Silvia Dimitrova* 1 The author opts for the term fundamental rights instead of human rights to indicate the specific

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1 Advancing the Rights of the Roma: Supra-State Decision-Making and Grass-Roots Policy Implementation between the European Union and Non-Governmental Actors in Bulgaria Silvia Dimitrova* Introduction The European Union ( EU ) has played an important role in advancing minority protection in candidate Member States. An agreement reached in the European Council in 1993 established the vision of preserving and advancing fundamental rights 1, as it opened the EU s doors to enlargement in Central and Eastern Europe. The most recent round of enlargement took place in January 2007, when Bulgaria and Romania became EU Member States. Throughout the accession process, the EU has systematically criticized the Bulgarian government for its treatment of the Roma, the country s most marginalized ethnic group. The author seeks to demonstrate that a unique model of decision making between national NGOs and the European Union in the period leading up to the country s accession in the EU and thereafter has emerged in the sphere of Roma integration. The EU and national NGOs have transcended the purview of the Bulgarian state in helping to improve the status of the most marginalized minority in the country. Irrespective of limited logistic and financial support from the Bulgarian government, those non-state *The author wishes to dedicate this article to the memory of Mihail Georgiev (Misho), the founder of NGO Romani Baht, Sofia, Bulgaria. Misho will be missed but his legacy will live on, serving as an inspiration to activists who work arduously to improve the lives of Roma and of other oppressed groups. This author would like to thank Dr. Nandini Ramanujam, Executive Director of the McGill Centre for Human Rights and Legal Pluralism, for her helpful comments and guidance. Also, many thanks to Acho, Vela, Bombata and Prof. Ivanova from NGO Romani Baht, as well as to Alex Kunev and to club GuessWho for the discussions and helpful feedback. The author is a B.C.L./LL.B. law graduate of McGill University, Montreal, with a major in Human Rights and International Development. She has obtained her Bachelor of Arts in Political Science and French at McMaster University, Hamilton. She is currently a student-at-law with the Criminal and Family Law Duty Counsel Offices of Legal Aid Ontario in Hamilton, in the province of Ontario, Canada. 1 The author opts for the term fundamental rights instead of human rights to indicate the specific European character of the rights discussed herein as autonomous from but complemented by the human rights regime of the European Court of Human Rights. Fundamental rights is also the term used in Article 6(3) Treaty on the European Union, 2012/C 326/01, to indicate what shall constitute general principles of the Union s law.

2 actors have joined forces to circumvent the Bulgarian state by becoming the most important vehicles of Roma integration. 2 In order to outline this unique model on the changing status of the Roma, this paper is structured in four parts: I. Describing and explaining the status of the Roma minority in Bulgaria by providing statistical data on their health, education levels and employment. II. Outlining the work of the Bulgarian government in the sphere of Roma integration. III. Defining European Union Conditionality and the impact of EU reform implementation capacity in Bulgaria. This chapter will discuss the development of EU conditionality. IV. Analyzing the right to education and to equal treatment before the law, to describe the status of the Bulgarian Roma and to outline the work of national and international NGOs, along with the international mechanisms like the European Court of Human Rights and the European Union in advancing the status of the Bulgarian Roma. The two rights discussed in this paper follow the meaning of rights in the sense of capabilities as developed by scholars Martha Nussbaum and Amartya Sen. 3 Analyzing rights in the sense of capabilities allows to perceive rights as enabling citizens the capability to secure those rights themselves. While rights can be defined as urgent claims to things by virtue of being human, capabilities purport to provide an understanding of how to ensure that marginalized groups have the ability to secure those rights themselves. Rights as capabilities, for example, would justify the economic rationale of increased spending on Roma to bring their capabilities to the same level to those of the Bulgarian population. Thinking of rights as goals and not as mere ideals is the appropriate lens through which to understand the arguments on Roma rights advanced in this paper. I. The Roma Problem in Bulgaria To understand the implications of this research, it is important to first outline the gravity of the Roma problem 4 in Bulgaria by listing statistical data on three life indicators, health, unemployment and education. For all three indicators, Roma have the highest rates of illiteracy, sickness and unemployment despite representing only 2 Katherine Pinnock, (April, 2002) The Impact of the NGO Sector and Roma/Gypsy Organisations on Bulgarian Social Policy-making , Vol. 31, issue 2, pp ; Melanie H. Ram, (2012) Legacies of EU Conditionality: Explaining Post-Accession Adherence to Pre-Accession Rules on Roma, Europe-Asia Studies, vol. 64, issue 7. 3 Martha Nussbaum, Capabilities and Human Rights, Fordham L. Rev. 273 at 295; Amartya Sen, Capability and Well-Being, in The Quality of Life eds. Martha Nussbaum & Amartya Sen (New York: Oxford University Press, 1993) at Roma problem is the term used by James A. Goldston in describing the gravity of the marginalization of the Roma minority in Europe, see James A. Goldston, "Roma Rights, Roma Wrongs," Foreign Affairs 81, no. 2 (March-April 2002). 35

3 4.9% 5 of the Bulgarian population. 6 This section will start with a brief historical account of the Roma and will proceed with describing their quality of life in Bulgaria using the above-mentioned indicators. The depth and breadth of the Roma problem in Bulgaria is partially rooted in historic persecution and deep-rooted prejudice. The Roma ethnos can be traced back to Indian nomadic tribes, who in the fourteenth century arrived in Europe in search of better living conditions. 7 Many Roma sought refuge in the lands of the Ottoman Empire where they were neither welcomed, nor accommodated. During World War II, over Roma from various parts of Europe were systematically murdered by the Nazis. 8 Those who survived settled in different parts of Eastern and Middle Europe where they found new forms of discrimination and suppression by national communist regimes. In Bulgaria, Roma were victims of systematic policies of forced assimilation, including the ban of Roma music in public, the suppression of Roma language and a forced legal termination of their nomadic lifestyle with a 1957 law which ordered all citizens to register at a permanent address. 9 Such assimilation policies were combined with forceful segregation of Roma in so-called mahalas, or defined neighbourhoods, where provision of clean water, heat and electricity was substandard and the population density exceeded the Bulgarian population s average. 10 Further, segregated schools with low quality of education were created in those neighborhoods, where Roma children were intended to receive formal education. As a result of the poor quality of education in these schools, the present literacy rate of the Bulgarian Roma is twentyfive to thirty-percent lower than that of the majority population. Neither did the Roma figure as an ethnic minority in the official census data after 1956, which indicates their treatment as a nonexistent or a fully assimilated group in the collection of statistical data. 11 After the collapse of communism, the Roma problem deepened as Bulgaria started to build democratic institutions. 12 Effective democracy-building was stalled by numerous factors. One of those obstacles was the inability of the Bulgarian government to ensure effective compliance with and enforcement of minority legislation. Despite a 5 According to unofficial estimates by NGOs and experts on Roma rights, the percentage of Roma in Bulgaria is between 8-10% Ромските деца в риск и системата за закрила на детето в България Bulgarian Helsinki Committee, June 2011, Sofia at p. 9, available at: 6 Bulgarian Statistical Institute, 2011 Census, available at: 7 Ibid. at Michel Tousignant, «Ethnicity, Immigration and Psychopathology» ed Michel Tousignant and Ihsan Al- Issa, (New York, Plenum Press, 1997) at Hristo Kuychukov, Desegregation of Roma Schools, (Sofia: SEGA, 2006): David M. Crowe, A History of the Gypsies of Eastern Europe and Russia (New York: St Martin Griffin, 1996), Advancing Education of Roma in Bulgaria: Country Assessment and the Roma Education Fund s Strategic Directions, (Sofia: Roma Education Fund, 2007). 12 David M. Crowe, The Roma in Post-Communist Eastern Europe: Questions of Ethnic Conflict and Ethnic Peace in Nationalities Papers, Vol. 36, No. 3, July 2008 at

4 wide range of policies adopted by the government and civic bodies established to ensure compliance with EU accession conditionality, the Bulgarian government has failed to effectively implement those policies. 13 The statistics below compare the social indicators of the Bulgarian and Roma groups with respect to healthcare, literacy rates and employment levels and illuminate the failed implementation of the Bulgarian government s policies in the protection of minorities. Health indicators of Roma The Roma face significant obstacles in obtaining equal and quality access to healthcare in Bulgaria. In 2004, 46% of Roma did not have health insurance An Alpha Research study indicates that 66% of Roma declared that they ha[d] no money for medical treatment compared to 36% of Bulgarians. 14 Furthermore, according to the 2005 Federal Health Strategy for Disadvantaged Ethnic Minorities, the average life expectancy of the Roma is 10% lower than the country s average. As a result of the financial constraints of many Roma to afford health care, Roma experience higher levels of sickness and chronic disease. In 2004, 68% of the Roma households had a chronically ill person. 15 Tuberculosis is a more common disease among the Roma with 30% of the patients in 2001 treated in Sofia s General Hospital being Roma. In 2002, the city of Plovdiv s Roma neighborhood known was afflicted by a massive outbreak of tuberculosis. 16 The dire health state of the majority of Roma can be linked to Bulgarian state s failure to provide health care subsidies to disadvantaged groups such as the Roma. As part of the accession process, the European Union pressured the Bulgarian government to carry out effective health care reforms to ensure better quality of and equal access to health care to the country s most vulnerable groups. 17 The EU actively encouraged and supported the Decade of Roma Inclusion for a coordinated effort across candidate and new Member States to work towards inclusion of Europe s largest and most disadvantaged minority. Regardless of these efforts, the Bulgarian government has been slow to ensure the Roma s equal access to effective health care. 18 In this context, a contributing factor has been the EU s failure to provide clear mechanisms for 13 See Section II. 14 Michail Ivanov, On the Policy of Social Inclusion of the Roma, Journal of Sociological Problems (Bulgarian) (Sofia: Sociology Institute, 2008): FAKT-Marketing, Provision of access to healthcare to ethnic groups, Sofia: I. Turnev et al, The Roma s health problems: causes, consequences and ways to overcome them, (Sofia: Open Society, 2002), See European Commission, Enlargement Briefing: EU Support for Roma Communities in Central and Eastern Europe. (Brussels: European Commission, 1999); European Commission, Regular Report 2002 from the European Commission on Bulgaria s Progress towards Accession, Ministry of Economy and Energy: Republic of Bulgaria. 18 Maria Spirova and Darlene Budd, The EU Accession Process and the Roma Minorities in New and Soon-to-Be Member States 2008Comparative European Politics, 6,

5 enforcement and implementation of such reforms, leading only to their formal adoption without any observable changes made to Roma s health or well-being. Education Levels of Roma The level of education of Roma has been a subject of wide scholarly discussion. During the 1950s and 60s, the Roma were segregated in the outskirts of towns and cities where they were confined to live as a measure of ending their nomadic life styles. Eventually, a communist state led policy established segregated schools in those neighbourhoods. Following the collapse of communism in 1989, non-governmental organizations became active in raising awareness about disproportionate levels of poor education among the Roma in Bulgaria, linking it directly to the vices of segregated education. Segregation of Roma also involves placing Roma are in special schools for children with mental handicaps. 19 Schools desegregation projects were developed and NGO-led initiatives by organizations such as Romani Baht 20 and DROM led to greater visibility of segregated education. Roma s educational levels are lowest among the three largest ethnicities in Bulgaria, Bulgarian, Turkish and Roma. 28.3% of the Roma have an elementary school education level or below that compared to 7% of the Bulgarian population. Middle school education is the highest level of education for 41.8% of the Roma. 6.5% of the Roma graduate high school in comparison with 47.7% of the Bulgarian population. In terms of post-secondary levels of education, only 0.2% of the Bulgarian Roma have graduated with a post-secondary degree versus 19.1% of Bulgarians. 21 According to the 2011 census, the rate of literacy is lowest among Roma at 11.8% of Roma being illiterate in comparison to 0.5% among Bulgarians % of Roma children aged 7-15 do not attend school in comparison to 5.6% among the Bulgarian population. 22 In addition, increasing homogenization and self-segregation of many villages in Bulgaria occurs. With people s emigration from these villages to urban areas or abroad, many villages remain entirely Roma-populated with the schools and kindergartens remaining Roma as well OSI: Equal Access to Quality Education for Roma: Bulgaria. (New York: Open Society Institute. 2007); Barany, Zoltan. Ethnic Mobilization Without Prerequisites: The East European Gypsies. World Politics, 54.3 (2002): 117; 20 Romani Baht Foundation, available at Organization DROM, available at: 21 I. Tomova, Roma in the Transitional Period, (Sofia: International Center on the Problems and Cultural Relations of the Roma, 1995), National Statistical Institute Bulgaria, Census 2011, available at: 23 D. Denkov et al, Roma Children, (Sofia: Foundation Open Society, 2001). 38

6 Employment and Poverty The latest 2011 census by the Bulgarian Statistical Institute does not provide data on the unemployment or poverty rates among the different ethnic groups. The latest study conducted by the Bulgarian government was from October-November 2002 which shows that 64.34% of the Roma participants lived under the poverty versus 9.41% of Bulgarians. Furthermore, another study conducted by the World Bank in 2002 shows that 5.6% of Bulgarians live under the poverty line in comparison to 61.8% of the Roma. This makes up 46.5% of all poor people in the country. In this research, the study s methodology identified 82.3% of the population as Bulgarian and 8.8% as Roma. 24 As regards the average salary earned by the Roma versus the rest of the Bulgarian population, the difference is also highly disproportionate. According to a 2002 national study by Gallup International, the average monthly salary of a Bulgarian was leva (around $85 CAD) and leva (around $32 CAD) for the Roma. 25 II. The Bulgarian State s Failure to Enforce Minority Legislation on Roma Rights To outline the model of supra-state decision-making between the EU and NGOs, it is important to first outline the work of the Bulgarian government in minority integration. The Bulgarian government s failure to effectively address the integration of the Roma minority has been a widely discussed problem by numerous authors. Rechel points to the lack of political will as the main cause. 26 Ivanov has indicated sporadic and inconsistent attempts at implementing prescribed policies. 27 Formal compliance with pre-accession criteria on minority integration rather than long-term solutions to Roma integration have led to ineffective implementation of minority protection. 28 A thorough analysis of some of the factors stifling the successful implementation of the policies on Roma integration by the Bulgarian government in this section provides a partial understanding on some of the causes of poverty, low education and poor health of the greater majority of Roma. The creation of public bodies with a special view to protection of minorities was first established in 1994 as part of pre-accession conditionality. 29 The Council on Ethnic Problems established by the government in that year was, however, never convened. In 1995, the government, led by the Bulgarian Socialist Party established a National Council on Social and Demographic Problems aimed at solving the social problems of the the retired, disabled individuals, women 24 World Bank, Bulgaria: A Changing Poverty Profile, (Washington/Sofia: Document of the World Bank, 2002). 25 Supra note 14 at Bernd Rechel, Failure in Implementing Minority Protection Measures, Journal of Sociological Problems (Bulgarian). Sofia: Sociology Institute, Supra note 14 at OSI, Monitoring the EY Accession Process: Minority Protection: An Assessment of Selected Policies in Candidate States, Vol. 1, (Budapest, New York: Open Society Institute), Supra note 26 at

7 and ethnic groups. In 1997, the Council published a governmental strategy on improving the status of the Roma minority but the strategy was never implemented after the party in power received a non-confidence vote in Parliament. 30 The subsequent government formed by the United Democratic Forces established the National Council on Ethnic and Demographic Issues (NCEDI). As the main consultative body on minority issues, the Council was responsible for addressing Roma integration. Rechel points out that the NCEDI had no executive power in the formulation or monitoring of programs on Roma integration. 31 In December 2004, the Council of Ministers transformed the NCEDI into a National Council for Cooperation on Ethnic and Demographic Issues and its administration body was converted into a Department on the Ethnic and Demographic Problems. 32 However, as the EU s monitoring reports note, both bodies remained consultative bodies with limited executive power. 33 Another important initiative voted by the Bulgarian Council of Ministers is the Framework program on the Equal Integration of the Roma in Bulgarian Society in 1998 ( Framework ). The Framework was initiated following discussions with over seventy Bulgarian NGOs. Although the Bulgarian government voted in favour of the Program, the draft framework document was substantially modified from the original drafted with the NGOs. As a result, the goal of discrimination against the Roma was removed as one of the core objectives. Following substantial international attention and pressure by the European Commission and the Council of Europe, the Bulgarian government finally included the input by Bulgarian NGOs in the Framework s formulation. 34 Roma activists have qualified the Framework as the most significant accomplishment [for] Roma in public life. The Framework sets strategic goals for a period of ten years in key areas including Roma protection against discrimination, affordable healthcare, equal access to quality education, the status of Roma women, media coverage of Roma issues and other critical areas concerning Roma s status in the country. 35 In its 1999 Regular Reports, the European Union indicated that the Framework program had contributed to the partial implementation of the goals and priorities expressed in the Accession Partnership of Nevertheless, many intergovernmental bodies in the EU have repeatedly noted the need for the Bulgarian state to implement the Framework by allocating sufficient funds towards its enforcement Supra note 26 at Ibid. 32 The website of the National Council for Cooperation on Ethnic and Demographic Issues is available at 33 Supra note 26 at Ibid. 35 R. Russinov, The Bulgarian Framework Program for Equal Integration of Roma: Participation in the Policy Making Decision, Open Society Institute (Hungary, Sofia, 7 April 2004). 36 Supra note 26 at

8 The Bulgarian state s reliance on external donors to carry out its Framework obligations has created a problem of coordination between the donor s requirements and the state objectives. As the main funding line for implementation of EU minority integration programs, PHARE might finance programs with incompatible goals to those expressed in the Framework. Another obstacle in the Framework s effective implementation is that the Bulgarian government does not regularly consult with nongovernmental organizations about allocation of resources, implementation or the formulation of new objectives. Despite the adoption of an Action Plan, many priorities and goals expressed therein are incompatible with those in the Framework. 37 As a result, many of the program s goals have remained under-implemented by the year The National Roma Integration Strategy ( Strategy ) was formulated by the Bulgarian government in order to implement the EU Framework for Roma Integration Strategies up to The Strategy s implementation was assessed as insufficient in meeting the objectives identified in the EU Framework prior to Bulgaria s accession in After accession, the Strategy had to be modified to address the pressing needs of education and housing as per the Framework but no change in the Strategy happened until The Action Plan that ensured detailed steps on the Strategy s implementation was not realized until The Bulgarian government finally moved to update and renew the Strategy to become the National Roma Integration Strategy up to As a policy framework document, the new Strategy reiterates the guidelines for the implementation of the social integration policy of Roma in Bulgaria. A special Action Plan has been formulated to take effect in The Bulgarian government has expanded the powers of the National Council for Cooperation on Ethnic and Integration Issues by placing it in charge of the Strategy s implementation. 39 However, without the political and societal will to work towards building an inclusive society, progress will be slow and a lot will be done to appease donors rather than invest in an educated and integrated Roma workforce. III. Defining EU Conditionality The EU has played a fundamental role in encouraging positive norm compliance in Bulgaria. To explore this role, this section will define the role that EU conditionality has played in changing norms and encouraging the introduction and enforcement of minority legislation in Bulgaria with a special view to protection of Roma minority rights. 37 Ibid. at Илона Томова, Oценки на правителствените мерки за редуциране социалното изключване на ромитe, Теоретични Постановки, 2010 at National Roma Integration Strategy up to 2020, available at 41

9 The EU imposes positive and negative forms of conditionality on states seeking accession. 40 The European Commission s position is that there has been a profound positive impact of the EU s enlargement process on domestic governance in Central and Eastern Europe. 41 Vachudova theorizes that the EU s active leverage prior to EU membership shaped almost every aspect of domestic policymaking and that the EU exerted unprecedented leverage over the domestic politics of aspiring member states. 42 Other authors propose a more cautious assessment of the impact of EU conditionality on minority integration. For example, Schimmelfennig, theorizes that there is no clearly defined relationship between EU conditionality and domestic reform. 43 Hughes et al have argued that there is only a weak clear-cut causal relationship between conditionality and policy or institutional outcomes. 44 Further, Rechel advances the criticism that that the EU has failed to address minority integration in candidate states. 45 The EU has had a weak leverage in affecting constructive changes in minority integration because it has demonstrated a lack of minority standards, an emphasis on the acquis communitaire, missing expertise on minority issues, the superficial monitoring of candidate states, a lack of concern for human rights, and failure of addressing public attitudes towards the minorities. 46 Despite criticisms surrounding the varying degrees of success in the adoption of EU conditionality across candidate member states, the EU has played an important role in the process of Roma integration by empowering domestic organizations and exposing human rights abuses, inadequate domestic legislation and ineffective governance in domestic policies on minority integration or the lack thereof. It has done so through active and passive leverage Heather Grabbe, A Partneship for Accession? The Implications of EU Conditionality for the Central and East European Applicants. EUI Working Paper 99/12, (San Domenico di Fiesole (FI): European University Institute), Commission of the European Communities, Agenda 2000: For a Stronger and Wider Union (Luxembourg: OOPEC, 1997) at Milana Anna Vachudova, The Leverage of International Institutions on Democratizing States: Eastern Europe and the European Union, RSC No. 2001/33 EUI Working Paper (Florence: European University Institute, 2001), Franck Schimmelfennig, Stefan Engert, and Heiko Knobel, The Conditions of Conditionality: The Impact of the EU on Democracy and Human Rights in European Non-Member States, Prepared for Workshop 4, Enlargement and European Governance (Turin: ECPR Joint Session of Workshops, March 2002). 44 James Hughes, Gwendolyn Sasse, Claire Gordon, Europeanization and Regionalization in the EU s Enlargement to Central and Eastern Europe: The Myth of Conditionality (Houndmills, UK: Palgrave Macmillan, 2004), Supra note 26 at, 22, Supra note

10 The EU s Active and Passive Leverage in Influencing Positive Norm Compliance Passive leverage is the ability to exert indirect political influence to create attractive prospects of EU membership. 48 Active leverage involves use of EU rules and conditionality based on the acquis communautaire ( acquis ) to ensure the adoption of norms and legislation on fundamental rights. The Europe Agreements from 1991 represented a party of the EU s active leverage. Those agreements included applications for EU membership. Respect for human and minority rights was the minimum standard for candidate states to meet as a prerequisite to opening negotiations for accession as well as to conclude further economic and political agreements with the EU. 49 In this context, the EU suspended negotiations on a Trade and Association Agreement with Bulgaria because of concerns about Turkish minority rights violations by the communist Zhizhkov regime. 50 Throughout the accession process, the EU has worked to apply active leverage on Bulgaria to build democratic governance and to ensure the safeguard of fundamental rights. The first most prominent step towards meeting the EUs political conditionality for accession took place at the European Council in Copenhagen in June 1993, when the Council established the Copenhagen criteria for membership. 51 The political Copenhagen criteria, which inter alia included, that the candidate country has achieved stability of institutions guaranteeing [ ] respect for and protection of minorities were a significant step forward in the protection of minorities, subsequently adopted in the acquis. 52 The protection of minorities has been a consistent goal of the European Commission in ensuring that candidate Member States ensured protection of fundamental rights as condition for accession. Starting in July 1997, the Commission started to publish Agenda 2000, containing the Commission Opinions on membership applications. Those publications marked the first comprehensive exercise of the EU s active leverage. 53 The Commission s annual reports were a key instrument for monitoring progress towards accession. 54 In the area of minority protection, the Commission set out three main conditions: adoption of the Council Directive 2000/43, adoption of the Council of Europe (CoE) Framework Convention, and in countries with a greater Roma population adoption of governmental strategies and programs for the 48 Supra note 26 at 22, Heather Grabbe, How Does the Europeanization Affect CEEC Governance? Conditionality, Diffusion and Diversity, Journal of European Public Policy 8 (2001): , 22 at Ibid. 50 Ulrich Sedelmeier and Helen Wallace, Policies towards Central and Eastern Europe, in Policy Making in the European Union, ed. by Helen Wallace and Ulrich Sedelmeier (OUP, Oxford 1996), Supra note 40 at European Council, European Council in Copenhagen: Presidency Conclusions, June 1993, Milada Anna Vachudova, Europe Undivided: Democracy, Leverage and Integration after Communism. (New York: Oxford University Press), James Hughes and Gwendolyn Sasse, Monitoring the Monitors: EU Enlargement Conditionality and Minority Protection in the CEEs. Journal on Ethnopolitics and Minority Issues in Europe 1, 2003,

11 inclusion of the Roma minority. 55 The Commission paid special attention in its Reports to countries like Bulgaria where the percentage of Roma populations was significant. EU s legislative efforts in the sphere of fundamental rights became entrenched in law in 2000 when the EU adopted the Council Directive 2001/45, also referred to as the Race Equality Directive. Candidate Member states had to transpose those norms in national legislation. This Directive prohibits direct and indirect discrimination on the grounds of ethnicity in the areas of employment, training, social protection, education and access to public goods and services. 56 EU member states were required to adopt this Directive by July 2003 and candidate member states, were required to transpose it into national law. In addition to the Race Equality Directive, the EU required candidate countries to enact or amend existing legislation to ensure compliance with the Framework Convention for the Protection of National Minorities ( FCNM ). 57 The FCNM, as noted by Gwendolyn, became the primary instrument for translating the minority criterion into practice 58, while others like Rechel, undermined the EU s enforcement capacity by pointing out that Latvia did not ratify the FCNM prior to its accession in Finally, the EU s third condition in the area of minority protection addresses candidate countries with substantial Roma populations like Bulgaria. The EU encouraged states to adopt governmental strategies and to establish appropriate agencies for minority integration. 60 To provide deterrence to recalcitrant states resisting reforms and to ensure more effective sanctions, the EU provides two ex post procedure to influence transposition of EU acquis on minority protection. 61 First, Article 258 of the Treaty on the Functioning of the European Union ( TFEU ) confers on the Commission the competence to take action against EU Member State for breach of fundamental rights at the Court of Justice of the European Union ( Court of Justice ). This Court can take measures to ensure compliance, including the imposition of financial penalties where the Court determines that the state breaches EU legislation. The second avenue for recourse is Article 7 of the Treaty on the European Union ( TEU ). This provision authorizes the Court of 55 Supra note 26 at European Commission, Council Directive 2000/43/EC of 29 June 2000 Implementing the Principle of Equal Treatment between Persons Irrespective of Racial and Ethnic Origin ( Race Equality Initiative ), Official Journal L 180 (19/07/2000) at Berndt Rechel, What Has Limited the EU s Impact on Minority Right in Accession Countries, East European Politics and Societies, Sage Publications, 22, Gwendolyn Sasse, Democracy Promotion in CEE: The Political Rights of National Minorities (presented at the World Congress of the International Council for Central and East European Studies, Berlin, July, 2005), Supra note 57 at Ibid. 61 Sergio Carreira & Anais Faure Atger, L affaire des Roms: A Challenge to the EU s Area of Freedom, Security and Justice, Center for European Policy Studies, September 2010 at 3, available at 44

12 Justice to apply further sanctions against any EU member state, including suspension of the voting rights in Council, for a serious and persistent breach to the Union s basic principles, including fundamental rights protection. EU s Capacity in Enforcing Formal Compliance with Minority Rights Protection in Bulgaria The end of communism in Central and Eastern Europe reinvigorated the process of strengthening and enlarging the EU as a political union. 62 The formulation of EU conditionality as set out by the Copenhagen Council of 1993, was at the heart of the EU s active leverage to political processes and the building of democratic institutions in Bulgaria. 63 The first Copenhagen criterion states Membership requires that the candidate country has achieved stability of institutions, guaranteeing democracy, human rights, the rule of law and respect for and protection of minorities. This formulation marked a significant disjuncture from the EU s previous approach in one key respect, that of minority protection. 64 This provision is an example of a norm-oriented approach towards enforcing principles that had been systematically advocated for during the Cold War as international standards in the protection of human rights. 65 The EU conditionality criteria have had significant leverage in shaping domestic policy processes in Bulgaria in the field of minority integration and fundamental rights. 66 A range of trade and cooperation agreements were concluded in the Countries of Eastern Europe (CEE) between 1989 and 1990 as a precursor to the commencement of formal talks on accession. 67 A significant innovation in EU conditionality was the addition of a suspension clause to all Europe Agreements concluded after May 1992 that required the achievement of democratic institutions, protection of human rights and the building of a market economy as a precondition to continued economic cooperation through trade and cooperation agreements. The EU created two additional leverage instruments for directing post-communist transition in Bulgaria and the CEE: The Europe Agreements and the Phare Aid Programme. 68 The Phare programme is the main funding line for EU aid to candidate Member States. Although initially used for channeling advice on economic transition, the Commission s reformulation of the accession criteria to include minority rights and democracy building paved the way for a budget line for a democracy programme in 62 Supra note Supra note Supra note 54 at Ibid. at 8 66 Supra note Ulrich Sedelmeier, The European Union s Association Policy towards Central and Eastern Europe: Political and Economic rationales in Conflict. (Brighton: Sussex European Institute, 1994). 68 Supra note 40 at 9. 45

13 Following the CEEs bid for EU membership, the trade and cooperation agreements were replaced by Europe Agreements ( EA ). Eligibility for a Europe Agreement depended on meeting five criteria: rule of law, human rights, a multi-party system, free and fair elections, and a market economy. The EAs aimed to assist states in establishing free trade areas and to implement the four freedoms of the free market: free movement of goods, services, capital and labour. 70 Although no suspension occurred, the Europe Agreements served as a legislative instrument for the EU to ensure that candidate states worked on building the rule of law and on safeguarding fundamental rights before they can receive any economic during during the accession process. Despite the pressure to build democratic institutions and to protect fundamental rights, economic considerations played a predominant role for Bulgaria s accession to the EU at the cost of political criteria as was the case for most EU Member States. 71 After concluding a Trade and Cooperation Agreement in 1990, the two sides signed a Europe Agreement on 8 March 1993, which entered into force on 1 February Bulgaria applied for EU membership on 14 December The national economic crisis of delayed the country s bid for accession. After a short period of economic recovery, Bulgaria was formally invited to the negotiation table at the Helsinki European Council in December Negotiations started on 15 February The EU summit in Copenhagen in December 2002 invited ten of the candidates to join the EU and set a target date for Bulgaria and Romania to join in January In 1997, the EU began a new phase in which the Commission started publishing its opinions (avis) on the applicants progress in meeting the Copenhagen criteria for accession. The avis became a fundamental step in enforcing the minority protection and in formulating the Commission s policy agenda for Bulgaria. Each avi covers all criteria for accession, adoption of the acquis communitaire and other aspects of the applicants ability to assume the obligations of membership. In addition to providing an overview of the political and economic situation in candidate countries, the avis also provides an assessment of the prospects for EU membership. 73 On the basis of the avis, the Accession Partnerships then set out the conditions for receipt of state aid. 74 With regards to respect for and protection of minorities, in its 1997 Opinions, the Commission underscored that the progress in the integration of minorities was generally satisfactory, except for the situation of the Roma minority in a number of 69 Ulrich Sedelmeier and Helen Wallace, Policies towards Central and Eastern Europe, in Policy Making in the European Union, ed. by Helen Wallace and Ulrich Sedelmeier (OUP, Oxford 1996) at Ibid. at Supra note 57 at Ibid. 73 Ibid. at Supra note 40 at 8. 46

14 applicants which [gave] a cause for concern. 75 The Opinion indicated that in light of the situation of the Roma, Bulgaria had not fully satisfied the Copenhagen criteria at that time. In its 1997 Opinion on Bulgaria, the Commission noted the country s failure to ensure that there were arrangements for allowing minorities to use their own language for official communication in areas where they represent a significant percentage of the population. Further, the Commission criticized Bulgaria for having failed to follow recommendation 1201 of the Parliamentary Assembly of the Council of Europe, which provide[d] for the collective rights of minorities. 76 Some authors have criticized the EU for using unevenly this requirement in its assessment Reports. For example, there was no reference to Recommendation 1201 in the Regular Reports of 1998 on Bulgaria s accession. 77 One definite success in the EU s capacity to influence the enactment of legislation minority rights was Bulgaria s adoption of the Council of Europe Framework Convention for the Protection of National Minorities. Under pressure from the Council of Europe and the EU, Bulgaria signed the Convention on 9 October Despite the highly contested nature of the Convention in Bulgaria with its denouncement by nationalist circles, ratification followed on 7 May Due to poor implementation, numerous authors have underscored that the Convention has not lead to significant domestic policy or legislative changes. 78 Another example of the EU s capacity to enforce formal enactment of minority protection legislation was the enactment of the Race Equality Directive. In its Regular Reports between 2000 and 2002, the EU repeatedly underscored the need for Bulgaria to transpose this EU antidiscrimination acquis. On 16 September 2003, Bulgaria complied with the EU requirement by adopting a comprehensive law on Protection against Discrimination, which entered into force on 1 January However, as noted with the adoption of the Framework Convention, ineffective implementation impeded the application of this law. 80 The main governmental program for the inclusion of the Roma minority, the Framework Program for Equal Integration of Roma into Bulgarian Society, was adopted in April The EU and the Council of Europe have repeatedly criticized Bulgarian for failing to implement this legislation. External political pressure influenced Bulgaria to 75 European Commission, Enlargement Briefing: EU Support for Roma Communities in Central and Eastern Europe. (Brussels: European Commission, 1999) at European Commission, Commission, Opinion on Bulgaria s Application for Membership into the European Union. (Brussels: European Commission, 1997), Supra note 57 at Ibid. at Ibid. at Supra note at

15 take action in enforcing the Framework Program. Bulgarian government responded by enacting an Action Plan for the Implementation of the Framework Program. 81 The Bulgarian government has taken formal action in responding to international pressure from the EU to safeguard fundamental rights with a special view to the situation of the Roma minority. For example, the Bulgarian government established the National Council on Ethnic and Demographic Issues (NCEDI) in December The 1998 Regular Report noted the establishment of the Council but underscored the need to strengthen its executive capacity. As part of efforts to ensure that Bulgaria accorded enforcement capacities to the Council, the EU criticized the work of the Council in successive Regular Reports between 2000 and To ensure formal compliance with this condition, Bulgarian government moved to increase the agency s implementation. The Council of Ministers issued a decree on 10 December 2004 which turned the NCEDI into the National Council for Cooperation on Interethnic and Demographic Issues. The administration of the NCEDI became the Directorate on Ethnic and Demographic Issues. 82 However, the EU s efforts beyond formal compliance did not materialize because NCEDI remained a largely understaffed advisory body with limited executive power. 83 The EU has had a decisive impact on the formal adoption of policies and legislation governing minority integration in Bulgaria. Despite its consistent efforts in imposing positive obligations on the Bulgarian government to enforce legislation, the EU has received only formal cooperation from the national government, leaving the problem of Roma minority integration in the hands of proxies like non-governmental organizations. IV. The Role of NGOs and International Mechanisms in Improving the Status of the Roma Given the Bulgarian state s failure in the implementation of minority integration legislation, this author seeks to assess the impact of the European Union and other international mechanisms and NGOs in improving the status of this minority in Bulgaria by focusing on two specific rights, children s right to education and the right to equal treatment before the law. The goal of this chapter is firstly to outline the universality of those rights. Secondly, this chapter aims to show how Bulgarian NGOs, such as Romani Baht, have helped to guarantee those rights by circumventing the purview of the Bulgarian state in establishing a unique model of supra-state decision making in conjunction with international institutions. 81 Roma Participation in the 2005 Bulgarian Parliamentary Elections. (National Democratic Institute, 9 October 2006) at Bulgarian Helsinki Committee, Human Rights in Bulgaria in 2007: Annual Report of the Bulgarian Helsinki Committee, March (Sofia, Bulgaria: Bulgarian Helsinki Committee, 2005). 83 Supra note 57 at

16 Following Donnely 84 and Goodhart's 85 theorizations about the universality of human rights, this author uses as a leading document, guiding states' provision of human rights across the world, the Universal Declaration of Human Rights. Their equivalents are shown under EU law. Children's Right to Education Children's right to education is proclaimed in the UN Convention on the Rights of the Child, ratified as part of the Universal Declaration of Human Rights and guaranteed in Article The European Union has entrenched this principle in Article 14 of the European Charter of Fundamental Rights ( the Charter ). Furthermore, the Treaty of Lisbon imposes on the EU the objective to promote children s rights. The Charter, as part of this Treaty, guarantees the right of children to compulsory free education in Article 14.2 and the protection of children's rights by EU institutions, as well as by EU countries in the implementation of EU law. 87 The latter provision guarantees that everyone has the right to education and to enjoy access to vocational and continuing training. The second paragraph of article 14 guarantees children access to free compulsory education. Similarly, the Bulgarian Constitution has entrenched one s equal right to education in art 6(2) of the Bulgarian Constitution. There has been a widely held perception of the Bulgarian state s capitulation on guaranteeing children s right to education to NGOs. 88 Even though, the Bulgarian state has an obligation to provide compulsory education to all children, Bulgarian NGOs in conjunction with EU institutions have been more active in safeguarding this basic right. 89 One such example is the NGO-initiated and implemented Decade of Roma Inclusion. On 2 February 2005 in Sofia, Bulgaria, governmental and Romany representatives from eight Central and South-Eastern European countries convened in order to establish the Decade of Roma Inclusion as a joint initiative of the World Bank and the Open Society Institute. The European Commission, the Organization for Security and Cooperation in Europe, the Council of Europe and the United Nations Development Program (UNDP) all support and finance this program Michael Goodhart, Origins and Universality in the Human Rights Debates: Cultural Essentialism and the Challenge of Globalization, Human Rights Quarterly 25, no 4 (2003) Jack Donnelly, Chapters 1-3. Universal Human Rights, 2 nd edition. Ithaca, NY: Cornell University Press, (2003) 86 United Nations, Universal Declaration of Human Rights, Article 28, available at 87 European Commission, Right of the Child, available at: 88 Guy Will, Between Past and Future: the Roma of Central and Eastern Europe, (University of Hertfordshire Press: 2001). 89 Huub van Baar, Scaling the Romany Grassroorts: Europeanization and Transnational Networking, Civic Uses of New Media Technologies, (at the Re-activism: Re-drawing the Boundaries of Activism conference, 2005), Ibid. at 6. 49

17 Under to the guidance and financial support of the European Union, the UNDP and the Council of Europe, national NGOs have played a primary role in improving the right of education of Roma children. Based on a hands-on project this author undertook in the summer of 2009, the author describes specific programs towards ensuring equality between Bulgarian and Roma children in the Bulgarian education system. A brief historical review of the segregated education policy of the communist government below outlines the work that NGOs currently do in desegregating Roma schools. The Bulgarian authorities adopted a segregationist policy that forced Roma children in schools for several decades where about 70% percent of the Roma children went. Many started schools without prior knowledge or no prior kindergarden leading to later deficiencies in learning as compared to the Bulgarian population. Many Roma children were also placed in special schools for children with mental disabilities. About 70% of the country s Roma children attended these schools. Ilona Tomova has estimated that while Roma children comprise 9.7% of the pupils in mainstream schools, they amount to 32.1% in auxiliary schools [for students with retarded mental development ], 21.6% in vocational schools [for juvenile delinquents], and 29% in schools for children with behavioral problems. 91 The Bulgarian parliament passed the Protection against Discrimination Act in One of the groups actively involved in drafting the legislation was the Romani Baht Foundation based in the Sofia Roma neighbourhood Fakulteta. After the passage of this legislation, public interest litigation led by a series of NGOs led to its enforcement. The groups, individually and collectively won five important cases in These victories helped to increase the responsiveness of the Bulgarian legal system to acts of discrimination against the Roma in the sphere of education. 92 Furthermore, public interest litigation led by NGOs led to the judicial recognition that Roma experienced discrimination in segregated and special schools. Organization Romani Baht and the European Roma Rights Center filed a law suit in 2003 against the Ministry of Education, the city of Sofia and School Number 75 Todor Kableshkov. The charge of racial segregation included the policy of forcing Roma children to attend inferior schools in all Roma neighborhoods in Sofia. The plaintiffs lost the first suit but were successful in their second suit a year later against the Ministry of Education, the City of Sofia and School No. 103 in Sofia on the same charges. The new antidiscrimination law helped consolidate their claims for segregated education. On 25 October 2005 the court declared that the segregation of the Roma in School 103 was not the result of their free will but of circumstances beyond their control, accompanied by inaction on the part of authorities obliged to take measures to remedy this situation. 91 David M. Crowe, The Roma in Post-Communist Eastern Europe: Questions of Ethnic Conflict and Ethnic Peace, Nationalities Papers (2008) The Journal of Nationalism and Ethnicity at A series of successful lawsuits filed by the ERRC, RBF and the Bulgarian Helsinki Committee that dealt with anti-roma discrimination transforming Bulgaria s legal system into being more sympathetic against acts of discrimination against the Roma in ibid. at