It’s the court’s turn to step up against racism

The Chamber of Judge Miszori has a difficult task. On August 6, it will announce its first instance judgment in a criminal procedure against the four suspects who were accused of carrying out a series of racist murders in 2008 and 2009 against Hungarian Roma.

The court has had plenty of material to review but the decision will mostly be difficult because of the poor investigative work carried out by the authorities. The police established the links between the similar crimes and came to an otherwise obvious conclusion that these were hate crimes only after the eighth violent attack and the fourth murder. Even the national chief of the police recognized the errors at the investigation of the crime scene in Tatárszentgyörgy. The judge in charge of the case called the search of the location, where the suspects stored the murder weapons, shocking. We could go on and on with listing the issues.
The shortcomings in the documentation from the investigation need to be somehow corrected within the strict rules of criminal procedure. So far, these issues have led to a 28-month long trial on first instance. 
Even a very thorough and legally sound judgement will not correct the failures of the authorities which the state should remain accountable for. However, the court is not tasked with answering the questions whether there were other individuals involved in the crimes and whether they should also stand trial. Nor will the court declare how some of the victims could have been rescued had the National Security Office provided the prescribed (by law) expertise and thoroughness during the investigation of the crimes. These are not tasks of the court. The court merely decides on the standing of the case and the culpability of the suspects.
Still, in case the court finds the suspects guilty, it has to identify the motives behind the crimes. Here, the court is at a junction; if it comes to a clearly articulated judgment it would go a long way toward preventing similar crimes in the future, but if the court comes out with an unclear judgment it would contribute to covering up racism in Hungary. 
The societal impact of bias motivated crimes 
The stakes are high. The prejudice against Roma and the resulting crimes remain the most serious human rights issue in Hungary. The attitude of the general public and, correspondingly, that of the criminal justice system has not changed toward the most impoverished group of society since the 2008 and 2009 crimes against the Roma. This is a shame. What else could tell more of the problems than the death of six individuals where the perpetrators had no other ground for choosing the victims other than the color of their skin?
The perpetrators of bias motivated crimes (hate crimes) choose their victims based on a personal trait be that skin color, sexual orientation or adherence to a minority group, for example. Hate crimes strengthen the feeling of alienation and fear in minority groups. Therefore, hate crimes have a broad societal impact; they increase tension between various sections of society and send a message to minority groups that justifies their fear. 
The series of murders and violent attacks on the Hungarian Roma strengthened their sense of isolation. It is enough to consider the violent crimes in Miskolc and Sajóbábony in 2009, when the Roma acted in response to threats. These acts could have been avoided had the Roma communities not been traumatized by the serial killings. Moreover, the criminal justice system responded to these crimes in a way that was embarrassing to the entire nation as the Roma were charged with hate crimes against Hungarians.
The court can now act against societal isolation by giving sufficient weight in its judgment to racism as a reason behind the crimes. If the court fails to live up to this challenge, it will act in contrast to the European human rights standards. In Strasbourg, anti-Gypsyism in Hungary is a well-known fact. In a recent decision against the Hungarian Guard, the court in Strasbourg evaluated research by several international organizations on the depressing situation of the Roma’s isolation in the country. (See Vona vs. Hungary, §§26-28)
What does the court in Strasbourg expect?
Hate crimes represent the most extreme offense against human dignity and equality. The European Court of Human Rights (ECHR) in Strasbourg began in mid-2000 the development of its case law on member states’ answers to hate crimes. The Nachova vs. Bulgaria (2005) case concerned a Bulgarian police officer who shot two Roma men while carrying out an arrest. The court was very explicit about the duty, prescribed by law, of member states to uncover and state firmly any racist motivation behind violent crimes. 
“In particular, when investigating violent incidents, State authorities have the additional duty to take all reasonable steps to unmask any racist motive and to establish whether or not ethnic hatred or prejudice may have played a role in the events. Failing to do so and treating racially induced violence and brutality on an equal footing with cases that have no racist overtones would be to turn a blind eye to the specific nature of acts that are particularly destructive of fundamental rights. A failure to make a distinction in the way in which situations that are essentially different are handled may constitute unjustified treatment irreconcilable with Article 14 of the Convention”  
The Secic vs. Croatia decision of 2007 extended the responsibility authorities have to respond to hate crimes also in case of crimes perpetrated by private individuals. 
The Fedorchenko and Lozenko vs. Ukraine decision of September 2012 extends the above noted state responsibility to act to the judiciary. In the fall of 2001 in Ukraine, three men, presumably one of them a cop, set fire to a house inhabited by Roma. Administrative and judicial procedures failed to hold the suspects accountable for their actions even 11 years after their committing the crime. The ECHR, in this decision, repeated its expectation on what measures states are expected to carry out in case of a crime that leads to the death of a victim. 
The investigation must be effective and capable of leading to the establishment of the relevant facts and the identification and punishment of those responsible. The authorities must have taken the reasonable steps available to secure all evidence concerning the incident. The investigation’s conclusions must be based on thorough, objective and impartial analysis of all the relevant elements. Furthermore, the requirements of Article 2 of the Convention go beyond the stage of the official investigation, which this has led to the institution of proceedings in the national courts: the proceedings as a whole, including the trial stage, must satisfy the requirements of the positive obligation to protect lives through the law. While there is no absolute obligation for all prosecutions to result in conviction or in a particular sentence, any deficiency in the investigation which undermines its capability of establishing the circumstances of the case or the culpability of the person responsible to fall foul of the required measure of effectiveness.  the above applies to the judiciary as well although the state is not responsible to guarantee that every trial will result in a conviction. Nevertheless, national courts, following the decisions by the ECHR, have to do everything in their power to punish life-threatening offences. The court strengthened in this decision the position that authorities must examine any apparent motive of racism if the victim or the suspect provides evidence to such a motive. The ECHR took into account a report by the Council of Europe’s Committee Against Racism which found that the Roma in Ukraine suffered from wide-spread racism and discrimination.    
What does all this imply to the case of the serial killings of Hungarian Roma?
The investigation of the serial killings, which I described above, obviously did not live up to the requirements established in European human rights case law related to the right to life (Article 2 of the ECHR), while the delay in recognizing racism as a motive is concerning from the perspective of the prohibition of discrimination (Article 14 ). 
The questions are: did the court succeed in establishing the facts of the case despite the errors committed during the investigation and will the decision avoid the state’s responsibility for violating the fundamental right to life of the victims, as opposed to the above decision on Ukraine? 
Even if this is accomplished, one will need to act more to squash any doubt about violations of the prohibition of discrimination. The prosecution brought charges of theft and abuse of firearms against the defendants along with a charge of committing murder with foul motives. The qualified foul motive charge covers racist motivations, however, the prosecutor failed to clearly articulate in the indictment the motives behind the crimes.
To satisfy the requirements of the court in Strasbourg and to live up to the expectations of a society that respects the rule of law, the Chamber of Judge Miszori will have to clearly state the motives behind the killings; these killings were motivated by prejudice against Roma and that’s why the perpetrators sought to instill fear among them. To put it more simply, the murderers carried out hate crimes based on racism. According to the ECHR, member states have to fight against racism with all available means whereas the articulation of racist motives has not only symbolic meaning but also legal relevance. A failure to articulate these motives could lead to the violation of the article banning discrimination. 
Eszter Jovánovics, head of HCLU’s Roma Program

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