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Pontifical Council for the Pastoral Care of Migrants and Itinerant People

V World Congress of the Pastoral Care for Gypsies

Budapest (Hungary), 30 June – 7 July 2003

 

The Protection of Gypsies' Rights 

in the Migratory Phenomenon 

and in Integration Processes*

 

Rev. Antonio Perotti, CS

Director of the Scalabrinian Historical Institute

Italy

Introduction

Limits of my report

Given the broad scope of the theme, and despite the worldwide dimension of this Congress, I will limit myself to raising the question in the juridical framework and the socio­-political context of the European continent. An accurate presentation of this alone, even in synthetic form, is a sufficiently vast and complex task. I will thus renounce presenting a comparative picture to you, country by country, which would imply taking very diversified situations into consideration, such as those that characterize the national contexts of Western Europe and the countries of Central-Eastern Europe. These situations, profoundly marked by the political history of the continent in the second half of the twentieth century, have greatly influenced and diversified the free or forced integration processes of becoming sedentary, the personal statuses of citizenship, recognition of the gypsy communities' status of national minorities on an equal footing with that of the other recognized linguistic-cultural minorities, the prevalence of the ethnic over the economic-social approach in the policies regarding the gypsies, the existence or absence of consultative and representative bodies, social status, and so on.

Regarding these differentiations I will only make reference to some situations related to: the process underway of the political-legal unification of Europe (from the 2000 Nice Charter to the draft currently being discussed of the new European Constitutional Convention); the forthcoming extension of the European Union to different countries of the East; the phenomenon of resumed gypsy nomadism in the area of the East in the framework of the recent migrations towards the countries of the Union, the phenomenon of persons seeking asylum and protection of the humanitarian reception that recently characterized the gypsy communities of the Balkan area following the ethnic-religious conflicts in the region.

My intervention will thus refer exclusively to the protection policies provided for in the most recent dispositions recommended by the European, intergovernmental, communitarian, legislative and coordination bodies, such as the Council of Europe, the European Union, the Conference for Safety and Cooperation in Europe (CSCE), organizations which, as a whole, cover all the existing situations on the Old Continent.

All of these international institutions - through their internal bodies, such as the Committee of Ministers, the Parliamentary Assembly, the permanent Conference of local and regional powers, the Division of Migrations and Roma-Gypsies and the European Commission against Racism and Intolerance (ECRI) of the Council of Europe; the Commission of the European Community, the European Parliament and the European Observatory of racist and xenophobic phenomena of the European Union and, lastly, the Office of the High Commissioner for National Minorities and the Office for Democratic Institutions and Human Rights (BIDDH) of the CSCE - have produced abundant studies and proposals regarding regulation on this subject.

These institutions and bodies have not limited themselves to recalling the universal principles already recognized in the International Conventions, particularly in the European Convention of fundamental rights and freedoms of the Council of Europe, now undersigned by all the European countries.

The information and documentation gathered country by country on the situation of the gypsy communities - both in general and regarding the crucial sectors of personal status, the right to housing, health, work and professional training, schooling, free access to public services, and the right to non-discrimination - have in fact enabled these institutions to propose recommendations that take a precise contextualization into consideration in the protection of rights. I mention, for example, the work published in 1985 and up-dated in 1994 by Jean-Pierre Liégeois, written in collaboration with more than forty European experts, including gypsy representatives, which was promoted and distributed widely by the Council of Europe[1]. I cite the synthetic report on schooling ordered and distributed in five languages by the Commission of the European Communities in 1986. In addition to presenting an overall analysis of the scholastic situation, its context and different aspects, this report synthesizes the existing studies as a whole, and presents the results of a broad consultation of families, gypsy organizations, teachers and achievements in this sector[2]. Subsequently, this last documentation was at the basis of the Resolution adopted by the Council and the Ministers of Education on the "Schooling of Gypsy Children and Travelers", a Resolution that Jean-Pierre Liégeois described as a "historical text". 

In the past decade, in fact, we have been witnessing an ever greater participation of the various international and national associations that represent the Gypsies in gathering information on the situation of legal protection and in drawing up proposals in view of new measures aimed at protecting their rights.

Two meetings organized by the Council of Europe of the national consultative bodies between Roma/Gypsies and governments (one took place here in Budapest in November 1996 and the other in Helsinki in November 1997), made the situations stand out clearly and the proposals regarding the participation of these communities in strengthening their protection[3].

However, the contextualization of the rights to be protected compels me to limit my intervention to the main crucial sectors where protection is more urgent today. In the series of gypsies' rights I will thus concentrate on the following ones: the right to choose one's way of life, the right to a personal guaranteed status, which includes the right to a nationality/citizenship, the right of access to housing, the right to free circulation, the right of access to public health structures, the right to education, and the right to draw up the norms that concern them.

Point of reference

After indicating the limits of my intervention, as a last point in this introduction I would like to associate myself with the specific approach that inspires this World Congress, an approach in which I intend to frame my presentation from the start.

The organizers of the Congress have put the theme of the Church and the Gypsies as a pair at the center of its work from the viewpoint of the spirituality of communion.

Communion essentially implies respect for human rights, respect for man' s right to be a man, and recognition of his dignity and sociality in conditions of equality. I have said dignity and sociality because human rights and their confines are founded on these two essential attributes of the person: that is, they are rights and confines that also circumscribe a correct notion of the integration processes. In fact, we intend the fundamental rights and fundamental freedoms as an expression of a view of humanity that attributes the most profound values to the individual. The fundamental frontiers are in turn the expression of a view of humanity that attributes the most profound values to communities (potentially existing within broader political communities), which must be protected. This community view of humanity derives from recognition of humankind's social nature as a counterbalance to the atomistic vision of the individual reflected in the concepts of fundamental rights and freedoms. Of course, as the international jurist J. H. Weiler[4] notes, very many lay and humanistic versions of these two views exist. For Christians, both the first and the second view find a powerful Biblical expression in Genesis: Dignity - "God created man in the image of himself, in the image of God he created him" (Gen. 1:27); Sociality - "Yahweh God said, ‘It is not good that man should be alone’ ", (Gen. 2: 18). Personal identity is not just an individual but also a social (collective) good. No one can acquire his/her identity alone; it is a process that requires an interactive, or better, an inter-subjective dimension.

The reconciliation of these two dimensions is also fundamental in defining the integration processes regarding the nomad communities for a correct self-perception on the part of the gypsy, and for a correct perception of the gypsy by the majority communities. Both must become aware of the need to reconcile these two dimensions.

I have emphasized this approach in order to avoid detaching the theme of protection of a subject's rights from the obligation imposed by his/her natural sociality.

Three requirements for human rights’ protection: contextualisation, cultural mediation and ethical implication

I intend to develop the theme of the protection of rights in this direction and emphasize strongly that there is no protection without contextualization, and no contextualization without the awareness that in relations between the national majority community and the gypsy communities, this always supposes an operation to be carried out on our cultural registers and an ethical implication that is not limited to respect for difference, if this is associated with inequality, but which tends to eliminate inequality through information and socio-political action.

Hence the spiritually of communion also implies cultural mediation and ethical commitment.

I am referring to some cultural codes underlying terms that will reoccur often in my presentation, such as the right to have an officially registered name, a nationally, citizenship, a domicile, a private and family life, a collective identity, a job, or with regard to concepts that have many meanings, such as the concept of "integration".

What does the right to a domicile and to inviolability mean for a gypsy? Usually, the intervention of Christians in the discussion on human rights is limited mainly to the register of inspirations or the view of humanity that attributes the most profound values to the individual, without adequate in-depth study of what a contextualized right indicates when one goes on to the social and cultural registers.

It seems to us that the difficulty we have in translating the "formal" rights and freedoms into "real" rights and freedoms should be attributed to this lack of "cultural mediation" in translating the juridical principle: namely, the difficulty of going from the enunciation of rights to their normative application in concrete situations. We are strong in enunciating the rights, but weak in translating them into effective forms of protection.

From 1949 onward, the need to protect "contextualized" man in his fundamental rights and freedoms has led to the development of a whole series of economic, social and cultural rights that have stressed the primordial aspect of the opposition between formal and real freedoms. This need has led progressively to the enunciation of human rights related to the diversity of man's phenomenological identities: those related to life's cycles (age, sickness, handicap), such as the rights of children, the elderly, the sick, the disabled; or those connected with social contents (the rights of workers), socio-cultural and political identities (such as the rights of migrants, political refugees, linguistic and cultural minorities, gypsies...), or those related to gender (the rights of women).

It is the historical extension of these rights that demonstrates the gradual passage on the level of fundamental rights from the Enlightenment consideration of abstract man, to that of contextualized man in his different forms of life. Above all, cultural rights, in particular the right to cultural identity, have emerged more recently in the discussion on the progressive historical extension of human rights. Think of the European Charter of regional or minority languages of the Council of Europe, a treaty approved in 1992. By full right, the principal languages used by the gypsy communities ought to be integrated into this framework. This evolution clearly expresses the passage from the universalism of an abstract nature to its historicity.

When dealing with the protection of gypsies' rights, we should pay attention first of all to the accuracy of the semantic dimension of the dictionary or glossary used.

As sometimes happens in different state administrative offices, it is necessary to avoid automatically confusing the gypsy with the migrant and the foreigner and applying indiscriminately the same parameters that regulate the integration processes of these two categories to the gypsy. The same tendency to consider the gypsies as nomads who wish to live in encampments often does not correspond to realty.

Although the kinds of interference and superimposition that can occur more or less frequently between these different categories (the gypsy can also be a migrant or a foreigner) should be kept in mind both on the juridical-administrative and the social-cultural levels, on the central, regional and local levels, the specific status and the real aspirations of the persons concerned must be noted.

The necessity to distinguish between issues concerning the situation of groups with an itinerant lifestyle, and the problems of Romani migration, when discussing the mobility of Roma, have been underlined by the Cocen group (European Union) at the Tampere summit, December 1999.

The gypsies’ human rights

Let us now go over the human rights recognized to everyone with no exception whatsoever, and analyze the ways and conditions for their protection in reference to the gypsies.      

The human right to have a nationality: a certain personal status.

We know the common position that the Ministers of the Council of Europe and the European Parliament have taken with regard to the personal status of the gypsy.

Based on the observation that many gypsies encounter great difficulties, especially with regard to moves and stops, because they do not have sufficient ties with a given State in terms of residence or nationality, these two European bodies recommend that the State should facilitate the stateless gypsies' belonging to a State, thereby facilitating their residence, the protection of their rights through the consular network when they are abroad, their free circulation, as well as the reunification of the families. This is a reference to the two Conventions signed in New York in 1954 and 1961 on the status of the stateless and on reducing cases of statelessness[5].

Many criteria were proposed by the 1983 Committee of Ministers to determine belonging to a State: the State of the nomad's birth or origin, or his family's State of origin; the State where he usually resides or has frequent periods of residence; the State where the gypsy has close family members.

Belonging to a State enables the gypsy to benefit from all the administrative formalities even when, out of free choice, he continues to lead an itinerant life. The freedom to make this choice constitutes the basis of further juridical consequences. To deny this freedom is to condition it on the basis of discriminatory criteria.

The first condition for the legal protection of the gypsy's rights is thus to facilitate his acquiring a citizenship, which is the starting point for removing him from a situation of statelessness or undetermined nationality.

Europe’ population of Roma, Sinti, Gypsies and Travellers number approximately 8 million, and their treatment has become a key issue in the enlargement of the European Union. Several East Europe countries have been told to improve the conditions of Roma as a precondition for entry to the EU.

It is necessary for every gypsy to be a citizen of a State fully, that is, he has to have a nationality, and all the articles of the Constitution have to be respected in his regard: freedom of circulation, settlement, the right to vote, etc. The administration and the law must be vigilant in this regard: i. e., the cases of "statelessness" and "undetermined nationality" must be regulated, and gypsies must receive non-derogatory documents that are identical to those of all the other citizens.

Today, having the citizenship of a given country is all the more important for gypsies if that country is a member of the European Union.

In a society where nationality is identified with citizenship (belonging to a State), and this constitutes the condition for acquiring broader citizenship, such as that of the European Union which is extended to every person who has the nationality of one State Member (European citizenship), citizenship becomes a fundamental factor for the gypsy's status in Europe, especially when considered in the framework of the future extension of the European Union to 21 countries in 2004. Even though European citizenship is not exclusive, but additional (a superimposed citizenship that presumes the nationality of one State Member), it is an important citizenship because it expands the citizen's space; it is a citizenship made for mobility, free circulation and stay without any national frontiers. It is a citizenship that is the beginning and the starting point for greater political participation. "Every citizen of the Union has the right of petition before the European Parliament (article 138 D of the Maastricht Treaty), and "Every citizen of the Union can turn to the Community Mediator" (art. 138 E). This citizenship has been strengthened by the 1998 Amsterdam Treaty that further protects the citizen's rights through the prohibition of all forms of discrimination, and the possibility of recourse to the Court of Justice of Luxembourg in the event of any violation of the Treaty and the Community directives. One consequence of the European Constitutional Convention will be to pass the legal protection of the rights recognized by the Convention on behalf of the Court of Justice of Luxembourg on to the individual national legal systems, thereby accelerating and territorializing its application. A very important passage is the supplementary recourse added to that of the European Court of Human Rights of Strasbourg for the State Members of the Council of Europe in the event of violations of the rights provided for by the European Convention of human rights.

The right to housing and recognition of nomadism as a voluntary lifestyle

Having a certain personal status connected with a precise national belonging (citizenship) is not enough, however, to keep the nomad from undergoing different kinds and forms of discrimination. Recognition of the gypsy's right to have a nationality must also imply recognition of nomadism as a voluntary lifestyle and recognition that the Gypsy who has chosen to become sedentary is entitled to exercise his right to housing on an equal footing with the other citizens. Recognition of both requires an educational effort to overcome stereotypes and prejudices deep-rooted in the mentality of the majority population. Nomadism is still perceived as an expression of "anti-sociality", and the Gypsy, even if he has become sedentary, is considered a semi-citizen or, in the Latin sense, an infra-citizen (i. e., inferior).

It is well known that in many European countries (especially of the East) most of the gypsies have become sedentary, integrated into social housing or other living structures of a permanent nature. This took place as a result of forced policies under previous regimes. But a policy that requires the gypsies to become definitively settled is a discriminatory policy.

Nonetheless, the right of the gypsy who has preferred to become sedentary – a widespread phenomenon throughout Europe - to have normal housing conditions is generally not respected very much. As Jean-Pierre Liégeois wrote again in 1994, "Housing continues to be one of the most negative aspects of the current situation: a lack of water, electricity, the most elementary sanitary conditions, pollution, overcrowding, poor urban road conditions, the need to build with salvaged materials, in conditions with similarities to shanty towns, to which the authorities react by destroying the little that has been built, even if the houses, through much effort, are proper inside; conflicts with the neighborhood, an evolution towards ghettoization, and a lack of local management due to a lack of information, interest, means and involvement of the gypsy peoples"[6].

The living conditions of the gypsies ought to be one of the priority objectives on which governments' efforts should converge. As a matter of fact, an improvement in the gypsies' health conditions, education, schooling and economic and cultural development are derived to a good extent from an improvement in their housing because of the close synergic links between housing policies and other policies of a social nature, such as access to social protection, employment, health and education.

The State Members should provide measures that correct or compensate for the negative consequences that the transition to a market economy has had and still has on the housing conditions of certain social categories, in particular the gypsies, especially in occupying urban and suburban areas.

In this regard, provisions would be needed so that the Roma can acquire their own housing through different means, forms and methods of access to housing, such as social housing, cooperatives, building them themselves, public housing and caravans.

The housing question is closely linked to everything that concerns the conditions for receiving nomads, recognition of the caravan as a "way of living", and recognition of the parking area, undoubtedly one of the most acute and urgent problems for the gypsies because of the on-going discrimination, on which the European Committee for Migrations of the Council of Europe is now reflecting. Since last year a draft recommendation has been studied for submission to the Committee of Ministers. It suggests that the State Members draw up policies integrated and adapted in favor of the Roma in the overall framework of the housing policies, starting with including in the term "housing" the definition of "suitable housing" already contained in previous documents of the Council of Europe: "To live in adequate housing is not simply to have a roof aver one's head. Suitable housing must be sufficiently spacious, illuminated, heated and airy, offer a certain intimacy, be physically accessible, enable living in safety and safe occupation, present a stable and durable structure, be equipped with basic infrastructures, be adequate from the ecological and sanitary viewpoint (...), all at a reasonable price".

Various general principles ought to be respected by the State Members in line with the suggestions of experts of the Council of Europe: 1. the principle of non-discrimination; 2. the freedom to choose one's way of life, whether sedentary, nomadic or semi-nomadic, and the freedom to choose one's place of residence; 3. everyone's right to "suitable housing" (according to the definition given above), 4. the prevention of exclusion and "ghettoes" by excluding all policies on the national, regional or local levels aimed at installing or reinstalling the Roma in unsuitable places in large encampments on the outskirts of cities or towns; 5. letting the Roma communities and associations take part in the conception and implementation of programs aimed at improving their housing condition; 6. to develop responsibility and skills within these communities, encouraging partnerships on all levels (local, regional and national); 7. coordination in the housing sector of all the spokespersons on the administrative level and the Roma organizations and other organizations active in this sector; 8. particular vigilance so that the local authorities will fulfil their obligations on this subject, and all the more so because these essentially are the authorities that deal with housing matters.

Making it possible for the local authorities to fulfil their obligations does not just mean participating to a sufficient degree in covering the financial burdens (which are not negligible) involved in creating the necessary areas and structures to receive these persons; it also means being vigilant so that the local authorities will overcome the reservations and hesitations derived from a lack of political will and coordination with the "river people" and the "gypsies". The insistence on the part of the international institutions on vigilance regarding the local authorities is not without grounds. In a white paper presented to the public in France last April by the mayors of small French towns, they call for "realism" and "dialogue" from the persons elected in the other municipalities in order to regulate the problem of creating these areas which are now notoriously insufficient. "We would like to send them a warning sign so that they will stop their policy of burying their heads in the sand regarding this question", as the President of the Association stated. In his opinion, in order to avoid illegal parking by approximately 300,000 nomads and semi-nomads, 30,000 places would have to be created, rather than the 3000 existing ones according to the norms.

The problem is not financial. In France, the State subsidizes 70% of the costs for setting up these areas. According to the white paper, the space appropriated is not the problem either. And yet, in France, the Besson Law of July 5, 2000 obliges the municipalities with more than 5000 inhabitants to set up these areas within 18 months.

On the subject of the common right to the right of housing, the experts of the Council of Europe refers to the need for the Member States to set up free legal aid services to keep the absence of legal aid mechanisms from harming the gypsy's ability to defend his rights. In this regard, the States are suggested to effectively support the NGOs involved in counselling and aiding the Roma from a juridical viewpoint.

The individual States are invited to review their laws in force in this sense in order to remove any provisions or administrative practices that result in discrimination against the Roma.

Particular protection is recommended for Roma women, especially unwed mothers, the victims of domestic violence, and other disadvantaged categories of Roma women, in order to given them priority access to social housing.

Various measures are proposed by experts concerning the protection and improvement of existing housing. These include guaranteeing the gypsies' safe occupation of the lands and housing in order to protect them from forced exclusion, unlawful pressures and threats.

Also suggested are forms of provisional legalization of housing that is considered illegal as a transitory measure in view of other improvements, and in the event that legalization is not possible; through social dialogue between the parties involved, seeking ways to keep the Roma groups from being abandoned to themselves and left out of the public aid systems and care to which they are entitled as citizens of the country where they reside. The concern to keep these people from finding themselves without any shelter should in any case be put before the right of expulsion, especially if minors are involved.

One of the most acute problems, both for the Gypsies and for the local administrators, is that of the camps-stopping places. While on the one hand it is noted that nomadism is practically disappearing, on the other it has continued to have striking urgency in these last years because of the consistent flow of gypsies from Eastern Europe. The State Members should strive to ensure a sufficient number of camps-stopping places or transit sites suitably equipped with the essential services (water, electricity, hygiene). Physical barriers or closures should not constitute an offence to the dignity of the person or his/her freedom of movement.

The caravan (or mobile home) of the nomads is also generally protected in penal law through its assimilation to a home. In this hypothesis, house visits by the police are not left up to their discretion, house searches are strictly regulated, and house arrests are generally forbidden during the night.

 However, from the study promoted by the Council of Europe, it appears that this right is not guaranteed by some States which refuse to assimilate a caravan (or mobile house) to a home, thereby causing grave discriminatory treatment of the nomads. Such discrimination is all the less admissible because it concerns a fundamental human right guaranteed by the European Convention of human rights: the right to the inviolability of one's domicile (art. 8). This too can represents a means of pressure aimed at making the Gypsies abandon their way of life in order to be guaranteed the protection of the law in the framework of a fixed and traditional domicile (housing).

The refusal to assimilate a caravan to housing not only has consequences with regard to the protection of individual freedoms; it also concerns the rights connected with enjoying the social services by a population that is often the victim of great poverty for whom these services are even more vital. This situation is pertinent in one-third of the States considered by the Council of Europe study.

The right to freedom of circulation inside and outside the framework of European legislation

Inside

Some other important rights are added to the right to a guaranteed personal status and thus to a nationality/citizenship and housing, such as the right to free circulation and the economic-social rights that have been the subject of special examination by the Council of Europe. In 2001 it decided to carry out a study on the legal conditions of the circulation of nomad gypsies. No rights of an economic or social nature can be exercised effectively if the claims to such a right cannot be recognized in their specific way of life.The conditions of access to these rights are generally only conceived of in relation to a sedentary population, without considering that the form of permanent mobility of a part of the gypsy population constitutes the material basis of their economic and social rights.

Therefore, the right must protect freedom of circulation, with the possibility of parking in satisfactory conditions, and the freedom to choose one's domicile.

From a study, promoted in 2002 by the Council of Europe, on the situation of the free circulation of nomads in 19 Member States including Russia, it appears that obstacles frequently exist to circulation and parking, even though two-­thirds (71 %) of the gypsy population of these countries is made up by national citizens, and a good part of this population is itinerant in some countries, such as in the case of Great Britain where three-fourths of the gypsies belong to this category.

From the analysis of the results, it was noted that the mechanisms that allow obstacles to exist and continue are not of a legislative nature, although they do exist in 28% of the cases. Their legal basis is found simply in administrative action.

This is a very significant fact because it reveals that the essentials of the nomads' situation escape the control of the national parliaments, which, as the expression of the democratic will, are considered, in this capacity, as the first guarantors of fundamental freedoms.

The lack of precise references that include the gypsies in the juridical, constitutional and legislative systems thus becomes the occasion for the administration to opt for a regulation that impedes the circulation of the nomads: half of these obstacles appear to be informal practices, with no regulatory value. The difference in treatment can have two objectives: control over the exercise of free circulation for which special surveillance measures are used aimed at providing indications about the itinerary of the persons, for example, by requiring the possession of special permits in order to circulate (Italy, Holland and Great Britain), and/or by carrying about periodic, systematic controls of movements (Belgium, Croatia, Italy), or also by obliging the nomads to appear before an authority (see Italy and France).

Although a trend is taking shape in the State Members of the Council of Europe that aims at creating reception areas reserved for the gypsies to park, one-third of the States rarely submit them to a right favoring a prolonged period of parking; in some cases the duration is left to the discretion of the local authorities.

This limitation is all the more discriminatory because deducing from the study mentioned earlier, several States forbid the nomads' access to the camps and "caravan areas", which are often the only ones that provide a decent sanitary environment. The parking area thus becomes marked by a differentiated treatment that reinforces marginalization.

The degree of protection of the gypsies' right to stop and park is made all the more precarious by the fact that in most States, expulsion, in the case of irregular parking, is not decided by the juridical authority, but through a simple initiative by the police.

Moreover, promoting a special right to park for the nomads also encounters difficulties in its exercise. In Great Britain, for example, parking is permitted in the public parking areas for caravans, but they are totally insufficient. When parking is permitted on private lands with the owner's authorization, such authorization is rarely granted to the gypsies, and where the gypsies have acquired the property of the lands, 90% of the authorizations to settle there are rejected by virtue of the rules of urbanism.

What proposals can be put forth on this subject for better protection of the rights of gypsies, which have already been suggested by Council of Europe experts?

1. To abolish all obstacles to the gypsies' freedom of circulation, removing in particular the special circulation documents that constitute real internal passports;

2. To open up camp grounds to the nomads who so desire, according to certain methods (for example, during the winter);

3. Barring exceptional cases or urgent reasons, to reject the temporary solutions that are destined to turn into permanent shantytowns where the problems will only be reproduced and perpetuated. In general, the temporary settlements do not conform to standards of hygiene and safety;

4. To not require documents from the gypsies other than the identity cards of common law in those States where these documents are in force;

5. To mention the domicile of "reference", if this is compulsory, on the identity card common law;

6. To allow the choice of domicile; 

7. To grant the "caravan" or "mobile house" of the gypsy (nomad) the same personal or social status as a sedentary domicile;

8. To subordinate any expulsion of a gypsy to the preliminary authorization of a judge, except in the event of a grave and imminent threat to public order;

9. To authorize the gypsy associations to defend their individual rights before the competent courts;

10.To set an authorized parking duration that is not less than the longest scholastic period between two vacation periods, especially if the parking areas do not have educational facilities.

Outside

At the beginning of our intervention, we spoke about the free circulation of gypsies in the area of the European Community. From the viewpoint of European law, there can be no limitation on the right of the gypsy, a citizen of a community State, to free circulation in the area of the Union. "Every citizen of the Union has the freedom to look for a job, to work, to settle and to lend services in any State Member". This is stated in art. 15 of the European Charter of Fundamental Rights.

With regard to the circulation of Gypsies who are citizens of third countries, I cite art. 1 of the Resolution of the European Parliament dated April 21, 1994, regarding the situation of Gypsies in the European Community (A3-0124/94). In the first paragraph, it expressly asks the governments of the State Members for "all the citizens of third countries with legal residence in a State Member, especially the Gypsies, to have the same right as the citizens of the Union to circulate throughout the entire European Union".

This Resolution was made by the European Parliament following the agreement signed on September 24, 1992 between Romania and Germany whereby the Romanian gypsies were repatriated forcefully. The conclusion of this agreement was tied to the allotment of one billion DMs to Romania. In paragraph 8, the Recommendation deplores these kinds of repatriation between State Members of the Union and the States of Central and Eastern Europe "which end up treating the repatriated like merchandise".

Art. 15, paragraph 3 of the European Charter of fundamental rights states in turn that "The citizens of third countries who are authorized to work on the territory of the State Members have the right to working conditions equivalent to those enjoyed by the citizens of the Union".

The right to scholastic and professional education

Now I would like to go on to another aspect: protection of the right to scholastic and professional education of the gypsy. We can state that the UN Convention on the Rights of the Child, which went into force on September 2, 1990, is one of the international conventions that treats gypsy children the worst in almost all of its provisions. Here we will limit ourselves to pointing out their right to education and instruction.

In this regard, the Recommendation of the Council of Europe to the State Members of the year 2000 (R [2000] 4) is extremely pertinent, both with regard to the analysis of the situation today, and the recommendations it proposes to improve it.

The recommendation refers to the high rate of illiteracy and semi-illiteracy that rages throughout this community, the scope of scholastic failure, the low proportion of young people who complete their primary studies, and the relevance of factors such as scholastic absenteeism, a situation that points out that there are still very grave shortcomings with regard to the protection of the gypsies' right to education.

These shortcomings are explained by a whole serious of factors and preliminary conditions, especially economic, social and cultural aspects, and by racism and discrimination. In order to remedy this, an active policy is needed not only for the education of adults and professional training, but one that also aims at the responsible involvement and participation of the gypsy communities in managing all the activities inherent in their children's schooling without delegating this in a welfare spirit to outside associations, as often happens today.

In this regard, we have to mention the Resolution concerning the schooling of gypsy children (89/C 153/02) already issued by the Council of the Ministers of Education meeting in the Council of the European Union on May 22, 1989. The content of this Resolution ought to be considered the basis for drawing up any norms that will cover all the State Members of the Council of Europe. In a Recommendation of the Committee of Ministers of February 3, 2000 (R [2000] 4), various principles are enunciated that ought to regulate these norms. With regard to structures, the need is stressed first for the educational policies on this subject to be accompanied by adequate means and scholastic structures essential for expressing the diversity of the Roma/gypsy communities in Europe and taking into consideration their itinerant or semi-itinerant way of life. In this regard, the Recommendation also suggested possible recourse to a system of education at a distance.

It is recommended to develop and make pre-school instruction accessible in order to guarantee gypsy children's later access to scholastic instruction.

For this purpose, as a fundamental condition for the success of these measures, the parents' communication and involvement is recommended above all, with the possible cooperation of cultural mediators belonging to the same gypsy communities, thereby making their access to a specific professional career possible.

Another measure recommended is the distribution of information to gypsy parents regarding compulsory education and the support mechanisms that the municipalities can offer to the families.

For the adaptation of scholastic programs and pedagogical materials, it is suggested to encourage the participation of representatives of the gypsy communities in drawing up the materials concerning the Roma history, culture and language. The Recommendation also proposes that the Roma language should be taught wherever it is spoken.

The education of gypsy children ought to be an integral part of the overall educational system.For this purpose, steps should be taken in the regular initial and on-going formation programs for teachers, and the recruitment and formation of teachers should also be extended to the gypsy communities. The State Members should systematically make an evaluation of their educational policies in this sector and take a whole series of criteria into consideration, including indexes of personal and social development, without limiting themselves to making estimates of the rate of scholastic success or failure.

These recommendations obviously imply that the State Members will sensitize the Ministers of Education to the education of gypsy children from this viewpoint.

By developing written literature and sharing information, the development of schooling in the gypsy communities will enable them to become their own observers and observers of their surrounding environment and make that environment understand what they are asking for. As Jean-Pierre Liégeois pointed out in his work mentioned earlier, what they are asking for is simply respect for a way of life in respect for common law, which, as we have already said, in the framework of the European Union, includes the right to learn the official local language adequately.

The gypsies’ rights to access the social protection and health care systems.

I will close this approach to the protection of the gypsies' rights with a brief reference to protection of the gypsy's right to access the system of social protection, with particular reference to the right of gypsy women to access the health care systems[7]

According to the reports of the Council of Europe, one significant aspect of the conditions of poverty that the gypsy populations face in various countries is access, to medical care, which is almost non-existent or inadequate for them. From a recent study by the OSCE’s High Commissioner for National Minorities found that the life expectancy of Roma women is usually between 10 and 17 years lower for Roma women than for the general population, even in Europe’s more developed countries like Ireland. Infant mortality among Bulgaria’s Roma in 1989 was six times the national average. The 2000 report of the High Commissioner for National Minorities on the situation of the Roma and Sinti in the area of the CSCE points out this concern and the need to draw up real policies on the subject of health care that take the real needs of the Roma women into consideration and guarantee their access to health care without any discrimination. The conclusions of the visits made in 15 State Members with representatives of the authorities, NGOs, Roma women, social assistants and health care workers, medical scholars and professionals have been gathered together in a comparative study on the situation of Roma women's access to medical care in the public services.

The Council of Europe is preparing a recommendation on this subject that deals in particular with legislation to promote non-discriminatory access in this matter, the involvement of the Roma women in drawing up this legislation, the relations to be kept in mind between identity documents, citizenship and health, education for health, and the relation between health and housing. The Recommendation will be completed during the final Conference on the draft that will take place in Strasbourg from September 11-12,2003.

Conclusion

I will conclude this presentation by stressing the importance of one exceptional instrument in protecting the rights of the gypsies better: namely, the development of institutional means that favor an active role and the participation of the Roma communities in the decision-making process on all levels, international, national, regional and local.

From the international documentation I have been able to use, it appears that recently there has been a real desire on the part of the gypsies to become resolutely committed through juridical integration into the national communities with which they have a bond of life and work. This attitude, the fruit of a gypsy transformation already announced by Liégeois some years ago, appears to be decisive for the success of the integration processes.

Throughout their long history, "often marked by marginalization and episodes of violent discrimination", as John Paul II stressed in his Discourse to the International Congress on September 26, 1991, the Gypsies have made up a minority that "has always repudiated armed combat as a means of asserting itself: a model minority in its transnational dimension that brings together into one cultural community people dispersed around the world and diversified by ethnic group, language and religion".

The recent appointment favored by the Finnish government in October 2002 of the Finnish gypsy, Miranda Vuolasranta, for one year in the General Direction of Social Cohesion in the Roma/Gypsy Division of the Council of Europe (the oldest international institution involved in promoting protection of the gypsies' human rights since 1969), the renewed recognition by the UN in 1993 of the International Gypsy Union as an Organization with a Consultative Status, the stabilization of the gypsy organization and their attempts to form a federation, and the new guidelines of the Public authorities that use the competences of these organizations are all positive signs of this tendency.

In protecting their rights, it is necessary to draw from the gypsy dynamism and to recognize their ability and right to determine their future by themselves in respect for their environment: that is, to consider them subjects, responsible citizens, and no longer objects of a policy.
 
*In my presentation I will use the terms "Roma" and "Gypsy" indiscriminately, which are used predominantly by the Council for Europe.

 [1] Jean-Pierre Liégeois, Roma, Tsiganes, Voyageurs, Ed.Council of Europe, Strasbourg, 1994, 315 pp. As sources of information we also indicate the two mission reports on "The situation of traveling people in the Europe of Twelve and the measures proposed to improve it" of July 1992, and "The situation of Gypsies in Eastern Europe" of December 1992 by Arsène Delamon published by the French Ministry for Social Affairs and Integration.

[2] La Scolarisation des enfants tsiganeset voyageurs, Office of official publications of the European Communities, 1986.

[3] Reports of the meeting drawn up by Mrs. Marcia Rooker (Budapest) and Miss Angéli Postolle (Helsinki).
[4] J. H. Weiler, "Introduzione. Diritti umani, costituzionalismo e integrazione: iconografia e feticismo", in: Diritti e confini. Dalle costituzioni alla Carta di Nizza, Edizioni di Comunità, Torino, 2002, pp.XXVI-XXVII.
[5] UN, Convention regarding the status of the stateless, signed in New York on September 28, 1954 and the Convention on reducing cases of statelessness signed in New York on July 30, 1961.
[6] Jean-Pierre Liégeois, op. cit., pp. 309-310.
[7] This topic was discuted in the first NGO meeting on Roman women in Vienna (November 28-29, 2002), sponsored under the auspices of the Organisation for Security and Cooperation in Europe (OSCE), Council of Europe (COE) and the European Union’s Monitoring Centre on Racism and Xenophobia (EUMC). In this meeting was taken the decision to create a new network (IRWN) for better living conditions and to fight for Roma women’s rights. This network has been launched by Roma from 18 European countries on the occasion of International Women’s Day (march 8, 2003). For more informations about the IRWN (International Roma Woman’s Network), e-mail the President: soraya.post@kortedala.goteborg.se
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