Italy Takes a Step Towards Confronting anti-Roma Discrimination
By Costanza Hermanin & Steve Kostas
For several years, Italy’s Roma population has been facing intense popular hostility that has both fueled and been fed by a raft of racist government laws and policies.
Now, a court in Rome has finally found that one of the most egregious of those measures—a census aimed specifically at people of Roma origin—constitutes illegal discrimination.
The events of the case in question date back to 2008, when the Italian government granted itself emergency powers which it used to compel Roma in five cities to move to segregated special housing in camps on the outskirts of cities.
The measures included requiring all those living in so-called “nomad camps to submit to a census, if they wished to continue living in Italy. The procedure involved Roma being required to provide personal information, including their fingerprints and photographs, for storage in what was essentially a large, ethnically focused, database.
Roma advocates and civil society groups opposed the anti-Roma measures in many ways, including filing court challenges, with mixed results. In November 2011, the Italian Council of State ruled that the government had indeed unlawfully invoked emergency powers. But it failed to find that the policies introduced were discriminatory, nor that they violated privacy and data protection rights. In May 2013, the Supreme Court of Cassation upheld the Council of State’s judgment. But again, it left the victims without remedy for the upheaval caused by the government in their lives.
At each step, and through two administrations, the government has fought for its ability to continue to target Roma for discriminatory treatment.
Finally, on 26 May 2013, an Italian court for the first time ruled that the Roma census involved “a determination based on ethnic grounds” and resulted in a violation of the personal dignity of the persons identified, and damage to their reputation.
The claimant, Elviz Salkanovic, had filed a legal complaint over his inclusion in the census and finger-printing operation launched in 2008, when he was residing in the Roma encampment “Casilino 900” outside Rome. Mr. Salkanovic, an Italian citizen of Roma origin, had been fingerprinted and photographed with his family in the context of the census, in spite of having a regular ID card. Non-Roma inhabitants of the Casilino 900 were not fingerprinted by the police.
The ruling of the Second Civil Chamber of the Court of Rome is the first in Italy to find that the so-called “nomad emergency measures” amounted to racial discrimination. The court ordered the government to delete Salkanovic’s file, to pay him 8,000 euros in moral damages, and to publish the court’s opinion in a local newspaper.
The Salkanovic ruling comes after repeated denunciations of the nomad emergency measures from international human rights monitoring bodies. These include a decision on the discriminatory character of the census that was adopted by the Economic and Social Committee of the Council of Europe in 2010, and explicit recommendations reiterated by the Council of Europe (from the European Commission against Racism and Intolerance, and human rights commissioners Hammarberg and Muiznieks) and by the UN Committee on the Elimination of Racial Discrimination (CERD) in March 2012.
The Salkanovic judgment stands in stark contrast to a significant legal error made for years by other Italian courts. Italian courts ruling on the Emergency Measures had excluded their discriminatory character because they were targeted at “nomad camps” rather than at Roma and Sinti as an ethnic group. In effect, this had required a showing of clear discriminatory intent to establish discrimination. But this is not required by the ECHR and under EU law, which recognize indirect discrimination where apparently neutral provisions, criterion or practices would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons.
Before this ruling, the Italian judiciary had failed to consider the concrete discriminatory effects of the measures as well as the notion of indirect discrimination the Roma and Sinti residing in the camps. The Salkanovic ruling can be applauded for bringing Italian case law closer in line with the ECHR and EU discrimination law requirements.
However, because the court failed to acknowledge the collective character of the discrimination, it consequently failed to order remedies for all effected Roma, including destruction of the entire database. This glaring failure effectively allows the government to continue to use the Roma census database which Italy’s highest court deemed unlawfully created and the Salkanovic court found amounted to racial discrimination.
The government must now follow through on its previous statements to CERD (which included falsely claiming the database was destroyed in March 2012) to ensure the entire database is destroyed once and for all.
Until May 2016, Costanza Hermanin was a senior policy analyst for equality, justice, and home affairs.
Steve Kostas is a senior legal officer with the Open Society Justice Initiative’s litigation team.