Committee on the Elimination of Racial Discrimination
Concluding observations on the combined tenth and eleventh reports of the Czech Republic
Information received from Czechia* on follow-up to the concluding observations* *
[Date received: 7 March 2017]
Pursuant to the consideration the tenth and eleventh periodic reports of the Czech Republic on the fulfilment of the International Convention on the Elimination of All Forms of Racial Discrimination (CERD/C/Czech Republic/10-11) (hereinafter referred to as the “Report” and the “Convention”) by the Committee on the Elimination of Racial Discrimination (hereinafter referred to as the “Committee”) on the 12th and the 13th August 2015, the Committee has adopted the final recommendations (CERD/C/Czech Republic/CO/10-11). Within these recommendations, in Section 37, the Committee prompted the Czech Republic to provide information on the way in which it fulfilled the recommendations of the Committee contained in Sections 8, 18 and 22 within one year. In the present declaration, the Czech Republic reacts to the recommendations made by the Committee and provides answers to the questions raised by the Committee.
The Committee recommends that the State party intensify its efforts to transform the Public Defender of Rights into a national human rights institution, fully independent in accordance with the Paris Principles, particularly by expanding and strengthening the mandate of the Public Defender of Rights, including by amending the Anti-Discrimination Act and allocating sufficient human and financial resources to the Public Defender ’ s Office to fulfil its mandate.
Declaration of the Czech Republic:
1.The Public Defender of Rights, based on his/her existing legal competences, already meets a vast majority of the Paris Principles. As of today, the defender’s competences cover almost all human rights. The defender may, within the framework of his/her competence, deal with any cases whatsoever, based on a claim or out of his/her own initiative, and within the framework of his/her quasi-judicial competence he/she may enquire as to whether or not the human rights were honoured in the given case. All the authorities are obliged to cooperate with the defender. His/her findings and recommendations should subsequently be implemented by the relevant authorities. Based on his/her work, the defender elaborates on complex analyses, formulating recommendations to improve the protection of human rights. He/she regularly informs the public about these recommendations and about other activities by means of the media or his/her website. The defender also participates formally in the creation of government materials, urging the individual ministries to protect human rights within their competences. The legal guarantees of his/her independence, especially the way of election and autonomy and independence of the Office of the Public Defender of Rights, also comply with common standards according to the Paris Principles. The Office of the Public Defender of Rights continuously provides for the performance of the defender’s tasks within all areas of his/her competence. An amendment, which shall provide the defender with a new competence in monitoring the Convention on the Rights of Persons with Disabilities, is being debated in the Parliament.
2.The expenses associated with the activities of the defender and his/her Office are settled from a separate chapter of the national budget, according to the Act on the Public Defender of Rights. In 2016, the Office had at its disposal a total exceeding CZK 101 million, according to the approved national budget. The budget for 2017 is increased to approx. CZK 110 million. In 2016, there were a total of 127 staff employed by the Office, of which 80 were professionals dealing with the expert activities of the defender.
Recommendation No. 18
In the light of the Committee ’ s general recommendation No. 27 (2000), the Committee recommends that the State party incorporate inclusive education as a guiding principle of the education system in the relevant legislation and policies, and allocate sufficient funding for the implementation of the amendment to the School Act (2015) and the Inclusive Education Action Plan for 2016-2018. It also recommends that the State party take all measures necessary to help Roma children to keep up with other students in mainstream schools, and to counter negative perceptions of Roma children among teachers and school authorities, as well as non-Roma children and their parents. It further recommends that the State party take all measures necessary to facilitate access to preschool and higher education for Roma children and fully comply with the judgement of the European Court of Human Rights in the case of D.H and others v. the Czech Republic.
Declaration of the Czech Republic:
3.The new system of educating pupils with special educational needs, which took effect as of 1st September 2016, is based on the principle of including these pupils in the mainstream education system. The Act specifically removes the categorization of children, pupils and students according to their health or social status and, on the contrary, it focuses on the problems these pupils face in education and how to help them. A pupil with special educational needs is a pupil who needs measures of support to meet his/her education opportunities or to assert or use his/her rights equally with others. This approach is fully in harmony with the Convention on the Rights of Persons with Disabilities. The principle is to prioritize the education of a pupil with special educational needs by way of integration into a mainstream school.
4.The approach to pupils with special educational needs is therefore now based on the definition of their educational needs and the provision of supportive measures to help them in education. The supportive measures are structured in grades according to their organizational and financial demands, and are provided free of charge. The supportive measures shall be selected in such a way as to correspond to the pupil’s health condition and his/her cultural environment or other life conditions. The counselling facility for the pupil with special educational needs proposes specific supportive measures and modifications in his/her education. If necessary, the supportive measures can be combined in different grades in order to meet the requirement of high-quality education.
5.The recommendation is delivered not only to the pupil or his/her legal representative, but also to the school the pupil attends. Within the counselling facility, the parent becomes acquainted with the contents of the recommendations regarding the pupil’s education, together with the examination report, and s/he grants his/her consent to hand the recommendation over to the school. Information concerning the parent becoming acquainted with the contents of the recommendation and his/her consent with handing it over to the school is necessary, because the recommendation contains sensitive data regarding the pupil’s diagnosis. There is therefore a communication relationship between the school counselling facility, the school, and the parents, as the basis for the practical realization of the supportive measures. The applicant for counselling services, the school, or a public authority (especially the body for the social-legal protection of children) may ask an auditing office to review the recommendation regarding the pupil’s education, if they are dissatisfied with the services of the school counselling facility. The parent may request a revision of the examination report.
6.Following the approval of the said changes, a ministerial decree was prepared in 2015, focused on the reinforcement of the inclusive education of children, pupils and students with special educational needs in regular schools with the help of supportive measures. There are diagnostic tools being introduced in practice, allowing the determination of the pupil’s development potential, not just its current state, counsellors’ education regarding the work with diagnostic tools continues and, at the same time, a methodology exists regarding the diagnosis of mild intellectual disability, aimed at the specification and unification of approaches in diagnosing the cognitive capabilities. The Ministry of Education, Youth and Sports has cooperated with the National Institute for Education and prepared a methodological recommendation to establish the position of a teacher’s assistant, who represents one of the supportive measures. In 2016, the Ministry of Education, Youth and Sports abolished the Framework Education Programme for the Primary Education of Pupils, with an Annex dealing with the education of pupils with mild intellectual disability. The Annex of the Framework Education Programme for Primary Education dealing with the education of pupils with mild intellectual disability was removed, and it was used in the construction of the unifying curriculum.
7.With the aim of supporting school catering for primary school pupils, the Ministry of Education, Youth and Sports established a grant programme in 2015 for non-state non-profit organizations to support schools catering for primary school pupils for the calendar year 2016. This step should improve the conditions for a regular course of the compulsory education for those primary school pupils, whose families got into a long-term unfavourable financial situation. CZK 30 million was distributed within grant proceedings for the year 2016.
8.Pre-school education in the Czech Republic is either provided for by kindergartens or by preparatory classes in primary schools. The last year in the kindergarten or the preparatory classes in primary schools is free of charge. The content of education in the primary school preparatory class forms a part of the school’s educational programme. As of 2015, the option of education in primary school preparatory classes was newly introduced to all the pupils, not only those who are socially disadvantaged. Among other expected effects, this measure also aims to reduce the risk of segregation of Roma pupils in pre-school education. The Ministry of Education, Youth and Sport prepared another amendment to the Education Act in 2015, aimed at establishing a compulsory final year in kindergartens. At the same time, the existing practice of the last year of kindergarten being free of charge shall be preserved. The aim is to provide for a successful initial primary education for all children. This change has taken effect as of the 1st January 2017. Children, who do not attend kindergarten, are monitored and cooperation with their parents improves, as well as the enforceability of fulfilment of the parental obligations and financial support for the schools and the children’s needs. A system of control mechanisms shall also be introduced in such a way as to prevent the subsequent unjustified inclusion of pupils in the first grades of schools with an educational programme not corresponding to their educational needs. The control will be carried out by the Czech Education Inspection Authority, in cooperation with school counselling facilities.
9.In 2014, the Ministry of Education, Youth and Sport established the Fund of capacity development of kindergartens and primary schools to support projects focused on the inclusion of Roma children in kindergartens, as well as on the capacity of kindergartens and primary schools and the availability thereof. Within the framework of an investment programme named The Development of the Educational Capacities of Kindergartens and Primary schools Established by the Territorial Self-government Units, a total of 10 projects was approved in 2014 amounting to a total of CZK 74.9 million, with a further 40 projects following in 2015, amounting to CZK 324.1 million. The development of kindergartens and primary schools is also possible thanks to European structural and investment funds. These funds also support projects regarding the inclusive education and social integration of Roma pupils in kindergarten and primary school education. The projects are concerned with the support of children from a socio-economically disadvantaged and culturally different environment coming to kindergartens, and the support of the children and parents in the adaptation period prior to coming to the kindergarten. Specific activities focus on the development of children in pre-school centres, the cooperation of kindergarten teachers with parents, social and health services. The training of employees in using verified inclusive education methods will be supported, as well as working with a heterogeneous group, supporting teachers directly in the schools, and increasing the qualifications of teachers in working with children having special educational needs. CZK 700 million was allocated for the call, and a total of 120 applications were received, asking for support in a total amount of nearly CZK 3 million. In 2016, the applications have been assessed and the realization of the projects began. Besides, the Ministry of Education, Youth and Sport supports the integration of the Roma minority in education via grants, specifically their pre-school preparation and early care, as well as their school success in education, and methodological support for teachers, employees of school counselling facilities and university students focusing on teaching and leisure activities for Roma children and youth. Nearly 14 million CZK was spent in 2015 on 54 of these activities.
10.The Ministry of Education, Youth and Sport also announced a grant programme named Support for Socially Disadvantaged Roma Pupils in Secondary Schools and Students of Vocational Colleges and Conservatories with the aim of supporting the studies of those Roma pupils, whose families have financial difficulties, related to secondary school or vocational college studies. The amount of the support for a student is graded according to the year of study. A first year student at secondary school receives CZK 4,000 per semester, a student of the fourth year receives CZK 7,000, and a vocational college student receives CZK 8,000. The aim is to encourage the students to complete an entire study programme and prevent them from leaving school prematurely. Within the framework of the programme, 1,023 Roma pupils and students were supported in 2015 with an overall sum of nearly CZK 5 million. During the first half of the year 2016, a total of 688 students were supported with nearly CZK 4 million.
11.Tertiary education is mostly supported from non-state projects. There are scholarships provided by the Roma Education Fund, available for Roma students of bachelor, master or doctoral studies. These scholarships are provided in 13 countries of Central and Eastern Europe with the aim of contributing to the higher education level of the Roma people, and to act in a non-discriminatory way within the educational system. In the Czech Republic, a not-for-profit organization Romea has been administering the scholarships since 2010. Roma university students are eligible to apply for the support, without any age limitations, studying in either attendance or distance type studies. In the school year 2015/2016, 57 applications for support in the Czech Republic were filed, of which a total of 34 scholarships were granted in an overall sum exceeding CZK 1 million. The Open Society Fund Prague also issued an invitation to support Roma university students for the school year 2015/2016. The amount of the scholarship for one student was limited to CZK 60,000 per year. The scholarship conditions of the programme are a work internship, an unpaid internship in a non-governmental non-profit organization, a foreign language course, training in the area of human rights and participation in selected events of the Open Society Fund Prague. During the programme, the grantee is accompanied by a mentor, who supervises, motivates and helps with the course of the scholarship. Roma students of universities up to 26 years of age are eligible to apply for the support, studying in either attendance or distance type studies. There are also scholarships for Roma students who have already been admitted to secondary school or university studies, provided by the Verda Foundation, a long-term partner of the Drom Roma centre. During the school year 2014/2015, scholarships were granted to 45 students in a total sum of CZK 376,500. Of the grantees, there were 11 university students, 1 vocational college student, 27 secondary grammar school students, and 6 secondary vocational school students.
The Committee recommends that the State party:
(a) Expedite the establishment of an effective compensation mechanism with appropriate support, including free legal aid, for victims of forced sterilization, as well as the adoption of a bill on a compensation mechanism, and extend the time period for bringing claims seeking compensation for forced sterilization;
(b) Ensure that those responsible for forcible sterilization be brought to justice;
(c) Monitor the implementation of the Specific Health-care Services Act to ensure that all procedures are followed in obtaining free, prior and informed consent of women, particularly Roma women, for any procedure of sterilization at health facilities;
(d) Ensure that Roma women and girls have free and full access to sexual and reproductive health services, including information on contraception.
Declaration of the Czech Republic:
12.The Czech Government discussed the proposal of draft legislation of the Act on compensating damages to illegally sterilized persons during its session on the 30th September 2015 and in the end it decided not to adopt it. Nevertheless, the Government carefully considered all the arguments ensuing from the Czech legal order, the jurisprudence of the Czech courts, including the Constitutional Court, the viewpoints of the Public Defender of Rights, the recommendations of international bodies protecting human rights, and the jurisprudence of the European Court of Human Rights. In its decision, the Government namely took into account the difficulty of evaluating the individual cases, which often took place a long time ago, the problems of possible missing medical documentation or other supporting materials, and the lack of further documents necessary to review the cases. The illegally sterilized persons could therefore face long and complicated procedures, which might not result in compensation being granted. The extra-judicial mechanism would therefore, with utmost probability, not be an effective addition to the existing means of compensation for illegally sterilized persons.
13.The main remedy in Czech law is the institute of an action to protect the personality rights which the illegally sterilized persons might file to claim compensation for the incurred non-property damage in court, either in non-monetary form (e.g. apology), or in monetary form. The monetary compensation, just like all other monetary claims, is subject to the statute of limitations, whereby the time limit is 3 years. The aim of this legal regulation is to provide for legal certainty in relations between private persons, and to prevent disputes regarding facts that happened many years ago, which may be difficult to prove. The European Court of Human Rights found this principle in its general form to be compliant with the Convention for the Protection of Human Rights and Fundamental Freedoms, as long as it allows the victim of the violation of rights to obtain remedy under reasonable conditions. Moreover, the Czech courts must always proceed in accordance with good manners and the principles of justice. Therefore, in case the application of a plea of limitation is too harsh on the person who cannot be blamed for the lapse of time, the court shall not accept such plea, and on the contrary, it is obliged to provide compensation. This can therefore be used to resolve cases in which the illegally sterilized persons would be unreasonably affected by the application of the limitation period, as the Supreme Court demonstrated in two judgements dated 2011 and 2014. In this respect, the Czech Government therefore considers the court action to be a sufficient means of compensation in respect of its international obligations, and it has always considered the establishment of an additional compensatory mechanism as an act ex gratia, i.e. a helpful step exceeding the framework of Czech international legal obligations, as the Czech Republic already stated in its previous declarations.
14.Free-of-charge legal assistance is currently provided by courts in individual proceedings in the Czech Republic. Participants may, in case of a lack of financial means, request the appointment of a representative in civil proceedings or a proxy to the injured party in criminal proceedings free-of-charge among attorneys, whose expenses are settled by the state, and they may also ask for an exemption regarding the costs of the court proceedings. General legal assistance is also provided for by the Czech Bar Association. This existing system is to be amended in such a way as to ensure there is timely and effective legal assistance available to everyone prior to the initiation of the actual proceedings. Therefore, lawyers throughout the Czech Republic shall provide brief legal counselling to persons without any means, for a minimum charge, with the remaining costs to be settled by the state. The lawyers will now also represent clients in administrative proceedings or in Constitutional Court proceedings, at the state’s expense. This new system shall be submitted to the Government during 2017. The illegally sterilized persons may acquire access to legal assistance in the judicial enforcement of their claims in the existing system as well, when, for example, the court may exempt them from payment of court fees, and a legal representative may be appointed to protect their interests at the state’s expense. The new system shall preserve these rights and extend their options via, for example, the availability of legal counsel prior to the initiation of the proceedings.
15.The initiation of criminal proceedings in any matter is contingent on the discovery of relevant facts demonstrating that the given act actually happened, that it is a criminal act, and that the offender is known. Another condition is that the period of lapse of the criminal proceedings has not expired. Should these conditions not be met, criminal proceedings cannot be initiated at all. If a motion was filed to initiate such proceedings, the public attorney or the police shall adjourn the issue. The injured party may file a complaint regarding the adjournment, with suspensory effects. If the criminal proceedings were initiated, but meanwhile it transpires that the act for which the criminal proceedings were initiated did not happen, such an act is not a crime, or it is not proven that the act was committed by the accused, the criminal proceedings must also be terminated. It is also possible to file a complaint with suspensory effects against the ruling on the termination of the criminal prosecution. These rules fully comply with the Czech Republic international obligations, including, for example, the International Covenant on Civil and Political Rights.
16.The vast majority of the criminal proceedings initiated based on the 58 cases assessed by the Public Defender of Rights were adjourned, as the commission of a crime was not determined. In four cases, the reason was in the lapse of the criminal prosecution, i.e. the expiry of the time limit by which the prosecution may be initiated. At present, there is no information regarding any ongoing criminal proceedings dealing with illegal sterilizations under the given rules, and no information is available as to any convictions of persons, which is specifically related to the fact that most cases, even as found by the Public Defender of Rights, took place before the year 2000. It must be noted that just like in any other case, when the erroneous approach of health providers failed to constitute a crime, the affected women could file an action for damages caused by illegal sterilization in civil proceedings. In its practice, the European Court of Human Rights recognized that in similar cases concerning the Article 3 of the Convention for the Protection of Human Rights and Fundamental Freedoms preventing torture and other mistreatment a civil action is a sufficient procedural remedy.
17.The legal regulation regarding sterilizations in the Act on Specific Health Services provides the patient with a protection of his/her rights, stipulating numerous conditions for the realization of sterilization to the health providers, which they are obliged to abide by. Therefore, the Act allows sterilization to be carried out either due to health reasons, or due to reasons other than health. Health-conditioned sterilization may be carried out on a patient older than 18 years, upon him/her expressing his/her explicit written consent. Sterilization for reasons other than health may be carried out on a patient older than 21 years based on his/her written request, unless it is prevented by serious health problems. Under-aged patients or patients with limited legal capability unable to assess the results of the provided healthcare service may only undergo sterilization for health reasons based on written consent by their legal representative, a positive viewpoint of an independent expert committee, and consent by the court. The law establishes that the committee must include at least five members, including a clinical psychologist and a lawyer, four of whom at least must have no relation whatsoever to the healthcare provider about to carry out the sterilization. The patient, or alternatively his/her legal representative, is always invited to attend the committee’s deliberations. The committee is obliged to inform the patient about the nature of the operation, its permanent consequences and possible risks, and to take into account the patient’s mental capacities while informing him/her. The committee must also check whether the patient and his/her legal representative fully understand the information provided. All the processes are recorded in the patient’s health documentation. Prior to the sterilization, the attending physician is obliged to inform the patient about the nature of the operation, its permanent consequences and possible risks. The statement is recorded in the health documentation and signed by the attending physician, the patient, and one or more witnesses. There is a compulsory period of 7 days between the provision of the information and the granting of consent to sterilization for health reasons; the time period extends to 14 days in case of sterilization for reasons other than health. Immediately before the actual operation, the patient, or alternatively his/her legal representative, must again explicitly express his/her consent to the operation.
18.The health provider must meet all these obligations, or else it violates the law and risks sanctions. The violation of these obligations is considered to be an administrative delict and it is punished by a penalty amounting up to CZK 300,000. Likewise, the violation of rules governing the maintenance of the health documentation is also considered to be an administrative delict, which may also be punished by a penalty amounting up to CZK 300,000. Administrative delicts are dealt with by regional authorities, which granted the licence to provide health services to the respective provider. According to the law, the administrative body which granted the licence for providing health services to the respective provider (mostly the regional authority, or alternatively the Ministry of Health or another ministry) carries out inspections regarding the health providers meeting their obligations. The inspection bodies check the meeting of the obligations and the conditions of providing health services or activities related to health services. The inspection bodies are entitled to impose remedial measures on the health providers in order to remove the discovered deficiencies within set time limits, to check the performance thereof, and to require written report documenting the performance of remedial measures. Inspections in the area of sterilizations carried out so far demonstrated that the health providers duly meet all their obligations.
19.Equal access to healthcare ensures sufficient care in the area of sexual and reproductive health, including for Roma women, and this care is traditionally at a very high level in the Czech Republic. From the age of 15, health insurance covers an annual preventative screening for cervical cancer. From the age of 45, the screening for breast cancer is carried out and covered by health insurance in two-year intervals. From the age of 55, the screening for colorectal cancer is added. From the year 2014 on, health insurance companies have cooperated in direct approach to inviting women to these screenings. Care for pregnant women during prenatal and perinatal periods, including care while giving birth in a hospital, is also fully covered by public health insurance. Dispensary care is fully covered for pregnant women from the moment of discovery of the pregnancy. Within the framework of this care, the woman is monitored in a prenatal consultancy clinic throughout the period of pregnancy by a doctor specializing in gynaecology, whereas the frequency of check-ups abides by the assessment of the health condition of the woman and the foetus. The Czech Gynaecological and Obstetrical Society of J.E. Purkyně published several recommended procedures regarding care for women during pregnancy and while giving birth (e.g. the principles of dispensary care in physiological pregnancy, the principles for providing obstetrical care in the Czech Republic, etc.).
20.Research carried out in 2014 among Roma women by the organization Slovo 21 demonstrated that out of 600 questioned Roma women, 58% of respondents expressed their satisfaction with the availability of healthcare, 23% have no opinion on it, and the rest is dissatisfied (18%). A majority of the questioned respondents (60%) attend regular gynaecological check-ups, 25% attend irregularly, and 12% don’t attend at all. On the contrary, 59% of women do not attend regular mammography check-ups, 22% do, and 11% attend irregularly. In this respect, it will therefore be necessary to increase the rate of education among the women. A vast majority of Roma women use contraception (83%). However, 72% claim that they do not pay attention to pregnancy planning; 39% became pregnant unexpectedly, 27% sometimes became pregnant unexpectedly and sometimes it was planned, 18% planned their pregnancy. In general, the research demonstrated that Roma women are well informed about their rights as patients, as the informedness in the individual questions always exceeded 80%.
21.In 2015, the Ministry of Health supported the project of the State Health Institute named Health Support in Excluded Localities — Reducing Health Inequality. The project demonstrated that the health condition of excluded poor Roma people is mostly contingent on their social status. Inequality in health by the inhabitants of the socially excluded localities is caused by lower education level and worse social-economic conditions. People living in these locations have limited access to information, which is often presented to them less comprehensibly or in a complicated form. Moreover, people with low income and low education often do not consider a healthy lifestyle as their priority. Unsuitable food, lack of movement, risk of addiction, worse access to healthcare — these are problems that may threaten the inhabitants of the socially excluded localities more than the majority population. Attention will therefore continue to be paid to healthcare in socially excluded localities, as well as to educating the inhabitants there.
22.Health and social assistants as a registered social service proved very competent in the area of health education and a more extensive utilization of health services. They significantly contributed to educational activities, and to motivating Roma people to participate in the public health services. The DROM Roma centre is a key provider of this service, realizing a Health and Social Assistance field programme since 2007. In 2015, DROM employed 7 health and social assistants, actively providing services in the Moravian and Silesian Region, Olomouc Region and South Moravian Region. In South Bohemian Region, health and social assistance services were provided by Farní charita Prachatice by means of 2 employees. However, the establishment of those services is complicated by a lack of system support in the area of its establishment and financing.
23.The principle of equal treatment regardless of ethnicity represents the fundamental principle in the approach of doctors and other healthcare providers to patients. This issue has been taken into account in the ethical code of doctors approved by the Czech Medical Chamber. According to Section 1, it is the professional obligation of a doctor to care for the health of an individual and of society as a whole in accordance with the principles of humanity, in the spirit of respect for each human life from its beginning until its end, and with all due respect to the dignity of a human being. It is the task of the doctor to protect health and life and to palliate suffering, regardless of nationality, race, colour, religion, political belief, social position, sexual orientation, age, mental capacity and reputation of the patient, or the doctor’s personal feelings. Similarly, there are codes of ethics for nurses and other healthcare employees, which prompt them to maintain respect to life and respect the human rights and dignity of every individual, regardless of age, sex, race, nationality, religion, political belief and social position. The education of doctors and healthcare employees also contributes to the equal approach to patients. In 2015, the Ministry of Health initiated a new educational event with the topic of Minority Groups within the framework of the continuous education of non-medical healthcare employees. The course will deal with the specificities of the minority groups, cultural and social differences, health and social aspects of the minorities, migration, immigrants, and language barriers. This educational event is currently being prepared.