Court decisions on four cases

05 January 1999

1. Kladno case decision¹

District Court in Kladno
received 16-04-1998

Decision The Regional Court in Prague tried, in a public session on February 19, 1998, the appeal of the defendant Slavomír Cirnfus, born January 29, 1946, against the decision of the District Court in Kladno of December 9, 1997, file No.3T 120/96 and decided as follows:

Pursuant to §256 of the criminal code the defendant's appeal is denied.

Reasoning The appealed decision found the defendant Slavomír Cimfus, deputy mayor of the town of Kladno, guilty of the crime of incitement to ethnic and racial hatred pursuant to §198(a) paragraph 1 of the criminal code, which he committed in that, on June 12, 1996 in Kladno II, as deputy of the mayor of the town of Kladno, with reference to the increased incidence of viral hepatitis type A in the town of Kladno, primarily among the Romani population, he issued a written order — measure effective June 12, 1996, prohibiting the entry of Romani residents under the age of 15 to the LARS Kladno indoor pool and summer swimming pool complex; this order was, on his oral instructions of the same day, posted at the entrances and cash registers of the above LARS Kladno facilities, and for purposes of implementing it, the employees of LARS Kladno were informed of it, namely the director of LARS Kladno, and, through him, the cashiers at both facilities. For that, he was given a fine in the amount of CZK 14,000, and, pursuant to §54 paragraph 3 of the criminal code an alternate sentence of a prison term of 2 months was set.

The defendant filed an appeal against the decision within the deadline set by law, which his defense counsel explained in detail.

He points to, above all, the situation in which said measure was issued: the number of cases of viral hepatitis type A in the Kladno region was increasing like an avalanche, the district hygiene officer's information showed that this highly contagious disease affected primarily Romani children, who did not observe quarantine conditions, the summer season was approaching, which a significant number of these children would spend at the swimming pool complex, and at the same time it was clear that the district hygiene officer's measures could not be implemented in the operating conditions of the pool complex, which he, as a long-time employee of that facility, could assess. He issued the prohibition in question only in order to prevent further avalanche-like spread of jaundice, and its issuance was absolutely not influenced by any attitude to any race or ethnic group, but only to healthy and ill people; besides it didn't concern the Roma as a whole, but only a certain age group of the Romani population. The appellant further analyses the legal elements of the charged crime ... "publicly ..." and states that he gave the instruction to the director of LARS, telling him to rewrite it as a general prohibition and then implement it. Publicizing the instruction took place on the independent initiative of the director of LARS, and, moreover, contrary to what he had asked of him, and the appellant describes as untrue the claim of the director, Ing. Štĕpán, that he gave him an order to post an instruction of an internal character. He then emphasizes that the LARS director is not his subordinate, that the findings of the first level court in this regard are not correct, and the cited instruction is not a directive act for anyone; he then describes it as a communication of his opinion and recommends a solution which the director accepted upon his own free decision.

In the next part of the appeal he then states that he hoped that Ing. Štĕpán would not accept the instruction; he emphasizes that he tried to secure the undoubtedly more serious protected social interest — public health — with the detriment, that a certain group of people would not go swimming; he states his belief that in this situation (even if the formal elements of the charged crime were met) there could not be a question of a crime because of a negligible level of danger to society, and besides this was an instance of emergency pursuant to §14 of the criminal code, when he averted the spread of an infectious disease. He therefore asks that the appealed decision be repealed and that he be acquitted of the charge.

The court of the second level proceeded pursuant to §254 paragraph 1 of the criminal procedure code, reviewed the legality and justification of all the verdicts of the appealed decision and the correctness of the proceedings of the preceding trial, but did not find any reason to intervene in the decision.

By decision of the District Court in Kladno of February 21, 1997, the defendant was acquitted, pursuant to §226 letter b) of the criminal procedure code, of the indictment for the charged crime (committed by the charged facts), when the court reached the conclusion that although all the formal elements of a crime pursuant to §198a paragraph 1 of the criminal code, in light of the defendant's motivation, from which any racial hatred was absent, his heretofore completely clean record, and the fact that he himself, on June 14, 1996, gave an order to remove the instruction in question, his actions did not demonstrate a sufficient level of danger to society to be considered a crime.

Upon appeal by the state prosecutor, the Regional Court in Prague, by decision of June 26, 1997, file No.11 To 200/97, reversed the appealed decision pursuant to §258 paragraph 1 letter b) of the criminal procedure code, and returned the matter to the court of the first level, to retry it to the extent necessary and decide again. It found that the first court's conclusion, based on duly evaluated evidence, that the defendant's actions fulfill all the legal elements of the crime of incitement to ethnic and national hatred pursuant to §198a paragraph 1 of the criminal code was correct, in the version of the second factual basis contained therein, which, however, does not have racial or ethnic hatred as a legal element; however, it criticized that in evaluating the legal criteria determining the level of danger to society of the act the first court considered only some facts, and overlooked others, specifically named in the decision, the comprehensive evaluation of which makes the first court's conclusion about an insufficient degree of danger to society in the defendant's actions unpersuasive.

The first court has now, pursuant to legal principles specified in §2 paragraph 6 of the criminal procedure code, duly evaluated all facts which were shown by the submitted evidence, dealt with the now raised defense of the defendant, that he was not Ing. Štĕpán's superior and that this witness did not have to comply with his instruction, and, in evaluating whether the defendant's actions show the degree of danger to society presumed by the provisions of §3 paragraph 1 of the criminal code, also looked to the facts to which it had not paid attention earlier. The justification of the judgment about guilt in the appealed decision is logical, persuasive, in accordance with the requirements of §125 of the criminal procedure code, so the court of the second level can basically refer to them, and in view of the arguments in the appeal only add this:

The court can agree with the first court, that for evaluating the defendant's criminal liability it is not significant whether the director of LARS, Ing. Štĕpán was or was not the defendant's direct subordinate; however, because, from the viewpoint of the possible success of eliciting discriminatory behavior by other persons, the superior and subordinate relationship may play a certain role, and the defendant now claims (trial, December 9), that it is not the duty of the director of LARS to fulfill his instructions, it must be remembered: not only Ing. Štĕpán, but also the defendant himself spoke about the fact that the defendant is his superior, and several times. The first time was in testimony of October 16, 1996, where, in response to the investigator's question he said "I repeat again that I issued the instruction as the superior of LARS, exclusively for LARS and not vis-a-vis any third party; the Kladno town hall does not have authority to issue orders towards third parties." During the first trial he repeated that Ing. Štĕpán was his subordinate and therefore could either rewrite the instruction and post it (pursuant to his orders) or not observe it, due to its possibly being controversial. The defendant can hardly criticize the court for accepting this testimony; after all it had no reason to doubt that he himself would not know what the work relationships between him and Ing. Štĕpán were. This can in no way be changed by the defendant's claim at the last trial, based on the LARS foundation deed (no other evidence was submitted), that the director of LARS is not his subordinate and does not have to fulfill his instructions, if this deed is not effective until September 13, 1996 and the court must, of course, evaluate the situation as of June 12, 1996. The appeal's objection that this was only the defendant's recommendation for resolving the situation and that Ing. Štĕpán could make his own, completely free decision, contradicts, in addition to the arguments already stated, the wording itself of the document in question (p.15 of the file), which wording is cited at the introduction of the decision's reasoning; the verbs "I prohibit" and "I entrust with implementation" can hardly be considered mere recommendation. Thus there is also no doubt that the defendant's action, the aim of which was to elicit actions of other persons leading to the restriction of the rights and freedoms of members of another race, was committed publicly pursuant to §89 paragraph 4 of the criminal code, that is by the content of the printed matter, which is what the defendant had in mind.

Nor can the appeals court accept the defendant's objection that he was acting in a condition of emergency, pursuant to §14 of the criminal code, because two of the conditions specified there are not met: that there is impending danger to interests protected by the criminal code and that it cannot be averted elsewhere in the given conditions. An impending danger affects the moment immediately preceding the violation of interests protected by the criminal code, when an accident suffices for a violation to actually occur. There was clearly no such impending danger threatening the health of other citizens, and besides that there was not even a situation in which it would not have been possible to aver the danger otherwise, given that the defendant himself, at the first trial, described a measure which was subsequently adopted at the pool concerning the presence of under-aged children.

The defendant is thus criminally liable for an act which shows all the legal elements of a crime pursuant to §198a paragraph 1 of the criminal code and a degree of danger to society which is definitely more than negligible. The judgment of the defendant's guilt is thus in accordance with the law.

The court of the second degree reached the same conclusion after reviewing the sentencing verdict. It is undoubted that the indicted act is a completely isolated instance of excess by a person who otherwise has a completely clean record, whose motive is also apparent, and the act he committed can be categorized — in view of the level of severity of the possible prison sentence — among acts with low danger to society. Nonetheless the appeals court could not accept the proposal of the intervening state prosecutor that, in the event the defendant's act was found criminal, the punishment should be waived. The provisions of 24 paragraph 1 letter a) of the criminal code, in addition to conditions which could be considered to have been met, also specify another condition, that the perpetrator regrets the commission of the crime and demonstrates an effective attempt to reform; however, this is lacking in the defendant's conduct.

In this situation, a punishment corresponding to all legal viewpoints, is one not involving a prison term, i.e. a fine, which the first court chose at an appropriate level, including an alternative prison sentence.

The court of the second level thus did not find, in any of the judgments in the appealed decision, or in the trial which preceded it, any error, and therefore denied the defendant's appeal as unsubstantiated pursuant to §256 of the criminal procedure code.

Instructions This decision cannot be further appealed.

Prague, February 19, 1998

JUDr. Helena Urválková
Chairperson of the panel

Certifying correctness: Jirsová

2. Góman case decision²

Baranya County Court
3.Pf.21.013/1997/4
received 3-02-1998

In the name of the Republic of Hungary!
With regard to the defendant's appeal which was filed under No.8 and whose reasoning was filed under No.9 against the decision made in the civil suit which involved the plaintiff Gyula Góman represented by the lawyer Dr Imre Furmann on the one hand and the defendant József Berta represented by the lawyer Dr Béla Horváth on the other hand and which was conducted before the Pécs City Court for violation of personal rights, the Baranya County Court has made the following decision:

The second instance court affirms the decision of the first instance court. The court obliges the defendant to pay the plaintiff 7,5OO (seven thousand five hundred) HUF court expenses within 15 days. Against this decision there can be no appeal.

Reasoning The first instance court had established that by refusing to serve the plaintiff in the "Berta Beer Bar" run by the defendant on September 18, 1995 because of his Gypsy ethnicity, and by referring to him as a troublesome customer in the interview made by the journalist Tamás Ungár under the title "Searching for the truth at three levels" in the March 3O, 1996 issue of the daily Népszabadság the defendant has violated the plaintiff's personal rights. The court has prohibited the defendant to exhibit such and similar behaviour in future. The court has authorised the plaintiff to publish a paid advertisment of public apology in the daily Népszabadság at the defendant's expense, the contents of which advertisment were determined as follows:

"I the undersigned have insulted Gyula Góman of Pécs by refusing to serve him in my restaurant on account of his Gypsy ethnicity and by calling him a 'troublesome' customer in the article called 'Searching for the truth at three levels' in the March 3Oth 1996 issue of the daily Népszabadság without knowing him or without him having given any reason to deserve the above statement. For all these I offer Gyula Góman my public apologies." József Berta

The court has obliged the defendant to pay to the plaintiff a fee of 15O,OOO HUF non-material damages, to pay the plaintiff 7,5OO HUF court expenses and to pay the state 9,OOO HUF first instance charge.

The defendant has appealed against the decision, for the alteration of the decision and for the claim to be rejected.

The plaintiff's counter-claim was for the affirmation of the first instance decision. The appeal is unfounded.

The first instance court established the facts for the decision correctly, by deliberating the evidence of the case in accordance with §2O6 paragraph 1 of the Civil Procedure Code and drew a correct legal conclusion from the statement of fact thus arrived at, the decision of the first instance court is in effect well-founded therefore the second instance court affirmed the decision of the first instance court on the basis of §253 paragraph 2 and §254 paragraph 3 on account of its correct reasoning.

The appeal was in effect attacking the deliberation of the evidence but this is unfounded as the first instance court had established the statement of facts by collating the evidence that had emerged during the demonstration procedure and by evaluating them in their own entirety. The evaluation and deliberation on the evidence are discussed in detail in the decision.

The defendant's appeal was unsuccessful thus on the basis of §78 paragraph 1 of the Civil Procedure Code the defendant is obliged to pay the plaintiff the expenses of the second instance court case also.

Dr Tamásné Süle
President of the judges' council

Dr Sarolta Bédi
Proposing judge

Dr Ottó Stelzámer
Judge

3. Irish traveller case decision

On September 26, 1998 Irish Times reported that the Ennis District Court of Ireland, County Claire refused to renew the licence of publican Mr Jackie Whelan following a (settled) traveller's, Mr David McDonagh's (aged 42) complaint of being treated "like an animal" in Mr Whelan's premises.

Mr McDonagh told in his testimony before the court that on November 19, 1997 he was refused a second drink in Mr Whelan's Railway Bar in Ennis, Co. Claire, by the bartender, Ms Hayes. When Mr McDonagh asked to speak with the owner, Mr Whelan arrived and immediately bolted the front door, went back inside the counter and started shouting at Mr McDonagh using abusive language and beat the counter with his fist five or six times.

The judge found the traveller's claim reasonable and agreed that the only reason for him not being served was that he was a traveller. Thus, Judge Albert O'Dea concluded that Mr Jackie Whelan "is not a suitable or fit person to hold a licence and I am refusing to renew the licence".

In September 1997 Mr David McDonagh was already successful in having a licence not renewed for another pub in Ennis. It was restored at the Ennis Circuit Court after the publican apologised for refusing to serve Mr McDonagh.

4. Swedish case decision

As reported in the Winter 1998 issue of Roma Rights, the Highest Court of Sweden found two shopkeepers Stefan Larsson and Fredrik Larsson guilty of unlawful discrimination and fined them with SEK 1,800 each, ordered them to pay damages to Ritva Berg in the amount of SEK 5,000 and cover court fees.

The two brothers, who own a low-price department store "Hedlandet" in the town of Eskilstuna, Sweden, prohibited women wearing long loose skirts from entering their store.

According to the brothers, they introduced the prohibition after a local prosecutor had declined to charge two persons, whom the shop owners accused of shoplifting. The owners explained that their business has too low margins for them to finance proper security system against shoplifters and thieves, and that many women chose to remove their loose upper skirt and enter in the knee-length underskirt, while others chose to wait outside the shop while their husbands and children did the shopping.

Ms Ritva Berg, a Roma woman of Finnish origin, explained that in her culture women at the age of 16 or 18 choose whether they are going to dress in a traditional way. When they choose so, it is a decision for a lifetime. She found it extremely disgraceful to have to change her clothes in order to be allowed to do her shopping.

In the verdict the court expressed its understanding that the prohibition of entry in certain clothes were intended to prevent shoplifters stealing from the department store; however the court emphasized that it was formulated in a way that it effected women belonging to a certain ethnic group, i.e. Romani women.

Svea Court of Appeal
November 25, 1997
B 1386/97

Verdict of the Court of Appeal re Stefan Larsson³

1. With a change of the verdict of the district court, the Court of Appeal sentences Stefan Larsson for unlawful discrimination to a fine of sixty (60) times thirty (30) SEK, in accordance with the Penal Code, Art.16 §9.
2. Stefan Larsson shall jointly with Fredrik Larsson pay damages to Ritva Berg in the amount of 5,000 SEK.
3. Stefan Larsson shall pay a fee of three hundred (300) SEK, in accordance with Act (1994:419) relating to a fund for crime victims.
4. Mats Aberg is awarded a fee of ten thousand five hundred forty nine (10,549) SEK 50 öre, out of which 5,321 SEK for work, 3,646 SEK for time spent and 1,582 SEK 50 öre for expenses out of public funds. Of this amount, Stefan Larsson shall refund 500 SEK to the state.

Verdict of the Court of Appeal re Fredrik Larsson

1. With a change of the verdict of the district court, the Court of Appeal sentences Stefan Larsson for unlawful discrimination to a fine of sixty (60) times thirty (30) SEK, in accordance with the penal code, Art.16 §9.
2. FFik Larsson shall jointly with Stefan Larsson pay damages to Ritva Berg in the amount of 5,000 SEK.
3. Fredrik Larsson shall pay a fee of three hundred (300) SEK, in accordance with the Act (1994:419) relating to a fund for crime victims.
4. Mats Aberg is awarded a fee of ten thousand five hundred forty nine (10,549) SEK 50 öre, out of which 5,321 SEK for work done, 3,646 SEK for time spent and 1,582 SEK 50 öre for expenses out of public funds. Of this amount, Fredrik Larsson shall refund 500 SEK to the state.

Claims in the Court of Appeal The prosecutor and Ritva Berg, who has acceded to the indictment, have demanded that the Court of Appeal sentence the brothers Stefan Larsson and Fredrik Larsson for unlawful discrimination.

Ritva Berg has also demanded that the Larsson brothers be obliged jointly to pay damages of 8,000 SEK to her, out of which 3,000 SEK for pain and suffering and 5,000 SEK for infringement.

Stefan Larsson and Fredrik Larsson have contested any change. They have not certified any amount as reasonable.

The findings of the Court of Appeal Stefan Larsson, Fredrik Larsson, Ritva Berg, Anna-Kristina Lönnborg and Anneli Bohman have been questioned anew in the Court of Appeal. At the request of Ritva Berg, her husband, Keijo Berg, has been questioned. The testimony of Eva Jacobsson at the district court has been presented.

Apart from what emerges from the verdict of the district court, those questioned have stated mainly the following.

Ritva Berg: She is a Finnish Gypsy, and her clothing is characteristic precisely of Finnish Gypsies. When girls reach a certain age, 16-18 years, they will choose whether they wish to dress in the special dress, consisting of for example a long, loose velvet skirt. If they choose to do so, as she has done, it is a choice for life. If she dresses in any other way, she disgraces her family. She and her husband had decided to go to "Hedlandet" in order to buy clothes for their children. A female friend told her that she could not count on being allowed into the department store. As she had been stopped in an other store on an earlier occasion, she knew her "rights" and she therefore called on a reporter prior to the visit. She was not offered to change to another dress, but even if she had, she would not have accepted it. She experiences it as extremely disgraceful to have to change clothes in order to be allowed to shop. She was unwell for a few months after the incident.

Stefan Larsson: The prohibition of loose skirts was decided on after the prosecutor had renounced from charging persons whom they had accused of shoplifting/stealing. Because of the small margins of the business, they could not afford introducing electronic supervision or more supervisory personnel. A few women chose to remove the large skirt and enter in the knee long underskirt. He estimated that between 40 and 5O% of the women accepted to change skirts. During the time of the prohibition they have stopped around 15-20 persons. In groups where the women wore large, loose skirts of the relevant type, it has sometimes happened that the husband and children entered while the women were waiting outside. The prohibition against large, loose skirts was general. It was not his understanding that only women of certain nationalities or population groups were affected by the prohibition.

Fredrik Larsson: It was not clear to him that the prohibition would affect Gypsy women exclusively. He did not think of the nationality or cultural origin of the women who were turned away because of the skirt prohibition. In the store, it was also prohibited to enter with large cases or buggies.

Keijo Berg has confirmed the information given by Ritva Berg. Anna-Kristina Lönnborg and Anneli Bohman have confirmed the information given by Stefan Larsson and Fredrik Larsson.

The Court of Appeal makes the following assessment In the case, it is not disputed that Ritva Berg had been denied access to the low-price department store "Hedlandet", and that the reason was the prohibition that the Larsson brothers had introduced against persons dressed in long loose skirts.

There is no reason to doubt that the purpose of the prohibition has been to prevent stealing in the department store. A businessman has the right to refuse somebody, Gypsy or otherwise, access to his store for that reason. However, such a refusal must be based on knowledge of the individual customer and must not be founded on his or her belonging to a certain ethnic group (see NJA 1985, p.226). The access prohibition introduced by the Larsson brothers has been formulated in such a way that it has affected women of Gypsy origin, generally and exclusively. The Larsson brothers must have realized this. They have not claimed that Ritva Berg has been denied access on account of their knowledge of her as a person.

Thus the Court of Appeals finds that the prohibition of access introduced by the Larsson brothers, with the ensuing refusal to let Ritva Berg enter, is to be considered as unlawful discrimination. This assessment is not changed by the fact that the Larsson brothers indisputably have let men and women of Gypsy origin into the stop, nor the fact that certain women have accepted to change skirts whereupon they have been allowed to enter. Stefan Larsson and Fredrik Larsson should therefore be sentenced to unlawful discrimination.

The sanction should be a fine Ritva Berg has asked for damages in the amount of 3,000 SEK for pain and suffering. However, she has not proved that she has suffered in this respect. This part of the claim can therefore not be approved. Nevertheless, she is entitled to damages for infringement, in accordance with the Law of Torts, Art.1. §3. The demanded amount is considered as reasonable.

How to appeal, see appendix B
Appeal to submitted no later than December 23, 1997

Endnotes:

1. This is an unofficial translation from the Czech language made by the ERRC.
2. This is an unofficial translation from the Hungarian language made by the ERRC.
3. This is an unofficial translation from the Swedish language made by the ERRC.