Fighting Discrimination Through the Courts

10 May 2003

Gloria Jean Garland¹

"Dear Mr. Kováč, on July 13, 2001 you wanted to enter the premises of the discotheque Inferno in Sokolovská Street in Karlovy Vary, which was then operated by our company. However, the discotheque personnel refused to let you into the premises. You were thereby subjected to discrimination and your human dignity was disparaged; this conduct was unjustified interference in your right to protection of personhood. AZ ALFA s.r.o. takes this opportunity to apologise deeply to you for this interference."

Letter of apology to the Romani plaintiff Jan Kováč, as ordered by the Regional Court of Plzeň, Czech Republic, February 13, 2002.

Despite broad constitutional declarations of equality, legislation prohibiting acts of discrimination is virtually non-existent throughout most of Central and Eastern Europe, with some small exceptions. Other than a comprehensive law introduced by the Romanian government in August 2000 and finally adopted by the parliament in 2002,² the only specific provisions in most Central and Eastern European countries are contained in labour or employment codes.³ Nor do parliaments appear to be in any particular hurry to enact legislation, even though the EU candidate countries must adopt anti-discrimination laws in conformity with the EU Race Equality Directive before their accession to the European Union.⁴ For example, the Slovak parliament in the summer of 2002 and the Bulgarian parliament in November 2002 both withdrew from consideration promising draft laws prohibiting discrimination in a variety of fields. Thus, the only available avenue for recourse to victims of discrimination is often through the courts, where creative lawyers have used constitutional provisions, international treaty obligations and other legal instruments to persuade judges to issue rulings recognising an enforceable right to be free from discrimination.

The European Roma Rights Center (ERRC), in cooperation with local partners, has established joint country-specific litigation projects to target discrimination in four countries - in Hungary in cooperation with the Legal Defence Bureau for National and Ethnic Minorities (NEKI), in Bulgaria in cooperation with the Human Rights Project, in the Czech Republic in cooperation with the Counseling Center for Citizenship, Civil and Human Rights (Poradna), and most recently in Slovakia in cooperation with the League of Human Rights Advocates. Together with these partners, plus individual lawyers in various countries who have received assistance and financial support from the ERRC to challenge discrimination, the ERRC has been involved in some encouraging developments in jurisprudence.

Access to Places of Public Accommodation

Perhaps the most obvious area of discrimination for many Roma is in access to places of public accommodation - bars, restaurants, shops, movie theatres, banks, and so on. Despite a clear prohibition against discrimination in access to public places contained in the International Convention on the Elimination of All Forms of Racial Discrimination⁵, which all countries in the region have ratified, this provision is not reflected in domestic laws. In some cases, the discrimination is quite blatant - signs say "No Roma allowed,"⁶ or prospective patrons are simply told, "We don't serve Roma here."⁷ In other cases, discotheques or bars have claimed to be private clubs for "members only", but only Roma are asked for membership cards.⁸ Creative lawyers, with ERRC assistance, have been demanding, and receiving, justice for discrimination victims by challenging these practices in the courts through both domestic and international law arguments. This article will highlight some of those cases and court decisions.

For example, in the town of Patvarc, Hungary, the owner of the only pub in town consistently refused to serve Roma. NEKI, assisted by ERRC, used "testing"⁹ to gather evidence against the pub. The non-Romani testers and one Romani tester from Budapest were served, but the local Patvarc Roma were not. On November 10, 1999, NEKI filed a complaint against the owner of the pub, asking for damages on behalf of three Roma residents of Patvarc who were denied service. NEKI argued that the owner of the bar violated Articles 2 and 26 of the UN International Covenant on Civil and Political Rights (which prohibit discrimination), Article 70/A(1) of the Hungarian constitution (prohibiting discrimination with respect to Constitutional rights) and Article 76 of the Hungarian Civil Code (which protects "human dignity"). The first instance court accepted the complaint on behalf of two of the three plaintiffs and ordered the defendant to pay 20,000 Hungarian forints (approximately 90 Euro) in non-pecuniary damages.¹⁰ The judge also ordered the pub owner to apologise to the plaintiffs by posting a bill in the pub. The decision was not appealed. This case represents the first time that a Hungarian court accepted the results of "testing" as evidence to prove discrimination. It is also noteworthy because it acknowledges the harm done by discrimination and racial insult in awarding non-pecuniary damages.

Another favourable court decision, Jan Kováč v. A.Z. Alfa s.r.o., was recently issued by the High Court in Prague relating to discrimination in access to a discotheque in Karlovy Vary, where the bouncers said the owner of the bar had issued an order to deny entrance to Roma. Czech Attorney David Strupek, with ERRC assistance, filed a complaint alleging breach of personal dignity pursuant to Section ¹¹ of the Czech Civil Code, which guarantees the right to "protection of personality", including personal honour and dignity. He asked the court for a letter of apology, non-pecuniary damages of 75,000 Czech crowns (approximately 2,100 Euro) and legal costs and fees. At the first hearing in February 2002, the Regional Court in Plzeň partially approved the testing evidence, ordered the defendant to apologise and awarded the full amount of legal costs. However, the court denied the request for non-pecuniary damages and the plaintiff appealed. On May 28, 2002, the High Court in Prague concluded that discrimination constituted a highly intensive violation of human dignity, entitling the plaintiff to non-pecuniary damages. It sent the case back to the first instance court to determine the amount.

At a third hearing on November 27, 2002, the Regional Court in Plzeň awarded Mr Kováč the full amount of non-pecuniary damages he had sought, 75,000 Czech crowns, plus legal fees and costs. The judge cited the High Court's decision substantiating the damages claim and emphasised that a secondary function of awarding such damages is to sanction the perpetrator and prevent repetition of such acts in the future. This decision can now be used by other lawyers in the Czech Republic as legal authority to persuade other judges to award damages in similar cases.

In Bulgaria, during the summer of 2001, a group of four Roma, accompanied by lawyers from the Human Rights Project and the Bulgarian Helsinki Committee, both partner organisations of the ERRC, tried to visit a sports complex in the village of Yagoda, central Bulgaria, in order to go swimming. The porter stopped the group and said that the "Gypsies" could not enter. The group asked to speak to the complex's executive director and manager, who both confirmed the firm's policy was to deny "Gypsies" the right to enter under any conditions because they were "dirty by nature." In a civil complaint, the lawyers relied on provisions for "equality, justice and tolerance" contained in the Bulgarian Constitution, as well as on international treaties prohibiting discrimination which are incorporated into Bulgarian law by the constitution. They requested damages of 50 Bulgarian levs (approximately 25 Euro) each. In a decision issued June 30, 2002, the Sofia District Court awarded the full amount of the requested damages, along with attorneys' fees and expenses.

Favourable court decisions are not the only result of anti-discrimination litigation: There have also been several instances of favourable out-of-court settlements that have been reached. In one case involving discrimination by the owner of a music club in Hungary, the owner agreed to an out-of-court settlement involving the payment of 100,000 HUF (approximately 425 Euro) to a Romani foundation following a complaint to the Consumer Protection Office.

There are numerous other similar "public accommodation" cases currently pending before courts in the Czech Republic, Slovakia, Bulgaria, Romania and Hungary brought by the ERRC and its local partners. Perhaps these decisions will help lead the way for justice from the courts where the legislature has to date failed.

Discrimination in Access to Education

Another area of critical importance to Roma is equal access to educational opportunities. In April 2000, the ERRC filed a complaint with the European Court of Human Rights in Strasbourg on behalf of several Czech Romani parents against the Czech Republic, alleging that the disproportionately high placement of Romani students in schools for the mentally handicapped was a violation of the European Convention on Human Rights. The case is still pending.¹²

In the meantime, the ERRC, in cooperation with the Croatian Helsinki Committee and local lawyer Lovorka Kušan, brought an action against the Croatian Ministry of Education and four elementary schools in MeÄ‘imurje County alleging illegal segregation of Romani students in separate classes in the Croatian schools.¹³ The case is currently on appeal to the Croatian Constitutional Court. If unsuccessful, the claim will be brought to the European Court in Strasbourg.

In Bulgaria, on July 5, 2002, Maria Koleva, a Romani high school student applied for admission to a school in Sofia that was predominantly non-Romani. She was told that no more places were available. Non-Romani students subsequently applying to the school were admitted. Attorney Margarita Ilieva, a local consultant for the ERRC, filed a complaint with the Sofia District Court. The case is pending.

Similar examples abound in other Central and Eastern European countries. We are anxiously awaiting decisions from both domestic courts and the European Court in Strasbourg which we hope will set firm anti-discrimination guidelines with respect to educational opportunities.

Employment Discrimination

Stoyanka Tacheva and Donka Manova were both long-term employees of the Kremikovtsi Company in Sofia. Ms Tacheva had been there since 1978, Ms Manova since 1991. They were scales operators for the "Technical Control" department and the only two Romani members of a team of seven. In September 2001, both women were laid off, even though they had more experience than the other five ethnic Bulgarian members of the department. New workers were subsequently appointed to the same positions. Local lawyer Ivaylo Ganchev, in cooperation with the Human Rights Project and the ERRC, brought claims alleging unlawful dismissal and seeking back pay and reinstatement. The claims were brought separately so that each woman could testify in the other's case. The complaints alleged violations of the International Covenant on Economic, Social and Cultural Rights (which guarantees both the right to labour and freedom from discrimination), the International Convention on the Elimination of All Forms of Racial Discrimination, Convention 111 of the International Labour Organisation (prohibiting discrimination in employment) and various provisions of the Bulgarian Labour Code, including Article 8(3), which prohibits discrimination.

The first case, that of Ms Tacheva, went before the Sofia District Court. In a decision issued on August 2, 2002, the Court held that the dismissal of Ms Tacheva was illegal and ordered her reinstatement. Because the court found that the employer did not meet its burden of proving the necessity for any reduction in force, it did not go on to consider whether the company had discriminated in its selection of the employees to be released. Ms Manova's case is still pending.

A more disappointing result was reached in a Hungarian case brought by local lawyer Lilla Farkas, in cooperation with the ERRC. There, a Romani woman, Ms Katalin F., found a newspaper advertisement for a position as a hotel maid.¹⁴ She telephoned the hotel to see whether the job was still available and was told it was. Upon arrival, the receptionist asked her to wait and went back to the manager's office. Ms Katalin F. overheard the receptionist telling the manager that a "young Gypsy girl" was applying for the job. The manager reportedly responded, "I hate Gypsies and would never employ them in my hotel." They then realised the door was open and closed it. The receptionist came back and informed Ms Katalin F. that the position had been filled. When the case went to trial, the hotel claimed that the woman had never applied for the job. Despite the fact that telephone records confirmed her call to the hotel and that she had described her treatment at the hotel to others on the same day, the Hungarian court held she had not met her burden of proving she had applied for the job. The attorney appealed the case. The second instance court fully accepted the reasoning of the first instance court. The case is pending before the Hungarian Supreme Court.

Discrimination in Access to Housing

Another vital area affecting Romani families is discrimination in access to housing.¹⁵ Sometimes this takes the form of discrimination in the allocation of public housing, as with the Lunik IX housing development outside of Košice, Slovakia, where Roma applying for public housing are routinely assigned to live, while non-Romani families are given housing in Košice.¹⁶ Other times, the discrimination comes from local authorities or private individuals who try to prevent Romani families from living in their communities.¹⁷

The Hungarian government offered financial compensation to families whose homes had been destroyed by floods in 2001, including several Romani families.¹⁸ Ms Olga Kalik, a Romani mother with six children, whose house in Jánd was also destroyed, decided to buy a new house in the village of Gyűre. When the local inhabitants learned that a Romani family would be moving in, they attacked the house and damaged the fence. The mayor and public notary from the village tried to persuade the previous owners of the house to cancel the sale contract. Unable to move into their new home, the family ended up squatting in a deserted house on the outskirts of another village. NEKI, with financial support and legal assistance from the ERRC, conducted a field investigation and joined in criminal proceedings filed by the mother against the village mayor and notary. NEKI also filed a report with the County Prosecutor's Office asking for further investigation of the village officials based on Article 174/B of the Penal Code (prohibiting violence against members of a racial, religious or ethnic group based upon this membership or perceived membership). When settlement efforts failed, NEKI filed a civil lawsuit against the local government and other persons involved in the destruction of the property based on Article 76 of the Civil Code (protecting personal rights). The complaint seeks an apology and pecuniary and non-pecuniary compensation. It is currently pending.

Other ERRC-assisted cases include a case involving 14 Romani families who are facing eviction from the abandoned sheds they fixed up and have been living in for over 10 years on land belonging to a neighbourhood medical clinic in Belgrade;¹⁹ a case involving discrimination in the assignment of public housing by the City Council of Ústí nad Labem in the Czech Republic against a Romani family which, despite a valid lease contract, was not allowed to return to their apartment after the building was repaired and renovated; and the threatened eviction of 15 Romani families from a state-owned building in Budapest. Although there are no decisions yet in the above cases, we hope the courts will help lead the way in confirming the right to freedom from discrimination in access to housing.

Discrimination in Access to Health Care

The ERRC and its local partners are investigating and challenging several instances of discrimination in the provision of health care, including not only discriminatory treatment of Romani patients compared to other persons, but also more disturbing practices targeting the Romani community such as coercive sterilisations of Romani women.

In Hungary, a 28-year-old pregnant woman started to bleed heavily and was in pain. On arrival at the hospital, she learned that the fetus had died and would have to be removed surgically. While lying on the operating table, she was given a printed consent form to sign. At the bottom of the form was a handwritten rider, including Latin terminology, which explicitly requested sterilisation. The young woman, who had only a seventh-grade education, was in a state of shock due to the loss of the baby. She had also lost a considerable amount of blood. She signed the document, thus agreeing to both the surgery to remove the fetus and to the sterilisation, although she did not know what the words meant. When she recovered consciousness, her first question to the doctor was how long she would have to wait before she could have another baby. She and her husband both affirm that their religion prohibits sterilisation and that she would never have agreed to the procedure had she been informed what she was signing.

NEKI, in cooperation with ERRC, filed a civil lawsuit against the hospital seeking to establish a violation of Article 339 of the Hungarian Civil Code (providing for compensation for illegal actions), along with violations of Articles 13 and 15 (right to be informed about diagnosis and consequences of medical treatment), 77 (prohibition of discrimination in health care), and 187 (conditions for performing sterilisation) of the Health Care Act. The complaint seeks both pecuniary and non-pecuniary damages. Although the court found that the hospital had violated regulations requiring both advance notice to the spouse and information about the irreversible nature of the surgery and other forms of contraception, it held that the plaintiff's signature on the consent form was conclusive and denied her claim. The decision was on appeal as of April 7, 2003. The ERRC is investigating other, similar allegations in Hungary, the Czech Republic and Slovakia.
Other health care cases in which the ERRC is currently involved concern the segregation of Romani mothers in maternity wards, the segregation of Romani patients in hospital corridors rather than regular rooms during repair work and the outright denial of medical care to Romani patients (a Romani woman in Bulgaria who suffered a spontaneous miscarriage was denied treatment after the hospital illegally demanded money she could not pay; and a Croatian Romani couple's baby died after medical crews refused to travel to the settlement where they lived).

Conclusion

Many of the discrimination cases the ERRC has pursued in the past several years, alone or in cooperation with local partners, are still pending before domestic or, in some cases, international courts. Although the legal procedures can be time consuming and frustrating, in some cases they offer the only available remedy for victims of discrimination. Even if legislation were to magically appear in all of the EU candidate countries tomorrow, it would not apply retroactively. Meanwhile, while we wait for the legislatures to do the right thing and adopt appropriate and necessary legislation incorporating international promises into domestic law, courts may help pave the way by recognising and enforcing those promises in response to litigation.

Endnotes:

1. Gloria Jean Garland is Legal Director of the European Roma Rights Center.
2. The Ordinance on Preventing and Punishing All Forms of Discrimination, Law No. 48/2002, bans "discrimination by public authorities, legal persons of private law and natural persons on the grounds of race, nationality, ethnic origin, religion, language, gender, or sexual orientation."
3. For a comprehensive survey of existing anti-discrimination provisions in the legislation of the EU accession countries, see European Roma Rights Center, Interights, Migration Policy Group. Country Reports on European Anti-Discrimination Law, at: Migration Policy Group.
4. Directive 2000/43/EC, "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin" (hereinafter referred to as the "Race Equality Directive").
5. Article 5(f) of the International Convention on the Elimination of All Forms of Racial Discrimination stipulates: "The right of access to any place or service intended for use by the general public, such as transport, hotels, restaurants, cafes, theatres and parks." http://www.unhchr.ch//html/menu3/b/d_icerd.htm.
6. See for example, InfoRom News, 22 February, 2002. "Restaurant forbidden to Roma" - sign in Romania; Libertatea News, 5 August, 2002. "No Roma Groups larger than 5 are allowed to enter" sign in Satu Mare, Romania.
7. See Miroslav Lacko v. Slovakia, Communication No. 11/1998, Committee on the Elimination of Racial Discrimination 59th Session, July 30-August 17, 2001.
8. See ERRC press release "ERRC Applauds Court-Approved Compensation for Racial Discrimination against Roma by Czech Hotel Owner" at: http://errc.org/publications/letters/1999/cz_oct_29_99.shtml.
9. "Testing" involves sending out different individuals or groups of individuals, who are as similar as possible in all characteristics except race or ethnicity, to places of public accommodation to document whether one individual or group of individuals is treated differently from another. As the two "testers" should be similar in age, manner of dress, behaviour, and other factors, the lawyers can then argue that the different treatment can only be attributed to the tester's race or ethnicity.
10. "Non-pecuniary damages" are damages based on factors other than financial loss, such as emotional distress or insults to dignity.
11. The Court, however, denied the plaintiffs' request for an order prohibiting future discrimination, ruling that the plaintiffs could not make the request on behalf of others who were not parties to the lawsuit.
12. For details, see The ERRC legal strategy to challenge racial segregation and discrimination in Czech schools, in Roma Rights 1/2000.
13. For more details of the cases and legal action taken by the ERRC, see Pleše, Branimir. Racial Segregation in Croatian Primary Schools: Romani Students Take Legal Action, in Roma Rights 3-4/2002.
14. For a detailed description of the case, see NEKI. White Booklet 2000, p. 25.
15. See Cahn, Claude. Unhousing Roma, in Roma Rights 2/2000.
16. See ERRC Letter to the Slovak Prime Minister, at: ERRC Letter to the Slovak Prime Minister
17. See ERRC press release City Authorities Build Ghetto Wall in Usti nad Labem, Czech Republic.
18. See Government Decree No 1033/2001.
19. See Pleše, Branimir. Housing Rights and Forced Evictions in Serbia, in Roma Rights 1/2002.