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Comments to the Report of the Czech
Republic on performance of the obligation arising from the
convention on the elimination of all forms of racial discrimination
Submitted by the Counselling
Centre for Citizenship/Civil
and Human Rights, July 2003
Executive Summary
The Centre for Citizenship/Civil and Human Rights (Poradna
pro občanství/Občanská a lidská práva, further only "Poradna"),
a non-governmental human rights organisation based in Prague,
respectfully submits written comments concerning the Czech
Republic for consideration by the Committee on the Elimination
of Racial Discrimination ("the Committee").
Poradna has been
closely following the efforts undertaken by the government
of the Czech Republic to comply with its obligations under
the International Convention on the Elimination of All Forms
of Racial Discrimination ("the Convention"), as detailed in
its last report to the Committee ("Report"). Though the government
has taken steps toward fulfilling its obligations under the
Convention, measures taken so far have proven insufficient
to ensure the effective implementation of the Convention,
particularly with respect to Articles 2, 3, 5 and 6. And the
Roma minority is the primary victim of the government's failure
to fully comply the convention.
Regarding Article 2: discrimination,
as prohibited by Article 2 of CERD, is still not sufficiently
prohibited by the Czech government. Specific laws designed
to prevent racial discrimination do not define the meaning
of the term, nor do they generally provide a private damages
remedy to victims of discrimination. Additionally, discrimination
is still pervasive in areas of social services, housing, employment,
public accommodations and the judicial system. The much-touted
Minority Law is no real step forward, as it still fails to
provide damages to a victimized party, and only comes into
effect in areas where the minority group in question comprises
ten percent of the population.
Regarding Article 3: the Czech
Government has failed to comply with its Article 3 obligation
to prohibit and prevent racial segregation and apartheid.
Segregation is not illegal under Czech law, only under international
treaties. Segregationist policies continue to be used by local
government officials in areas such as education and housing.
In housing, local officials often use ostensibly neutral criteria,
such as whether the applicant has a criminal record, to shunt
Roma into sub-standard, distant, ghettoised housing with little
effort by the national government to prevent such tactics.
In education, local authorities continue to coerce Roma into
attending "special schools" for the mentally handicapped;
an overwhelming percentage of the students in these schools
are of Roma ethnicity. And the one law put into effect to
redress the situation is practically unusable for many Roma
children. The failure by the Czech government to fulfill its
obligation under the Convention despite the Committee addressing
the issue of segregation in housing and education in the last
report, is unacceptable.
Regarding Article 5: the requirement
of equality before the courts, as mandated by Article 5(a),
has not been met. In the vast majority of cases, the government
fails to provide legal aid to the indigent. In criminal cases,
Roma defendants face enormous procedural and substantive disadvantages
in the justice system.
The government has not done enough
to prevent racially-motivated attacks, as required by article
5(b). And the number of crimes with racial undertones is on
the rise. And because of prevalent stereotypes and biased
attitudes towards Roma, Roma are extremely vulnerable to degrading
and inhumane treatment at the hands of police and prison staff.
The government, in conjunction with the United Kingdom, has
violated the right of Roma, as guaranteed under Article 5(d),
to leave the country. The United Kingdom placed a consular
desk at Prague's airport to screen out those planning to seek
asylum in the United Kingdom. In one month, over one hundred
people, almost all of whom were Roma, had been prevented from
travelling to the United Kingdom.
The economic, social, and
cultural rights of the Roma are still violated by the Czech
Republic. As discussed above, Roma continue to be sent to
special schools for the mentally handicapped. This leads to
a cycle where it is extremely difficult for Roma to find employment.
Discrimination in employment in the Czech Republic remains
widespread, and claims of racial discrimination are very difficult
to prove.
The Czech Republic has done little to abate the
widespread discrimination against Roma in the sphere of public
accommodations. There are no legislative tools for victims
of discrimination to use in litigation. Most cases are brought
under sections of the Civil Code that deal with violations
of personal dignity; these provisions were not designed to
be used in cases of racial discrimination. In general, effective
protection and legislative remedy against racial discrimination
and racial violence is almost completely absent in Czech domestic
law.
Regarding Article 6: Effective legal protections and
remedies are lacking for victims of discrimination. The lack
of a comprehensive anti-discrimination law coupled with an
overall failure of the judicial system to effectively carry
out the rule law in cases of discrimination including sentencing
of perpetrators of racial discrimination further prevents
minorities equal protection under the law. And the Roma community
is particularly effected by the lack of effective legal remedies
available in racial discrimination cases as they are the often
the primary victims in such cases.
In summary, the Czech
Republic must make more serious efforts at ensuring Czech
society is free of racial discrimination. Implementing a comprehensive
anti-discrimination law and ensuring proper enforcement of
such law is key to protecting minorities from further discrimination.
Desegregation of Czech schools is long overdue, as the Committee
in its past two reports, highlighted the same problem. Similarly,
the Committee has also noted problems of racial discrimination
in employment, housing and public places. The Czech government
is strongly urged to take more substantial steps towards ameliorating
the racial discrimination suffered by minorities, especially
the Roma minority.
Expertise and Interest of the CCC/HCR
The Centre for Citizenship/Civil and Human Rights (Poradna)
is a non- governmental organization that monitors the observation
of human rights in the Czech Republic and draws attention
to human rights violations. Since 1996, the organization has
implemented programs for the promotion of rights of minorities
and foreigners and pointed out problems of discrimination
to the government and community and proposed solutions to
these problems. The main scope of the organization's activities
focuses on problems of the Roma minority in the Czech Republic
The activities of Poradna are based on projects funded by
the Phare 2001, the Open Society Institute, the Open Society
Fund, Teresa Maxová Foundation and others.
Poradna welcomes
the opportunity for the United Nations Committee on the Elimination
of Racial Discrimination to utilize our report in analysing
where the government of the Czech Republic has failed to undertake
the recommendations made in the 2001 Concluding Observations/Comments
report and in addition, special issues, which we feel consider
call for special attention in the Czech Republic.
Discussion
Article 2 Prohibition of Racial Discrimination
In spite of some work towards the elimination of racial discrimination
in the Czech Republic, discrimination is still not sufficiently
prohibited by the government. While the constitutional order
and legal system of the Czech Republic do espouse the principle
of equality before the law irrespective of racial or ethnic
origin, comprehensive legislation assuring this end still
does not exist. There is a dearth of specific legal provisions
prohibiting discrimination, but few effective remedies for
victims of racial discrimination.
The guarantees provided
by the constitutional order of the Czech Republic are generally
empty promises because of the almost total absence of implementing
legislation. The Law on Customer Protection1
in connection with the law
on Czech Commercial Inspection2
and the Law on Employment3
, continue to provide the only legal protection, but these
measure are still largely inadequate. The failure of the Law
on Consumer Protection to define the term "racial discrimination",
the lack of private damages remedy, and the consistent failure
of CCI inspectors to confirm complaints of racial discrimination
continue to discourage the filing of complaints.4
The government has, thus far, failed to take any steps towards
ending discrimination in social services, housing, health
care, and the judicial system. While a number of laws contain
clauses guaranteeing "equal treatment," these laws generally
do not specifically deal with discrimination, nor do they
provide remedies.
In civil proceedings, with minimal exceptions
in labour law, victims of racial discrimination can only seek
reparation or damages through Article 11 of the Civil Code,
which deals with violations of personal dignity. Because this
article was not designed to be used in cases of racial discrimination,
it is both substantively and procedurally inadequate. First,
the Court will not inform the parties of relevant legal provisions
and all evidence is subject to the discretion of the court.
As a consequence, it is easy for a plaintiff who may fulfill
the legal requirements of the case to fail on procedural grounds.
Second, these proceedings impose an exceedingly high burden
of proof on the plaintiff. If a case fails, the plaintiff
may have to pay the court costs and lawyer's fees of the defendant,
thus exposing the plaintiff to potentially crippling debt.
The major legislative action regarding minority issues in
the last two years, the adoption of the Minority Law, is no
real achievement in terms of protection from discrimination.
While it does amend the Law on Misdemeanours to provide for
administrative action and fines against parties found to discriminate,
it still fails to give any kind of remedy to the party harmed
by the discrimination, the victim. Additionally, the threshold
requirement that ten percent of the region be part of the
minority ethnic group, coupled with the extremely low percentage
of Roma who admitted being Roma on the most recent census,
means that the law may fail to come into force in the very
places where it is most needed.
Because discrimination protections
are limited, the Czech Republic needs to establish a comprehensive
anti-discrimination legislation covering all spheres of life.
Currently, there is a proposal for a General Draft Law on
Equal Treatment and Protection against Discrimination, which
is to comprehensively protect against all forms of discrimination.
It includes a definition of both indirect and direct discrimination
and a provision to establish an independent body, the Centre
for Equal Treatment, to provide conciliation services to victims
and independent services to assist victims of discrimination.
However, a general lack of coordination within the governmental
network is preventing the final General Draft Law on Equal
Treatment and Protection against Discrimination from being
completed for a vote by parliament. Any proposed anti-discrimination
law should also be made available for general commenting by
concerned parties to insure such law is adequate to meet the
requirements under CERD. Poradna urges the government to adopt
a comprehensive anti-discrimination law that effectively protects
against racial discrimination in all aspects of life.
There
remains no independent body specifically tasked with monitoring
racial equality in the Czech Republic, and, in spite of much
discussion, there are no known plans to establish such a body.
A proposal in the draft Minorities Law to create a strengthened
Council for National Minorities was summarily rejected. While
there is a Council for Roma Community Affairs (IMC), it has
no authority, nor does it even have a guaranteed operating
budget. An Ombudsman's Office to deal with the public defence
of rights was finally created in December 2000; however, this
office does not specifically deal with discrimination, and
the majority of the complaints received by the office have
not dealt with racial discrimination5.
The Office can act on its own initiative and can enter any
administrative office without prior warning. However, the
office's utility is seriously curtailed by its lack of direct
sanctioning authority. While it may propose corrective measures,
the office still does not provide private individuals with
a legal remedy against discriminatory establishments nor can
it provide independent legal services to victims of discrimination.
Article 3 Prohibition of Racial Segregation
and Apartheid
To date, the Czech Republic has not complied
with its obligation under CERD to "condemn racial segregation
and apartheid and undertake to prevent, prohibit and eradicate
all practices of this nature in territories under their jurisdiction."
Segregation is still not prohibited by Czech law, and only
prohibited through international treaties. In fact, segregationist
policies are frequently used by municipalities in such areas
as housing and education. Czech law does not prohibit discrimination
in housing, leading to de facto segregation of Roma and ghettoisation
of Roma communities.
Local authorities apply a variety of
discriminatory practices towards Roma, ranging from arbitrary
tenancy requirements disqualifying large numbers of Roma applicants
to segregation of Roma into lower-quality social housing constructed
by municipal authorities. Roma are particularly vulnerable
to eviction from housing. Municipalities often tailor ostensibly
neutral criteria for housing, such as requirements for employment,
permanent residence, or "moral credit", in such a way as to
disadvantage Roma as much as possible. Municipal administrations,
in the face of overwhelming antipathy on the part of the non-Roma
towards the Roma, often exploit the Roma in order to force
them to move. The net result of this situation is "ghettoisation".
Roma are moved to the outskirts of cities, living in cramped
quarters with shared sanitary facilities. Exacerbating this
situation is the wholesale transfer of Roma into holobyty:
housing for evictees and for people unable to pay rent. Holobyty
consist exclusively of substandard flats and apartments overwhelmingly
inhabited by Roma, sometimes one hundred percent
6. Municipalities often impose strict rules
on the inhabitants of these tenements, for example, barring
all visitors, but requiring access by municipal officials
at all times 7.
Furthermore, municipalities' refusal to consider holobyty's
as "apartments" for residency purposes has resulted in many
Roma being denied permanent residency status.
Although the
problems associated with holobyty have been discussed for
a substantial period of time, the government has failed to
take any substantial steps to prevent further discriminatory
practices by such municipalities. Romani communities continue
to be segregated into substandard housing through various
discriminatory practices. And continued failure by the government
to implement a law against housing discrimination denies victims
of housing discrimination an effective legal remedy.
Currently, Roma families in the city of
Slany are being evicted from their housing through discriminatory
practices imposed by local municipal officials. The city is
targeting Romani families living in municipally-owned housing
in the Mexiko part of town, through evictions under the city's
new "Zero Tolerance Plan", a plan implemented to force Roma
out of the city. Under this new plan, the city has plans to
remove two Roma families a week living in the city's holobyty.
This situation is particularly appalling as it has been discovered
through investigations, carried out by Poradňa, that Roma
families living in this area entered into indefinite contracts
with the city many years ago and through questionable circumstances,
families now have housing contracts for definite periods of
time, apparently giving up their indefinite contracts. Five
families have been removed by the city thus far and authorities
claim evictions are legal because of the families' debt owed
to the city. But two families are completely debt-free, and
three other families have an insignificant amount of debt,
debt ranging from 7,000 to 30,000kc. Roma families willing
to set-up a repayment schedule with the city were refused.
And with no where else to go, Roma families are forced to
sleep outside their flats where the city continues its harassment
by charging families for occupying public spaces, the sidewalk
outside their old residences. As a result, Poradna plans on
bringing cases before the courts to insure that the indefinite
contracts are in effect over the definite contracts.
The
following case, involving the 40 Roma families in Libčice,
a small town near Praha, illustrates the prevalent tendency
of municipalities in the Czech Republic to offer Roma applicants
substandard accommodations under invalid contracts, and situated
in segregated areas. When problems accumulate in the segregated
housing complexes (due to an accumulation of social problems),
municipalities abuse the situation by evicting Roma inhabitants
and refusing to offer them substitute housing. In the city
of Libčice, Roma families assigned housing under communism,
are being targeted by the city. The city had previously assigned
a number of flats along the street of Kolonka to Romani families.
Flats assigned are considered 4th category accommodations,
the lowest category of flats. The flats consist of only rudimentary
equipment and are in dilapidated conditions as a result of
the long-term lack of care by the city, e.g. the city's refusal
to respond to tenants' requests for repairs on necessary items
such as the sewage system and water pipes. The city is denying
Roma families' long-standing unwritten contracts and the lack
of written contracts is being cited as evidence of illegal
occupation of municipally-owned flats. However, as of 1993,
the Civil Code did not require leases to be issued in written
form, though even at that time that was not standard practice.
And no law was enacted after the end of communism requiring
families to obtain written contracts in place of their unwritten
contracts. In a comparison with non-Roma families, its been
documented that non-Roma tenants in municipally-owned flats,
have been provided with proper written contracts by the city.
At the time of move-in residents of Kolonka Street were often
told their contracts would be sent in the mail, but the contracts
were never sent. From 1993, the city has regarded the inhabitants
as regular tenants, receiving rent payments and approving
reconstruction requests by tenants. Tenancy rights were never
in dispute until the summer of 2000, when the city began filing
submissions for evictions, claiming inhabitants of Kolonka
Street illegally occupied the flats. The city, taking advantage
of the families' unwritten contracts, have attempted to evict
families who have a long history of paying rent to the city.
And now families are forced to enter into legal proceedings
for evictions. Thus far, legal proceedings against the tenants
have been biased with the court approving eviction petitions
that lack any substantive claim. The lack of available free
legal aid and the inability of judges to inform defendants
in civil proceedings of the law have left many families unable
to help themselves.
In addition to difficulties faced in
defending their legal rights against local municipalities,
Roma, also face a difficult time in preparing solid cases
of housing discrimination primarily because the law does not
assist in facilitating discrimination cases when instituted
by victims. Additionally, the overall unavailability of legal
aid and high court fees bars many victims from accessing the
legal system. Therefore, victims are often limited to the
help provided by specialized NGO's, like Poradna, who conduct
discrimination testing on institutions reported to discriminate
and subsequently file complaints of discrimination.
For
example, Poradna recently conducted discrimination testing
when it was reported by a local community organization that
certain housing complexes in the city of Ostrava were refusing
to rent flats to Roma applicants. The Metalurg Housing complex,
located in the Czech Republic's 3rd-largest city of Ostrava,
was one such complex discriminating against Roma applicants.
The large Metalurg Housing Complex comprises several blocks
of 10-story buildings and its accommodation capacity is substantial
with hundreds of flats located throughout the complex. On
the morning of 3rd July, at approximately 11 am, Poradna sent
in two Roma testers, a man and a woman, claiming to have two
children, into the administration office of the Metalurg Complex
where they spoke with the administration director, Mrs. Karasova,
inquiring about any available vacant flats to rent in the
Complex. The director refused to offer any flats, claiming
the flats would not be available anytime soon. Even after
the Roma applicants offered immediate payment of rent claiming
they had no other place to live, the director refused. In
response to the Roma testers request to fill out a written
housing application, the director replied "we have applications
sitting here for up to 3 years and they are still awaiting
decision". After the two Roma testers were rejected, Poradna,
at approximately 11:25 am on the same day, had two white testers,
a man and a woman, enter the same office and speak to the
same director of administration. After informing the director
they had two children and were looking to rent a flat, they
were immediately shown a flat that had become available 2
days before. The non-Roma couple was informed of the rent,
services payments and available methods of payments, even
being offered the possibility to move in on that same day
or as soon as possible as the lease was available to sign
immediately. During the viewing of the apartment the non-Roma
couple asked the director whether "Gypsies or Vietnamese"
lived in the Complex as they were "afraid for the children"
The director replied, "no" and assured them that "all Gypsies
are being moved out…" "[T]his block is clean because we want
only good people here". As there is no anti-discrimination
law for housing, Poradna is limited to filing a civil claim
of infringement of personal dignity (according to Article
11 of the Civil Code). Poradna is filing the complaint on
behalf of the Roma involved, since Roma victims of discrimination
face a plethora of obstacles in seeking redress through the
Czech courts.
The Czech government's tolerance of the segregation
and racial discrimination practices against Roma and its failure
to pass an anti-discrimination law on housing expresses its
acceptance of such practices. Because of racial segregation
Roma are condemned to a social environment where poverty and
unemployment are the norm, most families are on welfare, infrastructure
is inadequate, families are fragmented, educational failure
prevails, crime and violence are rampant, and social and physical
deterioration abound. And because of this social condition
and the fact that they are unable to afford adequate housing
and the government will not provide them with such, the Roma
are unable to move from these ghettos. As of yet, no national
measures have been adopted to bar racial discrimination in
housing.
The Czech Republic continues to maintain a segregated
educational system through the facially neutral provisions
for "special schools" for the mentally handicapped. These
schools are overwhelmingly populated by Roma. According to
the government, up to 75% of Roma children are educated at
special schools. The highest estimates maintain that the population
of the Czech Republic is 5% Roma; however, more than 50% of
the students enrolled in special schools nationwide are Roma.
The system institutionalises and calcifies racial segregation
through systematic discrimination and long-term stigmatisation.
The placements in special schools hinder further education
and participation in society, and were condemned by CERD's
2001 final report8.
A case brought by Roma schoolchildren currently awaits decision
by the European Court of Human Rights. The issue of discrimination
in education will be discussed further under Article 5(E).
Article 5
Article 5(a) The right to equal treatment
before the tribunals and all other organs administering justice
The Czech Republic currently fails to
guarantee equality before the courts as mandated by Article
14 para 3(b) and 3(d) of the International Covenant on Civil
and Political Rights and Article 6 of the European Convention
on Human Rights, nor does it meet the standards advocated
by EU Directive 43/2000. Although legal aid is both rare and
beyond the means of many parties, the government fails to
specify mechanisms for the provision of legal aid. The unavailability
of legal aid makes it extremely difficult for many people,
particularly members of the Roma community, either to defend
themselves against criminal charges or to seek to vindicate
their rights through the legal system. Other procedural defects
add to the latter difficulty, such as the costs of representation,
court fees, and the possibility of being required to pay the
legal costs of the opponent. These provisions often block
the indigent's access to justice, having a disproportionate
impact on vulnerable groups such as ethnic minorities, women,
pensioners, and prisoners.
Roma defendants continue to face
serious procedural and substantive disadvantages in the criminal
justice system as stated in the last report submitted. Racial
discrimination still pervades the criminal justice system
resulting in higher percentages of Roma entering the system
and receiving disproportionately longer sentences than non-Roma
for the same crimes.
Additionally, there are major concerns
regarding the likelihood of Roma obtaining effective and free
legal assistance. Although formal legal representation is
given to every defendant for whom such representation is legally
required, the quality of this legal assistance is highly variable,
particularly given the racism present in the population of
attorneys. There are also systemic problems with regards to
the appointment of attorneys. The judge who is to decide the
case also appoints the defendant's attorney. As there is no
formal appointment procedure, judges are tempted to appoint
attorneys who will raise as few problems during the procedure
as possible. Racial prejudices are present among both the
judges and the attorneys. Attorneys are often reluctant to
"lose face" and possibly exasperate a judge by raising an
enthusiastic and comprehensive defence for a Roma defendant.
Article 5(b) The right to security of person and protection
by the State against violence or bodily harm, whether inflicted
by government officials or by any individual, group or institution.
Racially-motivated attacks are the most widespread form of
racism directed against the Roma. According to a recently
released governmental report a 4.5 percent increase in crimes
with racial or extremist undertones were reported last year,
for a total of 473 crimes for the entire year. And according
to a governmental official who prepared the report almost
all of those crimes were committed by racists and neo-nazis9.
Some of these incidents involve verbal harassment, possibly
followed by menacing and chasing the victim. Skinheads often
vandalize the property of Roma, occasionally throwing firebombs
into houses. However, these attacks have become increasingly
brutal. There are marches through cities aimed at people of
colour, in which the skinheads chant slogans such as "Gypsies
into the gas chamber" or "Racial control".
The current system
of punishing racially motivated violence is highly unsatisfactory.
Czech criminal law contains a number of codes specifically
for racially motivated crimes but they are rarely imposed
in racially discriminatory cases. Those who are the victims
of such crimes continue to be treated as the perpetrators
of the crimes with little credence given to their testimony.
And Czech authorities have failed to properly train their
police investigators in identifying racially-motivated crimes
based on other factors besides the use of racist language
during the course of the crime, resulting in racially-motivated
crimes being underreported.
For example, on July 26, 2002,
in the town of Karvina Hranice, the Czech daily newspaper,
Mlada Fronta Dnes reported that Monika Gaborova was the victim
of an attack when three unknown attackers with short-cropped
hair threw firebombs at her house where 10 children were inside10.
The police refused to investigate the case as a racially-motivated
crime because no racial insults were heard at the time of
the crime.
Attacks by skinheads are reported not only in
rural areas but also in larger cities such as Prague. And
the European Roma Rights Center (ERRC) listed an alarming
number of skinhead attacks occurring during a recent two-month
period: October 25, 2002 at a tram stop in Prague, skinheads
brutally attacked a 17 year-old Romani youth; October 29,
2002, on Leitnerova Street in Brno, a 12 year-old Romani youth
was left unconscious after being brutally attacked by skinheads;
November 1, 2002, on Lipová Street in Prague, a 20 year-old
man appearing to be Romani was attacked by skinheads; December
20, 2002, at Merkur restaurant in Liberec, a northern town
in the Czech Republic, a 41 year-old man was severely attacked
by approximately 15 skinheads11
. Incidents of skinhead attacks reported rarely get the attention
by police and courts they so desperately need to remedy the
situation.
Because of the widespread discrimination against
them, the Roma are particularly vulnerable to degrading treatment
by police and prison staff. Investigation of crimes of torture
committed by police or prison authorities are usually not
investigated properly, and perpetrators are in fact never
charged with torture. Two cases provide a particularly vivid
illustration of the danger to Roma in the region. In April
2001, a group of four policemen in Karlovy Vary brutally attacked
a Roma male during a routine traffic stop. After inspecting
his documents, they verbally assaulted him, repeatedly calling
him a Negro. They then drove him to a deserted place, where
they beat him with an iron stick and urinated on him. While
there was a criminal investigation of the incident, two policemen
were found not guilty and two were merely charged with a crime
of abusing official power and received no prison sentence
(they received an imprisonment sentence of 10 months conditionally
suspended for two years and prohibition of work with the police).
On July 26, 2002, a 23-year old Romani man, Mr. Michael
K., was physically attacked, in Orlova Lutyne, by three non-Roma
men who shouted racial epithets while hitting him with a bat.
Mr. Ernest P, Michael K.'s companion, in an effort to obtain
assistance, approached several state police officers sitting
and watching in their car nearby. But the state officers drove
off when Mr. Ernest P., flagged them down for assistance.
And when Mr. P went to local petrol station, the attendant
refused to allow Mr. P., to use the telephone to call the
police for help. The ERRC further reported that on July 29,
2002 during a field visit to Mr. P.'s residence, a young man
drove by the house shouting, "Today you will burn, you black
mouths." The officers in charge of investigating the crime
informed the ERRC that they will not be pursuing any investigation
against the state police officers as Mr. P. was unable to
prove the officers were at the scene12.
In a July 2001 case, a Roma youth in custody in the town
of Sokolov was drugged and sodomised by a police investigator.
Although the investigator was dismissed, no criminal charges
have been filed against him to date.
Article 5(d) Other Civil
Rights
The Czech Republic has violated the Roma minority's
right to leave the country. In July 2001, the United Kingdom
placed officials in Prague's Ruzyne Airport to screen all
those travelling to the UK to screen out those who planned
to seek asylum. The Cultural Minister stated that, in his
opinion, skin colour was of major importance in determining
whether Czech citizens should be allowed to travel13.
By the time the checks stopped, in August 2001, around 120
persons, "almost all of whom were Roma," had been stopped
from travelling to the United Kingdom14.
Article 5(e) Economic, Social, and Cultural Rights
Discrimination
in education remains paramount in the Czech Republic, and
often precludes Roma from being able to ameliorate their lives.
As discussed above, the practically automatic separation of
Roma children into "special schools" both segregates them
and treats them as mentally deficient. And no legal provisions
exist with regards to discrimination in education.
There is a standard method by which Roma
children are sent to special schools. First, the placements
are done with a high degree of subjectivity, allowing the
influence of racism to play a role in the evaluation of the
child. Second, the testing methods are generally perceived
to be culturally biased and make no concessions to the differing
language and cultural abilities of the Roma. Thirdly, there
is no standard test. In April 2000, eighteen Roma children
filed an application with the European Court of Human Rights
in an attempt to ameliorate this de facto system of racial
segregation. The court to this date has reached no decision.
In January 2000, the Law on Schools was finally amended
to allow graduates of special schools to apply to normal secondary
schools. But, due to the enormous gap in the curricula of
the two systems of education, transfer at higher levels has
proved close to impossible15.
The social stigmatisation associated with having been educated
in a special school generally leads Roma to be completely
unable to find gainful employment. Racial discrimination in
employment is often disguised by the fact that the Roma are
less educated, and, thus, are not qualified for employment.
Despite the recent labour law amendment, which made such practices
illegal, discrimination in employment in the Czech Republic
remains widespread. Though the law did bar such practices,
the government once again failed to define racial discrimination,
making its elimination close to impossible. There are no provisions
to obtain an injunction against discriminatory practices,
nor to remedy the effects of such practices. However, a shift
of the burden of proof in discrimination cases was implemented
in the Code on Civil Court Procedure through the Civil Procedure
Code Amendment (Amendment No. 151/2002 of the Coll.). The
provision has been applicable only for a short time (from
1 January 2003). And currently, there has been only one case
(a sexual harassment dispute in which the court of first instance
found no violation. The decision has been appealed). Prior
to 1 January 2003, the reversal of the burden of proof applied
only to disputes on sex discrimination. But these provisions
were replaced by the broader formulations, under the amendment
151/2002 Coll., as an implementation of EC Directives 2000/43/EC
and 2000/78/EC. Discrimination case law is rare; so rare,
cases of racial discrimination can be counted on one's fingers
(in practice, existing petitions are brought under the personality
protection or submissions on violation of rights in labour
relations). And there is no case law on indirect discrimination.
Because of the shortcomings of Czech legislation, it is very
likely that actions alleging indirect discrimination would
be rejected by Czech courts for lack of a substantive claim.
And Law No.9/1991 Coll. On Employment and the Jurisdiction
of Czech Authorities in the Field of Employment merely includes
general provisions to impose fines on those employers who
intentionally violate the law. The fines are only imposed
in administrative proceedings. Thus, the victim of racial
discrimination never becomes a party to the actual proceedings
nor receives remedies for discrimination suffered. As the
courts do not keep official statistics on the number of racial
discrimination cases filed, it is difficult to assess the
true count of discrimination cases being filed in Czech courts.
Additionally, the government has not taken action to educate
employers, employees or applicants for employment of the existence
of the new employment law, of the terms of the law or of the
remedies for violation of the law. No affirmative action measures
were implemented. Because of the lack of public awareness,
the law has, thus far, proved to be ineffectual.
Since Employment
offices have undertaken monitoring job advertisements, employers
have refrained from including discriminatory requirements
in their advertisements. Discrimination, therefore, has become
further obscured and employment offices nearly unanimously
state they are unable to prove employer discrimination. Employers,
now, simply give other reasons for rejecting job applicants.
And, Employment offices are also not very successful in investigating
discrimination in access to employment, promotion, working
conditions and pay. Collectively they state that their chances
to get information about discriminatory practices in these
areas are minimal. Generally, victims refuse to bring complaints
against a particular employer, especially in situations where
there is a high percentage of unemployment, primarily due
to fear and distrust in the effectiveness of investigation.
To address this situation, one employment office has established
a special box where individuals can anonymously place complaints.
The following incident exemplifies why
victims of employment discrimination are discouraged from
bringing complaints to the attention of Employment Offices.
On June 11, 2003, in the city of Cheb, Poradna gathered sufficient
evidence for a discrimination case as a result of sending
in a Roma woman tester and then a non-Roma woman tester to
apply for the same store position at Rossman, a German-owned
drugstore chain. Several minutes after the Roma tester was
informed the advertised job position was closed, the non-Roma
tester applying for the same position was offered the job.
When the local officials at the Employment Office were informed
of the incident, including being provided a tape recording
of the two conversations, they reacted in a hostile manner
informing Poradna that "It is hard to prove." The office informed
Poradna it would not investigate the Rossman case and would
only conduct a general independent investigation into employment
discrimination. The actions of the Employment office demonstrate
the general failure of administrative proceedings to protect
against employment discrimination.
In the majority of instances
employment discrimination on the basis of race is not so clear
and blatant. But in the case of Marcela Zupková it was. Marcela
Zupková is a Romani woman from Hradec Králové, registered
with the Employment office as a result of being unemployed.
On, January 20, 2003, when Mrs. Zupková received an employment
recommendation from the Employment office for an assistant
position, an unqualified position, at the Hradec Králové University
cafeteria, which is owned and operated by the AKYMA firm,
she immediately went to the cafeteria to apply for the position.
At the cafeteria office she spoke to Mrs. Panochová, the operation
director of AKYMA. Immediately, at the beginning of the discussion
with Mrs. Panochová, Mrs. Zupková was informed she was not
going to be employed solely due to her ethnic origin. Mrs.
Zupková tried to persuade Mrs. Panochová to give her a chance,
however, she refused to change her mind. Mrs. Panochová then
filled out Mrs. Zupková's form from the Employment Office
writing directly on the form, as the reason for refusing Mrs.
Zupková employment, "Roma origin." She then stamped the form
with an official AKYMA stamp.
When the newspaper, Hradecké
noviny (Hradec newspaper), picked up Mrs. Zupkova's story,
they interviewed Mrs. Panochova, who gave the following explanation
for the incident that transpired, "We are a private firm.
We are operating a cafeteria. I have nothing against Roma
but how would it look in front of our customers if a Romani
woman handled food? Some Roma are hard working people but
I have never seen one. It is enough for them to be employed
for a while. Then, when they are entitled to social benefits
again, they usually quit the job".
Additionally, indirect
discrimination by employers constitutes a serious obstacle
to Roma employment through requests and requirements for applicants'
criminal records when applying for employment. Such requests
are used to disqualify many Romani applicants. Employers request
criminal records for positions that do not have specific job
requirements, raising questions as to the necessity of such
request. In response employers claim clean criminal records
is an occupational requirement. Poradna, in an effort to prohibit
further indirect discriminatory practices, filed a complaint
with the Office of Protection of Personal Data for discriminatory
requests of criminal records in both the housing and employment
sector. Under Czech law, in order to request such sensitive
data one must register with the Office of Protection and obtain
permission from the Office who will process the data. The
complaint filed, alleged a violation of personal data law.
The opinion handed down by the office disappointedly found
no violations in requesting and requiring criminal records
in employment and housing applications. This example further
demonstrates the need for a comprehensive anti-discrimination
law to provide effective legal tools to fight discrimination.
Roma children and their families suffer further degradation
in the realm of social services through established policies
that disproportionately affect Roma families. Social workers
often have broad powers over families. Their evaluations of
Roma families, which often conclude that the Roma children
would be best taken care of by removing them from their families
and better served through state foster care, are blindly accepted
by magistrates of the courts. In comparison non-Roma families
similarly situated to Roma families are often given preferential
treatment by social services through additional help and presumption
of the child in question remaining with the family. Social
workers' proposals, for families, submitted to magistrates,
are routinely accepted and Roma families with few resources
lack the ability to effectively advocate for their families
and are left at the mercy of the social workers. Furthermore,
the consequence of city-funded social workers and state-funded
foster care is the regular and uninhibited practice by social
workers of sending children to foster care, as the cost is
borne by the state not the city. As a result, a large majority
of children in foster care are of Roma origin. A recent project,
undertaken by this organization in conjunction with Ministry
of Social Affairs, entails providing services to families
such as counselling services, home visits, representation
services to various governmental bodies, legal services and
mediation services between families and social workers. It
is too early for a proper evaluation of this project as it
began in January 2003. The need for governmental action to
address the shortcomings of social services for children is
still greatly needed, as Roma families are the primary victims
of the failure of the system.
Article 5(f) Discrimination in Public Accommodations
Consumer discrimination is defined
as an offence in the Consumer Protection Law, Law No. 634/1992
Coll., Section 6. The law covers the sale of goods or the
provision of services in the Czech Republic. The seller or
service provider must not act in such a way as to contradict
good morals, and must refrain from any kind of discrimination
against consumers. However, no definition of discrimination
is given, and there are no separate tools for victims of discrimination
to use in litigation. The law refers to the enforcement and
monitoring of compliance to the Czech Commercial Inspection.
This means that individuals cannot open administrative proceedings
through the filing of petitions; rather, sanctions must always
be linked to findings by CCI's own inspectors. Consumers and
civic associations do not even become parties to any eventual
proceedings taken against discriminating businesses; therefore,
they are given no chance to present their evidence and allegations,
and cannot initiate a judicial review of the CCI's decision.
The CCI's statistics indicate that the prohibition against
discrimination in public accommodations is weakly enforced.
Most discrimination cases are brought under Sections 11
and 13 of the Civil Code, which govern general protection
of the personal rights of an individual. These provisions
were not designed to be used in cases of racial discrimination,
and, thus, their utility is limited. Section 11 stipulates,
"Every individual (natural person) has the right to protection
of his personhood (personality), in particular his life and
health, civic honor, and human dignity, as well as his privacy,
his good name, and expression of a personal nature." Proceedings
under Section 11 impose high evidentiary burdens on victims
of discrimination: complainants must substantiate the extent
of the harm caused by discrimination; all evidence as to the
discrimination is subject to the discretion of the court;
and the verdict is based solely on the submitted allegations
and accepted evidence. Additionally, the courts must refrain
from informing the parties of substantive legal provisions.
Therefore, it is relatively easy for the substantive claims
of poorly-informed parties to fail on technical or procedural
grounds.
Most disturbing of all is the fact that a plaintiff
who loses the suit may have to pay the court costs and lawyer's
fees of the defendant. Court costs are determined at 4% of
the value of the claim; this means that plaintiffs will not
ask for high damages for discrimination because of the risk
of having to pay more in court costs should they lose. Given
the disadvantaged status of many minority groups in the Czech
Republic, most potential civil rights plaintiffs simply cannot
afford to have the case come out against them. This provides
a serious financial disincentive to those considering legal
action against discrimination. Thus as stated above, many
victims are limited to seeking assistance from specialized
NGO's. Further frustrating efforts to seek adequate remedies
and protection from discrimination is the unpredictable outcomes
in discrimination cases by Czech courts.
Two contrary court
decisions by Czech civil courts in similar civil cases demonstrate
the lack of uniformity and consistency in adjudicating cases
of discrimination. In August 2001, Poradna conducted discrimination
testing in the city of Ostrava. The testing concluded with
Roma testers being denied access to the same disco, white
testers were allowed into. The court in response to the discrimination
complaint filed by Poradna decided that no discrimination
occurred against Roma on the basis of their origin. However,
in a case with similar circumstances, Poradna was successful
in bringing a claim of discrimination in a case regarding
access to pubs wherein five plaintiffs were granted by the
court non-pecuniary damages in the amount of 10,000 CZK (Approximately
370 USD) for denial of access to the pub. The success of the
outcome was dampened by the two-year duration of the proceedings
as the complaint was filed in April 2001 and only decided
in June 2003. Several similar cases are pending in the Czech
courts but their outcomes are unpredictable and the length
of proceedings is expected to be lengthy. Thus, the denial
of due process of law to discrimination victims is evident
in the failure of the Czech courts to insure legal proceedings
are conducted in a reasonable amount time. It is imperative
that the Czech government takes steps to remedy this situation.
Article 6 Right to effective protection and remedies against
any acts of racial discrimination and right to seek just and
adequate reparation or satisfaction for any damage suffered
as a result of such discrimination
The Czech government
has failed to meet its obligation under Article 6 to ensure
effective protection and remedies against acts of racial discrimination,
to protect the rights of the victims and their rights to reparation.
As mentioned above in the discussion of Articles 2 and 5(b),
there is little protection against discrimination and there
are no effective remedies according to Czech law for victims
of discrimination. Victims of discrimination can only receive
reparation or damages under provisions of the Civil Code on
Personal Dignity Damage16.
Czech law does not provide victims of discrimination with
the opportunity to present their case to an impartial tribune
or have their rights determined; if human rights are violated
by racial discrimination, there is no remedy to compensate
the victims and no legal rules providing for sanctions against
the discriminator.
Czech civil and criminal courts have
continued to deny justice with regards to racially-motivated
acts committed against Roma. On March 7, 2002, the court of
first instance dismissed Frantisek Kroscen's complaint for
violation of his personal dignity. The Appeal's court then
dismissed the appeal and it now sits in the Appellate Review
of the Supreme Court awaiting further decision. He was suing
a restaurant where there was a one-meter high statue of a
man carrying a baseball bat bearing the clearly visible inscription
"Na cikány" ("For Gypsies"). In another instance of the civil
courts' failure to provide justice to Roma, the Czech High
Court in Prague rejected the appeal of Ms Gizela Lacková and
confirmed the July 23, 2001 decision of the Regional Court
in the Northern Bohemian city of Ústí nad Labem. The court
in Ústí nad Labem had rejected Ms. Lacková's claim that her
dignity had been harmed when municipal authorities in the
city erected a 2-metre-high wall around a series of buildings
inhabited predominantly by Roma on October 13, 1999. On November
12, 1999, the ERRC in co-operation with local counsel, assisted
Ms Lacková in filing a lawsuit against the city council of
Ústí nad Labem17.
As a result of the Czech High Court in Prague's decision,
Ms Lacková's legal representative filed an appeal on February
2002 at the Czech Supreme Court in Brno against the Prague
court's decision. A decision has not been reached.
Judges in criminal proceedings are reluctant
to issue findings of racially-motivated crimes and more readily
hand down decisions for lesser offences accompanied by lower
sentencing. The criminal courts repeated failure to deliver
justice is exemplified in the following cases. The District
Court of Hradec Králové, in northeastern Czech Republic handed
down a sentence on August 7, 2002, of merely two years imprisonment,
which was then suspended for five years against Mr. Marek
Doležal for his role in a brutal attack on two Roma in which
one Roma man was stabbed and the other injured. In September
2001, the Czech court of Central Bohemia reduced the sentences
of several youths convicted of racially-motivated crimes to
suspended sentences for their 1999 role in a mob attack on
Roma families living on a farm, where they participated in
breaking windows, throwing bricks, and shouting racist slogans.
Two people were physically injured. At the first instance
trial in November 2000, the court had handed down suspended
sentences, in spite of the fact that those being tried had
been found guilty of a racially-motivated attack. This result
in these cases is not rare but rather the norm18.
As a result, the effectiveness of criminal laws combating
racially-motivated crimes is severely limited by the improper
application and use by both judges and police.
In summary, the Czech government needs
to take significant steps to ensure that justice is served
in cases involving discrimination and violence against Roma.
Current protections continue to be ineffective.
Notes:
1 S
Law No. 634/1992 of Collection of Laws, Law on Protection
of Consumer in accordance to later changes and amendments.
2
Law No. 425/1992 of the Collection of
Laws, Law on Czech Commercial Inspection in accordance to
later changes and amendments.
3
Law No. 1/1991 of the Collection of Laws,
Law on Employment in accordance to later changes and amendments.
4
"Over a six-year period, CTI was able
to prove discrimination in only eight of the 89 inspections
conducted following consumer protest." (six-year period: 1996-2001),
Monitoring the EU Accession Process: Minority Protection Volume
I, An Assessment of Selected Policies in Candidate States,
Open Society Institute, 2002., p. 163.
5
Minority Protection in the Czech Republic, Open Society Institute,
2001.
6
Zoon, On the Margins, Open Society Institute
2001, p. 176-81.
7
Zoon, On the Margins, Open Society Institute
2001, p. 163.
8
Concluding observations of the Committee on the Elimination
of Racial Discrimination: Czech Republic, 1 May 2001. CERD/C/304/Add.109,
para. 10.
9
See The Prague Post, "Report: Extremism in Unprecedented Decline",
July 17, 2003.
10
See Roma Rights, No. 3-4, 2002.
11
See Roma Rights, No. 1-2, 2003.
12
See Roma Rights, No. 3-4, 2003.
13
RFE-RL Newsline, "Czech Minister: British
Checks Discriminatory", July 27, 2001.
14
RFE-RL Newsline, "Czech Roma Meet with
EC Representative," August 7, 2001.
15
OSI Roundtable, Prague, 22 March 2001.
16
Relevant provision of the Civil Code (the Law No. 40/1964
of the Collection of Laws, as subsequently amended) is Article
11 that reads as follows:
"Every individual (natural person) has the right to protection
of his personhood (personality), in particular his life and
health, civic honour and human dignity, as well as his privacy,
his good name and expression of a personal nature." (official
translation)
17
For further details on the case, see:
http://errc.org/rr_nr4_1999/snap02.shtml.
18
Roma Rights, No. 1-2, 2003.
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