Disparate impact: removing Roma from the Czech Republic

03 April 1999

Beata Struhárová¹

Since the so-called "velvet divorce" of Czechoslovakia on January 1, 1993, three laws pertaining to the ability of individuals to settle and establish domicile have been the focus of human rights activity concerning Roma in the Czech Republic. One of the numerous types of complaint against these laws has been that they are not in compliance with international, and especially European, human rights standards, including the right to private and family life as enshrined in Article 8 of the European Convention on Human Rights (ECHR).²

The first of these laws, the Act on Citizenship, came under criticism immediately after its enactment in late 1992 for, among other things, preventing Roma with effective ties to the Czech Republic - such as long periods of stay, work, and family - from claiming Czech citizenship.³ In the wake of the negative effects of the Act on Citizenship, deficiencies in two other laws became apparent. First of all, according to the 1992 Foreigners Law, the police have the power to impose prohibitions of residence for a period of one year at minimum. Secondly, until it was amended in 1997, Article 57 of the Czech Penal Code provided judges with an undifferentiated sentence of judicial expulsion to be used at their discretion in cases pertaining to foreigners. In practice, in all cases prior to 1998, judicial expulsions issued as part of a sentence were life-long. Both provisions have been used to a great extent against Roma.

All three of these laws - the Act on Citizenship, the Foreigners Law and Penal Code Article 57 pertaining to judical expulsion - have recently been or are presently slated for amendment. The Act on Citizenship has been amended a number of times since it went into effect, but according to independent monitors, this has not remedied its deficiencies. The Social Democrat-led government elected in May 1998 has put further amendments to the law on their agenda. The revision of the Foreigners Law and drafts are currently under discussion, and two recent decisions of the Constitutional Court have already struck down parts of the law. Finally, Penal Code Article 57 was amended in summer 1997. This article will look at the effects of these three laws in brief, as well as discuss the real or possible effects of recent or expected amendments.

Preconditions: the Act on Citizenship

Many Czech Roma were either born in Slovakia or had an administrative designation assigning them Slovak republican citizenship within the Czechoslovak Federation, which was of no practical consequence before the separation. In its initial form, the Act on Citizenship granted Czech citizenship exclusively to those citizens of the Slovak part of the Federation who could prove both the required registered permanent residence in the Czech Republic as well as a clean criminal record for five years. Roma were disproportionately excluded from eligibility by both of these requirements. Researchers reviewing parliamentary records from the time of the enactment of the Act on Citizenship assert that the law was intentionally designed to move Roma from the Czech Republic to Slovakia.

The Act on Citizenship created a new group of non-citizens of the Czech Republic who, in spite of being settled in the country as former citizens, lost many of their rights. Since the split, they have not been able to vote or be elected and they have lost the right to free university education, to social benefits, to employment or to possession of a house or other real estate. In many instances they also lost the very right to reside in the country. Such persons are often euphemistically referred to as the "new foreigners". The "new foreigners" are overwhelmingly Roma.

The Act has been amended a number of times in the period following 1993. One 1995 amendment to the law provided for preferential treatment of the so-called Volnya Czechs - ethnic Czechs from Ukraine. In May 1996, parliament adopted an amendment to the law which allows the Ministry of Interior to overlook the clean criminal record requirement if it so chooses. For a number of reasons, however, many Slovaks, and especially Roma deemed to be Slovaks by Czech authorities, remained unable to legalise their status in the Czech Republic. Roma, in spite of the hardship and suffering caused by the law, tended not to go "back to Slovakia", despite the best efforts of the authorities to make them leave. Many of these people subsequently found themselves on a slippery slope leading to "illegality" and became exposed to the possibility of expulsion from the country.

Judicial expulsion

The punishment of judicial expulsion is set out in Article 57 of the Czech Penal Code. From 1961 until its most recent amendment in 1997, Article 57 read: "A court may impose the punishment of expulsion from the territory of the Czech Republic on a criminal who is not a Czech citizen or is not an individual who has been granted refugee status. It may be imposed as a separate punishment, or may be imposed together with another punishment in instances where the safety of the people or property or another public interest so requires."

The law was in judicial practice interpreted such that the expulsion meant life-long prohibition from entering the country. There was no remedy to terminate it once imposed, or to interrupt it for a limited period if necessary, except by presidential pardon. Courts were not required to review family circumstances or take into account issues in the private life of the convicted individual when imposing the expulsion sentence. No consideration was given to the balance between the interests of the state and the rights of individuals.

In 1993, a total of 506 foreigners were sentenced to expulsion. Of these, 111 were Slovak citizens. In 1994 there were 596 such individuals, 189 of whom were Slovaks. In 1995, 742 persons were sentenced to expulsion, 240 of whom were Slovak citizens. In the first half of 1996 courts issued 376 expulsion sentences, and 123 of the persons expelled were citizens of Slovakia. A review of individual cases indicates that this measure has been imposed in a highly arbitrary fashion. Of the 663 Slovaks expelled, a full 93.8% received this punishment for crimes that do not constitute a serious threat to society. This group includes 302 persons expelled for theft, 85 for failure to obey an official order (most of these failure to comply with an administrative prohibition of residence order), 41 for breaking and entering, six for disorderly conduct, two for failure to pay alimony to a family member. Most of those sentenced to judicial expulsion were Roma.

A few cases illustrate the issue. Mr Ľudovít Gorej is a Romani man who has been living in the Czech Republic since he was only a few months old. He was educated in a Czech orphanage. After leaving the orphanage without any means to settle elsewhere, he committed a small theft - he stole sugar beets valued at 140 Czech crowns (approximately four euros). In 1996, he was sentenced to expulsion for this theft. At the time, his girlfriend was pregnant with his child. The expulsion decision was cancelled only one year later when a complaint for violation of the law was filed by the Minister of Justice based on a submission by the Tolerance Foundation (see "Meet the ERRC", Roma Rights, Summer 1997).

In another case, Mr Milan Virág, a Romani man educated in a Czech mental institution, committed his first crime upon leaving it. In 1995 he was sentenced for sexual abuse of a minor to two years imprisonment and to expulsion - permanent banishment from a place where he has siblings and friends. The sentence has not yet been cancelled as the Supreme Court rejected an exceptional complaint by the Minister of Justice based on a submission of the Tolerance Foundation last year. A constitutional complaint subsequently filed in connection with the expulsion has not yet been processed. The accused has been wandering around the Slovak Republic for more than one year with no place to stay or to register as a resident.

The European Court of Human Rights has ruled that if the deportation of a family member makes the maintenance of family life practically impossible, then the obligation to respect family life prohibits his or her removal. The Court has defined through case law what kind of unit can be considered a family and what constitutes effective family life, as well as how a fair balance between the right to protect family life and the interest of public security can be achieved.⁴ The Czech expulsions of Romani "Slovaks" appear in large number in contravention of Article 8 as it has been interpreted by the Court. The fact that most of the Slovaks expelled are Romani constitutes effective discrimination.

Penal Code Article 57, under which the persons referred to above were sentenced to expulsion, was amended in 1997. The amendment in effect since January 1, 1998, law number 253/1997, specifies groups of foreigners on whom expulsion cannot be imposed, if certain requirements are met. These requirements include a family, social and labour "background" (zázemí) and, somewhat illogically, a long term residence permit (dlouhodobý pobyt), which must be renewed every year. The amendment also sets down specific terms for the period during which the sentenced may not enter the Czech Republic of one to ten years, or indefinite, i.e. life-long, depending on the danger to society of the crime committed.

The amended law is certainly a change for the better, but it is still not in compliance with the Czech Republic's European commitments. The law in its present form allows expulsion of persons with family ties who do not fulfill the requirements mentioned above. As a result, Czech courts continue to expel persons with effective ties to the Czech Republic. In addition, there remains no legal route to suspending or abbreviating the sentence.

On the occasion of his re-election as president in early 1998, Václav Havel declared amnesty on all sentences of expulsion that had been imposed upon Slovaks who had not committed a crime punishable by more than five years. The amnesty was a welcome reprieve for many individuals and their family members. Persons such as Milan Virág who had committed crimes punishable by more than five years in prison were not assisted by the amnesty however. It is not known how many cases did not receive amnesty, as the Ministry of Justice has not been able to provide information on the subject yet. Obviously, the good will of the president in obtaining justice is not a substitute for the rule of law. Moreover, the amnesty does not allow the affected persons the right to claim damages.

Prohibition of residence in the Czech Republic

Roma have also frequently been expelled from the Czech Republic by police in the absence of a court order. The Foreigner Police of the Czech Republic is empowered to impose a prohibition of residence order according to Articles 14 and 15 of Act number 123/1992, the Foreigners Law. The imposition of such measures prohibits a foreigner from entering the country for a certain period of time. Grounds upon which this measure might be used legally vary from "the violation of any binding legislative act" to situations in which "it is unavoidable for the security of the state, the maintenance of public order, the protection of health, or the protection of the rights and freedoms of others". Only a minimum period for which an individual might be barred from the country is explicitly set out in the law: one year.

There are no detailed norms explaining how many years of prohibition might be expected in the case of various violations, or if such norms exist, they are not available to the public. Moreover, no domestic law exists providing instances in which public officials might be prohibited from imposing this measure on foreigners on grounds such as the right to an unimpeded family life. The law does not include any special provisions on the treatment of former citizens or permanent residents in the country.

According to the law, as part of a prohibition of residence, Foreigner Police order an individual to leave the country within thirty days. Until the practice of removing persons before appeals had been processed was quashed by the Constitutional Court in 1998, appeal against prohibition of residence orders did not have a suspensive effect and police have expelled individuals during appeal.⁵ In practice, a person on whom a prohibition of residence has been imposed is able to challenge the decision only in instances where he or she can afford a domestic lawyer to act as representative. Even in such cases, conducting a legal case from abroad is difficult enough to seriously limit the likelihood of successful appeal.

Residence bans have affected Roma disproportionately. Although the total number of foreigners whose residence has been banned has steadily declined since 1993, the number of Slovaks, or "new foreigners", issued prohibitions of residence has steadily increased. According to official statistics, 16,441 foreigners were ordered to leave the country in 1993. Of these, 95 were Slovak citizens. In 1994, 11,792 persons were issued residence bans; of these, 338 were Slovaks. There were 8,211 such cases in 1995 and 436 of these were Slovaks. Although statistics on the ethnicity of the person banned from residence do not exist, non-governmental organisations working on issues related to Roma and foreigners report that possibly over 70% of these Slovaks are Roma.

One Romani minor, Edmund Billi, was given a three year prohibition of residence for a petty theft in 1993. He was ordered to leave the country where his mother, brother and grandmother live and where he went to school. Later, when found in the territory illegally, police issued him another prohibition of residence. This increased his term of exile to ten years. Finally, after being subsequently detained at the Czech and Slovak border in 1996 while attempting to visit his ill mother in hospital, he was sentenced by a criminal court, at whose proceedings he was not present, to life-long expulsion. This punishment was canceled only after the amnesty ordered by newly re-elected Czech president Václav Havel in early 1998. Thereafter, with the help of the Tolerance Foundation and a social worker in prison, Edmund requested that the Foreigner Police nullify his prohibition of residence orders on humanitarian grounds. As a result, the orders were cancelled and Edmund was granted permanent residence in the Czech Republic.

Mr Matej Figura, a Romani man, was also issued a residence ban by Czech police. He was stopped by police while driving his cousin's car in 1997. The police suspected he had stolen the car and he could not prove his identity with an ID card or passport. At the time of his detention, he was carrying only a driving licence. Without proper investigation, he was immediately transported to the Foreigner Police which issued him a prohibition of residence order for three years. It was evidently not relevant to the Foreigner Police that he could prove having spent most of his life in the Czech Republic and that two of his sisters live permanently in the country. The order was cancelled only after more than one year of various complaints by the Tolerance Foundation.

Pressure resulting from the rise in the number of foreigners in the Czech Republic as well as preparations for integration into the European Union has caused the government to review the Foreigners Law for amendment. Although it is still too soon to comment definitively on the draft amendments, early versions of the bill indicate that the government intends to tighten restrictions on residence permits. Draft versions do not include any major changes in the area of prohibition of residence. In addition, it seems unlikely that the amended law will require special treatment for foreigners with permanent residence or of Slovak or Romani origin or, again, consideration of the right to family life.

The situation would not have been so bad if the Czech judiciary were more in the habit of referring directly to the Czech Charter on Fundamental Rights and Freedoms - part of the Czech Constitution - or were they to apply norms on the protection of family life established by the European Court of Human Rights. Article 10(2) of the Czech Charter on Fundamental Rights and Freedoms protects the family and is a provision which could prevent arbitrary expulsions or prohibitions of residence. However, sufficient domestic case law has not yet been created. The Czech Constitution additionally subordinates domestic law to international human rights agreements. Unfortunately, it is not widespread knowledge within the Czech legal community that the European Court on Human Rights in Strasbourg has established in a number of its findings the positive obligation of the state not to expel a foreigner who has an effective family life in that country.

Conclusion

The Czech Act on Citizenship lies at the root of the problem of the expulsion of Roma from the Czech Republic. If Czech citizenship had been made readily available to Roma with Slovak republican citizenship at the time of the split, the expulsion problem and its consequences would have been less pernicious. Now, more than five years after the split, a new amendment to the Act on Citizenship is being prepared. The government-approved version of the amendment allows the granting of Czech citizenship to those Slovaks who can prove factual residency in the Czech Republic. The requirements are set in newly-proposed Article 18a. This would allow Slovaks who can prove that they lived permanently in the Czech Republic at the time of the split and whose residence in the country continues to the present day to acquire Czech citizenship upon request.⁶

The amendment, if approved, would be a distinct improvement. However, the draft bill does not mention those Slovaks - and among them many Slovak Roma - who are no longer living permanently in the Czech Republic as a result of having been expelled or issued a prohibition of residence. These persons are still not eligible for citizenship even in cases where their punishment was cancelled either by decision of the Supreme Court, Constitutional Court, presidential amnesty, presidential pardon, or other decisions of the public authorities. Persons who went abroad for a significant length of time and returned are similarly still ineligible, as are persons who have stayed abroad. It does not look as if one should worry about such matters at this stage, however. The proposed amendment will not necessarily be approved, especially since the government does not have a majority in parliament.

Endnotes:

1. Beata Struhárová is a practicing lawyer in the Czech Republic. She gained extensive experience with issues concerning Roma, citizenship and expulsion while working for the Prague-based non-governmental organisation Tolerance Foundation.
2. Article 8 of ECHR reads: “(1) Everyone has the right to respect for his private and family life, his home and correspondence. (2) There shall be no interference by a public authority with the exercise of this except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of the rights and freedoms of others.”
3. This article will not attempt to discuss this problem in its complexity. Further discussion of problems associated with the Czech citizenship law, its amendments, and their implementation, may be found in: U.S. Commission on Security and Cooperation in Europe, “Ex Post Facto Problems of the Czech Citizenship Law”, September 1996; United Nations High Commissioner for Refugees (UNHCR), “Citizenship in the Context of the Dissolution of Czechoslovakia”, September 1996; UNHCR, “The Czech and Slovak Citizenship Laws and the Problem of Statelessness”, February 1996. See also European Roma Rights Center, “Letter to the Council of Europe”, August 6, 1997; European Roma Rights Center, “Statement of the European Roma Rights Center on the Occasion of the Acceptance of the Czech Republic, Hungary and Poland into NATO”, July 10, 1997, as well as monitoring reports in the quarterly newsletter Roma Rights; monitoring reports by the Prague-based non-governmental organisation Hnutí obèanské solidarity a tolerance (Movement for Civic Solidarity and Tolerance) published in the monthly newsletter Most; Human Rights Watch/Helsinki, “Roma in the Czech Republic: Foreigners in Their Own Land”, June 1996; The Tolerance Foundation, “The Non-Czech Czechs”, August 1995; The Tolerance Foundation, “Notes on the Czech Citizenship Law’s Background”, February 1995; The Tolerance Foundation, “A Need for Change, The Czech Citizenship Law: An Analysis of 99 Individual Cases”, November 1994; The Tolerance Foundation, “Report on the Czech Citizenship Law: The Effect of the Citizenship Law on the Czech Republic’s Roma Community”, May 1994.
4. Some examples from ECHR case law illustrate the Court’s understanding of effective family life: in Berrehab vs. Netherlands [case no. A 138 (1988)], a case concerning a Moroccan national whose right to stay in the Netherlands depended on him being the husband of a Dutch national. The Court decided that the failure of Dutch authorities to grant the applicant a residence permit after their divorce did not respect his family ties with his daughter. In Moustaquim vs. Belgium [case no. A 193 (1991)], the Court found that deportation of the applicant who had been charged as a minor with 147 offences (thefts and robberies) constituted a violation of Article 8. The family ties in question were those existing between not only the applicant and his parents, but also with his seven siblings. In Beljoudi vs. France [case no. A 234-A (1992)], the Court considered that the deportation from France of a long-settled Algerian national would fail to respect his family life enjoyed in France with his wife, a French citizen. ECHR case-law has not yet involved an applicant complaining of a violation of his family rights in the context of state succession — the Czechoslovak case.
5. See Constitutional Court decisions published under number 159/1998 Sb. and number 160/1998 Sb.
6. Proposed Article 18a reads:
   (1) State citizens of the Slovak Republic who have permanent residence on the territory of the Czech Republic on the basis of special laws as of December 31, 1992 or who, at latest since this date, live permanently on the territory of the Czech Republic and this residence continues may make a declaration on acquisition of state citizenship of the Czech Republic. [unofficial translation]