The CERD: Provisions, Reporting Mechanisms and Individual Co

Branimir Pleše, European Roma Rights Center (ERRC)

Overview of CERD’s substantive provisions

CERD entered into force in 1969—which makes it an old document compared to the EU’s “Race Directive” of 2000, for example. In many ways it is unique and very useful for human rights litigators.

Article 1 of the CERD defines “racial discrimination” as “any distinction, exclusion, restriction or preference” based on race as well as discrimination based on color, descent, and national or ethnic origin, “which has the purpose or effect of nullifying or impairing the rights recognized in this convention”. It also implicitly (“purpose or effect”) covers direct and indirect discrimination and makes clear that positive discrimination or affirmative action helping historically disadvantaged groups is not, as such, in violation of the principle of equal treatment. But measures should no longer be applied once a situation of equality of some kind has been achieved.

Article 2, inter alia, imposes positive obligations on states by requiring them to review and amend their legislation and even, if need be, adopt new statutory provisions with a view to eliminating all forms of racial discrimination.

Article 3 prohibits racial segregation and apartheid. The Committee on the Elimination of Racial Discrimination has made clear that even “partial segregation”, depending on the circumstances of each case, may amount to a violation of this provision. There is a general comment amplifying this point, which is useful in education cases for example.[1]

Incitement to racial hatred and discrimination is prohibited under Article 4. In addition, states have to provide for a comprehensive legal framework capable of affording redress to all victims of actions taken in violation of this article, whether perpetrated by individuals, groups of individuals or racist organizations.

Article 5 defines the scope of the CERD. The scope is very wide—wider than the Race Directive and certainly wider than Art 14 of the European Convention on Human Rights and Fundamental Freedoms (ECHR). It prohibits discrimination with respect to the enjoyment of numerous civil, political, economic, social and cultural rights. It prohibits discrimination in the administration of justice, in relation to security of the person and bodily harm, in terms of political participation, freedom of movement, the right to marry, and a whole list of civil rights. In terms of social and economic rights, there is the right to work and free choice of employment, the right to join trade unions, and rights to public housing, health and medical care, the right to education and training, and the right to participation in public activities. And there is also the right to equal access to public accommodations such as “hotels, restaurants, theatres, cafes and parks”. Many authors have also made clear that this includes public as well as private-public accommodations, except perhaps certain kinds of membership clubs and others under specific circumstances.

Under Article 6, states have to assure everyone within their jurisdiction effective protection and remedies against any and all acts of racial discrimination, and to afford reparation and/or satisfaction for any damage suffered as a result of such discrimination.

Finally, Article 7 deals with combating racial prejudice. It requires states to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices leading to racial discrimination and to promoting understanding, tolerance and friendship among racial or ethnic groups.

The CERD compared to other human rights documents

Compared to the EU Race Directive, the CERD—coming thirty years earlier—notably lacks procedural safeguards. There is nothing about the burden/standard of proof, specific ways of documenting discrimination such as statistics, no word of victimization, harassment and specialized bodies meant to monitor its provisions. On the other hand, it is significantly wider in its scope and in addition covers racially motivated violence and incitement to racial hatred—and the two are clearly complementary.

Compared to Article 14 of the ECHR, the CERD is superior in every respect. Unlike Article 14, which prohibits discrimination only with respect to the rights secured in the ECHR, the CERD, in addition to covering civil and political rights, also covers most internationally recognized economic, social and cultural rights. The situation with regard to the ECHR may change with the coming into force of Protocol 12, a general prohibition on discrimination, but ratification may take some time.

Article 26 of the ICCPR and Protocol 12 to the ECHR both contain a comprehensive and freestanding prohibition of discrimination, with respect to all the rights recognized by law. They do not, however, list the various civil, political, economic, social, and cultural rights in the way that the CERD does.

Reporting mechanism

All states have to file an initial report with the Committee on the Elimination of Racial Discrimination within a year of ratification, followed by periodic reports every two years and whenever the committee requests a state party to do so. The obligation is to submit reports on legislative, judicial, administrative and other measures which they have adopted in order to give effect to the provisions of the CERD. These reports are then considered by the committee.

The committee welcomes “shadow reports” composed by international and domestic NGOs—a mechanism that Russian NGOs have taken advantage of. The ERRC has to date filed numerous briefs and shadow reports with the CERD and indeed other UN bodies. It is our experience that this information is seen as particularly useful by committee members—because otherwise they would have to rely purely on government reports, which are subjective in ways that can only be expected.

Ultimately, the committee issues country-specific “Concluding Observations”, which will contain weaker or stronger language depending on many things: how persuasive the shadow reports were, the composition of the Committee, the members themselves and their interests. But every time there is a shadow report of any quality this is also included in the concluding observations and this can then be extremely useful in terms of lobbying for and advocating legislative and/or police reform, either in front of other UN bodies or domestically.

Individual complaints proceedings

According to Article 14 of the CERD, a state party may at any time declare that it recognizes the competence of the committee to receive and consider communications from individuals or groups of individuals within its jurisdiction claiming to be victims of a violation by that state party of any of the rights set forth in the CERD. Russia has done this in 1991—and therefore the individual complaints proceedings are an option for Russian lawyers and human rights organizations, in cases where they have failed to obtain redress domestically.

Other admissibility conditions include the following:

1. Communications cannot be anonymous;
2. They cannot be an abuse of the right to initiate proceedings before the Committee. The application can be filed by individuals and groups of individuals. Unlike the ECHR, individual applications can also be filed by relatives or others if it can be proven to the satisfaction of the committee that the victims themselves were unable to file the application personally;
3. The violation in question has to be imputable to the jurisdiction of one of the state parties and has to relate to one of the rights contained within the convention.
4. All effective domestic remedies have to be exhausted. However, only those deemed effective have to be pursued—if a remedy is taking too long, the victim will not be expected to wait forever, and will be in a situation to take his/her case to the committee.
5. The communication has to be filed within six months of the final decision in the domestic proceedings (unless there is no domestic remedy).

The committee has its own procedural rules. They provide for a predominantly written procedure. Hearings are held only exceptionally.

Having considered a communication filed by a victim, the committee adopts a decision on the admissibility of the case and ultimately, if the case is declared admissible, an opinion on its merits. This opinion is not legally binding in the way Strasbourg judgements are but is nevertheless an authentic interpretation of the CERD as applied to an individual case.

To date, the committee has adopted 22 decisions under Article 14, of which nine were declarations of inadmissibility, leaving a total of 13 taken on the merits of the communications filed. The committee has found violations in only seven of these 13 cases.

Individual complaints proceedings (case study)

The ERRC has filed two cases with the CERD, both with respect to Slovakia—and have decisions on the merits already. One has to do with discrimination in access to public accommodations, the second to do with freedom of movement with respect to other rights.

Miro Lacko v. Slovakia (Communication No. 11/1998). The case is of interest because it was completely ignored by the domestic authorities initially and became of interest only once it was filed internationally—to the extent that the Slovak authorities were prepared to violate their own domestic law in order not to be found in violation of the CERD. The case occurred at a sensitive time when they were preparing for EU entry.

The case concerns a Slovak Romani man who was denied access to a restaurant solely on the basis of his race. The waitress refused to serve him and said she had orders from the owner not to serve Roma. The supervisor came and said Roma had previously caused trouble and this is why the Roma were not to be served from then on. They would only serve “polite Roma”. But he was not served and left without being served.

In terms of domestic remedies—he filed a criminal complaint with the prosecutor’s office. This was rejected in the first instance, appealed to a higher prosecutor and again rejected. According to Slovak law, the criminal remedies were exhausted. The applicant also filed a complaint with the consumer protection agency which was also rejected. But as this was not appealed, the remedies in this case were not exhausted. He did not file an administrative action nor a civil case for damages—because Slovakia had no specific anti-discrimination legislation to make such a claim possible or likely to succeed.

So he complained to the committee that he had suffered discrimination in access to public accommodation and that there was no redress—and that this amounts to the promotion of racial discrimination on the part of the authorities. Also that there was no crime in the Slovak criminal code that applies to acts of discrimination and that there is therefore no effective remedy.

The committee declared the case admissible. In doing so, it found that there has to be a criminal remedy for a violation of this kind and that administrative and/or civil remedies will not suffice.

Following the submission of the communication to the committee, the Slovak authorities indicted the restaurant owner for incitement to racial hatred, a crime clearly not applicable to the incident at issue. He was found guilty and fined (thereby infringing his own human rights). It is important to see how far governments can go in situations like this, to avoid international censure—even willing to violate their own laws.

The committee found no violation on the merits, stating that ultimately the restaurant owner was convicted and thus redress was afforded. But they saw fit to recommend to the state party that it complete its legislation in order to guarantee the right of access to public places and to sanction the refusal of access to such places for reason of racial discrimination. The committee also recommended to the state party to take the necessary measures to ensure that the procedure for the investigation of such violations is not unduly prolonged.

A comparison of individual complaints to Strasbourg and the CERD Committee

• Strasbourg judgements are explicitly defined as legally binding while opinions issued by the CERD committee are not.
• Strasbourg judgements award specific monetary compensation to victims on account of the damages suffered. Committee opinions do not. Instead, if a violation is found, they simply recommend just compensation.
• Less than 10% of all Strasbourg applications get declared admissible. By contrast, almost 60% of all CERD communications go past the admissibility stage.
• Average length of proceedings in Strasbourg is five years while the proceedings before the CERD usually take less than two years.
• The ECHR is limited mainly to civil and political rights while the CERD, in addition to civil and political rights, also covers economic, social and cultural rights as well as access to public accommodations.

The legal work of the ERRC

The ERRC is an international public interest law organization which monitors the human rights situation of Roma across Europe, conducts human rights education and training and engages in impact human rights litigation—trying to select specific cases that can bring about legal change and a change in attitudes. The ERRC currently has more than a hundred cases pending with local partners domestically in different countries.

In its claims, filed internationally and domestically, the ERRC relies heavily on both international and comparative legal standards. The UN’s International Convention on the Elimination of All Forms of Racial Discrimination (CERD) is certainly amongst the instruments invoked most frequently. Internationally, the ERRC has 30 cases pending with international courts, primarily the with the European Court of Human Rights, but there are also four cases with the UN Committee Against Torture, two cases filed and decided by the Committee on the Elimination of Racial Discrimination with a third case due to filed in the next couple of months. And there are 24-25 cases pending in Strasbourg—with several decisions on merits and admissibility already reached.

Notes

[1] CERD General Recommendation XIX (Forty-seventh session, 1995): Article 3: On Article 3 of the Convention, A/50/18 (1995) 150. [back]

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