Human Rights Law Review 6:1
The Author [2006]. Published by Oxford University Press.

All rights reserved. For Permissions, please email: journals.permissions@oxfordjournals.org

doi:10.1093/hrlr/ngi034 Advance Access published on 16 February 2006
...............................................................................

Minority Rights and the Roma

of Central and Eastern Europe
Istva¤n Poga¤ny*

Abstract

Since1990, minority rights have enjoyed an extraordinary renaissance in

Europe. Ironically, this has occurred at precisely the time when Europe’s
largest ethnic minority, the Roma, has faced an unprecedented crisis,
particularly in post-Communist states. This article explores the various
problems facing the Roma in Central and Eastern Europe and considers
why minority rights regimes have had a marginal impact on the situation
confronting this minority. In addition, the article reflects on whether
current conceptions of minority rights are well suited to such an extra-
ordinarily heterogeneous ‘people’ as the Roma, many of whom have
lost the cultural and linguistic features that formerly distinguished
them as a minority.

1. Introduction
Since 1990, minority rights have enjoyed an extraordinary renaissance,
particularly in Europe.1 In their different ways, both the Organisation for

* Professor, School of Law, University of Warwick. I should like to acknowledge the generous
financial support of the British Academy, the Nuffield Foundation and the Legal Research
Institute of the School of Law, University of Warwick. Grants from these bodies enabled me to
collect materials and to interview officials, NGO personnel and scholars in Hungary and in
Romania as well as to carry out fieldwork amongst several Roma communities in these
countries. I should also like to thank the anonymous referees of the Human Rights Law
Review for their helpful comments on an earlier draft of this article.

1 With the adoption of the United Nations Charter, after World War II, the ideology of individual
human rights largely replaced the concern with minority rights that had characterised the
League of Nations era. Minority rights are not mentioned in either the United Nations Charter
or in the 1948 Universal Declaration of Human Rights. See, generally, Thornberry,
International Law and the Rights of Minorities (Oxford: Oxford University Press, 1992) at
Chapters 10, 11 and 13. See also, Kymlicka, Multicultural Citizenship (Oxford: Oxford
University Press, 1996) at 2^4.

.....................................................................................
Human Rights Law Review 6:1 (2006), 1^25
2 HRLR 6 (2006), 1^25

Security and Co-operation in Europe (OSCE) and the Council of Europe have
placed increasing emphasis on the rights of national and ethnic minorities,2
while the European Union (EU) has made respect for minority rights a criterion
of membership for applicant states.3
It is generally understood that safeguarding the rights of minorities can have
important implications for the preservation of international peace and security.4
This was, in essence, the rationale for the elaborate system of minority
rights protection established during the inter-war era and also goes some
way towards explaining the current revival of interest in minority rights.5
However, for political theorists and philosophers, such as Will Kymlicka,
as for an increasing body of liberal opinion, respect for minority rights is
not simply a device for the avoidance of international conflict but an essential
element of a‘comprehensive theory of justice’:
. . . it is legitimate, and indeed unavoidable, to supplement traditional
human rights with minority rights. A comprehensive theory of justice
in a multicultural state will include both universal rights, assigned to
individuals regardless of group membership, and group-differentiated
rights or ‘special status’ for minority cultures.6
According to Kymlicka, constitutional systems that insist on treating
people as citizens with identical rights and duties, while ignoring cultural,
linguistic or other differences, are liable to ‘alienate and disadvantage’
those who belong to national or ethnic minorities.7 Since 1990, a succession
of international instruments, including the OSCE’s Charter of Paris for

2 See infra, Part 2.

3 The ‘Copenhagen criteria’, adopted by the European Council of the EU in 1993, assert that
states seeking admission to the EU must demonstrate, inter alia, that they have achieved
‘stability of institutions guaranteeing democracy, the rule of law, human rights and respect
for and protection of minorities’ [emphasis added]. The Copenhagen criteria are available at:
http://europa.eu.int/comm/enlargement/intro/criteria.htm#Accession%20criteria.
4 President Woodrow Wilson of the United States, a strong advocate of minority rights, declared
to Allied statesmen after World War I that, ‘[n]othing . . . is more likely to disturb the peace of
the world than the treatment which might, in certain circumstances be meted out to the
minorities’ (quoted in Thornberry, supra n. 1 at 40^1). In the modern era, recognition of the
threat to international peace and security posed by the abuse of minorities in multinational
states can be seen in the establishment, in 1992, of the office of High Commissioner for
National Minorities by the CSCE (now OSCE). The role and mandate of the High
Commissioner will be discussed infra, Part 2.
5 On the protection of minority rights during the inter-war period, see, generally, Thornberry,
supra n. 1 at Chapter 3. On the reasons for the current revival of interest in minority rights,
see Kymlicka, supra n. 1 at 5^6.
6 Kymlicka, ibid. at 6. See also, Kymlicka and Opalski (eds), Can Liberal Pluralism be Exported?
(Oxford: Oxford University Press, 2001); and Kymlicka (ed.), The Rights of Minority Cultures
(Oxford: Oxford University Press, 1995). On the appropriateness of political rather than judicial
processes for recognising and enforcing minority rights, particularly where they may involve
a ‘wider social redistribution of resources’, see Malik, ‘Minority Protection and Human Rights’,
in Campbell, Ewing and Tomkins (eds), Sceptical Essays on Human Rights (Oxford: Oxford
University Press, 2001) 277.
7 Kymlicka, supra n. 1 at 193^4.
 Minority Rights of the Roma 3

a New Europe,8 have embraced this liberal ideology, treating minority rights as
an ethical imperative and as part of the ‘bedrock’of the new European order.
Ironically, the growing enthusiasm for minority rights has occurred
at precisely the time when Europe’s largest ethnic minority, the Roma,9
has faced an unprecedented crisis, particularly in Central and Eastern Europe
(CEE) where the bulk of Europe’s seven to nine million Roma are located.10
The rhetoric of minority rights has failed to arrest the erosion of what
were already grossly unsatisfactory living conditions for Roma in the CEE
states or assure them equal access to public services.11 Nor have minority
rights instruments reversed the escalation in anti-Roma sentiment and
violence that has been a feature of the CEE region since the ousting of
Communist administrations.12

8 Adopted 21 November 1990. Available at: http://www.osce.org/docs/english/1990^1999/

summits/paris90e.htm. When the Charter was adopted, in 1990, the OSCE was known as the
CSCE, or Conference on Security and Cooperation in Europe.
9 In this article the term ‘Roma’ is used to denote the various groups and communities that
are variously designated as ‘Roma’, ‘Sinti’ or ‘Gypsies’. See, generally, on the range of Roma
groupings and identities in CEE, Marushiakova and Popov, ‘Historical and Ethnographic
Background; Gypsies, Roma, Sinti’, in Guy (ed.), Between Past and Future: The Roma of Central
and Eastern Europe (Hertfordshire: Hertfordshire University Press, 2001) 33 at 36^41. Some of
the so-called ‘Roma’ groups in the CEE region actually consider themselves to be Egyptians,
Albanians or Turks, rather than Roma or Gypsies.
10 For a number of reasons, including the reluctance of many Roma to reveal their ethnicity
when responding to censuses or other public surveys, the size of Romani minorities in
the CEE states cannot be stated with any degree of precision. According to figures cited by
the European Commission there are up to 800,000 Roma in Bulgaria, 300,000 in the Czech
Republic, 600,000 in Hungary, 2,500,000 in Romania and 520,000 in Slovakia. See EU Support
for Roma Communities in Central and Eastern Europe (EU Enlargement Information Unit
Brochure, May 2002) at 4. The text is available at: http://europa.eu.int/comm/enlargement/
docs/pdf/brochure_roma_oct2003_en.pdf. There are also substantial Roma minorities in
Albania and in parts of the former Yugoslavia, particularly in FYR Macedonia and in Serbia
and Montenegro. See Ringold, Orenstein and Wilkens, Roma in an Expanding Europe: Breaking
the Poverty Cycle (Washington DC: International Bank for Reconstruction and Development,
2003) at 12. Roma are ‘estimated to make up between 6 and 11 percent of the populations of
Bulgaria, FYR Macedonia, Romania, and the Slovak Republic’ (ibid.). In contrast, in Poland,
where the bulk of the country’s Roma were systematically killed during World War II, it is
thought that there are no more than 60,000 Gypsies. It should be borne in mind, when
considering these numbers, that the birth rate amongst the Roma is generally far higher
than amongst the non-Roma population due to a variety of cultural, economic and other
factors.
11 For two linked studies of the often appalling living conditions endured by many Roma in the
CEE states and their limited access to public services, see Zoon, On the Margins: Roma and
Public Services in Romania, Bulgaria and Macedonia (New York: Open Society Institute, 2001);
and Zoon, On the Margins: Roma and Public Services in Slovakia (New York: Open Society
Institute, 2001). See also, Report on the Situation of Roma and Sinti in the OSCE Area
(The Hague: OSCE High Commissioner on National Minorities, 2000) at Chapter IV; and
Ringold, Orenstein and Wilkens, supra n. 10, especially Chapters 2^3.
12 On the increase in levels of intolerance and violence directed against Roma in the CEE region
since the collapse of communism see, for example, Report on the Situation of Roma and Sinti in
the OSCE Area, ibid., especially Chapter II. This phenomenon is discussed in greater detail
infra, Part 2.
4 HRLR 6 (2006), 1^25

Focusing on the predicament of the Roma in the CEE states, this article
sets out to explore both the limits and potentialities of the international
law of minority rights. As suggested above, it is by no means self-evident
that minority rights regimes have addressed the most urgent needs of the
continent’s Roma. Arguably, minority rights represent a luxury that many
Roma, particularly those in the CEE region, are unable to benefit from because
of their chronic poverty and comparative lack of formal education. For still
other and substantial sections of the Roma population, who retain little,
if any, sense of a distinct culture and who no longer speak Romani, their
ancestral language, minority rights may have become largely irrelevant.
More fundamentally, it is at least open to speculation whether current
conceptions of minority rights, as recognised by international law, are well
suited to such an extraordinarily heterogeneous ‘people’as the Roma. In reality,
the communities and individuals generally labelled as ‘Roma’ or ‘Gypsies’
by the outside world lack a clearly defined common culture, language or
religion. They do not possess much, if any, sense of a collective identity.
As anthropologists and other experts have repeatedly emphasised, identity
amongst the Roma is generally much more sharply and narrowly constructed.13
Therefore, the categories and tacit assumptions of the international law of
minority rights may be, at least partially, inapplicable to Europe’s largest andç
almost certainlyçmost vulnerable ethnic minority.

2. The (Ir)relevance of Minority Rights

for the Roma of the CEE Region
The various minority rights regimes operating in Europe can be distinguished
in terms of the extent to which they impose binding legal obligations as distinct
from ‘soft law’ commitments, according to whether or not they establish clear
and detailed norms regulating the rights of persons belonging to national
or ethnic minorities, and in terms of the nature and effectiveness of their
monitoring or enforcement mechanisms. Further distinctions can be drawn
between minority rights regimes established by individual states, generally on
the basis of constitutional provisions supplemented by statutes and decrees,14
and others that operate at the international level, frequently under the auspices

13 See, for example, Fraser, The Gypsies, 2nd edn (Oxford: Blackwell, 1995) at 8 and 9. See also,
Stewart, The Time of the Gypsies (Boulder, Colorado: Westview Press, 1997), especially at 58^60
and 92^4; and Szuhay, ‘A kiket ciga¤nyoknak neveznek-akik magukat roma¤nak, muzsikusnak
vagy bea¤snak mondja¤k’, (1997) 6 Magyar Tudoma¤ny 656 at 669.
14 For example, since 1990, Hungary has created a comparatively liberal and innovative minority
rights regime, allowing the country’s minorities, including the Roma, to form national
and local self-governing councils. The creation of these self-governing bodies constituted a
radical initiative in constitutional terms, allowing national and ethnic minorities a degree
 Minority Rights of the Roma 5

of international institutions. The latter comprise regional instruments, such

as the Council of Europe’s Framework Convention for the Protection of National
Minorities 1995,15 and others that are global in character, such as the
International Covenant on Civil and Political Rights 1966 (ICCPR).16
Applying these distinctions, it is clear that the leading OSCE texts dealing
with the treatment of minorities, such as the CSCE Charter of Paris for
a New Europe 1990 or the Document of the Copenhagen Meeting of
the Conference on the Human Dimension of the CSCE, express political
commitments rather than legally enforceable rights.17 Similarly, the UN
General Assembly’s Declaration on the Rights of Persons Belonging to National
or Ethnic, Religious and Linguistic Minorities, adopted in December 1993,18
remains aspirational, at best.
In contrast, the Council of Europe has chosen to promote and safeguard
the rights of minorities chiefly through two multilateral treaties that entered
into force in the 1990s: the Framework Convention for the Protection
of National Minorities 199519 and the European Charter for Regional or
Minority Languages 1992.20 The European Convention for Human Rights and
Fundamental Freedoms (ECHR),21 which was concluded under the auspices
of the Council of Europe in 1950, is a product of the ideological climate of the
immediate post-War era. As such, it is concerned with traditional human rights

of autonomy in cultural and educational affairs and embodying the still controversial
principle of collective rights. As of October 2002, there are 1004 Romani, or Gypsy, councils
of this type in Hungary. However, it is doubtful whether Hungary’s minority rights regime
addresses the fundamental problems experienced by the country’s Romaçunemployment,
inadequate living standards and widespread discrimination. For English-language texts of
the Hungarian Constitution and of Act LXXVII of 1993, on the Rights of National and
Ethnic Minorities, which set out the legal framework for the establishment of national and
local self-governing minorities’ councils, as well as the appointment of a minorities
Ombudsman, see: http://www.obh.hu/nekh/en/index.htm. See, generally, on minorities
policies in various central European states, Vermeersch, ‘EU Enlargement and Minority
Rights Policies in Central Europe: Explaining Policy Shifts in the Czech Republic,
Hungary and Poland’, (2003) 1 Journal on Ethnopolitics and Minority Issues in Europe 1,
available at: http://www.ecmi.de/jemie/download/Focus1-2003_Vermeersch.pdf.
15 ETS No. 157.
16 999 UNTS 171. The ICCPR is concerned, only in part, with the rights of persons belonging
to national or ethnic minorities. See, in particular, Articles 2(1), 26 and 27. While Article 26
prohibits discrimination on various grounds, including ‘race, colour, sex, language’or religion,
Article 27 provides:

In those States in which ethnic, religious or linguistic minorities exist, persons

belonging to such minorities shall not be denied the right, in community with the
other members of their group, to enjoy their own culture, to profess and practise their
own religion, or to use their own language.
17 The Copenhagen Document was adopted on 29 June 1990 and is available at: http://www.
osce.org/docs/english/1990^1999/hd/cope90e.htm.
18 GA Res. 48/135, 20 December 1993, A/47/49.
19 ETS No. 157.
20 ETS No. 148.
21 ETS No. 005.
6 HRLR 6 (2006), 1^25

rather than with the rights of persons belonging to national or ethnic minorities.
However, Article 14 provides a non-discrimination clause:

The enjoyment of the rights and freedoms set forth in this Convention
shall be secured without discrimination on any ground such as sex,
race, colour, language, religion, political or other opinion, national or
social origin, association with a national minority, property, birth or
other status.22
Despite its individualistic focus, the ECHR has become an important
constitutional mechanism for the Roma, as well as for certain other ethnic
groups, such as Turkey’s Kurds, allowing issues of general concern to these
minorities to be raised before the European Court of Human Rights (ECtHR).23
Roma in CEE who wish to pursue a claim under the ECHR may benefit from
legal assistance provided by non-governmental organisations (NGOs), such as
the European Roma Rights Centre (ERRC). Cases that, at one level, concern
the abuse of an individual’s human rights may, in fact, be a part of a broader
legal strategy aimed at ending unacceptable legal, social and political practices
affecting sizeable minority populations in the contracting states.24
Unlike either the OSCE or the Council of Europe, the EU has so far failed
to elaborate clear or detailed norms with regard to the treatment of minorities.
The EU approach to minority rights, as signalled successively by the Charter
of Fundamental Rights,25 the Treaty of European Union and the Treaty
establishing a Constitution for Europe,26 is, at best, cautious and equivocal.
Thus, theTreaty establishing a Constitution for Europe does not expressly recog-
nise minority rights other than the right to freedom of religion (Article II-70)
and the principle of non-discrimination (Article II-81). In addition, the Treaty

22 However, Article 14 can only be invoked in conjunction with one or more of the substantive
rights recognised by the ECHR. Thus, Article 14 does not create a general right to
non-discrimination.
23 Cases referred to the ECtHR, which was established under the ECHR, have concerned, inter
alia, the brutal treatment of Romani suspects and detainees by police in Bulgaria, the failure
of the authorities to respond adequately to a fatal assault on Roma and the destruction of
their homes in Romania, the hasty and indiscriminate expulsion from Western Europe of
Roma originating in CEE countries, and discrimination against Roma by the educational
authorities in the Czech Republic. Some of these cases are examined in Poga¤ny, The Roma
Cafe¤ (London: Pluto, 2004), especially at 9 and 145^6. For a list of important judgments of
the ECtHR concerning the treatment of the Roma, see the website of the European Roma
Rights Center at: http://www.errc.org/Judgements__index.php. Most recently, in July 2005,
in its judgment in the Case of Moldovan and Others v Romania (No. 2), Judgment of 12 July
2005, Application Nos. 41138/98 and 64320/01, the ECtHR found that Romania had
breached Articles 3, 6(1), 8 and 14 in its slow and unsatisfactory response to a ‘pogrom’ in a
Transylvanian village that resulted in the deaths of several Roma and in the flight of the
remainder from their homes and property.
24 For details of the ERRC’s litigation strategy, see: http://www.errc.org/Litigation__index.php.
25 [2000] OJ C 364/1.
26 For the text of the Treaty see [2004] OJ C 310.
 Minority Rights of the Roma 7

provides that: ‘[t]he Union shall respect cultural, religious and linguistic
diversity’ (Article II-82). While Article II-82 implicitly recognises the existence
of national, ethnic and other minorities, the provision falls short of articulating
the extent or forms that respect for such ‘diversity’ should take. Nor is it clear
that Article II-82 imposes any duties on member states as distinct from the
organs of the EU. However, as noted above, the EU has made respect for minority
rights a criterion of membership for applicant states.27
There are considerable variations amongst minority rights instruments
in terms of the range and specificity of the rights protected. While the ICCPR
does not expand on the cautious and qualified language of Articles 26
and 27,28 the Council of Europe’s Framework Convention for the Protection
of National Minorities contains a comparatively detailed catalogue of minority
rights. In addition to affirming the principle of non-discrimination in the
treatment of minorities, including ‘equality before the law and . . . equal
protection of the law’,29 the Framework Convention seeks to preserve minority
identities through the recognition of a broad range of language, education and
other rights.30
The European Charter for Regional or Minority Languages, which entered
into force in 1998, is more limited in scope than the Framework Convention.
However, like the latter, it is concerned with the preservation of minority
identities, specifically through measures aimed at the protection of regional or
minority languages.
In general, minority rights regimes rely on monitoring mechanisms of
varying degrees of effectiveness to promote compliance by participating states,
rather than on the judicial enforcement of rights.31 Neither the Framework

27 See supra n. 3. On the impact of EU policies on the treatment of minorities in the applicant
states, several of which were admitted to the EU in May 2004, see, generally, the articles
on ‘EU Enlargement and Minority Rights’, (2003) 1 Journal on Ethnopolitics and Minority
Issues in Europe, available at: http://www.ecmi.de/jemie/special__1__2003.html#top.
28 Note, however, General Comment No. 23 on the Rights of Minorities, 8 April 1994, CCPR/C/21/
Rev.1/Add.5; 1(3) IHRR 1 (1994), by the UN Human Rights Committee. In this General
Comment the Committee, which is charged with monitoring compliance with the ICCPR,
noted, inter alia, that:

Although the rights protected under article 27 are individual rights, they depend in
turn on the ability of the minority group to maintain its culture, language or religion.
Accordingly, positive measures by States may also be necessary to protect the identity
of a minority and the rights of its members to enjoy and develop their culture
and language and to practise their religion, in community with the other members
of the group.
29 Article 4, Framework Convention.
30 See, in particular, Section II of the Framework Convention.
31 The ICCPR goes somewhat further. In accordance with the First Optional Protocol, persons
alleging a violation of their rights under the ICCPR may petition the Human Rights
Committee. However, the role of the Committee is quasi-judicial, at best, and cannot be
equated with judicial enforcement.
8 HRLR 6 (2006), 1^25

Convention for the Protection of National Minorities nor the European Charter
for Regional or Minority Languages is subject to the jurisdiction of a judicial
body, such as the ECtHR.32
Rather than examine the various minority rights regimes individually,
the following discussion will review their overall utility in terms of the questions
posed in the ‘Introduction’. These can be restated as follows:
(i) Have minority rights regimes made a significant contribution to the
most urgent needs of the Roma of CEE or should minority rights be viewed
as a comparative luxury?
(ii) In so far as substantial sections of the Roma population of the CEE region
retain little, if any, sense of a distinct Roma culture or identity, are minority
rights relevant to their needs and concerns, or is the current emphasis
on minority rights a largely artificial exercise?
(iii) Are current conceptions of minority rights well suited to such an
extraordinarily heterogeneous ‘people’as the Roma? Are the categories and
tacit assumptions of the international law of minority rights at least par-
tially inapplicable?

A. The Luxury of Minority Rights for the Roma of the CEE Region
From a progressive, liberal perspective, recent attempts to accommodate
minority identities and to promote cultural pluralism can only be applauded.33
These initiatives reflect a broadly inclusive notion of statehood in which,
to quote the preamble of the Framework Convention for the Protection
of National Minorities, cultural diversity is recognised as ‘a source and a
factor, not of division, but of enrichment for each society’.34 A more radical
understanding of individual identity might go further, emphasising ‘complexity,
ambiguity, and ‘‘hybridity’’’ in the construction of personal identities, rather

32 In February 1993, the Parliamentary Assembly of the Council of Europe recommended that
minority rights should be included in a new protocol to the European Convention on Human
Rights and Fundamental Freedoms, rather than set out in a separate treaty. If accepted, the
Parliamentary Assembly’s proposal would have resulted in the ECtHR receiving complaints
alleging violations of minority rights recognised by the protocol. However, in the Vienna
Declaration of October 1993, the member states of the Council of Europe rejected the
Consultative Assembly’s recommendation, opting instead for a separate treaty concerned
with minority rights. See Poga¤ny, ‘International Human Rights Standards and the New
Constitutions: Minority Rights in Central and Eastern Europe’, in Mu«llerson, Fitzmaurice
and Andenas (eds), Constitutional Reform and International Law in Central and Eastern Europe
(The Hague: Kluwer Law International, 1998) 155 at 173^4.
33 On the theoretical and practical implications of multiculturalism and the potential difficulties
in reconciling the concept with human rights norms, see McGoldrick, ‘Multiculturalism and
its Discontents’, (2005) 5 Human Rights Law Review 27.
34 For the text of the Framework Convention see supra n. 19.
 Minority Rights of the Roma 9

than the ‘tightly defined, monolithic, primordial allegiances’of nation, ethnicity

or religion.35 However, the liberal, multicultural vision enshrined in instru-
ments such as the Framework Convention offers a welcome and decisive break
with powerful currents of European political thought of the 19th and 20th cen-
turies that produced programmes for the eradication of various national, ethnic,
religious, sexual or other minorities through processes of assimilation, ‘ethnic
cleansing’ or physical destruction.36 The freedom of individuals belonging
to national, ethnic, religious or linguistic minorities to express and to
celebrate their identities as members of such minorities has now been
recognised as a moral entitlement and as an integral feature of the international
protection of human rights.37
However, as will be discussed in greater detail in Parts 2B and 2C below,
increasing numbers of Roma in the CEE region do not possess a clear or coherent
sense of identity that is readily distinguishable from the identity of the
(non-Roma) peoples amongst whom they live. Some sociologists contend that,
to a significant extent, so-called Roma ‘lifestyles’ may actually denote cultures
of poverty, marginality and deprivation rather than the survival of ‘authentic’
Roma traditions and values.38 At the same time, processes of voluntary as
well as involuntary integration, going back over generations, or in some cases
centuries, have relentlessly eroded Roma cultures and identities in much of
the region, although some Roma subgroups have resisted these processes.39
Even if we choose to disregard such considerations, it is doubtful whether
significant numbers of Roma in the CEE region regard the preservation
or expression of their ‘cultural identity’ as matters of overriding concern,
particularly when set against the acute economic, social and other problems

35 Taylor, ‘Response to Bhabha’, in Gibney (ed.), Globalizing Rights (Oxford: Oxford University
Press, 2003) 184 at 186.
36 For a penetrating assessment of the influence of contrasting ideological forces in Europe in
the 20th century, see Mazower, Dark Continent: Europe’s Twentieth Century (London: Penguin
Books, 1998). On the genocide of Jews and Roma in CEE during World War II and on the post-
War ethnic cleansing of German minorities in the region see, variously, Marrus, The Holocaust
in History, 2nd edn (Toronto: Key Porter Books, 2000); Bauer, Rethinking the Holocaust (New
Haven: Yale University Press, 2001); Lewy, The Nazi Persecution of the Gypsies (Oxford: Oxford
University Press, 2000); Poga¤ny, Righting Wrongs in Eastern Europe (Manchester: Manchester
University Press, 1997), especially Chapters 5^6; and Poga¤ny, ‘Memory and Forgetting: the
Roma Holocaust’, in Gready (ed.), Political Transition (London: Pluto, 2003) 90. More recently,
there have been successive phases of ethnic cleansing in the former Yugoslavia.
37 It has been persuasively argued that other minority groups, such as sexual minorities,
should receive similar recognition under international law. See for example Heinze, ‘The
Construction and Contingency of the Minority Concept’, in Fottrell and Bowring (eds),
Minority and Group Rights in the New Millennium (The Hague: Kluwer Law International,
1999) 75.
38 See, for example, Lada¤nyi and Szele¤nyi, ‘Ki a Ciga¤ny?’, in Forray (ed.), Romolo¤gia-Ciganolo¤gia
(Budapest: Dialo¤g Campus Kiado¤, 2000) 13 at 23.
39 See, generally, infra, Part 2B.
10 HRLR 6 (2006), 1^25

experienced by the bulk of the Roma since the collapse of state socialism.40
In a report on Roma poverty, published in 2003,World Bank economists stated:
Increasingly severe poverty among Roma in Central and Eastern
Europe has been one of the most striking developments in the region
since the transition from socialism began in 1989. While Roma have
historically been among the poorest people in Europe, the extent of
the collapse of their living conditions in the former socialist countries
is unprecedented.41
The same report goes on to note that:
Roma are the most prominent poverty risk group in many of the
countries of Central and Eastern Europe. They are poorer than other
groups, more likely to fall into poverty, and more likely to remain poor.
In some cases poverty rates for Roma are more than 10 times that of
non-Roma.42
This is not the place for a detailed study of the multiple causes of Roma poverty.
However, it is clear that Communist-era policies were directly responsible for the
massive over-representation of Roma in unskilled jobs throughout the CEE
region, frequently in unprofitable sectors of the economy that were doomed to
disappear as a result of the large-scale economic restructuring that occurred
during the transition period.43
In addition, the relative lack of educational qualifications amongst the Roma,
a long-standing phenomenon that the Communists failed to tackle, has been an
important contributory factor, severely limiting Roma employment prospects.
For example, a study conducted in 2000 found that a large proportion of Roma
aged 18 or above had failed to complete their primary education in Bulgaria,
Romania and Hungary (39.6, 27 and 22.1 per cent, respectively).44 In Bulgaria
and Romania, large numbers of Roma in the designated age range had received
no education at all (15 per cent in Bulgaria and 13.4 per cent in Romania). Only
a miniscule proportion of Roma aged 18 or above, in the three countries under
consideration, had attended institutions of higher education (0.5 per cent in
Bulgaria, 0.3 per cent in Romania and 0.2 per cent in Hungary).45
Soaring levels of unemployment and plummeting living standards
amongst the Roma, in the transition from Communism, can also be ascribed

40 For an overview of these problems see Barany, The East European Gypsies (Cambridge:
Cambridge University Press, 2002) at Chapter 5; and Poga¤ny, supra n. 23 at 1^9, 84^6,
98^100 and 148^60.
41 Ringold, Orenstein and Wilkens, supra n. 10 at 1.
42 Ibid. at 2^3.
43 On the failures and distortions of Communist policies towards the Roma see Barany,
supra n. 40 at Chapter 4.
44 See Table 2.5, in Ringold, Orenstein and Wilkens, supra n. 10 at 38.
45 Ibid.
 Minority Rights of the Roma 11

to widespread discrimination on the part of employers as well as the severe

difficulties experienced by the minority in obtaining full and equal access to
public services, including healthcare and education.46 Many Roma have
become trapped in a vicious, downward cycle of poverty and deprivation.47
The economic exclusion experienced by the Roma since the collapse of
state socialism has gone hand in hand with processes of social marginalisation,
partially reversing earlier efforts to integrate the minority. Since 1990,
intergovernmental organisations and human rights NGOs have drawn attention
to an alarming escalation of racially motivated assaults on Roma in the
CEE states.48
Acts of violence and intimidation directed against the Roma result,
in part, from the fact that they have been treated as ‘scapegoats’, blamed
for a perceived increase in levels of criminal activity and for other social ills.49
In part, the rise of anti-Roma sentiment can also be viewed as a consequence
of the greater preoccupation with issues of national identity that has been
a feature of the post-Communist transitions.50
Importantly, virulent anti-Roma feeling in CEE is not confined to skinhead
gangs or to sectors of society that are impoverished or poorly educated.
Deep-seated prejudices about the Roma (as about certain other groups) are
commonplace in many countries in the region.51 In a recent survey of 500
degree-level history students in Hungary, 35 per cent concurred with the
statement that a propensity to commit crime is ‘in the Gypsies’ blood’, while
60 per cent agreed with the proposition that the Roma themselves are primarily
responsible for anti-Roma feelings in society.52
Against this stark background of deprivation, racism and marginalisation,
most Roma in CEE are unlikely to consider the preservation of their cultural
or linguistic identityçwhere readily identifiableças an overriding priority,
particularly in terms of any material assistance that may be available from the
state or from other sources. Lack of employment opportunities, inadequate
housing and educational and medical provision, acute difficulties in obtaining

46 Ibid. at Chapter 2. See also, Barany, supra n. 40 at Chapter 5, and the sources cited supra n. 11.
47 For a case study of a Roma family in western Romania who have been the victims of economic
marginalisation, see Poga¤ny, supra n. 23 at Chapter 6.
48 See, generally, ibid. at 132^7 and 143^6.
49 Barany, supra n. 40 at 189^95. Criminological studies conducted in Hungary in the late 1990s
variously estimated the proportion of Roma amongst the inmates in Hungarian prisons as
35 per cent or even 56.5 per cent. These figures should be set against the fact that Roma
constitute approximately 5^6 per cent of Hungary’s total population. See Po¤csik, Ciga¤ny
integra¤cio¤s proble¤ ma¤k (Budapest: Ko«lcsey Inte¤ zet, 2003) at 38^41. However, these studies have
found that Roma criminality is frequently linked to issues of susbsistence and economic need.
(Ibid. at 43.)
50 See Poga¤ny, supra n. 23 at 79^80; and Barany, supra n. 40 at 189^90.
51 Barany, ibid. at 189.
52 See Va¤sa¤rheyi, ‘Tan|¤ -tani ^ de hogyan?’, (2004) 48:7 E¤let e¤ s Irodalom, available (in Hungarian)
at: http://www.es.hu/pd/display.asp?channel¼CIMOLDAL0407.
12 HRLR 6 (2006), 1^25

adequate food and clothing for themselves and their families, as well as fears
about their physical safety are the most immediate and pressing concerns of
the bulk of the Roma population of the post-Communist states.
Ironically, the Roma of the CEE region were invested with minority rights
at precisely the time when comprehensive codes of social and economic
rights were withdrawn or drastically curtailed.53 One of the defining features of
the Communist system was that it accorded rights with respect to employment,
education, healthcare, pensions, housing, etc. as a matter of constitutional
entitlement.54 The abrupt removal of these rights, on which many Roma
had come to depend, was an inevitable consequence of the transition from
command to market economies. However, the substitution of minority rights
(along with civil and political rights) has scarcely compensated for the
disappearance of a wide range of socio-economic guarantees that had assured
the Roma a relatively secure way of life and a modest standard of living that
many, accustomed to severe hardship in the inter-war era and before, considered
acceptable.55

B. The Arti¢ciality of Minority Rights for the Roma of the CEE Region
Minority rights regimes are concerned, in large measure, with the preservation
of cultural, linguistic, religious or other features of minority populations and
with satisfying the special needs arising from these characteristics. This was

53 On the withdrawal of social and economic rights in CEE and the consequent impact on the
Roma see, for example, Poga¤ny, ‘Refashioning Rights in Central and Eastern Europe: Some
Implications for the Region’s Roma’, (2004) 10 European Public Law 85 at 89^94.
54 Although formally included in the constitutions of Communist states, such social
and economic ‘rights’ (like other types of rights) were ultimately subject to curtailment or
withdrawal on political grounds at the absolute discretion of the authorities. Bourgeois
notions, such as the ‘rule of law’ and ‘the separation of powers’, were alien to constitutional
practice in the Communist states. See Sokolewicz, who notes that: ‘Above all, the Marxist
concept of rights permitted and even assumed limitations on civil rights [including social
and economic rights] if such limitations were motivated by ‘class’ interests or political
reasons’, Sokolewicz, ‘The Relevance of Western Models for Constitution-Building in Poland’,
in Hesse and Johnson (eds), Constitutional Policy and Change in Europe (Oxford: Oxford
University Press, 1995) 243 at 244.
55 When questioned, most Roma in the CEE region routinely assert that conditions were much
better for them during the Communist era. See, for example, Poga¤ny, supra n. 22 at 54^9.
The comments of a Romani man in his late 60s, whom I interviewed in his village home in
the Transylvanian region of Romania, are typical:

When the communists were around, life was good! Back then, poor people, peasants,
everyone had something. Whether you wanted to or not, you had to go [to work]. You
got what you got, but it was enough to live on!
Interview recorded in April 2003 (on file with the author). Neither of the interviewee’s adult
sons, who have families of their own, has been able to find regular work since the collapse
of state socialism.
 Minority Rights of the Roma 13

recognised by the Permanent Court of International Justice in its Advisory

Opinion on Minority Schools in Albania. Thus, the Court advised that inter-war
treaties on the protection of minorities were intended to:
secure for certain elements incorporated in a State, the population of
which differs from them in race, language or religion, the possibility of
living peaceably alongside that population and co-operating amicably
with it, while at the same time preserving the characteristics which
distinguish them from the majority, and satisfying the ensuing special
needs.56
Since 1990, European policy makers have agreed, in broad terms, on
the importance of minority rights.57 As noted in Part 1, the persecution (real or
perceived) of minorities has long been recognised as a potential threat to the
preservation of regional peace and security, particularly where a minority can
claim the support of a‘kin’state. At the same time, the recognition and protection
of minority identities and cultures is now viewed as an essential requirement
of human rights.
However, as suggested above, processes of voluntary and involuntary
integration, or even assimilation, have meant that a significant proportion of
the Roma of the CEE states have lost much or all sense of a distinct cultural
or linguistic identity.58 These processes were greatly accelerated during
the Communist era when the prevailing goal of most administrations,
particularly during the late 1940s and throughout the 1950s and 1960s,
was the assimilation of the Roma in the socialist societies that were then
under construction.59 Communist policy focused, in particular, on the
integration of the Roma within the broader economy, albeit at the lowest levels
(proletarianisation), and on the ending of nomadism (sedentarisation), which
was viewed as an impediment to the transformation of the Roma into
orderly, productive citizens. In the former Czechoslovakia and in Bulgaria,
assimilationist strategies were pursued right up until the final collapse of
Communism in late 1989.

56 Minority Schools in Albania, Advisory Opinion of 6 April 1935, PCIJ, Series A/B 64 at 17.
57 See, for example, the OSCE’s Charter of Paris for a New Europe, in which the heads of state or
government of the states participating in the OSCE affirmed that:

the ethnic, cultural, linguistic and religious identity of national minorities will be
protected and that persons belonging to national minorities have the right freely to
express, preserve and develop that identity without any discrimination and in full
equality before the law.
58 For details see infra, Parts 2B and 2C.
59 For a detailed survey of Communist policies towards the Roma in the various states of CEE see
Barany, supra n. 40 at Chapter 4. On Communist policies in Hungary concerning the Roma
see Stewart, ‘Communist Roma Policy 1945^1989 as Seen Through the Hungarian Case’,
in Guy (ed.), supra n. 9, 71.
14 HRLR 6 (2006), 1^25

In effect, Communist planners viewed the Roma as a marginalised and

deprived social group lacking adequate housing, healthcare or education,
as well as secure or ideologically acceptable forms of economic activity.
It was generally assumed that the problems of this minority could only
be solved by integrating or, more properly, assimilating the Roma,
effectively eliminating any traces of a distinct Roma ‘identity’ or culture.60
In Hungary, for example, the Political Committee of the Communist
Party adopted a decision, in June 1961, on ‘The Improvement of the
Situation of the Gypsy Population’.61 This called, in effect, for the assimilation
of the country’s disparate Romani communities within the broader
Hungarian society:
There are still some erroneous views in circulation regarding the solu-
tion of the Gypsy question. Many treat it as if it were a nationalities
issue and recommend the development of the ‘Gypsy language’, the
establishment of Gypsy-language schools, colleges and of separate agri-
cultural co-operatives for Gypsies, etc. Such ideas are not only wrong
they are positively harmful as they preserve the isolation of Gypsies and
slow down their integration within society.62
In ignoring, or deliberately subverting, long-standing Roma cultures in CEE,
the Communists contributed to a fitful process, begun as early as the mid-18th
century by Habsburg rulers, which would now be characterised as ‘cultural
genocide’. Anticipating and even surpassing the assimilationist policies pursued
by Communist regimes, some 200 years later, Empress Maria Theresa banned
any use of the word ‘Gypsy’, which was replaced by euphemisms such as
‘new peasant’, ‘new Hungarian’ and ‘new resident’.63 Maria Theresa also issued
a decree compelling Hungary’s Roma to remain in fixed locations. Roma,
or Gypsies, were no longer permitted to move outside their immediate locality
without prior authorisation; they were even prohibited from owning horses
or carts.64
Over time, the ideal of integration, or even assimilation, came to be
seen as both natural and desirable by many Roma, particularly by elements
that had internalised the values of gadje, or non-Roma. Integration, or
assimilation, offered the prospect of escape from desperate poverty, low status

60 See, generally, Stewart, supra n. 13 at Chapter 6.

61 For the text (in Hungarian) of the 1961 Party decision see, for example, Mezey (ed.),
A magyarorsza¤gi ciga¤nyke¤ rde¤ s dokumentumokban 1422^1985 (Budapest: Kossuth Ko«nyvkiado¤,
1986) at 240.
62 Ibid. at 241 [author’s translation].
63 Nagy, A magyarorsza¤gi ciga¤nyok to«rte¤ nete a rendi ta¤rsadalom kora¤ban (Kaposva¤r: Csokonai Vite¤ z
Miha¤ly Tan|¤ to¤ke¤pzo00 Fo00 iskola Kiado¤ja, 1998) at 252.
64 See, for example, Crowe, A History of the Gypsies of Eastern Europe and Russia (New York:
St Martin’s Griffin, 1996) at 74^5. See, also, Nagy, supra n. 63 at 247^56.
 Minority Rights of the Roma 15

and blatant discrimination. Gradually, significant numbers of Roma shed

many of the cultural, linguistic and other attributes that formerly distinguished
them. For example, Hungary’s Romungros, who make up at least 70 per cent of
the 500,000^600,000 Roma in the country, no longer speak Romani and have
little, if any, sense of a distinct culture or identity.65 Far from resisting successive,
state-sponsored efforts to integrate them, Romungros have consciously ‘tried
to assimilate into Magyar [i.e. Hungarian] society’ for over 100 years.66
With certain variations, this pattern of cultural and linguistic
integration or, in some cases assimilation, has been replicated elsewhere in
CEE, although it remains far from universal.67 As a result, significant
numbers of Roma in the region have virtually no knowledge of their ancestral
language or culture.68 As noted, many no longer affirm a Roma ethnic
identity.69 In the opinion of some social scientists, so-called Roma ‘lifestyles’,
as reflected in Roma settlements and in the emergence of new patterns of
economic activity during the transition from Communism, should be seen
as the consequence of economic necessity rather than as the expression of
cultural (i.e. Roma) identity.70 On this view, it would be wrong to assume that
the survival strategies adopted by some Roma families, in the transition from
Communism, embody ancient cultural patterns or that they stem from the
desire of these families to live their lives in accordance with minority norms
and values.
Consequently, the minority rights regimes that have sprung up, particularly
since 1990, may be less relevant or appealing to many Roma in CEE than might
have been supposed. As well as having little real sense of a distinct cultural
or linguistic identity, they also have very little appetite for rediscovering

65 Marushiakova and Popov, supra n. 9 at 38^9. See also Stewart, supra n. 13 at 93; and Szuhay,
A magyarorsza¤gi ciga¤nysa¤g kultu¤ra¤ja: etnikus kultu¤ra vagy a szege¤ nyse¤ g kultu¤ra¤ja (Budapest:
Pano¤rama, 1999) at 34^6 and 48^50.
66 Stewart, supra n. 13 at 93.
67 See, generally, Marushiakova and Popov, supra n. 9 at 37^40.
68 Semi-structured interviews that I conducted with three generations of an extended
Romani family, in the Romanian city of Cluj, may help to illustrate this phenomenon. The
family are prosperous and own several businesses; they readily affirm their pride in their
Roma identity and ‘heritage’. However, no-one in the family can speak Romani; and like most
Romanians they are Orthodox. After I had known the family for some time and had visited
their homes and businesses, I asked them to identify those features of their lifestyle that they
believed to be authentically ‘Roma’. After some deliberation, various members of the family
settled on the following, allegedly ‘Roma’ characteristics: ‘we like parties’; ‘we like traditional
Roma music from Transylvania, although younger members of the family prefer disco music’;
and ‘we love animals’. (Semi-structured interview conducted on 22 September 2000 in Cluj,
Romaniaçon file with the author.) In fact, a love of parties, of disco music or of animals is
scarcely unique toçor necessarily expressive ofçRoma culture. The lifestyle of several much
poorer Romani families based in Cluj or in outlying villages, with whom I maintained regular
contact over a period of years, suggested a similar loss of Romani cultural and linguistic
identity.
69 See, generally, Marushiakova and Popov, supra n. 9 at 37^9.
70 See Lada¤nyi and Szele¤nyi, supra n. 38.
16 HRLR 6 (2006), 1^25

a lost ‘heritage’ that has often been associated, in practice, with acute poverty,
insecurity and social exclusion.71
Paradoxically, the renewed emphasis on issues of ethnicity and national
identity across much of CEEçof which the minority rights ‘industry’ is
an expression and to which it is also a contributory factorçmay actually
exacerbate the problem of Roma marginality by making it more difficult for
Roma to be viewed as individuals rather than as extensions of a (despised)
ethnic group. Article 3(1) of the Council of Europe’s Framework Convention
states that: ‘[e]very person belonging to a national minority shall have the
right freely to choose to be treated or not to be treated as such’. In practice,
however, the widespread emphasis on minority rights and minority concerns
by politicians, NGOs, academics, the media and by schools and educational
facilities, in a number of CEE states, may have made it more difficult
for individuals to exercise this notional right not to be treated as members of
a minorityçespecially if their skin colour, name, home address or any other
attributes identify them as members of a minority.

C. The Inapplicability of Minority Rights to the Roma of CEE

There is an element of artificiality in equating the Roma of the CEE region with
large and relatively cohesive national minorities, such as ethnic Hungarians
in Transylvanian Romania, Slovakia or the Ukraine.72 If the latter belong to a
‘nation’ or a ‘people’, with a distinct language, culture, religious traditions and
national consciousness, these unifying features are absent from the Roma.
Instead, the Roma comprise a mosaic of individuals, families and communities
that are integrated to varying degrees (or in some instances fully assimilated),
as well as disparate subgroups that, while retaining elements of their
‘traditional’ Roma customs, do not possess a common language, religion or
culture, or an inclusive sense of nationhood.73 Some Roma (for example,

71 The desire of many Roma to ‘escape’ their Roma identity is reflected in the fact that educated,
light-skinned Roma in CEE, with middle class careers as classical musicians, teachers,
engineers, etc., not infrequently choose to conceal their Romani ancestry from colleagues,
neighbours, friends and, in some cases, even from their own children. For some examples
of this phenomenon, see Poga¤ny, supra n. 23 at Chapter 5.
72 In both Romania and Slovakia, ethnic Hungarians have established political parties that have
the overwhelming support of the Hungarian minorities in the respective countries. Currently,
both of these parties are included in coalition governments. On the Hungarian minorities and
their relations with their fellow citizens and with Hungary see Scho«pflin, Nations, Identity,
Power (London: Hurst, 2002), especially Chapters 24^6. On the Hungarian community in
Transylvanian Romania see Hungarians of Romania (Centre for Documentation and
Information on Minorities in Europe^Southeast Europe, undated), available at: http://
www.edrc.ro/resurse/rapoarte/Hungarians__of__Romania.pdf.
73 On the absence, as yet, of a Romani national consciousness, encompassing disparate Romani
subgroups, see Poga¤ny, ‘Accommodating an Emergent National Identity: The Roma of Central
and Eastern Europe’, in Tierney (ed.), Accommodating National Identity (The Hague: Kluwer
Law International, 2000) 175.
 Minority Rights of the Roma 17

elements of the Rudara) are developing a new sense of identity that is distinct
from the Roma and the non-Roma peoples amongst whom they live, while
others (particularly in Albania and in parts of the former Yugoslavia) insist
that, unlike Gypsies, they are of Egyptian ancestry.74
Any linguistic unity that may once have characterised the Roma has
long since disappeared as a result of dispersion, processes of enforced or
voluntary assimilation and a host of other factors. Romani, the Indic language
traditionally spoken by the Roma, has been characterised as ‘a network of
perhaps more than 60 dialects, falling into a score of groupings’.75 According to
one expert, ‘[i]t is indeed debatable whether Romani has not reached a stage
where it should be considered as a group of closely related languages rather
than as a single language with numerous dialects’.76
Increasing numbers of Roma no longer possess knowledge of any Romani
dialect. This is true, for example, of most Rudara, Vatrashi and Romungro Roma
in Romania, of Ungrika Roma in southern Slovakia, of most Czech and
Moravian Roma in the Czech Republic, and of the overwhelming majority
of Roma living in Hungary.77 According to recent research, almost 90 per cent
of Hungary’s sizeable Roma population had adopted Hungarian as their mother
tongue by 1993, as compared with 71 per cent in 1973.78
If the Roma do not possess a common language, they also lack a shared
religion. In general, Gypsies have tended to adopt the religion of the people
amongst whom they have settled.79 Thus, in CEE, a region encompassing a
wide variety of religious faiths, Roma are variously Catholic, Greek Catholic,
Protestant (Calvinist, Lutheran, Baptist, Seventh Day Adventist, etc.), Orthodox
and Muslim. Those professing Islam are found principally in parts of the
former Yugoslavia, Bulgaria, Albania and Romania.80 Not infrequently, Roma,
particularly those belonging to groupings that have retained significant
elements of their traditional culture, are selective in their observance of religious
teachings.81

74 Marushiakova and Popov, supra n. 9 at 37.

75 Fraser, supra n. 13 at 302. On the enormous range of Romani dialects spoken by Roma in CEE
see, for example, Marushiakova and Popov, supra n. 9 at 36^40.
76 Fraser, ibid. at 304.
77 Marushiakova and Popov, supra n. 9 at 38^9.
78 See, for example, Keme¤ny, ‘A nyanyelvi csoportok’, in Keme¤ny (ed.), A Magyarorsza¤gi Roma¤k
(Budapest: Magyar Tudoma¤nyos Akade¤mia, 2000) 25 at 28.
79 Fraser, supra n. 13 at 312^16.
80 Marushiakova and Popov, supra n. 9 at 36^8.
81 In Romania, a pastor of the Seventh Day Adventist Church told me of his exasperation at the
refusal of his Gabori Roma parishioners to abide by the rulings of the Church in matters of
marriage. Children in the Gabori community are married off by their parents while still in
their early teens, despite the protests of various Christian denominations. Gabori couples who
have not produced any children after several years are expected to seek a divorce and to find
new marriage partnersçeven though divorce is proscribed by the Seventh Day Adventist
Church. Needless to say, Gabori marriage customs are specific to Romania’s Gabori
community. Very little has been written in English about Romania’s Gabori, or Ga¤bor, Roma.
See, however, Poga¤ny, supra n. 23 at 7, 117 and 120^3.
18 HRLR 6 (2006), 1^25

For a variety of reasonsçincluding the absence of a common language,

religion or culture, as well as traditionally low levels of literacyçRoma
subgroups display little sense of an inclusive Roma identity, encompassing
other Roma communities. Sir Angus Fraser has drawn attention to ‘the
fragmented Gypsy order, with its emphasis on difference and distinction’.82
In reality, Roma subgroups are frequently suspicious of one another, sometimes
invoking the same pejorative stereotypes about other Roma communities
that gadje (i.e. non-Roma) routinely use when discussing Roma, or Gypsies.
For example, a successful Gabori trader in his 30s, living in a village near the
Romanian town of Ta“rgu-Mures , assured me that Roma belonging to other
‘nations’ did not have ‘any sense of honour or respect’.83 The same man also
said that, as professional traders, he and his relatives were much more ready to
enter into commercial dealings with ethnic Romanians or ethnic Hungarians,
or with foreigners, than with members of other Roma ‘nations’ or ‘tribes’. His
cousin, a man of similar age, said to me:

we’re afraid that when we offer something for sale, in the way of trade,
they [i.e. non-Gabori Roma] will rob us . . . So as far as relations go, we’ll
say ‘good day’ to them in Gypsy [i.e. Romani]. But we have absolutely no
contact with other tribes.
For some of the reasons given above, it can be extraordinarily difficult for the
Roma of CEE to make extensive or meaningful use of the freedoms introduced
by minority rights instruments or for states to fulfil their duties to the Roma
under these texts. Some of the educational rights included in the Council
of Europe’s Framework Convention for the Protection of National Minorities
provide a useful illustration of the underlying problems. Article 13(1) of the
Framework Convention states that ‘persons belonging to a national minority
have the right to set up and to manage their own private educational and
training establishments’. However, this entitlement is of limited relevance to
a minority that is overwhelmingly poor or, in many cases, destitute and that
has a severely limited pool of qualified teachers. Further difficulties arise from
the fact that there is no ‘kin’ state that can supply Roma schools or colleges
with educational materials or with other forms of support.84 Finally, the
fragmented nature of this minority, discussed above, militates against the

82 Fraser, supra n. 13 at 9.
83 This comment was made in the course of lengthy, semi-structured interviews conducted with
the menfolk and older women of an extended Gabori Roma family in a village near the
Romanian town of Ta“rgu-Mures in September 2002 [on file with the author].
84 In contrast, Hungary enacted legislation in 2001 with a view to supporting sizeable
ethnic Hungarian minorities abroad, including specific measures of assistance for
Hungarian teachers and students in various countries bordering Hungary, and for the
preservation of Hungarian culture and the Hungarian language. See Act LXII of 2001
on Hungarians Living in the Neighbouring States. The Act, which was criticised by states
 Minority Rights of the Roma 19

creation of educational or training establishments by the Roma themselves.

The Roma are divided, rather than united, by language, dialect, religion, customs
and allegiances, as well as by degrees of socio-economic integration.
Establishing educational facilities that can bridge such stark divisions represents
a formidable challenge.85
Article 14(2) of the Framework Convention invites contracting states to
‘endeavour to ensure . . . as far as possible and within the framework of their
education systems’ that, in certain circumstances, persons belonging to various
minorities ‘have adequate opportunities for being taught the minority language
or for receiving instruction in this language’. Aside from the timidity and
equivocation of the wording of Article 14(2), it is clear that many of the
problems raised above, in relation to Article 13(1) of the Framework Convention,
also apply to Article14(2). Unlike national minorities, such as ethnic Hungarians
in Romania, Slovakia or the Ukraine or ethnic Germans in Hungary, Poland and
Romania, Roma living in a particular region of a country do not necessarily
share a common mother tongue, while many may be unfamiliar with any
Romani dialect.86 Teaching Roma pupils their ‘minority language’ or giving the
pupils ‘instruction in this language’ is therefore fraught with difficulties.
Differences of religion and of culture amongst Roma subgroups are further
complicating factors, as is the lack of suitably qualified Roma teachers.
More fundamentally, high levels of Roma absenteeism from schools across
CEEças well as a tendency in much of the region, until very recently, to allocate
Roma children as a matter of course to special schools or to classes intended for

bordering Hungary, who viewed it as an infringement of their sovereignty, was amended

by Act LVII of 2003, although the thrust of the earlier legislation was not impaired. For the
views of the Venice Commission on Hungary’s 2001 statute and on comparable legislation
adopted by other countries, see European Commission for Democracy through Law
(Venice Commission), ‘Report on the Preferential Treatment of National Minorities by their
Kin-State’, October 2001, available at: http://www.embajada-hungria.org/s/pressdoc/vencom/
vencom.htm. The Commission did not preclude the adoption by states of unilateral measures
for the benefit of their ‘kin-minorities’, provided that such measures respect the following
principles: (a) the territorial sovereignty of states; (b) pacta sunt servanda; (c) friendly relations
amongst states; and (d) respect for human rights and fundamental freedoms, particularly
the prohibition of discrimination.
85 However, there have been some successes. For example, the Ghandi High School, in the city of
Pe¤cs, Hungary, was established in 1994 to serve the needs of the country’s Roma community
and is widely respected. There are currently 246 pupils attending the school. In most years,
60^70 per cent of pupils who graduate from the school proceed to higher education.
The school teaches various languages spoken by elements of Hungary’s Roma, including
Bea¤s, a language based on 19th century Romanian and entirely unrelated to Romani.
However, the primary language of instruction is Hungarian, while considerable emphasis
is placed on the study of foreign languages such as English and Spanish. In essence, the
school is committed to the creation of a Roma intelligencia, rather than the regeneration
of traditional Romani cultures and identities. For details of the Ghandi school see: http://
www.sulinet.hu/php/alapitvanyi__iskolak/?p¼subschool__detail&subschool__id¼93.
86 On the extraordinary diversity of languages spoken by Roma in Romania, see: Marushiakova
and Popov, supra n. 9 at 37^8.
20 HRLR 6 (2006), 1^25

pupils with learning difficultiesçsuggest that the overriding challenges are

to reduce levels of Roma truancy and to ensure equal treatment for Roma
pupils. Bridging the education ‘gap’ with children from non-Roma backgrounds
is essential if the Roma are to compete on equal terms in increasingly skills- and
knowledge-based economies.
Against a background of chronic educational under-performance by
the Roma, a history of institutionalised discrimination by school systems and
continuing large-scale Roma truancy, teaching Roma children their ‘minority
language’, as contemplated by the Framework Convention, or teaching the
entire syllabus in some variant of Romani, can scarcely be viewed as a priority
and may even represent a distraction.87 The Advisory Committee, established
under the Framework Convention, has implicitly acknowledged this fact
in some of its opinions, drawing attention in unusually robust language to
the importance of ensuring that the basic educational requirements of Roma
children are met. In its First Opinion on Romania’s compliance with the
Convention, adopted on 6 April 2001,88 the Committee made the following
observations in connection with Article 12:
The Advisory Committee is deeply concerned by the fact that a signifi-
cant percentage of Roma children attend school irregularly or not at all.
Since there are various reasons explaining Roma parents’ reluctance to
send their children to school, only a whole range of long-term measures
can remedy this situation. At the same time, the Advisory Committee
considers that one of the causes is particularly unacceptable: repeatedly
during its visit, it was told that the main reason why many school-age
children stayed away was the lack of food. Of course, the Advisory
Committee is aware that this applies, not only to Roma children,
but also to children belonging to the majority. It is clear, however,
that Roma children are proportionally far more affected than others
by school absenteeism associated with their parents’ inability to pay for
their daily meal. It is therefore of central importance that the Romanian
authorities tackle this problem and remedy this unsatisfactory situation
as a matter of priority.89

87 In addition, as emphasised in Part 2B, many Roma in the CEE region no longer speak Romani.
Even Roma who are familiar with a variant of Romani may be unable to understand someone
who speaks a radically different Romani dialect.
88 Advisory Committee on the Framework Convention for the Protection of National Minorities,
Opinion on Romania, 6 April 2001, ACFC/INF/OP/I(2002)001.
89 Ibid. at para. 57. Article 12(3) provides: ‘The Parties undertake to promote equal
opportunities for access to education at all levels for persons belonging to national minorities.’
By comparison, the Committee’s observations in connection with Article 14 were much less
critical. Noting that, ‘no instruction in Roma language is available in Romania, and that
teaching of this language is offered only to very few pupils’, the Committee called on the
Romanian government to ascertain ‘the extent to which the current status of the Roma
 Minority Rights of the Roma 21

More recently, in its Second Opinion on Moldova, adopted on 9 December 2004,

the Committee emphasised that:

. . . the Roma continue to have serious difficulties in the education

field. Difficult material conditions in families and the schools
concerned . . . the complete isolation of Roma children when they live
in Roma villages far from other localities, the lack of qualified teachers
and other factors are resulting in families’ losing interest in education.
In the absence of support measures by local authorities, the result
is a large number of children who do not go to school, high rates
of absenteeism and underachievement at school, as well as
continuing high illiteracy rates in this population. These difficulties
are accentuating the marginalisation of the Roma and keeping them
in a vulnerable situation in terms of effective participation in the
economic, social, political and cultural life of the country, as well as in
public affairs.90
The educational needs of Roma children, across much of CEE, are acute and
wide-ranging, and inextricably bound up with the abject poverty experienced
by a significant proportion of Roma in the transition from communism, as
well as the absence amongst many Roma subgroups of an established culture
of commitment to formal education.91 Roma families require encouragement,
material support and, in some cases, incentives to ensure that their children
attend school, and that they remain in full-time education for as long as possible.
Roma children must also be given access to the educational resources of their
respective countries on a fully non-discriminatory basis.92 By comparison,

language in Romanian schools meets the demands of the Roma community’. In referring to
the ‘Roma language’, the Advisory Committee appears to have been unaware of (or to have
deliberately ignored) the fact that there are dozens of distinct Romani dialects rather than a
single, recognised language.
90 Advisory Committee on the Framework Convention for the Protection of National Minorities,
Second Opinion on Moldova, 9 December 2004, ACFC/INF/OP/II(2004)004 at para. 18.
91 See, generally, Poga¤ny, supra n. 23 at 155^7.
92 In its Opinion on Slovakia, 22 September 2000, ACFC/INF/OP/I(2001)001, the Advisory
Committee emphasised the need to ensure that Roma pupils are allocated to schools or
classes in accordance with their individual needs and capacities, rather than on the basis of
their ethnicity:

The Advisory Committee is deeply concerned about the reports according to which a
high proportion of Roma children are placed in so-called special schools. While these
schools are designed for mentally handicapped children, it appears that many Roma
children who are not mentally handicapped are placed in these schools due to real or
perceived language and cultural differences between Roma and the majority.
The Advisory Committee considers that such practice is not compatible with the
Framework Convention. The Advisory Committee stresses that placing children in
such special schools should take place only when it is absolutely necessary and
always on the basis of consistent, objective and comprehensive tests. (para. 39.)
22 HRLR 6 (2006), 1^25

the need for educational provision that is sensitive to the presumed cultural
and linguistic particularities of Roma pupils is, by almost any reckoning,
less urgentçeven in localities where some or most Roma speak Romani,93 or
continue to observe important elements of their ancestral culture.94 In reality,
as emphasised in Part 2B above, significant and growing numbers of Roma
in the CEE region have no knowledge of Romani or even of the cultural
norms observed by their forefathers. Nor has compelling evidence emerged that
a sizeable proportion of such partially or fully integrated Roma now seek
the recovery of their lost linguistic and cultural heritage. Implementing many
of the other rights in the Framework Convention, such as the right to create
and to use print or electronic media (Article 9(3)), pose similar difficulties for
the Roma because of the recurrent problems of Roma poverty, under-education,
cultural and linguistic diversity, and the absence, as yet, of a broadly-based
sense of Roma identity.

3. Conclusions95
Minority rights regimes do not represent an instant panacea for the severe
and wide-ranging problems confronting the Roma of CEE. With their emphasis
on the preservation of cultural and linguistic identity, minority rights
instruments fail to address many of the issues that are of greatest concern to
the overwhelming majority of Roma in the CEE region. To a significant extent,
these problemsçincluding the lack of meaningful employment opportunities,
the chronic shortage of decent, affordable housing and the spiralling cost of
utilities and of other necessitiesçare socio-economic in character. They are a
consequence of the tortuous transition from command to market economies in
CEE. As currently conceived, minority rights are also of limited help in securing
far-reaching improvements in the educational performance of Roma children,
perhaps the key to transforming the prospects of Roma in the CEE states.

93 Of course, further practical difficulties arise from the fact that, even in areas where there are
significant numbers of Roma who are conversant with Romani, they may actually speak
mutually incomprehensible dialects.
94 In its First Opinion on Slovakia, supra n. 92, the Advisory Committee suggested that a key to
improving educational provision for the Roma in Slovakia was to ensure that ‘the education
system reflects and also fully takes into account the language and culture of the minority
concerned’ (para. 39). However, the Committee’s reference to a Roma ‘language and culture’
takes no account of the plurality of Romani dialects spoken by Roma in Slovakia and of
the fact that significant numbers of Slovak Roma have no knowledge whatsoever of Romani.
The notion of a monolithic Slovak Roma ‘culture’ is also highly misleading. On the range of
languages spoken by Roma groups in Slovakia, see Marushiakova and Popov, supra n. 9 at 38.
The apparent ignorance of the Advisory Committee concerning these matters is, to say the
least, disturbing.
95 Some of the material in this section is drawn from Poga¤ny, supra n. 23 at 81^2. However, the
original text has been extensively revised and expanded.
 Minority Rights of the Roma 23

Minority rights, which evolved in 19th and early 20th century Europe as a
means of challenging the political, linguistic and cultural hegemony of empires
and, later, of nation states,96 were simply not designed for tackling issues of
chronic poverty, economic marginalisation and cultural alienation.
Although the principle of freedom from discrimination is enshrined in
international minority rights instruments, these texts do not offer a credible
basis for overcoming the widespread, institutionalised discrimination that
Roma routinely encounter in the CEE states. As discussed in Part 2 of this article,
minority rights instruments, some of which impose ‘soft law’ rather than treaty
commitments, tend to rely on reporting by contracting states and on periodic
monitoring by international mechanisms rather than on judicial enforcement.
By contrast, there is a growing body of evidence that wide-ranging anti-
discrimination legislation, enacted by ex-Communist states in CEE as part
of the process of preparing for EU membership,97 is beginning to challenge
institutionalised discriminatory practices by employers, landlords and the
providers of various services.98 Litigation before domestic courts and tribunals
is likely to prove far more effective in overcoming discriminatory practices
than the more subtle and intangible pressures exerted by non-judicial
international mechanisms.99 Litigation also has the advantage of empowering

96 In the 19th and early 20th centuries, minority rightsçsometimes a prelude to demands for
secession and full sovereigntyçwere asserted, for example, by various minorities in the
Habsburg (later Austro-Hungarian) Empire. See, for example, Okey, The Habsburg Monarchy c.
1765^1918 (Basingstoke and London: Macmillan, 2001) at 106^7 and 325^30. On minority
rights in the post-World War I political settlement, see Thornberry, supra n. 1 at Chapter 3.
97 As noted in the ‘Introduction’, the European Council adopted the ‘Copenhagen criteria’ in 1993,
setting out, in broad terms, the political and economic conditions that candidate states must
satisfy in order to qualify for membership of the EU. According to the Copenhagen formula,
candidate states must also demonstrate that they have the ability to assume the obligations of
EU membership, i.e. the ‘acquis’. Importantly, the Community acquis includes the Equal
Treatment Directive of 2000. See Council Directive 2000/43/EC, [2000] OJ L 180/22.
98 For example, Bulgaria’s Protection against Discrimination Act, which entered into force in
January 2004, has led to litigation by Romani plaintiffs before domestic courts, alleging
discrimination in employment, education and in the provision of healthcare. See Mihaylova,
‘Legal Practice under the Bulgarian Protection against Discrimination Act’, (2005) 1 Roma
Rights Quarterly, available at: http://www.errc.org/cikk.php?cikk¼2166. Hungary, an EU
member since May 2005, adopted an Act on Equal Treatment and the Promotion of Equal
Opportunities in 2003 to give effect to the EU Equal Treatment Directive. See Act CXXV of
2003, available (in Hungarian) at http://www.complex.hu/kzldat/t0300125.htm/
t0300125.htm. The first judgment in which a Hungarian Roma job applicant was found to
have suffered discrimination, contrary to the 2003 Act, was delivered by the Pest County
Court in October 2004. See Selection of News on National and Ethnic Minorities in Hungary
(October 2004^January 2005) at 2, distributed by the Office of National and Ethnic Minorities,
Budapest, Hungary.
99 Criticism by international human rights bodies of a country’s treatment of its Roma minority
may be more critical if the country concerned is seeking admission to the EU, in view of the
EU’s focus on the human rights practice of applicant states. However, for ex-Communist states
that are already EU members, the political impact of censure by bodies such as the Advisory
Committee established under the Framework Convention for the Protection of National
Minorities is much more limited.
24 HRLR 6 (2006), 1^25

the Roma, allowing the victims of discriminatory treatment to seek redress for
infringements of their rights.
If minority rights are generally less important to the Roma than other kinds
of rights, particularly socio-economic entitlements, applying minority rights to
the Roma is frequently problematic because of the extraordinary diversity and
flux that characterises this so-called ‘minority’. In essence, as emphasised
in Part 2C of this article, the Roma do not conform to the conventional model
of a national or ethnic minority. They lack a common language, culture, religion
or any semblance of national consciousness. As suggested in Part 2B of this
study, significant numbers of Roma no longer affirm a Roma ethnic identity,
while many have no knowledge of their ancestral language or culture. These
Roma are likely to consider minority rights as, at best, an irrelevance.
Paradoxically, the increased emphasis, since 1990, on national identity and
on national consciousness across much of CEE, as well as on minority rights
and minority cultures, may have made it more difficult for Roma to be perceived
and to be treated as individuals rather than as members of an ethnic minority
that is overwhelmingly associated with negative stereotypes. On the other
hand, it is at least conceivable that, over time, minority rights regimes
may play a small but significant part in improving the status and self-image
of the Roma in societies that have shown little inclination to accommodate
them. One of the medium to long-term effects of the new emphasis on minority
rights may be educative, helping Roma and gadje (i.e. non-Roma) alike to perceive
the Roma in a more nuanced and positive light. The transformation of often
negative images of national and ethnic minorities is one of the aims of the
Council of Europe’s Framework Convention. Article 6(1) of the Convention
states that:

The Parties shall encourage a spirit of tolerance and intercultural

dialogue and take effective measures to promote mutual respect and
understanding and co-operation among all persons living on their
territory, irrespective of those persons’ ethnic, cultural, linguistic or
religious identity, in particular in the fields of education, culture and
the media.
In addition, Article 12(1) provides:

The Parties shall, where appropriate, take measures in the fields of

education and research to foster knowledge of the culture, history,
language and religion of their national minorities and of the majority.
However, we should bear in mind that this ambitious liberal project may not
succeed in fostering greater understanding of, and tolerance towards, minorities
such as the Roma. Societies in CEE are just as likely to resist the (sometimes
half-hearted) efforts of international organisations, governments, NGOs and
 Minority Rights of the Roma 25

educational systems to inculcate a deeper understanding of, and appreciation

for, the Roma and their culture(s). As noted above, a recent survey of some 500
history students in Hungary found that levels of anti-Roma sentiment
remain high, despite Hungary’s participation in a wide range of human rights
treaties, its membership of organisations such as the Council of Europe and the
EU, and the liberal character of Hungary’s constitution and of its laws governing
the treatment of national and ethnic minorities.100 Challenging deeply held
beliefs about the Roma, in CEE, is likely to prove a long, difficult and uncertain
process.

100 See supra n. 52 and the accompanying text.