression to be created (including for protection of minorities from hate speech).

Not dealing with minority rights in particular the Court still provide avenues for protection and promotion of minority rights beside art.14 of the European Convention.

Mr. Angel Getsov

angelgetsov@romatogether.org

NGO Roma Together

www.romatogether.org

Roma minority in Bulgaria are disproportionally dependant on the Social care system to maintain the minimal living standard but their access to health and social services are restricted by both discriminatory attitude and prejudices among the governmental officials and legislative requirements constituting barriers towards receiving social and health services.  Monitoring Roma rights we can clearly testify that Roma social rights are violated on daily bases due both – social workers reluctance to pay necessary attention to their struggles and legislative criteria to access social system set for as the barrier that Roma persons cannot overcome themselves.

Social human rights are one of the basic human rights that relate to the conditions necessary to meet basic human needs; they are proclaimed within the Universal Declaration on Human Rights, International Covenant on Economic, Social and Cultural Rights and the European Social Charter. They place a positive obligation on governments to ensure that their people can live and work in conditions, which are suited to a basic level of human dignity. Social rights, therefore, are rights to which the individual citizen is entitled, which he/she can exercise only in his/her relationship with other human beings, as a member of a group and which can be made effective, only if the state acts to safeguard the individual’s social environment.

For a long period of time social rights were perceived as “non-justiciable” thus, distinguished from their older and more classical counter-parts, civil and political rights and alleged to be statements of desirable goals but not rights. However, at the European level, the European Committee of Social Rights[1] has adopted major decisions in regard to violations of social rights of Bulgarian Roma /European Committee of Social Rights decisions under complaint ?  48/2008[2] and 46/2007[3] – European Roma Rights Centre (ERRC) v. Bulgaria regarding incompliance of Bulgarian Social Care system and Health Care system with the European Social Charter/. The Committee on Economic, Social and Cultural Rights[4] have been done significant theoretical works in defining of the scope and nature of social human rights, /for further information, please refer to CESCR’ General Comments ?: 20 Non discrimination in Economic, Social and Cultural rights[5], 19 The right to social security[6]; 14The right to the highest attainable standards of health[7] and 6 The economic, social and cultural rights of older persons[8] /, furthermore, with developing of optional protocol to the International Covenant on Economic, Social and Cultural Rights, adopted by GA resolution A/RES/63/117[9], once ratified, shall enable those whose economic, social and cultural rights are violated and who are denied a remedy in their countries to seek justice at the UN  level. At the national level  Constitution of the Republic of Bulgaria[10] proclaiming the Republic of Bulgaria to be “social State”, acknowledge, among the others social rights, right to social security and social assistance – art.51, 1; art. 51, 2 – securing the right to social security towards unemployed and art. 51, 3 emphasizing on special protection towards particularly vulnerable groups, however that so far thorough investigation of social rights haven’t been done by the Constitutional Court.

Violated social rights of Roma in the cases presented below, under the International Covenant on Economical, Social and Cultural Rights, refers to the right to health, to social security and to non-discrimination.

Case of Stefan Manev, 63 year old Roma man from Strahilovo village, suffering from aging-associated diseases, unemployed and not receiving pension his only incomes are the social monthly welfare and reliefs for heating. He approached the project coordinator to alarm him that he was cut out of his social monthly welfare, a local Roma lady who was helping him in his household find a job and leave the village, thus leaving him unattended as he doesn’t have any family members to look after him. Further investigation on the case reveals that he was cut out of the social monthly welfare because he ceased to attend monthly local State Labour Agency bureau to declare that he is unemployed and during the visit in Strahilovo village a social worker determines the fact that an old lady from the local Roma community is looking after Stefan in his daily necessities. Thus he violates legal requirements set for in the social assistance legal act – to monthly declare that he is unemployed and to declare the incomes of his household members. /Social worker made an assumption that Mr. Manev cohabitates  with a woman without being legally married to her, in such case under the social assistance legal act the concubine is treated as a legal wife of the person applying for social welfare and hr income should be declare along with the applicant one. /

The Social worker, Mrs. Petrova, which ceased Mr. Goranov welfare, was approached by the project coordinator to ask explanation why an assumption was made without thoroughly investigation and at least questioning the neighbours is Manev living with the lady or she is just helping in the household. She barely remembered the case and answered “I did what I must do – he received the administrative act for ceasing his welfare and do not contested it.”  Mrs. Petrova   didn’t visit Manev ever since and was unaware of his current condition. Legal review of the case reveal that though there is no explicit rule set for in the Social Assistance Legal Act, the legal act on employment affirmation proclaim that persons who has reached pension age do not need to register in the local bureaus of state Labour Agency as unemployed, thus they can receive social welfare /if they do not receive pension/ under the Social Assistance Legal Act. Director of the State Social Agency was approached with a petition to abolish local social worker administrative act issued in ceasing Manev’s social welfare. Petition was approved and Manev restored his right to monthly social welfare.

Case of Dimitar Goranov, 75 year old Roma man from the town of Polski Trambesh, leaving alone, suffering from cardiovascular insufficiency with no incomes apart of his minimal pension. Both of his children leaving in UK but do not help him financially, his wife deceased ten years ago. Mr. Goranov has been granted on regular bases urgent reliefs by the State Social Agency, Polski Trambesh bureau to cope with his electricity bills, to buy coal and wood for heating and medicines needed for his illness; thus the local SLA bureau social workers aware about his health condition and the low incomes he’s struggling living with. Polski Trambesh hospital head, d-r Ancheva testified to the organization that Goranov needs perpetually to be look after at his home due to his medical condition. We have approached his physician and his expert statement was that Goranov should be admitted in an elderly shelter as there he will have designated medical personnel to provide him necessary medical care needed.  Mr. Goranov asked the organization to help him enter in the elderly shelter.

Mrs. Stankova, Director of State Social Agency /SSA/ – Svishtov was approached with request to admit Goranov in “Mariya Luiza” elderly shelter in the town of Svishtov, one of the best maintained elderly shelters in the District of Veliko Tarnovo, 40 kilometres away from the town of Polski Trambesh. A regulation based on the Social Assistance Legal act, requires Goranov to present several papers along with the request for admittance – statement from the psychiatry dispensary /located in the Veliko Tarnovo city/ stated his mental condition and a declaration from the State Tax Agency that he doesn’t owe any taxes or other duties to the State.

Mr. Goranov has been admitted in the desired elderly shelter and we have visited him to assure that he receives adequate medical and social care. The elderly shelter that accommodates 120 inhabitants has permanent staff of eight nurses and two physicians, who permanently monitors health condition of the older persons admitted in the shelter and twelve social workers working with older persons. Mr. Goranov is free to travel to his home town whereas his medical condition let him so and he is often taking half hour bus trip to the town of Polski Trambesh, visiting his friends.

Right to social security includes:

Right to access and maintain benefits, whether in cash or in kind, without discrimination in order to secure protection, inter alia, from (a) lack of work-related income caused by sickness, disability, maternity, employment injury, unemployment, old age, or death of a family member; (b) unaffordable access to health care; (c) insufficient family support, particularly for children and adult dependents. Social security, through its redistributive character, plays an important role in poverty reduction and alleviation, preventing social exclusion and promoting social inclusion. States parties must take effective measures, and periodically revise them when necessary, within their maximum available resources, to fully realize the right of all persons without any discrimination to social security, including social insurance. Measures that are to be used to provide social security benefits cannot be defined narrowly and, in any event, must guarantee all peoples a minimum enjoyment of this human right. These measures can include:

(a) Contributory or insurance-based schemes such as social insurance, which is expressly mentioned in article 9 of ICESCR. These generally involve compulsory contributions from beneficiaries, employers and, sometimes, the State, in conjunction with the payment of benefits and administrative expenses from a common fund;

(b) Non-contributory schemes such as universal schemes (which provide the relevant benefit in principle to everyone who experiences a particular risk or contingency) or targeted social assistance schemes (where benefits are received by those in a situation of need). Non-contributory schemes are required since it is unlikely that every person can be adequately covered through an insurance-based system.

While the elements of the right to social security may vary according to different conditions, a number of essential factors apply in all circumstances. In interpreting these aspects, it should be borne in mind that social security should be treated as a social good, and not primarily as a mere instrument of economic or financial policy.

Presented cases reveal that there are violations of State obligation to provide those essential factors, as defined in the CESCR GC ? 19, being:

Creating social security system towards social risks and contingences related to old age – even though that social security or other assistance exists for older persons who have reached retirement age but not receiving pension, on equal basis with other persons “qualified” for welfare allowances, Roma are in fact excluded from it. The obligation to establish such system is, however, narrowed “within the limits of available resources” but it would be nonsense for a State to claim that there are available resources to send social worker to investigate whereas a person could be struck out of the welfare allowances /does one live alone or not, in the case of Manev/ but there are no available resources to send same social worker to investigate if there is a need to provide social services to an older person who has reached pension age, do not receive pension and do not have financial means to cope with daily necessities.

The social worker perceived her duties as to check whether the person is non-conforming with the regulations set for in the Social Assistance Legal Act, but not to examine real needs and the situation in which one leaves, furthermore, to check if a change in the circumstances occurs and he falls under these criteria; it appears rather than provide social services and be in fact a “public servant” the social worker define hers authority as to investigate whereas one is in breach of legal restrictions towards receiving social service and act as a “law enforcement agent” who punishes the Roma  misdemeanours. Furthermore, there is no special social security system towards old age persons /as defined by the CESCR, GC 19, 2 “c”, third sentence – please see above/, they are applying for a monthly welfare on equal bases with every other who is in need of social system’ help, obtaining sufficient means to meet the necessary costs of living in a manner consistent with human dignity. Combining this with widespread prejudices towards Roma minority within the country being “dependant on social welfare by profession” /widely used term towards unemployed Roma in the Media by the journalists, political leaders, social workers, and even the former social minister, Mrs. Maslarova/, results in inevitable harsh treatment of Roma older persons by the social workers.

Adequacy – State provided benefits, whether in cash or in kind, must be adequate in amount and duration in order that everyone may realize his or her rights to family protection and assistance, an adequate standard of living and adequate access to health care. Methods applied should ensure the adequacy of benefits. The adequacy criteria should be monitored regularly to ensure that beneficiaries are able to afford the goods and services they require to realize their rights. Ceasing ones welfare allowances based on legislative criteria that do not include ones current social needs situation is a major breach to the benefits adequacy requirement. The Social security system do not monitors situation of the persons who were cut out of the welfare due to their incompliance with the criteria set for in the Social Assistance Legal Act /struck out because of incompliance/ or those who did received social welfare for the period of twelve months /termination of social welfare on timing criteria/.

Accessibility of social care system is also breached under Coverage – All persons should be covered by the social care system, especially individuals belonging to the most disadvantaged and marginalized groups. Whereas Roma are not explicitly excluded from the Social Care system, exactly the most disadvantaged and marginalized groups within the society can be more easily struck out of it. Due to low incomes /which to be the primary purpose for receiving the monthly welfare/ they hardly can afford legal counselling or /as in the case of Manev presented above/ even a bus ticket to reach the municipality centre to submit a contestation against administrative act issued ceasing their welfare allowances. Furthermore, legislative criteria for receiving social welfare and other social relief funds in the Social Assistance Legal Act disproportionally affect Roma. Various studies determines that the high rates of poverty and low levels of employment leave Roma households heavily dependent on social welfare, which in a significant number of cases is the primary source for their survival. The most recent to be 2002 UNDP survey in which 44.4% of the Roma in Bulgaria had indicated that social assistance was the usual source of income for their households during the last six months and 2006 survey on Roma Integration and economic reform by the OSI – Sofia, which estimated that between 62% and 98% of Roma relied on social assistance. Thus, legislative measures applied to “tighten” welfare allowances disproportionally affect the Roma.

Eligibility – Qualifying conditions for benefits must be reasonable, proportionate and transparent. The withdrawal, reduction or suspension of benefits should be circumscribed, based on grounds that are reasonable and subject to due process. Whereas there are no specially elaborated criteria disqualifying Roma from the social benefits provided to, legislative changes in introducing new criteria in ceasing social welfare disproportionally affected Roma, as they being the larger group depending on the social welfare allowances as the only source of income. It is also arbitrary whereas termination of social welfare on timing criteria, without account if one after being ceased from welfare allowances can maintain sufficient means to meet the necessary costs of living in a manner consistent with human dignity or no, falls within reasonable scope of eligibility. Furthermore, one other criterion to receive social welfare can hardly be found reasonable. Regulations on Social Assistance Legal Act, persons do not have right to receive social welfare if: Art.11, 2 – their relatives has legally bounded obligation to take care of them /there is no question if their relatives, whereas bearers of the obligation to provide them with care have or not have financial means to do so /.

Participation and information – Beneficiaries of social security schemes must be able to participate in the administration of the social security system. The system should ensure the right of individuals to seek receive and impart information on all social security entitlements in a clear and transparent manner. Through civil society efforts, representation of Roma in the State Social Agency personnel is climbing up, but it is still far from the needed one, having in mind that Roma prevails among others vulnerable and marginalized groups dependant on the social security system. In the case of Manev, barely mentioning on the administrative act issued in ceasing his welfare allowances that it can be contested in a given period of time hardly can be found enough to assure clear and transparent manner of information required under participation and information scope of the right.

Accessibility of the health care, however, is a State obligation with immediate effect. Health care services must be accessible to all, especially the most vulnerable or marginalized sections of the population. With regard to the realization of the right to health of older persons, the importance of an integrated approach, combining elements of preventive, curative and rehabilitative health treatment is emphasized.  It is impossible that, Roma older man, suffering from a chronic illness, with low incomes, to afford him travelling to the District centre – Veliko Tarnovo City to prepare needed papers. Non-existed knowledge about the social security system requirements to be admitted in elderly shelter also prevents ones access to health care provided in these shelters.

Both legislation and policies discriminate Roma in their enjoyment and fulfilment of the right to social security and right to health. Roma older persons facing multiple discrimination and are one of the most vulnerable part of the Roma communities, especially those who lost their families and leave alone, without any help from other community members. Presented cases indicate the discriminatory policy and legislative standards that constitutes a barrier towards Roma fulfilment of social rights. Approaches used by the social and health care providers are highly discriminatory in nature, in the case of Goranov – both social worker and the medics knew his poor medical condition and his needs to receive daily cares as well as there is no one to help him with, but did do nothing to ensure that he will be attended and receives medical and social cares needed. In the case of Manev the social worker perceives as his duty to check if the person could be ceased from the monthly welfare, but not to periodically check his condition or to thoroughly explain him his rights and possibilities in receiving social care and services. Based on our experience in other similar cases, please refer to the Database section; we observe that the attitude of social and health workers towards Roma, inadequate approaches towards their problems, the legislative and regulations barriers that disproportionally affecting them, non-persecution of public officials that violates Roma rights, in their complexity constitutes public policy for exclusion of Roma minority from the State social and health care systems. Where no strong will enforced by the State to abolish all forms of discrimination towards most vulnerable and marginalized social groups exists, prejudices, discrimination and hatred among the society shall prevail.

Non-discrimination is an immediate and cross-cutting obligation in the ICESCR. Article 2(2) requires States parties to guarantee non-discrimination in the exercise of each of the economic, social and cultural rights enshrined in the Covenant and can only be applied in conjunction with these rights. It is to be noted that discrimination constitutes any distinction, exclusion, restriction or preference or other differential treatment that is directly or indirectly based on the prohibited grounds of discrimination and which has the intention or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of Covenant rights.

The effective enjoyment of social rights is often influenced by whether a person is a member of a group characterized by the prohibited grounds of discrimination. Eliminating discrimination in practice requires paying sufficient attention to groups of individuals which suffer historical or persistent prejudice instead of merely comparing the formal treatment of individuals in similar situations. States parties must therefore immediately adopt the necessary measures to prevent, diminish and eliminate the conditions and attitudes which cause or perpetuate substantive or de facto discrimination. Discrimination against some groups is pervasive and persistent and deeply entrenched in social behaviour and organisation, often involving unchallenged or indirect discrimination. Such systemic discrimination can be understood as legal rules, policies, practices or predominant cultural attitudes in either the public or private sector which create relative disadvantages for some groups, and privileges for other groups

States parties must adopt an active approach to eliminating systemic discrimination and segregation in practice. Tackling such discrimination will usually require a comprehensive approach with a range of laws, policies and programmes, including temporary special measures. States parties should consider using incentives to encourage public and private actors to change their attitudes and behaviour in relation to individuals and groups of individuals facing systemic discrimination, or penalize them in case of non-compliance. Public leadership and programmes to raise awareness about systemic discrimination and the adoption of strict measures against incitement to discrimination are often necessary. Eliminating systemic discrimination will frequently require devoting greater resources to traditionally neglected groups.

It is a State obligation to take measures to combat poverty and social exclusion and provide supporting social services; to consider schemes that provide social protection to individuals belonging to disadvantaged and marginalized groups; States parties should give special attention to those individuals and groups who traditionally face difficulties in exercising their social rights; States parties should take particular care that indigenous peoples and ethnic and linguistic minorities are not excluded from social security systems through direct or indirect discrimination, particularly through the imposition of unreasonable eligibility conditions or lack of adequate access to information. States parties are also obliged to provide the right to social security when individuals or a group are unable, on grounds reasonably considered to be beyond their control, to realize that right themselves, within the existing social security system with the means at their disposal. States parties will need to establish non-contributory schemes or other social assistance measures to provide support to those individuals and groups who are unable to make sufficient contributions for their own protection. Special attention should be given to ensuring that the social security system can respond in times of emergency.

[2] Full text of the decision to be found at http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC48Merits_en.pdf

[3] Full text of the decision to be found at http://www.coe.int/t/dghl/monitoring/socialcharter/Complaints/CC46Merits_en.pdf

[4] The Committee on Economic, Social and Cultural Rights (CESCR) is the body of independent experts that monitors implementation of the International Covenant on Economic, Social and Cultural Rights by its States parties. The Committee was established under ECOSOC Resolution 1985/17 of 28 May 1985 to carry out the monitoring functions assigned to the United Nations Economic and Social Council (ECOSOC) in Part IV of the Covenant. All States parties are obliged to submit regular reports to the Committee on how the rights are being implemented. States must report initially within two years of accepting the Covenant and thereafter every five years. The Committee examines each report and addresses its concerns and recommendations to the State party in the form of “concluding observations”. The Committee meets in Geneva and normally holds two sessions per year, consisting of a three-week plenary and a one-week pre-sessional working group. The Committee also publishes its interpretation of the provisions of the Covenant, known as general comments.

[5] Full text of the General Comment ? 20 to be downloaded here

[6] Full text of the General Comment ? 19 to be downloaded here

[7] Full text of the General Comment ? 14 to be downloaded here

[8] Full text of the General Comment ? 6 to be downloaded here

[9] With regard to individual complaints, on 10 December 2008, the General Assembly unanimously adopted an Optional Protocol (GA resolution A/RES/63/117) to the International Covenant on Economic, Social and Cultural Rights which provides the Committee competence to receive and consider communications. The General Assembly took note of the adoption by the Human Rights Council by its resolution 8/2 of 18 June 2008, of the Optional Protocol . The Optional Protocol will be opened for signature at a signing ceremony in 2009. In addition to the Committee on Economic, Social and Cultural rights, other committees with competence can consider individual communications involving issues related to economic, social and cultural rights in the context of its treaty. Full text of the adopted optional protocol by the UN General Assembly to be downloaded here

[10] Constitution of the Republic of Bulgaria /English/ available here