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The Committee on
the Elimination of Racial Discrimination, established under article 8 of the
International Convention on the Elimination of All Forms of Racial
Discrimination,
Meeting on 7 March 2005,
Adopts the following:
Opinion
1. The petitioners are Ms. L. R. and 26 other Slovak citizens of Roma
ethnicity residing in Dobsiná, Slovak Republic. They claim to be victims of
a violation by the Slovak Republic pf article 2, paragraph 1, subparagraphs
(a), (c) and (d); article 4, paragraph (a); article 5, paragraph (e),
subparagraph (iii); and article 6 of the International Convention on the
Elimination of All Forms of Racial Discrimination. They are represented by
counsel of the European Roma Rights Centre, Budapest, Hungary, and the
League of Human Rights Advocates, Bratislava, Slovak Republic.
The Facts as Presented
2.1 On 20 March 2002, the councillors of the Dobsiná municipality adopted
Resolution No. 251-20/III-2002-MsZ, whereby they approved what the
petitioners describe as a plan to construct low-cost housing for the Roma
inhabitants of the town. [FN1] About 1,800 Roma live in the town in what are
described as "appalling" conditions, with most dwellings comprising thatched
huts or houses made of cardboard and without drinking water, toilets or
drainage or sewage systems. The councillors instructed the local mayor to
prepare a project aimed at securing finance from a Government fund set up
expressly to alleviate Roma housing problems in the State party.
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[FN1] The State party provides, with its submissions on the merits of the
petition, the following full text of the resolution: "On its 25th
extraordinary session held on 20 March 2002 the Town Council of the town of
Dobsiná adopted the following resolution from discussed reports and points:
RESOLUTION 251-20/III-2002-MsZ
After discussing the proposal by Lord Mayor Ing. Ján Vozár concerning the
building of low cost housing the Town Council of Dobsiná
Approves
the low cost housing - family houses or apartment houses - development
policy and
Recommends
the Lord Mayor to deal with the preparation of project documentation and
acquisition of funds for this development from state subsidies."
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2.2 Thereupon, certain inhabitants of Dobsiná and surrounding villages
established a five-member "petition committee", led by the Dobsiná chairman
of the Real Slovak National Party. The committee elaborated a petition
bearing the following text:
"I do not agree with the building of low cost houses for people of Gypsy
origin on the territory of Dobsiná, as it will lead to an influx of
inadaptable citizens of Gypsy origin from the surrounding villages, even
from other districts and regions." [FN2]
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[FN2] Petitioners' translation, which reflects exactly the text of the
petition set out in the translated judgment of the Constitutional Court
provided by the State party in annexure to its submissions on the merits.
The State party suggests in its submissions on the merits that a more
appropriate translation would be: "I do not agree with the construction of
flats for the citizens of Gypsy nationality (ethnicity) within the territory
of the town of Dobsiná, as there is a danger of influx of citizens of Gypsy
nationality from surrounding area [sic] and even from other districts and
regions."
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The petition was signed by some 2,700 inhabitants of Dobsiná and deposited
with the municipal council on 30 July 2002. On 5 August 2002, the council
considered the petition and unanimously voted, "having considered the
factual circumstances", to cancel the earlier resolution by means of a
second resolution which included an explicit reference to the petition.
[FN3]
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[FN3] The State party provides, with its submissions on the merits of the
petition, the following full text of the resolution:
"RESOLUTION 288/5/VIII-2002-MsZ
I. After discussing the petition of 30 July 2002 and after determining the
facts, the Town Council of Dobsiná, through the Resolution of the Town
Council is in compliance with the law, on the basis of the citizens'
petition
Cancels
Resolution 251-20/III-2002-MsZ approving the low cost housing - family
houses or apartment houses - development policy.
II. Tasks
the Town Council commissions with elaborating a proposal for solving the
existence of inadaptable citizens in the town of Dobsiná and then to discuss
it in the bodies of the town and at a public meeting of the citizens.
Deadline: November 2002
Responsible: Chairpersons of commissions"
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2.3 On 16 September 2002, in the light of the relevant law, [FN4] the
petitioners' counsel requested the Rožňava District Prosecutor to
investigate and prosecute the authors of the discriminatory petition, and to
reverse the council's second resolution as it was based on a discriminatory
petition. On 7 November 2002, the District Prosecutor rejected the request
on the basis of purported absence of jurisdiction over the matter. The
Prosecutor found that "...the resolution in question was passed by the
Dobsiná Town Council exercising its self-governing powers; it does not
constitute an administrative act performed by public administration and, as
a result, the prosecution office does not have the competence to review the
legality of this act take prosecutorial supervision measures in non-penal
area."
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[FN4] The petitioners refer to (i) article 1 of the Act on the Right of
Petition, which provides:
"A petition cannot call for a violation of the Constitution of the Slovak
Republic and its laws, nor deny or restrict individual rights";
(ii) article 12 of the Constitution, which provides:
(1) All human beings are free and equal in dignity and in rights. Their
fundamental rights and freedoms are sanctioned; inalienable, imprescribtible
and irreversible.
(2) Fundamental rights shall be guaranteed in the Slovak Republic to
everyone regardless of sex, race, colour, language, belief and religion,
political affiliation or other conviction, national or social origin,
nationality or ethnic origin, property, descent or any other status. No one
shall be aggrieved, discriminated against or favoured on any of these
grounds.
(3) Everyone has the right to decide freely which national group he or she
is a member of. Any influence and all manners of pressure that may affect or
lead to a denial of a person's original nationality shall be prohibited.
(4) No injury may be inflicted on anyone, because of exercising his or her
fundamental rights and freedoms.;
(iii) article 33 of the Constitution, which provides:
"Membership in any national minority or ethnic group may not be used to the
detriment of any individual"; and
(iv) the Act on the Public Prosecution Office, which provides that the
Prosecutor has a duty to oversee compliance by public administration bodies
with laws and regulations, and to review the legality of binding regulations
issued by public administration bodies.
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2.4 On 18 September 2002, the petitioners' counsel applied to the
Constitutional Court for an order determining that articles 12 and 33 of the
Constitution, the Act on the Right of Petition and the Framework Convention
for the Protection of National Minorities (Council of Europe) had been
violated, cancelling the second resolution of the council and examining the
legality of the petition. Further information was provided on two occasions
at the request of the Court. On 5 February 2003, the Court, in closed
session, held that the petitioners' had provided no evidence that any
fundamental rights had been violated by the petition or by the council's
second decision. It stated that as neither the petition nor the second
resolution constituted legal acts, they were permissible under domestic law.
It further stated that citizens have a right to petition regardless of its
content.
The Complaint
3.1 The petitioners argues that the State party has violated article 2,
paragraph 1, subparagraph (a), by failing to "ensure that all public
authorities and public institutions, national and local, shall act in
conformity with this obligation" [to engage in no act or practice of racial
discrimination]. They argue, with reference to the Committee's jurisprudence
that a municipal council is a local public authority, [FN5] and that the
council engaged in an act of racial discrimination by unanimously endorsing
the petition and canceling its resolution to build low-cost but adequate
housing for local Roma.
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[FN5] Koptova v Slovak Reoublic, Case No 13/1998, Opinion of 8 August 2000.
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3.2 The petitioners argue that there has been a violation of article 2,
paragraph 1, subparagraph (c), on the basis that the State party failed to
"nullify any laws or regulations which have the effect of creating or
perpetuating racial discrimination". Neither the District Prosecutor nor the
Constitutional Court took measures to cancel the council's second
resolution, which was itself based on a discriminatory petition. They also
argue that there has been a violation of subparagraph (d) of the paragraph
1, as well as article 4, paragraph (a), on the basis that the State party
failed "to prohibit and bring to an end ... racial discrimination by any
persons, group or organization" by not effectively investigating and
prosecuting the petition's authors. They argue that the petition's wording
can be regarded as "incitement to racial discrimination", and refer to the
Committee's decision in L. K. v The Netherlands, [FN6] where the State party
was found to have insufficiently investigated a petition and verbal threats
designed to stop an immigrant from moving into a subsidized home.
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[FN6] Case No 4/1991, Opinion of 16 March 1993.
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3.3 The petitioners contend that article 5, paragraph (e), subparagraph
(iii), was violated as the State party failed to safeguard the petitioners'
right to adequate housing. The local conditions, described above, are, in
the petitioners' view, well below an adequate level for housing and living
conditions in the State party, and would have been resolved by the original
council decision proceeding rather than being cancelled, without remedy, on
the basis of a discriminatory petition.
3.4 Finally, the petitioners argue a violation of article 6 in that the
State party failed to provide them with an effective remedy against acts of
racial discrimination inflicted both by the authors of the petition and the
council's second resolution, which was motivated by and based on such
discrimination. They contend that no measures have been taken (i) to cancel
the second resolution, (ii) to punish the petitions' authors or (iii) to
ensure that such discrimination does not recur.
3.5 As to the admissibility of the complaint, the petitioners state that no
further appeal lies against the Constitutional Court's judgment and that no
other international procedure of investigation or settlement has been
invoked.
The State Party's Submissions on the Admissibility of the Petition
4.1 By submission of 26 November 2003, the State party disputed the
admissibility of the petition on the basis of the petitioners' failure to
exhaust domestic remedies. Firstly, it argues that the petitioners did not
avail themselves of the possibility of challenging the District Prosecutor's
decision, as provided for in section 34 of the Act on Prosecution. [FN7]
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[FN7] This section provides that: "The applicant may request a review of the
lawfulness of dealing with his motion by filing a repeated motion; this new
motion shall be dealt with by a superior prosecutor."
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4.2 Secondly, with respect to the constitutional application, the State
party argues that despite being urged to do so by the Constitutional Court,
the petitioners did not "specify [with respect to the council's second
decision] any fundamental right or freedom that was allegedly violated in
conflict with the Constitution, other laws or other international
instruments which are binding on the Slovak Republic". As a result, the
Court held:
"The provisions of Article 12, paragraphs 1 and 4, Article 13, paragraphs 1
and 4, and Article 35 of the Constitution exclude, in general terms, the
discrimination against natural or legal persons; however, they cannot be
invoked without explicitly specifying the impact of a discriminatory
procedure applied by a state authority or a state administration body on a
fundamental right or freedom of a natural or legal person. Analogical
approach may be applied to Article 33 of the Constitution which has the aim
of preventing any harm (discrimination or persecution) as a direct
consequence of belonging to a national minority or ethnic group ... None of
the rights of the citizens, who belong to a minority and enjoy
constitutional protection, entails a corresponding obligation on the part of
the municipality to adopt certain decisions, ie. the decisions on specific
matters, such as construction of low-cost housing."
4.3 In the State party's view, the Court, in dismissing the complaint "as
manifestly unsubstantiated on procedural grounds", did not decide on the
merits, as a result of the petitioners' procedural mistake. It is thus open
for the petitioners to pursue a new "substantive" complaint with the
Constitutional Court. Finally, the State party argues that the petitioners
did not argue a breach of the Convention before the Court, although
international instruments are directly applicable and the Court can grant a
remedy for breach thereof.
The Petitioners' Comments
5.1 By submission of 12 January 2004, the petitioners responded to the State
party's observations. On the alleged failure to file a petition for review
of the District Prosecutor's decision, they argue that this authority was
the only one able to bring a criminal prosecution. The Prosecutor's decision
contained no indication of a possibility of further appeal. Moreover, there
is no indication that a higher prosecutor would have taken any different
view from that of the Prosecutor, namely that a town or municipal council is
not a "public administration body" whose decisions are reviewable for
legality. This view was taken despite the rejection, by the Committee, of
such an argument in the decision on the Koptova case. In the absence of any
change to the "firmly settled" domestic jurisprudence on this issue and in
the absence of any new facts, the petitioners argue that the State party has
not shown that a higher prosecutor would take any different view if the
complaint was re-presented. The same conclusion on the issue of exhaustion
of the proposed remedy was also shared by the Committee in the Koptova case
and Lacko v Slovakia. [FN8]
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[FN8] Case No 11/1998, Opinion of 9 August 2001.
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5.2 As to the argument that a new application should be lodged with the
Constitutional Court, the petitioners point out that the judgment describes
itself as final and that in Koptova, the Committee rejected such an
argument. Accordingly, as there is no prospect that repeated petitions to
either body offer any chance of success, the petitioners claim to have
exhausted all effective domestic remedies. They add that the State party's
arguments should be viewed against the absence of a comprehensive
anti-discrimination law; the only currently proscribed conduct is hate
speech, racially-motivated violence and discrimination in employment.
5.3 In response to arguments that municipal councils are not State organs,
the petitioners invoke the Committee's General Recommendation XV on article
4 for the contrary proposition. The Slovak Municipality System Act 1990
establishes a "direct relationship" between municipalities and the State, in
terms of its subordinate financial, functional and organizational positions.
Finally, in its Opinion on the Koptova case, the Committee found the council
to be a public authority for the purposes of the Convention. Thus, the
petitioners submit, the council's resolution should have been reviewed for
lawfulness by the District Prosecutor and the State party's international
responsibility is engaged.
5.4 The petitioners dispute the State party's argument that they did not
specify the fundamental rights and freedoms violated in their petition to
the Constitutional Court, arguing that they did so both in the original
application and in subsequent pleadings. They claimed (i) violations of the
right to equal treatment and dignity regardless of ethnic origin (article
12), (ii) violations of the right, as a member of an ethnic group or
national minority, not to suffer detriment (article 33), (iii) violations,
on the basis of ethnic origin, of their right to housing and (iv)
discrimination against an ethnic group, the Roma. They point out that they
continue to live in "appalling, sub-standard" conditions. They argue that
articles 12 and 33 of the Constitution are not simply accessory provisions
which, standing alone, have no substance; they confer substantive rights.
They also point out that, while the domestic Constitution does not protect
the right to housing, it does give precedence to international treaties such
as, in addition to the Convention, the International Covenant on Economic,
Social and Cultural Rights, which protects the right to housing and
prohibits discrimination. Furthermore, the petitioners explicitly referred
to the Council of Europe Framework Convention in their application. In any
event, they argue they have complied with their obligation, under the
relevant jurisprudence, to raise the substance of a complaint.
5.5 The petitioners further contend that the racial discrimination suffered
by them amounts to degrading treatment proscribed in article 12 of the
Constitution. They refer to the case law of the European Commission of Human
Rights, which held, in the East African Asians case, that immigration
admission denied on the basis of colour and race amounted to such a
violation of article 3 of the European Convention, and constituted an
affront to human dignity. [FN9] They also argue that, under well-established
principles, if a State party decides to confer a particular benefit (that it
may not necessarily have had an obligation to confer ab initio), that
benefit cannot be conferred in a discriminatory fashion. [FN10] Thus, even
if the petitioners had no initial right to housing (which they contest), it
cannot be cancelled, on discriminatory grounds, subsequent to its provision.
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[FN9] 3 EHRR 76 (1973).
[FN10] The petitioners refer to the Belgian Linguistics case, 1 EHRR 252,
283.
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5.6 Finally, the petitioners object to any inference that they are not
"victims" on the basis that the Constitutional Court held that no violation
of the Slovak Constitution had been made out. They argue that they were part
of a specific group of people granted certain rights and then had them
abolished. Thus, once they are, "directly targeted by the resolutions", to
use the Committee's language in its Opinion on the Koptova case, they can be
considered "victims". In addition, as the complaint lodged with the District
Prosecutor did not lead to substantive review of the lawfulness of the
council decision or to a criminal investigation of charges of incitement,
they were victims of an absence of a remedy. The petitioners refer in this
respect to the Committee's Concluding Observations on the State party's
periodic report concerning discrimination in access to housing. [FN11]
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[FN11] CERD/C/304/Add.110 of 1 May 2001.
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The Committee's Decision on the Admissibility of the Petition
6.1 At its sixty-fourth session, on 27 February 2004, the Committee examined
the admissibility of the petition. As to the State party's contention that
the petitioners did not renew their complaint before another prosecutor
after it had been dismissed by the District Prosecutor, the Committee noted
that the District Prosecutor had dismissed the case for lack of jurisdiction
over an act of the municipal council. In the Committee's view, as far as the
decision on lack of competence was concerned, the State party had not shown
how re-presentation of the complaint would provide an available and
effective remedy for the alleged violation of the Convention. Consequently,
these avenues needed not be pursued for purposes of exhaustion of domestic
remedies. In this regard, the Committee recalled its own jurisprudence and
that of the Human Rights Committee. [FN12]
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[FN12] See Lacko, supra, and, with respect to the Human Rights Committee,
R.T v. France, Case No. 262/87, Decision adopted on 30 March 1989, and
Kaaber v. Iceland, Case No. 674/95, Decision adopted on 11 May 1996.
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6.2 With reference to the contention that the petitioners should renew their
claim before the Constitutional Court, the Committee recalled its
jurisprudence that where the Court dismissed a fully argued constitutional
petition arguing alleged racial discrimination for failure to disclose the
appearance of an infringement of rights, a petitioner could not be expected
to re-present a petition to the Court. [FN13] In the present case, the
Committee observed that the current petitioners also invoked several
relevant constitutional rights alleged to have been violated, including
rights of equality and non-discrimination. In the circumstances, the State
party had not shown how renewal of their petition before the Constitutional
Court, after it had been dismissed, could give rise to a different result by
way of remedy. It followed that the petitioners have exhausted available and
effective remedies before the Constitutional Court.
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[FN13] See Koptova, supra, at paragraphs 2.9 and 6.4.
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6.3 The Committee further recalled its jurisprudence that the acts of
municipal councils, including the adoption of public resolutions of legal
character such as in the present case, amounted to acts of public
authorities within the meaning of the provisions of the Convention. [FN14]
It followed that the petitioners, being directly and personally affected by
the adoption of the resolution, as well as its subsequent cancellation after
presentation of the petition, may claim to be "victims" for purposes of
submitting their complaint before the Committee. [FN15]
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[FN14] Ibid., at paragraph 6.6.
[FN15] Ibid., at paragraph 6.5.
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6.4 The Committee also considered that the claims advanced by the
petitioner's were sufficiently substantiated, for purposes of admissibility.
In the absence of any other obstacles to admissibility, the complaint was
therefore declared admissible.
The State Party's Request for Reconsideration of Admissibility and
Submissions on the Merits
7.1 By submission of 4 June 2004, the State party submitted a request for
reconsideration of admissibility and its submissions on the merits of the
petition. It argued that the petitioners have failed to exhaust domestic
remedies, as they could have availed themselves of an effective remedy in
the form of a petition pursuant to article 27 of the Constitution and the
Right to Petition Act, challenging the second municipal council resolution
and/or the petition lodged against the initial resolution. Presentation of
such a petition would have obliged the municipality to accept the petition
for review and to examine the factual situation. This remedy is not subject
to time-limits and is still available to the petitioners.
7.2 The State party argues that the failure of the petitioners to obtain the
result that they sought from the prosecuting authorities and the courts
cannot, of itself amount to a denial of an effective remedy. It refers to
the decision of the European Court of Human Rights in Lacko et al. v Slovak
Republic [FN16] to the effect that a remedy, within the meaning of article
13 of the European Convention on Human Rights, "does not mean a remedy bound
to succeed, but simply an accessible remedy before an authority competent to
examine the merits of a complaint". It is the petitioners who should be held
responsible for the failure of their claim before the Constitutional Court,
on the basis that they failed to specify the fundamental right allegedly
infringed by the council resolution in addition to simply invoking the
general equality provision of article 12 of the Constitution.
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[FN16] Application No. 47237 of 2 July 2002.
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7.3 The State party rejects the Committee's view that it was sufficient for
the petitioners to plead certain relevant constitutional articles, without
also pleading specific concrete injury, as both generally required by the
Constitutional Court's jurisprudence and specifically requested of the
petitioners by the Court in the instant case. The State party regards such a
requirement of particularized injury, ie. a pleading of a violation of a
general equality/non-discrimination guarantee in combination with a concrete
right, to be wholly consistent with the spirit of the Convention.
7.4 On the remedies actually instituted by the petitioners, the State party
argues that their application of 16 September 2002 to the Rožňava District
Prosecutor contended only that the petition to the council amounted to an
abuse of the right to petition under the Right to Petition Act, under which
a petition must not incite violations of the Constitution or amount to a
denial or restriction of personal, political or other rights of persons on
the grounds of their nationality, sex, race, origin, political or other
conviction, religious faith or social status, and must not incite to hatred
and intolerance on the above grounds, or to violence or gross indecency. The
petitioners neither argued how the factual circumstances amounted to such an
abuse of the right to petition, nor mentioned the issue of racial
discrimination, Roma ethnicity or other circumstances implicating the
Convention.
7.5 In their application to the Constitutional Court, the petitioners
requested a ruling that the council resolution infringed "the fundamental
right of the petitioners to equal fundamental rights and freedoms
irrespective of sex, race, colour, language, national origin, nationality or
ethnic origin guaranteed under Article 12 of the Constitution" and "the
fundamental right of the petitioner to not suffer any detriment on account
of belonging to a national minority or ethnic group guaranteed under Article
33 of the Constitution." The State party observes that the Constitutional
Court requested the petitioners inter alia to complete their complaint with
information on "which of their fundamental rights or freedoms were
infringed, which actions and/or decisions gave rise to the infringement,
[and] which decisions of the Municipal Council they consider to be
ethnically or racially motivated". The petitioners however completed their
submission without specifying the rights allegedly violated, with the result
that the Court dismissed the complaint as unfounded. In light of the above,
the State party requests reconsideration of the admissibility of the
petition.
7.6 On the merits, the State party argues that the petitioners failed to
show an act of racial discrimination within the meaning of the Convention.
Firstly, it argues that the petitioners mischaracterize the facts in
important respects. It is not correct that the original resolution adopted
by the municipal council approved a plan to construct low-cost housing;
rather, the resolution "approv[ed] the concept of the construction of
low-cost housing - family houses and/or apartment houses", making no mention
of who would be the future dwellers, whether Roma or otherwise. It is also
incorrect that the council instructed the local mayor to prepare a project
aimed at securing finance from a government fund set up expressly to
alleviate Roma housing problems; rather, the resolution only recommended
that the mayor, as the State party describes it, "consider preparing project
documentation and obtaining the funds for the construction from government
subsidies." [FN17]
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[FN17] See the full text of the resolution set out in footnote 1, supra.
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7.7 The State party points out that such resolutions, as purely internal
organizational rules, are not binding ordinances and confer no objective or
subjective rights that can be invoked before the courts or other
authorities. As a result, neither Roma nor other inhabitants of Dobsiná can
claim a violation of their "right to adequate housing" or discrimination
resulting from such resolutions. Similarly, the Constitutional Court held
that "none of the rights granted to the citizens who belong to a minority
and enjoy constitutional protection entails an obligation by a municipality
to make a certain decision or perform a certain activity, such as the
construction of low cost housing". The municipal resolutions, which are
general policy documents on the issue of housing in the municipality, make
no mention of Roma and the petitioners infer an incorrect causal link. The
tentative nature of the resolution is also shown by the absence of any
construction timetable, as any construction necessarily depended on
government funding.
7.8 The State party observes that the second resolution, after revoking the
first resolution, instructed the council, in the words of the State party,
"to prepare a proposal on addressing the existence of inadaptable citizens
in the town of Dobsiná and to subsequently open the proposal for a
discussion by municipal bodies and at a public meeting of the citizens."
[FN18] This makes clear that the resolution is part of an ongoing effort to
find a conceptual solution to the existence of "inadaptable citizens" in the
town. As a result, policy measures taken by the municipal council to secure
housing for low-income citizens clearly does not fall within the scope of
the Convention. Rather, the council's activities can be viewed as a positive
attempt to create more favourable conditions for this group of citizens,
regardless of ethnicity. The State party observes that these actions of the
municipality in the field of housing were against the background of the
Slovak Government's Resolution No. 335/2001 approving a Programme for the
Construction of Municipal Rental Flats for low income housing, and should be
interpreted in that context.
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[FN18] See the full text of the resolution set out in footnote 3, supra.
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7.9 The State party invokes the jurisprudence of the European Court of Human
Rights in which the Court declined to entertain claims of discrimination
advanced by travelling communities arising from the denial of residence
permits on the basis of the public interest, such as environmental
protection, municipal development and the like. [FN19] The State party
argues that in this case local residents, committed to upgrading their
municipality and properties, had legitimate concerns about certain risks
including adverse social impacts arising from a mass influx of persons to
low-income housing. It is noted that a number of Roma also signed the
petition in question.
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[FN19] Chapman v United Kingdom, judgment of 18 January 2001, and Coster v
United Kingdom, judgment of 18 January 2001.
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7.10 The State party argues that reference to other cases decided by the
Committee such as Lacko [FN20] and Koptova [FN21] is inappropriate, as the
facts and law of the present case differ. In particular, in Koptova, there
was no context of an ongoing policy programme of housing development. The
State party also observes that on 20 May 2004, Parliament passed a new
anti-discrimination law laying down requirements for the implementation of
the equal treatment principle and providing legal remedies for cases of
infringement. The State party also rejects the reliance placed upon the
European Court's judgments in the East African Asians [FN22] and Belgian
Linguistics [FN23] cases. They emphasise that the second resolution did not
cancel an existing project (and thus deprive existing benefits or
entitlements), but rather reformulated the concept of how housing in the
municipality would best be addressed.
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[FN20] Op.cit.
[FN21] Ibid.
[FN22] Op.cit.
[FN23] Ibid.
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7.11 On article 6, the State party reiterates its arguments developed in the
context of the admissibility of the petition, namely that its courts and
other instances provide complete and lawful consideration, in accordance
with the requirements of due process, to any claim of racial discrimination.
Concerning criminal prosecutions in the context of the petition on the basis
of spreading racial hatred, the State party argues that the petitioners have
failed to demonstrate that any actions of its public authorities were
unlawful, or that the petition or its contents were unlawful. A violation of
the right to an effective remedy protected by article 6 has accordingly not
been established.
The Petioners' Comments on the State Party's Submissions
8.1 With respect to the State party's argument related to the remedy of a
petition, the petitioners argue that the only legal obligation is for it to
be received by the relevant authority. The Constitutional Court has held
that there is no obligation for the petition to be treated and given effect
to; in the Court's words, "[n]either the Constitution nor the Petition Act
give concrete guarantees of acceptance or consequences of dismissal of
petitions". As a result, such an extraordinary remedy cannot be regarded as
an effective remedy that must be exhausted for the purposes of petitioning
the Committee.
8.2 On the merits, the petitioners reject the State party's characterization
of the council resolutions as being without legal effect, and refer to the
Committee's admissibility decision where it was decided that "public
resolutions of legal character such as in the present case" amounted to acts
of public authorities. The petitioners also contest whether any Roma signed
the petition against the first council resolution, stating that this is
founded upon an assertion made in a letter dated 28 April 2004 by the mayor
of Dobsiná to the Sloval Ministry of Foreign Afairs, without any further
substantiation. In any event, the petitioners argue that the ethnicity of
the persons signing the petition is irrelevant, as its content, purpose and
effect is discriminatory. The petitioners also argue that the repeated use
of the term "inadaptable citizens" by the State party reveals institutional
prejudices against Roma.
8.3 The petitioners argue that, contrary to the State party's assertions,
there is a compelling causal link between the council resolutions, the
petition and discrimination in access to housing suffered by the
petitioners. They argue that implementation of the social housing project
would have resulted in their lives assuming a sense of dignity and
alleviated dangers to their health. However, to date, the State party
authorities have taken no steps to alleviate the inadequate housing
situation of the petitioners. They argue that their situation is part of a
wider context of discrimination in access to housing at issue in the State
party and submit a number of reports of international monitoring mechanisms
in support. [FN24]
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[FN24] The petitioners cite the Committee's own Concluding Observations,
dated 1 June 2001, on the State party (CERD/C/304/Add.110) [Note of the
Committee: The Committee's most recent Concluding Observations on the State
party are dated 10 December 2004 (CERD/C/65/CO/7)]. The petitioners also
cite the Third Report on the State party of the European Commission against
Racial Intolerance, dated 27 June 2003, a Report on the Situation of Roma
and Sinti in the OSCE Area, dated April 2000, by the Organisation for
Security and Co-operation in Europe, the 2004 Report on Human Rights in the
OSCE Region by the International Helsinki Federation, the 2001-2 World
Report of Human Rights Watch, the Concluding Observations, dated 22 August
2003, of the Human Rights Committee on the State party (CCPR/CO/78/SVK), the
Concluding Observations, dated 19 December 2002, of the Committee on
Economic, Social and Cultural Rights (E/C.12/1/Ad.81), the Opinion on
Slovakia, dated 22 September 2000, adopted by the Advisory Committee on the
Framework Convention for the Protection of National Minorities and the 2003
Country Reports (Slovakia) on Human Rights Practices of the Department of
State, United States of America.
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8.4 The petitioners reject the argument that the State party authorities
were under no obligation in the first place to provide housing, referring to
the obligations under article 11 of the International Covenant on Economic,
Social and Cultural Rights (right to "an adequate standard of living ...
including ... housing"). In any event, they argue that the principle
developed in the Belgian Linguistics case stands not only for the principle
that when a State party decides to confer a benefit it must do so without
discrimination, but also for the principle that having decided to implement
a certain measure - in this case to pursue the housing scheme - a State
party cannot later decide not to implement it and base itself on
discriminatory considerations.
Issues and Proceedings Before the Committee
Review of Consideration of Admissibility
9.1 The State party has requested the Committee on the Elimination of Racial
Discrimination, under Rule 94, paragraph 6, of the Committee's Rules of
Procedure, to reconsider its decision on admissibility. The Committee must
therefore decide whether the petition remains admissible in the light of the
further submissions of the parties.
9.2 The Committee notes that the State party's request for reconsideration
raises the possible remedy of a petition to the municipal authority,
advancing the matters currently before the Committee. The Committee
observes, however, that under the State party's law, the municipal authority
is solely under an obligation to receive the petition, but not to consider
it or to make a determination on the outcome. In addition, the Committee
observes that it is fundamental to the effectiveness of a remedy that its
independence from the authority being complained against is assured. In the
present case however the petition would re-present the grievance to the same
body, the municipal council, that had originally decided on it. In such
circumstances, the Committee cannot regard the right of petition as a
domestic remedy that must be exhausted for the purposes of article 14,
paragraph 7(a), of the Convention.
9.3 As to the State party's remaining arguments, the Committee considered
that these generally recast the arguments originally advanced to it in the
course of the Committee's initial consideration of the admissibility of the
petition. The Committee has already resolved these issues at that point of
its consideration of the petition; accordingly, it would be inappropriate
for the Committee to review its conclusions at the current stage of its
deliberations.
9.4 In conclusion, therefore, the Committee rejects the State party's
request for a reconsideration of the admissibility of the petition and
proceeds to its consideration of the merits thereof.
Consideration of the Merits:
10.1 Acting under article 14, paragraph 7 (a), of the International
Convention on the Elimination of All Forms of Racial Discrimination, the
Committee has considered the information submitted by the petitioner and the
State party.
10.2 The Committee observes, at the outset, that it must determine whether
an act of racial discrimination, as defined in article 1 of the Convention,
that has occurred before it can decide which, if any, substantive
obligations in the Convention to prevent, protect against and remedy such
acts, have been breached by the State party.
10.3 The Committee recalls that, subject to certain limitations not
applicable in the present case, article 1 of the Convention defines racial
discrimination as follows: "any distinction, exclusion, restriction or
preference based on race, colour, descent, or national or ethnic origin,
which has the purpose or effect of nullifying or impairing the recognition,
enjoyment or exercise, on an equal footing, of human rights and fundamental
freedoms in the political, economic, social, cultural or any other field".
10.4 The State party argues firstly that the resolutions of the municipal
council challenged make no reference to Roma, and must thus be distinguished
from the resolutions at issue in, for example, the Koptova [FN25] case that
were racially discriminatory on their face. The Committee recalls that the
definition of racial discrimination in article 1 expressly extends beyond
measures which are explicitly discriminatory, to encompass measures which
are not discriminatory at face value but are discriminatory in fact and
effect, that is, if they amount to indirect discrimination. In assessing
such indirect discrimination, the Committee must take full account of the
particular context and circumstances of the petition, as by definition
indirect discrimination can only be demonstrated circumstantially.
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[FN25] Op.cit.
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10.5 In the present case, the circumstances surrounding the adoption of the
two resolutions by the municipal council of Dobsiná and the intervening
petition, presented to the council following the its first resolution make
abundantly clear that the petition was advanced by its proponents on the
basis of ethnicity and was understood as such by the council as the primary
if not exclusive basis for revoking its first resolution. As a result, the
Committee considers that the petitioners have established a distinction,
exclusion or restriction based on ethnicity, and dismisses this element of
the State party's objection.
10.6 The State party argues, in the second instance, that the municipal
council's resolution did not confer a direct and/or enforceable right to
housing, but rather amounted to but one step in a complex process of policy
development in the field of housing. The implication is that the second
resolution of the council, even if motivated by ethnic grounds, thus did not
amount to a measure "nullifying or impairing the recognition, enjoyment or
exercise, on an equal footing, of human rights and fundamental freedoms in
the political, economic, social, cultural or any other field", within the
meaning of article 1, paragraph 1, in fine. The Committee observes that in
complex contemporary societies the practical realization of, in particular,
many economic, social and cultural rights, including those related to
housing, will initially depend on and indeed require a series of
administrative and policy-making steps by the State party's competent
relevant authorities. In the present case, the council resolution clearly
adopted a positive development policy for housing and tasked the mayor with
pursuing subsequent measures by way of implementation.
10.7 In the Committee's view, it would be inconsistent with the purpose of
the Convention and elevate formalism over substance, to consider that the
final step in the actual implementation of a particular human right or
fundamental freedom must occur in a non-discriminatory manner, while the
necessary preliminary decision-making elements directly connected to that
implementation were to be severed and be free from scrutiny. As a result,
the Committee considers that the council resolutions in question, taking
initially an important policy and practical step towards realization of the
right to housing followed by its revocation and replacement with a weaker
measure, taken together, do indeed amount to the impairment of the
recognition or exercise on an equal basis of the human right to housing,
protected by article 5(c) of the Convention and further in article 11 of the
International Covenant on Economic, Social and Cultural Rights. The
Committee thus dismisses the State party's objection on this point.
10.8 In light of this finding that an act of racial discrimination has
occurred, the Committee recalls its jurisprudence set out in paragraph 6.3,
supra, of its consideration of the admissibility of the petition, to the
effect that acts of municipal councils, including the adoption of public
resolutions of legal character such as in the present case, amounted to acts
of public authorities within the meaning of Convention provisions. It
follows that the racial discrimination in question is attributable to the
State party.
10.9 Accordingly, the Committee finds that the State party is in breach of
its obligation under article 2, paragraph 1(a), of the Convention to engage
in no act of racial discrimination and to ensure that all public authorities
act in conformity with this obligation. The Committee also finds that the
State party is in breach of its obligation to guarantee the right of
everyone to equality before the law in the enjoyment of the right to
housing, contrary to article 5, paragraph d(iii) of the Convention.
10.10 With respect to the claim under article 6, the Committee observes
that, at a minimum, this obligation requires the State party's legal system
to afford a remedy in cases where an act of racial discrimination within the
meaning of the Convention has been made out, whether before the national
courts or in this case the Committee. The Committee having established the
existence of an act of racial discrimination, it must follow that the
failure of the State party's courts to provide an effective remedy discloses
a consequential violation of article 6 of the Convention.
10.11 The Committee considers that the petitioners' remaining claims do not
add substantively to the conclusions set out above and accordingly does not
consider them further.
11. The Committee on the Elimination of Racial Discrimination, acting under
article 14, paragraph 7, of the Convention on the Elimination of All Forms
of Racial Discrimination, is of the view that the facts before it disclose
violations of article 2, paragraph 1(a), article 5, paragraph d(iii), and
article 6 of the Convention.
12. In accordance with article 6 of the Convention, the State party is under
an obligation to provide the petitioners with an effective remedy. In
particular, the State party should take measures to ensure that the
petitioners are placed in the same position that they were in upon adoption
of the first resolution by the municipal council. The State party is also
under an obligation to ensure that similar violations do not occur in the
future.
13. The Committee wishes to receive, within ninety days, information from
the Government of the Slovak Republic about the measures taken to give
effect to the Committee's Opinion. The State party is requested also to give
wide publicity to the Committee's Opinion.
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