Authors: Ramanathan Anjana and K Sudha*
Justice is enshrined in the ethos of every democratic legal system and there can be no justice without the fundamental principles of truth, fairness and equality. The herculean challenge of ensuring justice in all matters before the law is essential to the legitimisation of the very rule of law. As such, the principles of justice and fairness are perhaps most relevant and fundamental to the international legal community. Given the nature, gravity and importance of matters tried before the international courts, fairness and justice are paramount to the functioning of international law. As we know, international courts handle not only matters of nations, governments, multinational corporations and organisations but also of individuals and communities who knock its doors seeking justice. The preservation of human rights is critical to all democratic societies and in Europe, the responsibility of protecting human rights and fundamental freedoms, as ratified by the ‘European Convention on Human Rights’ (ECHR), lies with the European Court of Human Rights (ECtHR).
The ECtHR is the protector of human rights in Europe (within its jurisdiction) and is tasked with ensuring that no violations of an individual or a communities’ human rights/ freedoms go unpunished. While its definitive role is established, we must remember that it is established as a Court, and therefore, like most other courts (domestic or international), the ECtHR too is plagued with procedural and institutional issues that deter justice. As we will see, it is evident that the ECtHR has, on several occasions, failed to uphold its responsibility as a defender of human rights. This gross failure is most evident in cases of racial discrimination and persecution, particularly against Roma communities in Europe. The ECtHR has repeatedly allowed itself to be consumed by the procedures of evidence while ignoring the underlying issues of discrimination the Roma communities of Europe face. A striking parallel in the treatment of the Roma community before the ECtHR may be drawn with the treatment of Dalits in India. Both communities have faced historical persecution and continue to face oppression at all levels, institutional and societal. Similarly, for both communities, their treatment before the courts is anything but fair, as the burden of evidence for these communities to prove discrimination is so high that it is almost impossible.
The value of evidence in cases of discrimination against the Dalits in India and the Roma community in Europe highlight the procedural failure of legal systems to address the root of the problem, i.e., discrimination. The staggering burden of proof that is required to prove cases of discrimination does little to address, deter or prevent further discrimination. For Roma communities, having compelling evidence is one thing, while being able to prove the veracity of this evidence and discrimination to the ECtHR another. Despite the Roma community being the biggest and most extensive minority group in Europe, they continue to face both racism and the challenge of proving said racism before the ECtHR. These issues of evidence raise a larger question of accountability and the intersectionality between truth, society and justice in legal systems.
The words expressed by Judge Bonello in his dissenting opinion in Anguelova v. Bulgaria, shows that one must always keep in mind the misfortunes experienced by the disadvantaged groups. We know that evidence simply connotes proof, but it appears that often evidence is in itself is not enough. Evidence has two extending arms: the standard of evidence and the burden of proof but, surprisingly, the ECHR has no governing rule on how any evidence is to be treated. In Husayn (Abu Zubaydah) v. Poland, the ECtHR did note certain relevant principles concerning the standard and burden of proof; however, questions on whether the Court plays an adversarial role or takes on the role of the inquisitorial body in determining evidence remained unanswered. These interrogations demand answers, and the ECtHR’s lack of clarity is evident in the case law that emerged out of the Court’s decisions.
There is, without a doubt, a glaring gap and disconnect between arguments that work in the courtroom and the social reality— the only way to bridge this gap would be to stipulate a strong evidentiary regime. In Assenov v. Bulgaria, we saw how the ECtHR failed to establish police violence due to lack of evidence, while in Nachova & Others v. Bulgaria, we saw the Grand Chamber poignantly conclude that equality of arms should be weighed when investigating cases of violence with a racial motive. Lastly, in D.H.& Others v. the Czech Republic, the ECtHR endorsed the use of process-based arguments and suggested a shift in the burden of proof in cases of racial discrimination. These cases point to an urgent and strong need for the evolution of evidence-based regulatory jurisprudence.
The ECtHR must be definitive in its understanding and interpretation of cases that involve racial discrimination against persecuted communities, in that it must squarely equate said actions as human rights violations. Further, it must explicitly state the evidentiary requirements and be clear on who bears the pendulum of proof, while also stating compelling instances and circumstances in which it may be more considerate and lenient with evidence, i.e., by possibly lowering the standard of proof or by accepting evidence that may be contested. To resolve these issues, the ECtHR may choose to apply the principle of actori incumbit probatio and shift the burden of proof, while also being sensitive to the adverse and disadvantaged position of the applicant. It could also consider adopting the good practices of other evidentiary regimes, for instance, the Inter-American Court of Human Rights, in Bámaca Velásquez v. Guatemala and Velásquez Rodriguez v. Honduras have thrown light on the importance of human rights stands as a protector of victims’ rights and the conclusively determined damages for victims of discrimination.
A fundamental change to the ECtHR’s evidentiary practices will require a critical and interdisciplinary inquiry of case law, socio-political contexts, cultural realities and the overarching presence of power in the international system. To move ahead, it is essential that the intersectionality of issues is acknowledged so there is no institutional gap between truth, justice and the adjudicating system. The purpose of the law must never be distorted; the current interpretation appears to enable and maintain power, rather than empowering the oppressed. As seen in several ECtHR rulings, it appears that human rights violations and protective mechanisms intended to protect the victims are tangibly distant. The ECtHR’s inconclusive position and the discrepancy in their evidentiary stands against the principle of truth and fairness confirms the fear and innate belief of the oppressed that the “truth” will be dismissed and brushed under the carpet of procedural practices and political underpinnings.
*Sudha is an Assistant Professor at Damodaram Sanjivayya National Law University, Visakhapatnam, India. She has also authored a book titled ‘Prostitution Laws: An Enigma and Some Dilemmas’ published by Promilla & Bibliophile South Asia, a New-Delhi, India based publishing house. She is a human rights activist and has vast experience in the field of human rights on the grass-root level.
 The burden of proof, the standard of proof, scope and admissibility of evidence.