Evidence at the European level suggests that Roma people are more likely to be drawn into the criminal justice systems of EU Member States than other ethnic groups. Arrest, detention and conviction undermine and prevent integration of ethnic minorities into mainstream society, and research continues to show that Roma remain one of the most marginalized groups in the European Union. The overrepresentation of Roma people in the EU’s criminal justice system not only contributes to harmful stereotypes, but also destroys the life-chances of Roma people.
Criminal justice professionals (lawyers, police, prosecutors and judges) are not immune from the widespread harmful stereotypes and entrenched social attitudes towards Roma people. Growing evidence from outside Europe (particularly from the United States) suggest that unconscious bias in criminal justice actors does have an impact on criminal justice outcomes.
This research project was carried out simultaneously in four European countries: Spain, Bulgaria, Hungary and Romania. In terms of the research methodology applied, the approach has been to:
- engage professionals to:
- gather insights into the risk of discrimination in the criminal justice system,
- sensitizing them to these risks and engaging them in initiatives to mitigate these risks;
- use a risk-management framework to focus on the key decisions that criminal justice professional have to make where there is the greatest risk that harmful stereotypes could result in unfair outcomes and develop strategies to mitigate those risks;
- combine targeted and locally-appropriate Member State level responses with drawing on global best practice, and build long-term regional networks to support ongoing work;
- and engage Roma people, putting them and their experiences at the forefront of efforts to advance knowledge and tackle discrimination, and in tell real stories that sensitize professionals and the public.
The majority of the criminal justice professionals admitted that negative stereotypes and prejudice about Roma people are present in the criminal justice system and they justified their presence through early education which informally teaches discrimination. However, they
highlighted there is a big difference between having stereotypes and acting based on that stereotypes (discrimination). Most of them concluded that the law (criminal codes) provides guarantees for this kind of situations and it was designed to prevent any manifestation of those stereotypes in their decisions.
One of the obvious conclusions emerging from the interviews, the research and the ECHR cases mentioned is that the greatest risk of discrimination lies at the police level. This risk diminishes as the procedure advances at the prosecutorial level and finally the judge, whose decision must be motivated on the basis of the provisions of the criminal codes.
The cases of police abuse generated by ethnic discrimination have been emphasized by the ECHR in the numerous cases against Romania, the most recent being Lingurar v. Romania detailed in subchapter 1.2. of the report. In this case, for the first time, the Court elaborates on the concept of ethnic profiling. It remains to be seen to what extent this judgment will determine change at the level of police practice and tactics.
The field of police activity most likely to generate discrimination against Roma is related to administrative measures (control, identification, administrative leading to the police station).
During criminal proceedings, a key moment in which the bias of the police officer can become visible is related to the cases of Roma who commit offences for which the sentence is 5 years imprisonment or less and the presence of a lawyer is not mandatory.170 According to the
interviews, most Roma fall into this category. This means that many Roma people do not have access to a lawyer during criminal proceedings because when its presence is not mandatory, suspects/defendants are too poor to afford a paid lawyer. In these cases, the police will appoint a legal aid lawyer insofar as it considers that he/she cannot defend himself which leaves room for arbitrary interpretation of the law.
The procedure for appointing a legal aid lawyer is sometimes bypassed and this practice can negatively influence the outcome of the proceedings. Also, the police information on rights and obligations is often a formality, oftentimes Roma suspects/defendants do not concretely understand what their rights are.
Last but not least, the mechanism for solving complaints against possible police abuses is not effective, which discourages victims from lodging them in the first place. The interviewed police officers unanimously stated that they are not familiar with the phenomenon of ethnic profiling and that they have not participated extensively in courses on discrimination against Roma although such courses are organized by the Ministry of Internal Affairs and consider them useful. On the other hand, as presented in Chapter 3, students of Police Schools and Ministry of internal Affairs staff receive training in the field. This raises the issue of their efficiency, insofar as Romania continues to receive unfavorable decisions at the ECHR due to police abuses on grounds of ethnic discrimination.
Regarding lawyers, previous interviews and research show that Roma people often need a legal aid lawyer because they cannot afford to pay for one. The quality of the legal aid defense is not of the highest quality according to interviews with Roma people but it is difficult to assess
whether this is due to a possible discriminatory attitude of the lawyer or a more general problem regarding the poor quality of legal assistance. As mentioned in Chapter 4, lawyers have long been dissatisfied with the legal aid fee and certain procedural activities that restrict their activity (access to case the file, etc.).
However, some lawyer admitted the fact that they don’t want to represent Roma people due to their inappropriate attitude and also because it is difficult to work with them. Hate speech against Roma is also present among lawyers. Lawyers were unfamiliar with the concept of ethnic profiling and largely stated that they had no training on discrimination.
Judges and prosecutors
Judges and prosecutors unanimously claimed that the criminal law is very clear and limiting- any potential stereotype is censored by it. However, the application of the law implies first of all a mechanism of interpretation, a filtering through the subjective consciousness of the one who interprets it. As we have identified in Chapters 5 and 6, there are areas subject to their appreciation such as the “impossibility of defending oneself” in order to appoint a lawyer, the degree of danger to public order, etc. In the absence of concrete rules, these interpretations depend to some extent on subjective criteria and customs.
It should be emphasized that as far as the part of the court proceedings is concerned, the possibility of ethnic discrimination is certainly less possible, as the criminal codes provide guarantees for the control of such sideslips. In the case of Lingurar v. Romania, the Court held that the authorities involved have manifested a discriminatory attitude when they automatically connected the ethnicity of the Roma community to criminal behavior. Moreover, the Romanian authorities have also failed in carrying out an efficient investigation of the case and of the systemic violence invoked by the applicants.
The prosecution had accepted the police’s justification for the use of force based on a perception that all Roma were criminals and the domestic Courts closed the case without other investigation. The interviewed judges and prosecutors were not familiar with the phenomenon of ethnic profiling and unanimously stated that they did not participate in courses on this subject. Some mentioned that there are continuous education courses organized by the National Institute of Magistracy on discrimination. However, they stated that these courses are treated as general knowledge because discrimination against Roma in the judiciary does not exist.
Although training on discrimination for judges and prosecutors exists, its effectiveness cannot be quantified or assessed. The fact remains that Romania continues to be condemned before the ECHR for failure to conduct effective investigations into abuses.
Another aspect worth mentioning among the conclusions is related to the current system of sanctions that may be the cause of higher sentences for Roma. Interviews with prosecutors revealed that Roma tend to repeat the offences they are prone to commit which makes them
more likely to be punished, sometimes even more so than for more serious crimes.
At the same time, most of the interviewed professionals agreed that most of the problems come from lack of social reintegration. A better social reintegration policy on the labor market is needed to avoid recidivism and facilitate their removal from the criminal environment. On the other hand, the Roma people interviewed stated that they would like to work as they have knowledge and occupations, however, due to the criminal record they cannot get a job.
One of the questions asked during the interviews was whether or not criminal justice professionals had any concerns about collecting data on the ethnicity of people who come into contact with the criminal justice system. The aim of the question was to get information about what legal professionals think about data collection on ethnicity and whether it would help get a more accurate representation of the existence of discrimination in the criminal justice system.
The police officers didn’t see any utility and they didn’t seem concerned about it. The other categories of legal professionals that were interviewed declared mainly that the collection of data would be appropriate for sociological studies. They were reserved though that Roma persons would be willing to declare their ethnicity and they pointed out to the fact that people asking about their ethnicity would be accused of discrimination. Most of the Roma persons presented concerns on how this data will be used and who will have access to it.
In the past, APADOR-CH has advocated for not collecting data regarding ethnicity because of discriminatory reasons. During this project however, the team was confronted with the difficult task of researching the subject of ethnic discrimination in lack of any data regarding the Roma community and its contact with the criminal justice system which made it even harder to propose a policy improvement or any other measure. The question thus arises as to whether, for the purpose of formulating public policies, the collection of data on ethnicity would be justified. Data collection on ethnicity is indeed sensitive and it can cut both ways but as long as it is subject to safeguards, the relevant actors consider that it is the best tool in order to improve policy-making and in the end to help vulnerable communities.