Challenging Discrimination in the Czech Republic

David Strupek, Private Attorney of Law

Most common in the Czech Republic—the cases you are likely to meet in your daily practice—are in particular cases of discrimination in services: in restaurants, cafes and so on. I work with NGOs who contact me with these cases—as a private lawyer I cannot bring them myself. In what follows I will be looking at civil action cases—where plaintiffs have to rely on civil law.

The Czech and Russian states have signed on to most of the same international conventions. In some ways it is better in Russia—there is a special law, and it is possible to bring a class action. In other ways the Czech situation is better—the country preparing to join the EU and must adopt EU directives, notably the Race Directive.

Judges in the Czech Republic are slowly learning what discrimination is. They are not used to learning international conventions. They are not used to listening to international case law, which is not binding (but should be). The system used to be one of “legal dualism”—if the courts found a problem dealing with a part of international law they would have to suspend the case and refer the question to the constitutional court. However, today international treaties are considered to be directly binding in national law.

There is no anti-discrimination legislation in the Czech Republic and no procedure for dealing with cases of the kind where, say, an individual is refused service in a restaurant because of their skin colour. So we have to use certain provisions of the Civil Code—Article 11 includes a broad protection of human dignity (defamation). There is probably something similar in Russian law.

Article 11 requires that you prove a violation of the dignity of the person in other people’s eyes, according to practice, not just in those of the plaintiff. You can receive non-pecuniary damages only in cases where the person’s dignity has been violated to a great extent. The bar is very high. But if you want to have some impact you have to go for financial compensation. Seeking moral satisfaction—where the court orders the defendant to make an apology—is not enough. Unfortunately restaurant owners are not bothered about this; it has little effect. In future we can imagine them keeping a pile of apologies to hand and giving them out the same moment they refuse service to Roma patrons.

Burden of proof
Where there is a prima facie case of differential treatment the reversal of the burden of proof kicks in, as of January 2003. But even this is not easy. If you are in a restaurant, unsuspecting, and are then kicked out you will still be relying on a friendly witness. In the Czech Republic with a public hostile to Roma this is not that likely. So we use the “testing” method.

Testing
The typical testing situation involves a group of Roma and a group of “Whites”. The Roma enter first and are told to leave. Then the whites enter and have no problem ordering and so on. We usually try to have an audio recording of the scene, with a hidden recorder. The law is not clear on whether this is legal, but as long as it is not clear, it is not illegal. One defendant objected once that this was a violation of privacy. We responded that the interaction was not private—it was a public transaction in a public place. This was accepted by the court, but there is no guarantee that it will be again in future. With the existence of an audio recording, the defendants usually don’t deny that the incident took place.

Demonstration of a crime
Call in the police immediately—and get a written version immediately. Offenders are often not able to respond creatively when confronted immediately by the police.

Employment
Testing is difficult to use in employment situations, because the tester does not usually want to take the job. In this case the defendant can usually argue that the tester’s rights were not violated.
A similar argument appears in public accommodation cases, where it is argued that if this was a test the plaintiff didn’t want to get served in the first place—they wanted to be refused! Here we have to refer to the US Supreme Court for an overriding value of dignity and an autonomous right not to be discriminated against.

The Case of Mr Kovac
Mr Kovac was not allowed into a disco in Karlovy Vary. The bouncer at the disco admitted that he had an order from the manager not to allow Roma in and this was recorded. The defendant’s main argument was that the plaintiff was seeking to be refused. Kovac partially lost in regional court, he was awarded with the apology, but not the non-pecuniary damage. The case went to appeal in the high court. There are only two high courts in the Czech Republic and the bench is limited. So this appeal was to provide case law in all other pending cases. Fortunately the court not only accepted the argument but stated clearly that “Race discrimination itself is a violation of personal dignity in the highest degree, and this is true even if it is not evident in the eyes of third persons.” The case was referred back to the regional court to decide the amount of damages: 75,000 CZK ($2500). This is a significant amount in the Czech Republic.

Harassment
Harassment is defined in the EU Race Directive as when “an unwanted conduct related to racial or ethnic origin takes place with the purpose or effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.” There was a case in the Czech Republic of a statue in a mountain restaurant, which had a baseball bat and a sign saying “for use on Gypsies”. Photos were taken and a case was brought to court. But there is no concept of “harassment” in Czech law as yet. And that it wasn’t aimed at any person in particular so couldn’t infringe someone’s dignity. So there are still gaps in Czech law.

Q&A

The following is an example of some of the many questions sparked by David Stupek's presentation

Q: I worked in Czech Republic for two years and know the situation very well. Thank you for helping the Gypsies of the Czech Republic. We have similar problems here. But in the Czech Republic when you call the police, the police are on the side of the Gypsies and record everything. Skinheads are a big problem in the Czech Republic—we know that it is extremely difficult to obtain a ruling of racial motivation in murders and assaults in the Czech Republic. But here in Russia, police officers arrest people for being Gypsies. Or they say—there is a case like this going on at the moment—“open your bag, we are putting drugs in it.” And they do it, and then begin bargaining. People complain to the police but they do nothing, nothing happens.

DS: The Czech police are far from favouring Roma—but they are aware of how far they can go. And if there are NGOs or members of the public present they are very careful.

We welcome your comments