Romani men in black suits: racism in the criminal justice system in the Czech Republic

10 April 2001

Barbora Bukovská (Kvočeková)¹

“Question: what do you call a Romani man in a black suit and white shirt"
Answer: defendant, please rise!“

Judge of the District Court of Prague 7

• In April 1999, D.B., a male Romani teenager, was walking near a construction site in Ostrava, eastern Czech Republic. The construction site was not guarded and not fenced off, and according to witnesses a number of other people were at the same place at the same time as D.B. However, D.B. was approached by an off-duty police officer who drew his gun and pointed it at him, and then threw him to the ground, screaming at him. D.B. was eventually handcuffed and arrested for attempting to steal metal tins from the construction site. Although there was no proof whatsoever that D.B. attempted even to enter the construction site and there was no damage caused, he was sentenced by the District Court by a penal order to imprisonment of 13 months.² 
• During the same month, in the centre of Prague, Mr P.H., a Romani man in his forties, was attacked by a group of skinheads in front of a cafe. He was injured and in self-defence stabbed one of the attackers. After a police patrol arrived at the scene of the crime, they immediately arrested Mr P.H. and charged him with injury to health.³ The attack on Mr P.H. was never investigated, despite a number of criminal complaints on behalf of the victim.
• In June 2000, the Czech government issued a decree of forced administration on one of the main banks in the Czech Republic. Among the reasons that led to the resolution was that the bank almost closed due to the wrongful administration of loans to and investments in enterprises in which board members and various other people including governmental officials had a stake. The bank had provided loans to two main political parties (the Civil Democratic Party and the Social Democratic Party) which, in contrast with other credit recipients, were not required to guarantee loans by real estate or any other collateral. State action to cover bank debts and prevent massive losses to individual savings cost more than 40 billion Czech crowns (approximately 1.15 billion euros) which will have to be reimbursed from the state budget. This means that every single taxpayer will contribute to the rescue action a sum of approximately 20,000 Czech crowns (approximately 580 euros). So far, there has not been any serious criminal investigation into the actions of perpetrators and no one has been arrested or indicted.

Each incident described above, in its own way, is an example of the misuse of discretion in the criminal justice system. Few would doubt that the Romani origin of the teenager at the construction site played a significant role in the police officer’s decision to stop and question him. The second example involved an actual crime, but the police officers exercised their discretion not to arrest the white perpetrators. The third example shows that so-called “white collar" crimes rarely result in arrest, although the damage caused and the danger to society is disproportionately higher compared to petty crimes, which are often investigated without hesitation.

The changes in political climate and possibilities for development of a free market in the Czech Republic after the fall of communism were accompanied by a rise in crime. From 1989 to 1990, crime in the Czech Republic rose 52 percent. In Prague, the crime rate rose 181 percent. The increase has continued. From 1977 to 1997, criminal activity increased four times. The number of prosecuted offenders grew 62% during this same period. Television and newspaper reports attributed this crime wave to Roma. Indeed, especially in the context of discussions about the division of Czechoslovakia on January 1, 1993, during which fears were expressed that Roma from Slovakia might move to the Czech Republic in large numbers, the popular assertion was that most crime in the Czech Republic is committed by the Roma. Then-MP Miroslav Sladek stated in the course of parliamentary debate that Roma were “criminals who are getting rich through thievery and prostitution."

 

In the Czech Republic, Roma enter the criminal justice system in a disproportionate number to their percentage in the general population.⁴ Several explanations have been offered for such disparities. The first is the racist claim that Roma and similarly situated minorities are more likely to commit crimes.⁵ Another explanation is that they are victims of economic discrimination that may result in a higher rate of so-called “crimes of survival", for example petty theft. This explanation additionally focused on the observation that minorities defendants, who are often poor, frequently do not hire a private attorney or cannot afford to pay bail in order to be released prior to trial. The third explanation is that minorities are victims of racism and discrimination and that there is prejudice against them at various stages of the criminal justice process.⁶ This article supplies a brief sketch of the problem and explores its legal context, based on my experience as a practicing attorney in the Czech Republic. 

Identification and proof of racial discrimination

When discussing racial discrimination and criminal justice, one is confronted with the problem of identification of discrimination, because the very nature of criminal law enforcement involves differentiating fundamentally. Due to differences in the characteristics of criminal acts and criminal offenders, differential treatment appears to be an inevitable aspect of a criminal justice system. Criminal law enforcement authorities are endowed with the discretion to consider all relevant circumstances of individual criminal behaviour, and to shape their decisions to fit individuals and their crimes. Thus, many differences between individual occurrences of one type of decision (for example to detain or to impose a certain sentence), can be explained by legitimate factors — such as the type and seriousness of crime, its danger to society, the offender’s age, motivation, prior criminal record and other factors. This discretion is checked, however, by numerous constitutional protections which afford criminal defendants the right to a fair trial and equal protection of the laws. The authorities must take only relevant considerations into account and their acts must not be based on any prejudice or bias. The key is to determine whether criminal justice authorities exercise their discretion in a race-neutral manner.

The problem of demonstrating racial discrimination in the criminal justice system is a great challenge for researchers and human rights activists as with some notable exceptions, most racist behaviour today is not openly expressed. If criminal law officials always expressed their racist views as openly as in the following case, it would be easy to identify and label the invidious nature of their actions:

“…The rehabilitation [of the defendant] is problematic because of his identification with the value system of the criminal Romani subculture and because he does not have even basic working habits. In the light of these circumstances, I impose a sentence on the defendant in the upper level of possible sentences, an unsuspended imprisonment of fourteen years… “⁷

More significantly, some racist acts are committed unconsciously or is otherwise not overt. However, unconscious and other forms of hidden racism, although arguably less offensive than purposeful discrimination, are no less harmful. They are, in fact, in many ways more pernicious because they are often unrecognisable to the victim as well as to the perpetrator. Nevertheless, unconscious bias can lead to a state in which seemingly neutral practices have a disparate impact on minority groups. For example, one on-going study in the Czech Republic, the “Roma Rights: The First Step" Project, has shown that the majority of Romani defendants were informed at the time of their first interrogation that they would be given an opportunity to study their files at a certain time after arrest.⁸ In the above-described case of P.H., his interrogation protocol, signed within two hours after the arrest, includes the following sentence: “I have been informed that I may study the investigation file on [a date two months later] at 9:00 AM, in the secretariat on the third floor of the Investigator’s Office for Praha 1, Bartolomějská street no. 7." This practice should be considered a violation of the presumption of innocence, since according to paragraph 166 of the Czech Criminal Procedure Code⁹ the act of “studying the file" refers to the opportunity afforded to the accused and his attorney to view the contents of the file after the investigation has been completed. This means that investigators were confident only hours into the investigation that a solid case against defendants would eventually be assembled — and that they assumed this before hearing any of the witnesses, before collecting material evidence, before receiving expert opinions, etc. At the same time, investigators or prosecutors very often make reference to the personality of a defendant that could identify him as Romani, for example by noting that he finished a remedial special school for the mentally handicapped and/or lives in a “socially disadvantaged community". They generally do not make such references in cases pertaining to non-Roma.¹⁰

Proof of systemic discrimination can be obtained by collecting data and subjecting it to appropriate statistical analysis. Racial impact studies are necessary in order to reveal illegitimate differential treatment based on racism or ethnic bias, either conscious or unconscious. Examples include surveys in the USA on the imposition of the death penalty. Although studies have found that African Americans were more likely to receive the death penalty, the best of such research has not simply concluded that, for example, “the population of this state is 12% black, 50% of death penalties are against blacks, therefore there is a racial bias in death sentencing." Rather, recognising the validity of discretion in the criminal justice system, such studies have been more nuanced. A study conducted in the state of Georgia in 1970s by law professors David Baldus, Charles Pulaski, and George Woodworth of the University of Iowa¹¹ examined over 2000 murder cases that occurred in Georgia from 1973 through 1979. The Georgia Department of Pardons and Paroles and other state agencies provided Baldus and his colleagues with police reports, parole board records, prison files and other items that shed light on the process by which state authorities handled murder cases. Professor Baldus and his colleagues subjected these data to extensive analysis, considering 230 variables that could have explained the imposition of the death penalty including age, level of education, criminal record, military record, method of killing, motive for killing, relationship of defendant to victim, strength of evidence, and so forth. Among them, the race of the victim emerged as the most consistent and powerful factor in the decision to impose the death penalty. They discovered that there was a high correlation between the race of the victim and both prosecutors’ decisions to seek the death penalty and decisions by juries to impose it. Defendants charged with killing white victims were 4.3 times more likely to be sentenced to death than defendants charged with killing black victims. Black defendants were 1.1 times more likely to receive the death penalty than white defendants. The study concluded that there existed “the likelihood of substantial disparities in the imposition of the death penalty depending on the victim’s race, and smaller disparities associated with the defendant’s race."¹²

 

The “First Step Project" in the Czech Republic — a similar study — uses pair-sample methodology in cases concerning Roma and non-Roma.¹³ The preliminary results of the project show that, for example, male Romani defendants in identical positions to non-Romani defendants (meaning defendants of similar age, similar background, alleged to have committed similar crimes, etc.)receive disproportionately longer sentences than their non-Romani counterparts. For example, for the crime of attacking a public official (Article 155, paragraph 1 of the Criminal Code, further only “CC"), male Romani defendants receive on average 8.2 months longer imprisonment than non-Romani defendants; for drug trafficking (Article 187, paragraph 1 of the CC) the disparity is 6.5 months; for murder (Article 219, paragraph 1 of the CC) 12.9 months; and for robbery (Article 234, paragraph 1 of the CC) 17.1 months. Also, female Romani defendants were identified as receiving on average 13.1 months longer imprisonment sentences for theft (Article 247 of the CC) than non-Romani women. Preliminary results of the First Step Project are presented in the tables throughout this article.

 

Strategies to combat discrimination in the criminal justice system

Even if racial impact studies reveal illegitimate differential treatment based on racial bias — conscious or unconscious —, the problem remains how to respond to the situation. For several reasons, racial inequality in the criminal justice system cannot be eradicated easily. First of all, as already mentioned, very rarely is there overt racial discrimination in criminal law practice. More commonly, a whole complex of laws, policies, priorities and practices interacts to produce racially influenced outcomes. The second problem is that efforts to reform criminal justice policies are politically unpopular — no politician wants to be labelled "soft on crime" — and measures to make crime policy more rational and equitable are uniquely susceptible to demagogy. 

 

A comprehensive programme of action will be needed to combat discrimination in the criminal justice system. As racial disparity begins with discretionary decisions by criminal law authorities, remedies should begin there. If it is proven that the exercise of this discretion has a disproportionate impact on Roma, it should be subjected to public scrutiny and change needs to be sought. Some possible approaches to begin to combat the marked racial disparities in the criminal justice system follow.

a) Racial impact studies and their publication

As a necessary step towards the creation of workable remedies is recognition of the problem and identification of its extent and dimensions, the government should be encouraged to collect data from criminal law enforcement authorities regarding investigation, charging and sentencing practices and the racial impact of those practices. These studies should not only determine whether Romani offenders receive harsher treatment than non-Romani offenders for the same criminal behaviour, but should also demonstrate whether cases involving non-Romani victims were prosecuted more vigorously than cases involving Romani victims. The data should also indicate whether similarly-situated defendants and victims of different ethnic origin are treated the same at each step of the process.

In England, concern about findings of racial impact studies¹⁴ led to the inclusion in the Criminal Justice Act in 1991 of section 95, which requires the Home Secretary to publish annually information which will help “persons engaged in the administration of criminal justice" to perform “their duty to avoid discriminating against any persons on the ground of race or sex or any other improper ground." The section is important not only because it requires the Home Secretary to publish information about race and criminal justice, but also because it is the first explicit recognition in statute law of the existence of a duty to avoid discrimination. Since the implementation of section 95 of the Criminal Justice Act 1991, the agencies involved in the criminal justice process have taken a series of steps to institute racial monitoring of their decisions. The aim is to put in place a monitoring system that will make possible to track a defendant’s progress through the criminal justice system. For example:

• The police are required to conduct ethnic monitoring of stops and searches. In April 1996, ethnic monitoring was also extended in all police force areas to arrests, cautions, stop and search, and homicide;
• The Crown Prosecution Service (the CPS) has drawn up a sample monitoring scheme for the year 1996-97 involving the random sampling of some 4000 cases. The exercise monitored differences in prosecutorial recommendations on bail and detention with respect to defendants of different race/ethnicity. It also, for certain offences, monitored changes in the qualification of an offence to another type of offence, decisions to forward the case to a trial hearing, and rates of conviction. 

 

• A national system for race and ethnic monitoring was introduced in the probation service in 1992. It currently extends to pre-sentence reports, probation, community service and combination orders, and bail information schemes.¹⁵

The findings of these racial impact studies can serve a number of purposes through publication. In general, these surveys can reveal whether and to what extent differential treatment of similarly situated offenders exists. Publication can also inform the public about the existence of prejudice and bias and about the impact of policies and practices. It can serve a valuable social function even if such studies merely substantiate or reject pre-existing perceptions of unfairness. In any case, surveys can provide the public with a window through which they can view criminal procedure organs as they make their decisions and enforce the law.

However, it should not be assumed that publication of such studies would necessarily constitute a benefit. Securing government co-operation in such a project might be a pyrrhic victory. Surveys may be also used (or abused) to reinforce the view that Roma are more likely to commit certain crimes than non-Roma or commit them more often. Racist police officers, prosecutors or judges who arrest, charge and sentence Roma disproportionately, might find it easier to believe that Roma are more likely to lie, more likely to be dangerous, or are more crime-prone than others, and might take their decisions to arrest or charge accordingly.

Law enforcement agencies might also object to racial impact studies and their publication as a significant interference with their duties. They could argue that the studies suggest not to prosecute crime where Roma are involved or not to punish them. Similarly, judges may accuse proponents of the active use of such studies of interfering with their independence as granted by the Constitution.

Such concerns notwithstanding, these authorities are obliged to respect human rights in the course of their duties, and to avoid anything which would erode the confidence of society in their impartiality and fairness. It must therefore be stressed that the goal of such studies is not to curtail appropriate and fair law enforcement, but to disclose practices that are unfair and discriminatory. The hope is that remedies will then be found that will lead to the total elimination of these practices. Moreover, if the authority of the judicial system rests on confidence and respect from all sections of society, Roma in particular will correctly expect a positive response to such studies, which should help to build that confidence and that respect. As Lord Elton, a former Conservative Home Office Minister, said in a House of Lords debate in 1991:

The fabric of our society is only sustainable if the mass of society consents to the criteria on which justice is administered. If a particular discrete, identifiable and self-identifiable sector of that society believes that there is a system of justice which is just for other people but not just for them, whether or not that belief is well founded, the effects upon our society as a whole will be very damaging because these people will see the judicial system not as a means of maintaining law and order but as a means of keeping “them" down and us up. This is a recipe for internecine warfare and is very dangerous.¹⁶

Discussions surrounding the importance of data collection should be guided by the prescription of a set of potential uses that a survey might facilitate. One possible response to the dilemma over the possible problems and misuse might be to note that such data collection is a tool for implementing the equality of all citizens. It should be stressed that such inquiries would be made for the sake of the minority as a whole, and thereby for each member of the minority.

b) Litigation

In the United States, studies and statistical data on racial inequities have helped criminal defendants in proving racial discrimination in the courts through litigation. This litigation has primarily focused on the interpretation of several constitutional rules: fair trial, prohibition of intentional discrimination, prohibition of cruel and unusual punishment, and protection against unreasonable searches and seizures. The case that gained most attention in this regard was the McCleskey v. Kemp case.¹⁷

Warren McCleskey was a young African-American defendant, who was convicted in 1978 in Fulton County, Georgia, of robbing a furniture store and killing a white police officer. A jury composed of eleven whites and one black sentenced him to life imprisonment for the robbery and imposed the death penalty for the murder.¹⁸ In his defence, McCleskey claimed that Georgia’s capital sentencing system was administrated in a racially discriminatory manner. He argued that imposition of the death penalty in his case should be struck down, because among other things, there existed a constitutionally impermissible risk that both his race and the race of his victim played a significant role in the decision to sentence him to death. As the most important evidence, McCleskey offered the highly sophisticated statistical study by Professor Baldus and others, mentioned above, comprehensively analysing the racial demographics of capital sentencing in Georgia. Based on this study, McCleskey claimed that Georgia had denied him equal protection of the law, in violation of the Fourteenth Amendment, because it had discriminated against him based on his own race and on the race of his victim.¹⁹ The Supreme Court rejected McCleskey’s arguments in a five to four decision holding that statistical proof of discriminatory impact is insufficient to overturn a death sentence. Citing another of its decisions,²⁰ the Court reiterated its often-held view that proof of discriminatory purpose is required in claims under the Equal Protection Clause of the Fourteenth Amendment. Despite rejecting McCleskey’s argument, the Court accepted the accuracy and reliability of the Baldus study. The court stated that the statistics demonstrate that “there is a race-of-the-victim relationship with the imposition of the death sentence discernible in enough cases to be statistically significant in the system as whole."²¹

The Court’s decision was immediately subjected to sharp criticism, including from some of its own members, mostly because of the Court’s fear that a favourable ruling in McCleskey would open the door to claims of discrimination in other types of criminal sentencing cases or claims based on other factors such as membership in other minority groups and even gender. Justice Brennan characterised the decision as a “complete abdication of our judicial role" and stated that the decision revealed a “fear of too much justice."²² One author, writing in the Harvard Law Review, described the decision as “logically unsound, morally reprehensible and legally insupportable."²³

 

More successful litigation in the United Stated has been litigation challenging discriminatory practices in earlier stages of the criminal procedure. Various studies show that police officers disproportionately stop and detain African Americans and Hispanics.²⁴ The question of constitutionality²⁵ of these stops was addressed by the Supreme Court in 1996, in the case of Whren v. United States.²⁶ In Whren v. United States, a truck, driven by one of the defendants, was stopped by plainclothes policemen patrolling in a “high crime area" after waiting at a stop sign at an intersection for an unusually long time. Upon approaching the car, the police officers observed a plastic bag with an illicit drug in another defendant’s hands. They were arrested and convicted of drug offences. At pre-trial hearing, they challenged the legality of the stop and resulting seizure of the drugs. They argued that the stop was pre-textual, i.e., that the subjective motivation of the officers in carrying out the stop had been to investigate a non-traffic crime for which they lack the required probable cause or reasonable suspicion. The Court acknowledged that in pre-textual stops there might be a danger of racial discrimination; and the Court held that if the police stopped only black motorists they would violate the Constitution.²⁷

Romani defendants in the Czech Republic should attempt to address discrimination in court in a similarly systematic way. For example, defendants can base their claims to the right to trial by an impartial tribunal pursuant to Article 6 of the European Convention on Human Rights (ECHR), in which impartiality means lack of “prejudice or bias". To satisfy the requirement of impartiality, both a subjective and an objective test measure the tribunal’s actions.²⁸ In the subjective test, the defendant would have to prove that a member of the court acted with personal bias against him (these can be concluded from the judge’s behaviour, remarks toward the defendant and the like). In the objective test, impartiality is comparable to the English law doctrine “justice must not only be done: it must also be seen to be done." As the Court has stated: “[w]hat is at stake is the confidence which the courts in a democratic society must inspire in the public and above all, as far as criminal proceedings are concerned, in the accused."²⁹ In applying the test, the opinion of the party alleging bias is important but not decisive³⁰; what is crucial is whether the doubt as to impartiality can be “objectively justified."³¹

c) Legislation

A legislative response to Mc.Cleskey v. Kemp was the proposal termed Racial Justice Act³² that was first introduced in the U.S. House of Representatives in 1988 by Representative John Conyers of Michigan but was not passed. Subsequently, a version of the Racial Justice Act passed the House of Representatives in 1990 as part of the Comprehensive Crime Control Act of 1990,³³ but was dropped during debate in the Senate. It was introduced in the Senate³⁴ and the House³⁵ in 1991 and defeated in both chambers.³⁶ The Racial Justice Act was again passed by the House in 1994,³⁷ by a vote of 217-212, but it eventually died in the course ofa much publicised national debate over President Clinton’s crime bill.³⁸

One of the aims of the Racial Justice Act, in its several different versions, would have been to permit people sentenced to death to challenge those sentences using the kind of statistical proof of racial discrimination contained in the Baldus study.³⁹ It attempted to secure that “[e]vidence relevant to establish an inference that race was the basis of a death sentence may include evidence that death sentences were ... being imposed significantly more frequently ... upon persons of one race than upon persons of another race."⁴⁰ Although the Act was not passed, the fact of its proposal signals an important step towards legislative solution of the problem of racial discrimination in access to justice. It is necessary and possible to guarantee racial equality specifically in criminal law and to declare that no person shall be executed pursuant to a sentence that was imposed based on race.

d) Improvement of legal defense system

Another possible strategy is an improvement of the quality of the legal defence system in criminal cases to indigent offenders. Many of the racial disparities in the criminal process could be often remedied through better performance by legal defence attorneys. Unfortunately, due to low income and lower legal awareness, the majority of Romani defendants in the Czech Republic, as well as in other countries in Central and Eastern Europe, depend on defence attorneys appointed by the state. At the same time, many lawyers who represent Roma in criminal cases perceive Roma as living on crime and thus believe that prison is where Roma should be kept. Such prejudice hinders the defence of Roma and increases the probability that Roma will be prosecuted and sentenced harshly. It is true that Roma are not often formally denied legal representation at trial or at any of the other critical stages in the criminal process. However, questions have been raised about the quality of legal representation provided to indigent Romani defendants by state appointed attorneys. In the Czech Republic, improvement of the situation would require modification of the existing system of ex officio legal representation in a way that would at very least limit the personal preferences of judges in the appointment of legal representative and assure quality access to legal aid for indigents.

e) Education and diversity

The programme to combat racial inequities in criminal justice must include appropriate training for decision makers in the criminal justice process — both anti-discrimination training and training in rigorous structured decision making.

Finally, it is a serious problem that although Roma are often over-represented among those dealt with by the criminal justice process, they are dramatically underrepresented among the staff of most criminal justice agencies and much hostility can be traced to this fact. Criminal law agencies are often seen as a force against rather than a service to the community, and the veritable absence of Roma among the ranks of law enforcement officials increases the distrust of Roma towards the system as a whole. If people believe that justice and fair treatment are not “on offer" for them, this may influence their attitudes and approach to the institutions of justice. They may also expect to encounter ignorance about their own cultures and backgrounds or stereotypical assumptions. Serious attention should therefore also be paid to efforts to recruit and retain Romani staff in criminal law enforcement authorities. Diversity will most certainly require some sort of affirmative action. The government should include minority recruitment and hiring practices in its crime prevention policy and provide adequate funding for such programs.

Conclusion

The system by which violators of the law are apprehended and punished is one of the pillars of any democracy. But for that system to remain consistent with constitutional guarantees of equal treatment under the law, the public must be confident that at every stage of the process — from the initial investigation of a crime to the prosecution and punishment of that crime by prosecutors and judges — individuals in like circumstances are treated alike. Racial disparities affect both innocent and guilty minority citizens. There is obvious reason to be outraged by the fact that innocent Roma are detained by the police far more than non-Roma. But there must also be outrage about the disparate treatment of Roma who have violated the law. A defendant is entitled to many civil rights upon conviction and equal protection of the laws is one of them. Thus, there should be similar outrage and it is an affront to society as a whole when a minority defendant, even a guilty one, is treated unfairly by the police, or by prosecutors, or at sentencing, because of his race or ethnicity.

 

Too often the public has been content to believe that bias and prejudice towards Roma does not exist in the sacred sphere of court rooms. Criticism directed towards actors within the system is often refused as an attack on the independence of the judiciary. I believe that most police officers, prosecutors or judges would vehemently deny that they have ever discriminated against minority defendants or that they take Romani ethnicity into account in any way in the exercise of their duties. They would most likely state that they reach their decisions utilizing facts, evidence and highly constrained legal criteria.

Ignoring injustice will not make it go away. All of us — judges, prosecutors, lawyers, representatives of non-governmental organisations and the public at large — have an enormous stake in the proper functioning of the justice system. If the problem is that some of the decisions in criminal justice are products of bias against certain groups within the population, we should fight it. If such decisions are prejudice-free, we should monitor official behaviour to ensure that it stays that way. The Czech government is presently making serious and concerted efforts to reduce crime. It is important to recognise that one explanation for the presence of so many defendants from one group of the general population prosecuted and in prisons is that the modus vivendi of the criminal justice system has driven them there. Efforts to reduce crime in ways that ignore the problem of racial discrimination cannot be effective. Crime prevention programs should include recognising injustice, racial bias and prejudice and bias in the system and should initiate corrective measures to fight crime and discrimination simultaneously.

Endnotes:

1. Barbora Bukovská (Kvočeková) is a staff attorney for the Prague-based human rights organization Counselling Centre for Citizenship, Civil and Human Rights.
2. Documentation on the case is available from the non-governmental organization Councelling Centre for Citizenship, Civil and Human Rights, Prague. E-mail: poradna@poradna-prava.cz. Internet: http://www.poradna-prava.cz. This article does not address the complex issues surrounding Roma and statistics, such as whether the state should gather race-based statistics and, if so, who should be considered Romani.
3. Ibid.
4. The Council on Nationalities of the Czech Government 1997 “Report on the Situation of the Romany Community in the Czech Republic and Government Measures Assisting its Integration into Society,” which later became known as the “Bratinka Report”, stated that this disparity is partly due to the discrimination Roma face: “[one a]rea in which the relations between the Romany minority and the majority deteriorate is people’s behavior in daily life, based on generalized prejudices, more or less covert expressions of discrimination, also from companies and institutions...” (“Report on the Situation of the Romany Community in the Czech Republic and Government Measures Assisting its Integration in Society”, Special Part, 1997). In the view of the authors of the Bratinka Report: “[The] seriousness of the problems connected with the Romani community comes primarily from the fact that a significant portion of the Romani minority in the Czech Republic belongs to the lowest social level, with high unemployment, a low level of education, and, compared to the total population, a disproportionately high crime rate” (Ibid). The Council also found that the Roma believe that “they do indeed receive disadvantageous treatment at the hands of the state authorities which indirectly strengthens the Roma’s mistrust of the majority population and its institutions, and further contributes to the tension between the Czech Republic’s two population groups” (Ibid.).
5. See, for example, Piatt, Bill, Only English?: Law and Language Policy in the United States 1979-1993, 1999, p.159. Piatt reinforces a racist stereotype commonly applied to immigrants and other marginalized groups: because ethnic and linguistic minorities are more likely to commit crimes and/or otherwise disrupt society, they should be feared by the dominant-language speakers and suppressed within the dominant culture. According to Piatt, people, particularly children who are denied the right to view the world through their language and culture, are made to feel inferior, and they react negatively “by engaging in criminal, anti-social, or self-destructive conduct.”
6. On racial prejudice and discrimination in the U.S. context, see especially Walker, Samuel, The Color of Justice: Race, Ethnicity and Crime in America , 2d ed. 2000, p.154).
7. Decision No. 7 To 35/97 of the Upper Court in Prague (Vrchní soud v Praze) from November 19, 1997, p.29.
8. “Roma Rights: the First Step” Project of Tolerance and Civil Society, a non-governmental organization based in Prague. The project, supported by the Open Society Fund Prague, aimed to gather preliminary data on disparate treatment of Romani defendants in the criminal justice system in the Czech Republic. The project was launched in December 1999 and has since been merged with the NGO Counselling Centre for Citizenship, Civil and Human Rights. The report on the Project results, When Justice Becomes Injustice, is forthcoming and will be available from poradna@poradna-prava.cz.
9. Article 166 of the Criminal Procedure Code, the Law No. 141/1961 of the Collection of Laws as amended, reads as follows: 
   Terminating Investigation
   1) If the investigator believes that the investigation is over and its results are sufficient for lodging indictment, he shall make it possible for the accused person and his lawyer to study the files for a reasonable time and to make proposals for additional investigation. The investigator shall inform the accused person and his lawyer at least three days in advance. This time period can be shortened upon the consent of the accused person and his lawyer. If the investigator does not believe that the proposed additional investigation is necessary, he shall refuse it. The investigator shall record these operations in the file and he shall inform the accused person and his lawyer on additional investigation refusal.
   2) If the accused person or his lawyer do not take advantage of studying the files although they were duly instructed about this possibility, the investigator shall record this in the file and he shall continue as if this operation was performed.
   3) After terminating investigation the investigator shall present to the state’s attorney the file together with the indictment proposal, the list of proposed evidence and the reasoning of why he did not agree with presenting additional evidence or he shall make a decision pursuant to Article 171 through 173. (Translation by the author)
10. Unpublished report of the Tolerance Foundation’s “Fair Trial Project”, 1998.
11. 10 Baldus, David, Charles Pulaski and George Woodworth, Equal Justice and the Death Penalty: A Legal and Empirical Analysis, 1991.
12. Ibid.
13. Pair-sample methodology utilizes a small sample base, and aims to scrutinize factually similar cases involving one member of a subject group and one member of a control group.
14. For example, the 1991 study Race and Criminal Justice by the National Association for the Care and Resettlement of Offenders (NACRO Briefing No. 77) and the subsequent report Race Policies into Action published by NACRO’s Race Issues Advisory Committee in 1992; see also Hood, Dr Roger, Race and Sentencing: A Study in the Crown Court, Oxford: Clarendon Press, 1991 and Commission for Racial Equality, “A Question of Judgement: Summary of Race and Sentencing”, 1992.
15. Penal Affairs Consortium, Race and Criminal Justice, London: Penal Affairs Consortium, September 1996.
16. Lord Elton, a House of Lords debate on March 21, 1991, on the Internet at: http://www.lawcom.gov.uk/library.
17. 481 U.S. 279, 107 S. Ct. 1756 (1987).
18. Ibid.
19. Ibid. at 287 n.5
20. Supreme Court decision in Arlington Heights v. Metropolitan Housing Development Corp., 429 U.S. 252, 1977 (rejecting claim that the racially discriminatory impact of refusal to rezone tract from single-family to multi-family housing constituted a violation of the Equal Protection Clause).
21. Ibid., at 312.
22. Ibid., Brennan J. dissenting.
23. Schoeman, Paul, “Easing the Fear of Too Much Justice: A Compromise Proposal to Revise the Racial Justice Act”, 30 Harvard Civil Rights - Civil Liberties Law Review 543 (Summer 1995).
24. For example, investigation into the work of the “Selective Enforcement Team” of the Volusia County, Florida, sheriff’s office and the Maryland State Police, found that although the vast majority of drivers on Interstate 95 in Volusia County were white, almost seventy percent of the motorists stopped were black or Hispanic. In light of the fact that only nine of the over one thousand drivers stopped were ever given traffic tickets, that only fifty-five drivers were arrested for some other offense, and that only 15.1% of the drivers convicted of traffic offenses in Florida were black, it was concluded that the traffic stops were pre-textual in two senses: first, the police were stopping the cars not for traffic violations but to investigate unrelated crime; second, they were choosing which cars to stop at least in part on the basis of race (See Harris, David A., “Factors for Reasonable Suspicion: When Black and Poor Means Stopped and Frisked”, 69 Indiana Law Journal 175 (Summer 1994).
25. This practice is an alleged violation of the Fourth Amendment of the US Constitution which guarantees “[t]he right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures”. Temporary detention of individuals during the stop of an automobile by the police, even if only for a brief period and for a limited purpose, constitutes a “seizure” of “persons” within the meaning of these provisions.
26. 517 U.S. 806, 116 S.Ct. 1769 (1996).
27. Ibid.
28. See Harris, D.J. et al, Law of the European Convention on Human Rights, London: Butterworths 1995. An impartial tribunal: “The existence of impartiality for the purpose of Article 6(1) must be determined according to a subjective test, that is on basis of the personal conviction of a particular judge in a given case, and also according to an objective test, that is ascertaining whether the judge offered guarantees sufficient to exclude any legitimate doubt in this respect.” The test was first adopted in Piersack v. Belgium A 53 (1982).
29. Fey v. Austria A 255-A para 30 (1993).
30. See D.J. Harris et al., Op. cit., p. 235
31. Hauschildt v. Denmark A 154 para 46 (1989).
32. H.R. 4442, 100th Cong., 2d Sess. (1988). For remarks of Representative Conyers on introducing the bill, see 134 CONG. REC. E1174 (daily ed. Apr. 21, 1988).
33. H.R. 5269, 101st Cong., 2d Sess. (1990).
34. H.R. 1249, 102d Cong., 1st Sess. (1991).
35. H.R. 2851, 102d Cong., 1st Sess. (1991). In this bill, the proposal was renamed the “Fairness in Death Sentencing Act.”
36. See 137 CONG. REC. S8300 (daily ed. June 20, 1991); Clifford Krauss, “House Approves Anti-Crime Bill with Something for Both Camps”, New York Times, Oct. 23, 1991, at A1, A18.
37. H.R. 4017, 103d Cong., 2d Sess. (1994). This version of the RJA was exactly the same as the proposal contained in the 1991 House bill.
38. Bendavid, Naftali, “Black Lawmakers Hold Balance on Crime; Legislative Endgame Reveals Caucus’s Power, Divisions”, Legal Times, Aug. 22, 1994, p.1; Berkman, Harvey, “Race and Death Stymie Crime Bill”, National Law Journal, August. 1, 1994, p.A11.
39. “[t]o assure due process and equal protection of the law by permitting the use of statistical and other evidence to challenge the death penalty on the grounds of disproportionate patterns of imposition with respect to racial groups, to prohibit such patterns, and for other purposes.” H.R. 3329, 103d Cong., 1st Sess. (1993).
40. Ibid.