Table Of ContentProving Discriminatory Violence at the European Court of Human Rights
Leiden Studies on the Frontiers
of International Law
Editors
Carsten Stahn
Larissa van den Herik
Nico Schrijver
(Grotius Centre for International Legal Studies,
The Hague)
VOLUME 4
The titles published in this series are listed at brill.com/ lsfi
Proving Discriminatory
Violence at the European
Court of Human Rights
By
Jasmina Mačkić
This publication is based on a doctoral
dissertation defended at Leiden Law
School in May 2017. The research
reported in this book was funded by a
Mosaic grant (under project number 017.007.069) from the Netherlands Organisation for Scientific
Research (NWO) awarded to Jasmina Mačkić.
The Library of Congress Cataloging- in- Publication Data is available online at http:// catalog.loc.gov
Library of Congress Cataloging-in-Publication Data
Names: Mačkić, Jasmina, 1984- author.
Title: Proving discriminatory violence at the European Court of Human Rights / by Jasmina Mačkić.
Description: Leiden ; Boston : Brill, 2018. | Series: Leiden studies on the frontiers of international law ;
volume 4 | Based on author’s thesis (doctoral - Universiteit Leiden, 2017).
Identifiers: LCCN 2018019410 | ISBN 9789004359840
Subjects: LCSH: Hate crimes—Europe. | Minorities—Violence against—Europe. |
Burden of proof—Europe. | European Court of Human Rights.
Classification: LCC KJC2018781.I63 M33 2018 | DDC 341.4/83—dc23
LC record available at https://lccn.loc.gov/2018019410
Typeface for the Latin, Greek, and Cyrillic scripts: “Brill.” See and download: brill.com/b rill- typeface.
ISSN 2212- 4195
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Contents
1 Introduction 1
1.1 Discriminatory Violence as a Global Phenomenon 1
1.2 The Need for a More Significant Role for the ECtHR in Addressing
and Combating the Phenomenon of Discriminatory Violence 6
1.3 Scope and Structure of This Book 15
1.4 Some Final Words 0n Methodology 21
2 Contextualising Discriminatory Violence within the Council
of Europe 23
2.1 Introduction 23
2.2 The Substantive Legal Framework: Anti- Discrimination
Law in the Council of Europe 24
2.3 General Features of Article 14 Echr and Their Impact
on Complaints of Discriminatory Violence 31
2.4 Important Taxonomies to Categorise Discrimination Complaints 39
2.4.1 Formal and Substantive Equality 40
2.4.2 Direct and Indirect Discrimination 46
2.5 Conclusion 53
3 Ordering Discriminatory Violence: Three Types of Complaints 55
3.1 Introduction 55
3.2 The Negative Duty of State Officials to Refrain from Inflicting
Discriminatory Violence 58
3.3 The Positive Duty of State Officials to Effectively Investigate
Discriminatory Violence and to Identify and Punish Those
Responsible 66
3.4 The Positive Duty of State Officials to Take Preventive Measures
against Discriminatory Violence 75
3.5 The Remaining Cases of Discriminatory Violence: Complaints
Connected to Provisions Other than Article 2 or Article 3 ECHR 82
3.6 Conclusion 88
4 The Collection of Facts and the Actors Involved in Fact- Finding
at the ECtHR 91
4.1 Introduction 91
4.2 The Legal Framework for the Examination of a Case by the ECtHR 92
vi CONTENTS
4.3 How Applicants and Respondent States are Engaged in Fact- Finding
during the Procedure before the ECtHR 96
4.3.1 Presenting an Application to the Court 96
4.3.2 The Parties’ Obligation to Cooperate with the Court 102
4.4 Fact- Finding Missions Conducted by the ECtHR 107
4.5 Contributions to Fact-F inding by External Actors 113
4.6 Conclusion 122
5 The Standard of Proof in Cases of Discriminatory Violence 125
5.1 Introduction 125
5.2 Some General Observations on the Notion of ‘Standard of
Proof’ 126
5.3 Standards of Proof in ECtHR Case Law 130
5.4 ‘Beyond Reasonable Doubt’ in ECtHR Case Law 140
5.4.1 The ECtHR Definition of ‘Beyond Reasonable Doubt’
and the Origins of This Standard of Proof 142
5.4.2 Testing the ‘Beyond Reasonable Doubt’ Standard
in Cases of Discriminatory Violence 146
5.5 Conclusion 155
6 The Distribution of the Burden of Proof in Cases
of Discriminatory Violence 158
6.1 Introduction 158
6.2 Some General Observations on the ‘Burden of Proof’ 161
6.3 Presumptions and Inferences 170
6.4 The Influence of Presumptions and Inferences on the Distribution of
the Burden of Proof in Violence Cases 174
6.4.1 Cases in which Individuals were Injured, Died or Disappeared
While in the Hands of State Agents 174
6.4.2 Presumptions and Inferences in Cases in which Evidence
Discloses an Administrative Practice 192
6.4.3 Interim Conclusion 197
6.5 The Distribution of the Burden of Proof in Cases in which a
Discriminatory Nature of Violence is Alleged 197
6.5.1 The Circumstances under which the Burden
of Proof May Shift 201
6.5.2 Exploring New Criteria to Shift the Burden of Proof
in Cases of Discriminatory Violence 212
6.6 Conclusion 225
CONTENTS vii
7 Evidentiary Material Used to Prove Discriminatory Violence
at the ECtHR 229
7.1 Introduction 229
7.2 Admissibility of Evidence in ECtHR Proceedings 231
7.3 Factual Elements from the Domestic Case File Pointing to
Discriminatory Violence 233
7.3.1 Confessions 234
7.3.2 Instructions 235
7.3.3 Discriminatory Remarks 235
7.3.4 Extremist Groups 242
7.3.5 The Remaining Factual Elements 243
7.3.6 Interim Conclusion 245
7.4 Statistics 248
7.4.1 General Views on Statistics as Evidence 250
7.4.2 The ECtHR Approach: Statistics Gaining Ground as
Evidence in Cases of Indirect Discrimination 252
7.4.3 The Use of Statistics in Cases of Discriminatory Violence 256
7.5 Reports Issued by Intergovernmental Organisations and NGOs 263
7.6 Conclusion 268
8 Conclusion 271
8.1 Introduction 271
8.2 ‘Discrimination’ and ‘Discriminatory Violence’ in ECtHR Case Law:
A Call for a More Substantive Conception of Equality in Cases
Concerning Discriminatory Violence 273
8.3 Most Notable Means of Gathering Facts and Evidence in the Context
of Complaints of Discriminatory Violence at the Court 277
8.4 The Adequacy of the Evidentiary Framework in Cases of
Discriminatory Violence 278
8.4.1 Standard of Proof 279
8.4.2 Burden of Proof 281
8.4.3 Evidentiary Material 284
8.4.4 Synopsis: Evaluating the Evidentiary Framework in ECtHR
Cases of Discriminatory Violence 286
8.5 Epilogue and Outlook: The ECtHR as the Guardian
of the Rights of Disadvantaged Groups 287
Bibliography 291
Index 316
chapter 1
Introduction
1.1 Discriminatory Violence as a Global Phenomenon
Prominent international bodies frequently report on discriminatory violence,
based on such grounds as colour, association with a national minority, religion
or sexual orientation, in various countries.1 This type of wrongful conduct is
also popularly referred to as ‘hate crime’, meaning ‘violence directed toward
groups of people who generally are not valued by the majority society, who
suffer discrimination in other arenas, and who do not have full access to insti-
tutions meant to remedy social, political and economic injustice’.2
In recent years, several events linked to discriminatory violence occurred
that have had consequences reaching far beyond the territory of a single nation
or continent. The global economic and humanitarian crisis caused an influx of
migrants and refugees crossing into Europe. Violent conflicts in Afghanistan,
Iraq and Syria, as well as poverty in some other countries, incited individuals
to travel to safer and more prosperous environments.3 Although these con-
temporary migration patterns increased the diversity in European host coun-
tries, they simultaneously aroused hostility within some individuals toward
1 European Commission against Racism and Intolerance (ecri), Annual Report on ecri’s
Activities Covering the Period from 1 January to 31 December 2012 (Council of Europe 2013) 7–9 ;
European Union Agency for Fundamental Rights (fra), Racism, Discrimination, Intolerance
and Extremism: Learning from Experiences in Greece and Hungary (Publications Office of
the European Union 2013); fra, Opinion of the European Union Agency for Fundamental
Rights on the Framework Decision on Racism and Xenophobia – With Special Attention to the
Rights of Victims of Crime (Publications Office of the European Union 2013); Office of the
United Nations High Commissioner for Human Rights, Discrimination and Violence Against
Individuals Based on Their Sexual Orientation and Gender Identity (Human Rights Council
2015); fra, Current Migration Situation in the eu: Hate Crime (Publications Office of the
European Union 2016); fra, Second European Union Minorities and Discrimination Survey.
Main results (Publications Office of the European Union 2017).
2 Leslie Wolfe and Lois Copeland, ‘Violence Against Women as Bias- motivated Hate
Crime: Defining the Issues in the usa’ in Miranda Davies (ed), Women and Violence (Zed
Books 1994) 200, 201.
3 ‘Migrant Crisis: Migration to Europe Explained in Seven Charts’ bbc News (4 March 2016)
<http:// www.bbc.com/ news/ world- europe- 34131911> accessed 30 January 2018.
© Koninklijke Brill NV, Leiden, 2018 | DOI 10.1163/ 9789004359857_ 002
2 CHAPTER 1
the ‘foreigner’ or the ‘other’.4 Hostility was – and still is – further intensified by
far right Eurosceptic parties, including the French Front National, the United
Kingdom Independence Party, the Danish People’s Party and the Greek Golden
Dawn. Frequently, they identify the ‘other’ as an individual who does not share
the same values, ideas and principles as the indigenous population.5 Some of
the extremists connected to those parties, most notably members and support-
ers of the Golden Dawn, display their hostility by inflicting violence on individ-
uals associated with a certain national or religious minority.6
In addition, the communications technology enhanced the proliferation of
hate at the global level. The Internet offers platforms where right- wing extrem-
ists that are poles apart can propagate their ideologies, enter into dialogue
and exchange ideas. Perry and Scrivens observe that white supremacists use
the Internet as a site for expressing ‘white pride worldwide’ and for ‘the active
construction of collective white identity’.7 On the Web, the white supremacists
identify the ‘other’ as their common enemy and a threat to the ‘white’ morality,
security, unity and stability.8 According to Perry and Scrivens these ‘otherwise
diverse nationalists pledge a more profound allegiance to the mythic white
nation, wherein nationality comes to be defined not by state, geography, or
citizenship, but by race’.9 Such cross-b order nationalism has the potential of
inciting violence against certain groups.10
Several international bodies already took the first steps to recognise, mea-
sure and address the phenomenon of discriminatory violence.11 Schweppe and
4 Barbara Perry, ‘Counting – and Countering – Hate Crime in Europe’ (2010) 18 Eur J Crime
Crim L & Crim Just 349.
5 Daphne Halikiopoulou and Sofia Vasilopoulou, ‘Support for the Far Right in the 2014
European Parliament Elections: A Comparative Perspective’ (2014) 85 pq 285.
6 Lena Karamanidou, ‘Violence Against Migrants in Greece: Beyond the Golden Dawn’
(2016) 39 Ethnic and Racial Studies 2002.
7 Barbara Perry and Ryan Scrivens, ‘White Pride Worldwide: Constructing Global Identities
Online’ in Jennifer Schweppe and Mark Austin Walters (eds), The Globalization of Hate.
Internationalizing Hate Crime? (oup 2016) 65.
8 ibid 70.
9 ibid 73.
10 Arnold provides a concrete example in this regard. He mentions a special Russian forum
on an international skinhead ‘Stormfront’ website and refers to the availability of evi-
dence which demonstrates that such ‘transnational racism motivates systematic violent
racism in Russia’ (Richard Arnold, ‘Systematic Racist Violence in Russia Between “Hate
Crime” and “Ethnic Conflict” ’ (2015) 19 Theoretical Criminology 239, 249).
11 Nathan Hall and others, ‘Introduction’ in Nathan Hall and others (eds), The Routledge
International Handbook on Hate Crime (Routledge 2015) 1, 1– 3.
