Still silencing the racism suffered by migrants... the limits of current developments under Article 14 ECHR

The European Court of Human Rights has recently developed its jurisprudence related to racial discrimination in highly significant ways. The Court has rightly been applauded for abandoning its requirement that racial discrimination be proved 'beyond reasonable doubt' and for endorsing the concept of indirect discrimination, allowing it, in the last five years, to begin to find states from 'eastern Europe' in violation of the Convention for having discriminated against especially Roma applicants. While welcome, these new developments should not detract from the need to continue asking difficult questions, including the following: why has it taken decades for the Court to start finding a violation of Article 14 on grounds of race? Why are cases, such as Menson v. United Kingdom concerning the slow reaction of the police in investigating the lethal attack of a black man, not found admissible? Can we expect the Court, created in a region which largely built itself upon colonialism, to generate mechanisms fit to tackle racism? In the past, judges themselves have provided the most virulent critique of the Court's inability to tackle racism. Migrants still remain to benefit from their progressive stance in relation to Article 14 claims based on grounds of race

`What it takes to make a case: the backstage story of Muskhadzhiyeva v. Belgium (illegality of children¿s immigration detention)¿

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Postcolonial denial: why the European court of human rights finds it so difficult to acknowledge racism

The European Convention on Human Rights (hereafter, Convention) was signed in 1950 by Western European governments committed to prevent the repetition of the horrors and atrocities of World War II – not to mention the erection of a bulwark against communist Eastern Europe. Admittedly, justice was not originally at the forefront, and has indeed very much remained in the background, of discussions about the Convention system. Nonetheless an implicit narrative has always suggested that the protection of human rights is conducive to the realization of justice. This is clear, for example, in the Convention's Preamble which specifically “reaffirmed” a “profound belief in those fundamental freedoms which are the foundation of justice and peace in the world.” The Preamble referred to “like-minded” governments that shared “a common heritage of political traditions, ideals, freedom and the rule of law.” Not wanting the Convention to be mere words, the members established a system of judicial protection, which was a first in international law. The European Court of Human Rights (hereafter, Court) soon “earned a world-wide reputation for fairness, balance and intellectual rigour” (Harris et al., 1995: vii). This chapter challenges the implicit making of an equation between human rights law and justice by examining a specific area where the record of the Court is anything but strong, that of racial discrimination. In this area, those who have arguably been victims of human rights violations have not met justice at Strasbourg