Roma vulnerability before the European Court of Human Rights: Towards a structural account
| Published date | 01 December 2024 |
| DOI | http://doi.org/10.1177/09240519241274450 |
| Author | Vandita Khanna |
| Date | 01 December 2024 |
| Subject Matter | Articles |
Roma vulnerability before the
European Court of Human
Rights: Towards a structural
account
Vandita Khanna
Faculty of Law, University of Cambridge, UK
Abstract
It is well-recognised in human rights law and discourse that the Roma community is one of the
most ‘vulnerable’groups in Europe today, but what remains less developed is why and how the
Roma are recognised as vulnerable, and what ‘Roma vulnerability’means. This article posits
that a structural account of Roma vulnerability may help in answering these questions. Such a
structural account captures the vulnerability of Roma in the past and the present, as taking eco-
nomic and cultural forms, spread across laws, policies, and actions, and fundamentally linked to the
role of the State. The European Court of Human Rights (ECtHR) is, however, yet to acknowledge
the structural nature of Roma vulnerability. Without such a structural engagement, there is a risk
that human rights violations committed by the State will go unaddressed. The article thus seeks to
introduce this structural account in the Court’s jurisprudence to better capture the nature,
causes, and extent of the vulnerability experienced by the Roma community.
Keywords
European Convention on Human Rights, Roma, vulnerability, European Court of Human Rights,
vulnerable groups, structural racism, European consensus.
1. INTRODUCTION
In 2013, Peroni and Timmer observed that although
Corresponding author:
Vandita Khanna, Faculty of Law, University of Cambridge, UK.
Email: vk347@cam.ac.uk
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Article
Netherlands Quarterly of Human Rights
2024, Vol. 42(4) 340–362
© The Author(s) 2024
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/09240519241274450
journals.sagepub.com/home/nqh
each and every move of the European Court of Human Rights is intensely followed these days, one
recent development in the front lines of its reasoning has so far escaped scholarly attention: the emer-
gence of the concept of vulnerable groups.
1
A decade since, this no longer remains the case. Scholarship on the Court’s vulnerability jurispru-
dence abounds and has kept pace with judicial practice. At the same time, practice suggests that the
Court’s emphasis has been on the legal effect of recognising someone as vulnerable.
2
Accordingly,
scholars have devoted much attention to the legal effects and effectiveness of vulnerability. For
example, Peroni and Timmer remarked that the ‘Court’s use of the term “vulnerable groups”is
not mere rhetorical flourish. The term does something’.
3
This statement has gone on to define
the contours of subsequent research that both confirms and contests the effects of the Court’s vul-
nerability reasoning: does the term ‘vulnerability’actually do something, and, if so, what are its
‘functions’
4
and ‘concrete, legal effects’
5
in European human rights law? Is vulnerability really
‘effective’,
6
does it have ‘proven strategic value’,
7
or does it merely comprise ‘business as usual’?
8
Despite calls from within the Court itself,
9
the meaning of vulnerability remains unclear in the
Court’s jurisprudence. Even so, vulnerability is considered ‘nevertheless powerful’in the ECtHR’s
reasoning.
10
There is, however, a real risk that the power of vulnerability is diluted when the con-
ception of vulnerability remains thin. The aim of this article is to interrogate these thin conceptions
by reengaging with what it means when the Court recognises an individual or group as vulnerable,
using the case study of Roma vulnerability.
The Roma community is not the only group that the ECtHR considers ‘vulnerable’, but it is the
first group to be labelled vulnerable in the Court’s jurisprudence.
11
In fact, vulnerability was
invoked in the ECtHR’s very first case concerning Roma rights.
12
There is ample acknowledgement
of Roma vulnerability in scholarship; so much so that one commentator describes ‘the Roma’as
1. Lourdes Peroni and Alexandra Timmer, ‘Vulnerable Groups: The Promise of an Emerging Concept in European Human
Rights Convention Law’(2013) 11 International Journal of Constitutional Law 1056, 1056 (internal citations omitted,
emphasis added).
2. Nesa Zimmermann, ‘Beyond Crisis: Understandings of Vulnerability and Its Consequences in Relation to Intimate
Partner Violence’(2023) 6 Human Rights Review 193, 207.
3. Peroni and Timmer (n 1) 1057 (emphasis in original).
4. Ekaterina Yahyaoui Krivenko, ‘Reassessing the Relationship between Equalityand Vulnerability in relation to Refugees
and Asylum Seekers in the ECtHR: The MSS Case 10 Years On’(2022) 34 International Journal of Refugee Law 192,
201.
5. Katarzyna Gałka, ‘Vulnerability and its Implications: Some Comments in the Light of the Strasbourg Case Law concern-
ing Asylum Seekers’(2021) 22 Espaço Jurídico Journal of Law 285, 285.
6. So Yeon Kim, ‘Les Vulnérables: Evaluating the Vulnerability Criterion in Article 14 Cases by the European Court of
Human Rights’(2021) 41 Legal Studies 617.
7. Alexandra Timmer and others, ‘The Potential and Pitfalls of the Vulnerability Concept for Human Rights’(2021) 39
Netherlands Quarterly of Human Rights 190, 197.
8. Oddný Mjöll Arnardóttir, ‘Vulnerability under Article 14 of the European Convention on Human Rights: Innovation or
Business as Usual?’(2017) 4 Oslo Law Review 150.
9. VM and others v Belgium App no 60125/11 (ECtHR, 17 November 2016), Dissenting Opinion of Judge Ranzoni, joined
by Judges López Guerra, Sicilianos, and Lemmens, para 5 (‘the Grand Chamber should have taken advantage of the
opportunity provided by the present case to define or adjust the concept of “vulnerability”.’).
10. Corina Heri, ‘Climate Change before the European Court of Human Rights: Capturing Risk, Ill-Treatment and
Vulnerability’(2022) 33 European Journal of International Law 925, 948.
11. Peroni and Timmer (n 1) 1057.
12. Buckley v UK App no 2034892 (ECtHR, 29 September 1996), Partly Dissenting Opinion of Judge Repik.
Khanna 341
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