Response of the Czech Government Commissioner for Human Rights to ERRC Action on Coercive Sterilisations of Romani Women in the Czech Republic

15 December 2004

The ERRC was approached by the Czech Ministry of Foreign Affairs, requesting that we publish a text by Mr Jan Jařab, outgoing Czech Government Commissioner for Human Rights, a response to an item appearing in Roma Rights 2/2004 (“UN Committee against Torture Urges the Czech Republic to Investigate Alleged Coercive Sterilisation of Romani Women”, on the Internet at: http://www.errc.org/cikk.php?cikk=1988). Because the text did not come from Mr Jařab himself, but appeared to be authored by him, the ERRC requested confirmation from Mr Jařab that he indeed wished to see the text submitted published in Roma Rights. Mr Jařab requested that the ERRC print an amended version of the text originally sent by the Czech Foreign Ministry. The amended version submitted by Commissioner Jařab, unedited or abridged, follows:

Czech Republic is Determined Not to Tolerate Coercive Sterilisations

The Czech Republic has been criticised for more than two years by the European Roma Rights Center (ERRC) for “continuing involuntary sterilisations of Roma women in the Czech Republic” at every imaginable international forum. Since the claim was first publicly made, the Czech Republic – represented in particular by myself, as the Government Commissioner for Human Rights – has been politely  asking the ERRC to provide Czech authorities (i.e., above all the Ombudsman) with information which could lead to a full, adequate and independent investigation of cases of women who claim that they were sterilised without informed consent. Until recently, all our efforts were in vain. Representatives of the ERRC continued repeating their claims without providing any information about the identity of the victims of involuntary sterilisation.

In informal conversations, the representatives of the ERRC made assurances that they trusted the Czech Ombudsman and that they would soon reveal the identity of the alleged victims, so as to enable proper investigations, but they repeatedly failed to do so. Earlier this year, the ERRC supplied several names – without addresses or any further identification or specific information about the case, or indeed a consent of the woman in question – to the Ombudsman´s office.

In September 2004, ten individual cases were finally presented start to the Ombudsman. This move is most welcome, as it enables independent investigation of the cases. It is obvious that action on part of the Ombudsman could have taken place much earlier and that repeated accusations made by the ERRC over the period of two years (against the lack of action on part of the Czech Republic) were unfair. Clearly, the delays in investigation of these complaints were by no means caused by the authorities of the Czech Republic, who simply did not have anything to investigate.

For any final judgement on the problem, it is now necessary to wait for the outcome of the Ombudsman´s investigation. However, as several cases were also presented in the media, it appears that there have indeed been cases in the 1990s where sterilisation was performed in violation of binding legislation by individual doctors and hospitals. The Czech Republic does NOT carry out any policy of coercive sterilisations towards anyone, and it does NOT continue the attempts of the Communist regime to regulate Romany birth-rates. It is also determined not to tolerate such violations on an individual basis, and to hold those who have committed them responsible for their actions.

Finally, the Czech Republic recognises there is a systemic aspect of the problem. This, however, does not lie in any anti-Romany legislation or policy, but in a deficiency of the legislation regulating “consent” as a legal category in medical care. Although a new draft Medical Care Act defines consent as free, informed and qualified, it has not yet been passed by Parliament, and the existing legislation does not include such a specification of consent, which allows for a rather formal interpretation of the term. The Czech Government is determined to push the new legislation forward as soon as possible.

Jan Jařab
(outgoing) Government Commissioner for Human Rights

The ERRC responds:

The ERRC welcomes Commissioner Jařab’s public affirmation of the Czech government’s position, as well as his determination to see amended legislation on patients rights ratified by parliament.

The ERRC first made public the results of its research concerning allegations of coercive sterilisations of Romani women in the Czech Republic (as well as in Slovakia and Hungary) in April 2003, at an OSCE meeting in Vienna. However, long before this date, the burden of action for investigating the matter and  roviding justice to victims has resided with the Czech authorities. Under Communism, the Czech dissident group Charter 77 called attention to policies of coercive sterilisation of Romani women. A dissident report in the late 1980s, never published but widely circulated, documented the practice extensively. The authors of the report filed complaints with the Czech prosecutor in 1991, but never received an answer to those complaints; only after inquiry did they discovered they had been dismissed. A 1992 report by Helsinki Watch (now Human Rights Watch) documented the issue extensively and urged the Czech authorities to provide justice to victims.¹ No such justice has been forthcoming.

In publishing the findings of our research and appealing to Czech authorities to investigate, we have protected the confidentiality of our interlocutors – Romani victims of these practices. In respecting the confidentiality in which information was provided to the ERRC, we have acted according to legitimate and well-established principles of independent human rights research.

In light of the above, it has never been the obligation of the ERRC to undertake the work of the Czech government in ascertaining the extent and dimensions of this issue. As the jurisprudence of the European Court of Human Rights and other tribunals makes clear, that obligation resides with the state.² Indeed, what on earth would the prosecutorial services be for if not to investigate allegations of crimes? The ERRC has repeatedly called Mr Jařab’s attention to these issues, and in discussions more than one year ago, he acknowledged that there was no obstacle to opening ex officio investigation. Hence his contention that there has not been, until September 2004, “anything to investigate” is not accurate.

What lies behind the disagreement described above are fundamentally divergent views on the Czech Republic’s record with regard to Roma rights issues generally, and the nature of a just remedy with respect to the coercive sterilisation of Romani women. In the view of Commissioner Jařab, Roma rights matters in the Czech Republic are apparently issues of fine tuning. Pace Jařab, the organs of justice work fine now, and have always worked fine. If there are perhaps some individual cases of human rights violations out there, then it falls to the individual to raise them.

Our field research has repeatedly revealed however – until a recent change on the ground as a direct result of the actions of the ERRC and its partners in pressing these matters – deep reluctance by Romani victims of coercive sterilisation to come forward. And no wonder: no efforts to seek justice in the past on coercive sterilisation matters have ever amounted to anything; the Czech judiciary’s record on issues of racially motivated crime and racial discrimination is shameful; and indeed Czech lawmakers adopted a law in 1992 aimed at forcing Roma to leave the country. Why should the victims of a practice involving deep shame and humiliation – and in which they have been apparently in many instances tricked into relinquishing the ability to have children by Czech authorities – have any faith that Czech authorities will act appropriately in the matter, absent any proactive step from the government’s side?

On the basis of our conversations with members of the Czech human rights community – including persons who, like Mr Jařab, have chosen to take up positions in the public administration – we know that many share our unease at the repeated failure of Czech authorities to bring justice in Roma rights cases. Indeed, the current head of the Czech constitutional court is on record as stating as much.³

The ERRC’s first interest has always been its responsibilities to the victims. By law and morality, the obligation to undertake investigations of these practices lies entirely with the Czech state. This fact notwithstanding, on the basis of discussions with Mr Jařab and the Ombudsman, we have worked painstakingly with partner organisations and with victims to facilitate complaints to the Ombudsman’s office. We have not, however, ceased using international fora to bring pressure on the Czech Republic on this issue, because in our experience, without international pressure, efforts to bring about justice for Roma in the Czech Republic tend to come to nothing. Indeed, on the issue of coercive sterilisations, to date, even with international pressure on the Czech Republic, there has been no justice.

As Mr Jařab notes, we must now wait for the outcome of the Ombudsman’s investigation. However, as noted above, while these individual measures are necessary, they are not sufficient. We believe the nature of the issue is such that it will ultimately require a law establishing (i) recognition that practices of coercive sterilization have been prevalent in the Czech Republic; (ii) procedures (including all relevant safeguards for the safety and privacy of the complainant) specific to the issue of coercive sterilization, under which victims of such practices may come forward and claim due compensation.

Endnotes:

1. ^{Helsinki Watch, Struggling for Ethnic Identity Czechoslovakia’s Endangered Gypsies, New York: Human Rights Watch, 1992.}
2. ^{The European Court of Human Rights has repeatedly made this fundamental principle of international human rights law clear. See, for only one example, Assenov and Others v. Bulgaria, (90/1997/874/1086), Judgment, Strasbourg, 28 October 1998.}
3. ^{In August 2003, in an interview with the Czech daily Právo on the occasion of his appointment to head the Czech Constitutional Court, Mr Pavel Rychetský expressed explicit concern about the functioning of the Czech judiciary with respect to allegations of racially motivated crime.}