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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 8 August 2000,
Having concluded its consideration of communication No. 13/1998, submitted
to the Committee under article 14 of the International Convention on the
Elimination of All Forms of Racial Discrimination,
Having taken into consideration all written information made available to it
by the author and the State party,
Bearing in mind rule 95 of its rules of procedure requiring it to formulate
its opinion on the communication before it,
Adopts the following:
Opinion
1. The author of the communication is Anna Koptova, a Slovak citizen of
Romany ethnicity. She is the director of the Legal Defence Bureau for Ethnic
Minorities of the Good Romany Fairy Kesaj Foundation in Kosice and claims to
be a victim of violations by the Slovak Republic of articles 2, 3, 4, 5 and
6 of the Convention. She is represented by the European Roma Rights Center,
a non-governmental organization based in Budapest.
1.2 In conformity with article 14, paragraph 6 (a) of the Convention, the
Committee transmitted the communication to the State party on 25 March 1999.
The Facts as Submitted by the Author
2.1 The author reports that in 1981 seven Romany families from the villages
of Rovne and Zbudske Dlhe, Slovak Republic, came to work in an agricultural
cooperative located in the municipality of Krasny Brod. Shortly after their
arrival each of the families sought and received permanent residence under
Slovak Law (135/1982 Act) in what are today the municipalities of Nagov and
Rokytovce (at the time part of Krasny Brod). When, at the end of 1989, the
agricultural cooperative ceased operations the Romany families lost their
jobs. Insofar as their living quarters at the cooperative were linked to
their employment, they were compelled to leave the cooperative. Upon their
departure, the authorities demolished the stables which they had occupied.
2.2 In May 1991 the Romany families returned to the municipalities where
they were legally registered, i.e. Rokytovce and Nagov. For various periods
over the following six years, they lived in temporary housing provided
reluctantly by local authorities in the county of Medzilaborce. On more than
one occasion during that period, however, anti-Roma hostility on the part of
local officials and/or non-Romany residents forced the Romany families to
flee. Thus, between May and December 1991 the Medzilaborce County Department
of Social Affairs reserved a trailer for the families to rent. Although the
families raised the money no village (Krasny Brod, Cabiny, Sukov, Rokytovce,
Nagov or Cabalovce) allowed them to place the trailer on its territory. In
1993, after they had built temporary dwellings in the village of Cabiny, the
dwellings were torn down by non-Romany residents. Throughout this period the
Romany families were moving frequently from one town to another, in search
of a permanent and secure home.
2.3 In spring 1997 the families again established temporary dwellings on
agricultural land located in Cabiny. Local authorities from neighbouring
villages met to discuss the situation. The mayor of Cabiny characterized as
illegal the movement of Roma to Cabiny and warned of a possible negative
reaction from the rest of the population. The mayors of Cabalovce and Nagov
agreed to accommodate the homeless Roma. On 8 June 1997 the Municipal
Council of Rokytovce, whose mayor had not been present at the
above-mentioned meeting, enacted a resolution which expressly forbade the
Romany families from settling in the village and threatened them with
expulsion should they try to settle there. The resolution also declared that
they were not native inhabitants of Rokytovce, since after the separation of
Rokytovce and Krasny Brod in 1990 they had neither resided in the village
nor claimed their permanent residence there. On 16 July 1997 the
Municipality of Nagov adopted resolution No. 22 which also forbade Roma
citizens to enter the village or to settle in shelters in the village
district. The resolution explicitly provided that its effect was of
permanent duration.
2.4 On 21 July 1997 the dwellings built and occupied by the Romany families
in the municipality of Cabiny were set on fire. To date no perpetrator has
been identified and there is no record of what, if any, steps the
prosecution authorities have taken to investigate the facts.
2.5 The Kosice Legal Defence Foundation sent a letter to the General
Prosecutor's Office in Bratislava requesting an investigation into the
legality of Resolution No. 21 of the Municipal Council of Rokytovce and
resolution No. 22 of the Municipal Council of Nagov. The letter asserted
that the Resolutions were acts of "public discrimination" against Roma which
infringed their rights to freedom of movement and residence and to
protection against discrimination. On 19 September 1997 the General
Prosecutor's Office informed the Foundation that the investigation had been
assigned to the County Prosecutor in Humenn�.
2.6 On 24 November 1997 the Kosice Legal Defence Foundation submitted an
application to the Constitutional Court of the Slovak Republic requesting
annulment of both resolutions. The submission stated that these resolutions
violated the human rights and fundamental freedoms not only of Romany
citizens with permanent residence in the respective towns but of all Romany
citizens, as well as of the Foundation itself, which could not carry out its
work on behalf of Roma in the affected towns. It also stated that nine
Romany families with permanent residence in the two villages in question had
been forced to leave and that the resolutions constituted a general ban
against Romany citizens, pursuant to which no citizen of Romany origin was
allowed to enter these villages. It requested the annulment of both
resolutions on the grounds that they violated the rights of
non-discrimination and freedom of movement and residence, as well as the
particular rights of ethnic minorities protected by the Slovak Constitution.
2.7 In its decision of 18 December 1997 the Constitutional Court dismissed
the submission on the ground that, as a legal person, the Kosice Legal
Defence Foundation could not suffer an infringement of the constitutional
rights set forth in its application, since those rights were designed to
protect only natural persons. On 29 December 1997 the District Prosecutor's
Office in Humenn� notified the Foundation that, in view of the
Constitutional Court's ruling, it had suspended its investigation concerning
the challenged resolutions.
2.8 On 5 May 1998 Ms. Koptova, together with Miroslav Lacko (another
employee of the Kosice Legal Defence Foundation) and Jan Lacko, one of the
Romany citizens whose dwellings were destroyed on 21 July 1997, filed
another submission before the Constitutional Court. This submission
challenged the Nagov resolution on the grounds that it unlawfully restricted
the freedom of movement and residence of a group of people solely because
they were Roma. The submission argued that not only Jan Lacko, a permanent
resident of Nagov, but all Roma in Slovakia, including Ms. Koptova, suffered
infringements of their rights under the Slovak Constitution to freedom of
movement and residence, freedom from racial and ethnic discrimination and
freedom in the choice of nationality. On the same date Julia Demeterova, a
permanent resident of Rokytovce and another of the Romany citizens whose
dwellings had been destroyed, filed a submission with the Constitutional
Court challenging the Rokytovce resolution on the same grounds.
2.9 On 16 June 1998 the Constitutional Court issued two written opinions
dismissing both petitions on similar grounds. In response to Jan Lacko's
submission the Court reasoned that, as a permanent resident of Nagov, he had
not provided any evidence to show that the Nagov resolution had in fact been
applied in a manner which would infringe his rights. As to Miroslav Lacko
and Ms. Koptova, both of whom had permanent residence outside Nagov, the
Court found no evidence that either had tried to enter or move into the
community of Nagov, or that the community had tried to stop them.
Accordingly, the Court found, their rights had not been violated. With
respect to Demeterova's submission the Court found that, as a permanent
resident of Rokytovce, she had provided no evidence that the resolution had
in fact been applied in a manner which infringed her rights.
2.10 Since the adoption of both resolutions at issue Anna Koptova has not
gone to Rokytovce or Nagov. She fears that, as a Slovak citizen of Romany
ethnicity, she would be subjected to violence if she were to enter either
municipality.
The Complaint
3.1 The author asserts that a number of rights to which she is entitled
under the Convention have been violated, including the following:
Article 2.1 (a). The institutions which have adopted the resolutions in
question are local public authorities and public institutions. By
maintaining the resolutions in force the Slovak Republic has engaged in acts
of racial discrimination against the author and other Roma and has failed to
ensure that all public authorities and public institutions, national and
local, refrain from acts or practices of racial discrimination.
Article 2.1 (c). By maintaining in force the resolutions at issue the Slovak
Republic has failed to take any measures to review governmental, national
and local policies and to amend, rescind or nullify any laws and regulations
which have the effect of creating or perpetuating racial discrimination.
Article 3. The Resolutions publicly and formally refer to the author and
other persons by their assumed racial/ethnic identity and single them out
for special treatment. As such, the Resolutions expressly endorse policies
of racial segregation and apartheid. By refusing to withdraw them the Slovak
Republic has contravened its obligation to prevent, prohibit and eradicate
all practices of segregation and apartheid within its jurisdiction.
Article 4 (c). By maintaining in force the resolutions at issue the Slovak
Republic has failed to comply with its obligation not to permit public
authorities or public institutions, national or local, to promote or incite
racial discrimination against the author and other Roma.
Article 5 (d) (i). The resolutions at issue expressly forbid the author and
other Roma from entering the two municipalities solely because of their
status as Roma. By adopting and maintaining in force these resolutions the
Slovak Republic has infringed the author's right to freedom of movement and
residence.
Article 6. The author complained to local law enforcement authorities and
filed formal complaints with the Constitutional Court. However, each request
for a remedy was rebuffed. The ruling of 16 June 1998 by the Constitutional
Court represents the final domestic decision, from which no appeal is
permitted. Accordingly, all domestic remedies have been exhausted.
3.2 The author states that she is a victim of the above violations for the
purposes of article 14, paragraph 1, of the Convention. Both resolutions may
be reasonably understood by the author, (as, indeed, by all Roma in
Slovakia) to apply to her. The author would like to be free to visit Nagov
and Rokytovce, for instance in order to further the work of her
organization. However, she has not entered either municipality since the
resolutions were adopted, in part because she fears that they could be
enforced against her. The author believes that, by publicly and formally
using the term "Roma" to refer to certain unspecified persons and by
singling out such persons for special and invidious treatment, the
resolutions subject her, as a person of Romany ethnicity, to degrading
treatment. [FN1]
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[FN1] In so doing the author relies upon jurisprudence of the European
Commission on Human Rights, in particular its decision in East African
Asians v. United Kingdom, in which the Commission found that challenged
immigration legislation had publicly subjected the applicants to racial
discrimination and constituted an interference with their human dignity,
amounting to "degrading treatment" in the sense of article 3 of the European
Convention on Human Rights.
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3.3 The author further argues that, in assessing her "victim" status, the
Committee should also take into consideration jurisprudence of the European
Court of Human Rights which entitles individuals to contend that a law
violates their rights by itself, in the absence of an individual measure of
implementation, if they run the risk of being directly affected by it.
3.4 Even though the author does not now and did not previously reside in the
affected municipalities, she is among the class of persons defined by the
challenged resolutions who are adversely affected by them. Both the text of
the resolutions and the background of anti-Roma hostility which underlies
their adoption make it reasonable to believe that the risk of additional
adverse effect - i.e. that, if violated, the Resolutions might be enforced
through, inter alia, physical force - is high.
3.5 Finally, the author asserts that the matter is not being examined under
any other procedure of international investigation or settlement, although
she notes that a separate case concerning the events giving rise to the
present communication had been filed on behalf of other persons with the
European Court of Human Rights.
State Party's Observations on Admissibility
4.1 By submission of 23 June 1999 the State party challenges the
admissibility of the communication. It informs the Committee that on 8 April
1999 the Municipal Council of Nagov and the Municipal Council of Rokytovce
held extraordinary meetings, also attended by the District Prosecutor of
Humenn�, and decided to revoke resolution No. 22 of 16 June 1997 and
resolution No. 21 of 8 June 1997 respectively. The State party therefore
concludes that the communication has lost its relevance.
4.2 The State party further argues that a case concerning alleged racial
discrimination against Roma caused by the adoption of the above-mentioned
resolutions has been filed with the European Court of Human Rights. Although
the applicants are not identical in the two cases, the subject matter is
exactly the same.
4.3 According to the State party, the Roma inhabitants of Rokytovce were
summoned by the District Prosecutor of Humenn� by registered letters dated
20 November 1997. However, they failed to appear in the Prosecutor's Office,
which means that they did not cooperate in establishing the facts of the
case.
4.4 The State party also submits that the author has failed to exhaust
domestic remedies. First of all, the Constitutional Court rejected the
petition filed by the Legal Defence Bureau for Ethnic Minorities on the
grounds that, as a legal entity, the Bureau could not challenge a violation
of fundamental rights belonging to natural persons. The court, however, also
noted that its decision was without prejudice to the right of natural
persons to claim the violation of their fundamental rights as a result of
decisions made by State or local administrative organs. On the basis of the
court's decision the District Prosecutor of Humenn� informed the author that
her case would be discontinued. The author did not appeal the decision of
the District Prosecutor, although it was possible to appeal in accordance
with Act 314/1996 on the Prosecution Authority.
4.5 As for the decision of the Constitutional Court dated 16 June 1998 to
reject the author's petition of 5 May 1998, the State party submits that
nothing prevented the author from filing a new petition with the
Constitutional Court submitting evidence of violation of her constitutional
rights or a causal link between the violation of her rights and the decision
of the municipal council.
4.6 Secondly, the State party submits that the author could have availed
herself of the remedy provided for under section 13 of the Civil Code,
according to which everyone is entitled to seek the protection of the State
against violations of his/her integrity and to be given appropriate
satisfaction; in the case of insufficient satisfaction, mainly because the
dignity or respect that the person enjoyed in society was significantly
harmed, the victim is entitled to compensation, to be determined by a court
as appropriate.
4.7 The State party further submits that the resolutions of the Nagov and
Rokytovce municipal councils were never implemented. During the time they
remained in force no act of violence against persons belonging to the Roma
minority took place and the Roma moved within the boundaries of the two
municipalities without restrictions. The Roma registered as permanent
residents in those municipalities when the resolutions were adopted continue
to enjoy that status.
4.8 As for the author's claim that several provisions of the Convention,
including article 2, paragraph 1 (a), have been violated, the State party
indicates that, according to section 1, paragraphs 1 and 2, of the Act of
the Slovak National Council No. 369/1990 Coll. on the Municipal System, a
municipality is an independent self-governing territorial unit of the Slovak
Republic and any interventions as to its powers and/or impositions of
responsibilities are possible only by law. The two resolutions adopted by
the municipal councils of Nagov and Rokytovce did not concern the
performance of State administrative tasks transferred to the municipal level
in the field of general public administration, neither did they concern
security and public order affairs transferred to municipalities, in which
case the control and supervision of a municipality could be applied pursuant
to article 71, paragraph 2, of the Constitution.
4.9 The author never tried to move into either municipality, to acquire or
rent a house or to work there. She showed no interest in visiting the
municipalities in order to know the reasons for the issuing of the
resolutions. She provided no evidence, to the Committee or the authorities
involved in the case at the national level, that she had tried to enter the
municipalities or that she had been prevented from doing so.
Counsel's Comments
5.1 In a submission dated 2 August 1999 counsel contends that even if the
challenged resolutions were withdrawn the communication is still admissible.
5.2 First of all, the author remains a "victim" within the meaning of
article 14 of the Convention. The Committee could follow in this respect
jurisprudence from the European Court of Human Rights according to which an
applicant remains a "victim" unless the following conditions obtain: (i)
there has been an acknowledgment by the domestic courts of a violation of
the substance of the European Convention rights at issue; (ii) the applicant
has received satisfaction with regard to the past damage suffered by reason
of the violating provisions; and (iii) the applicant has received
satisfaction with regard to a complaint that the violating provisions should
not have been promulgated in the first place.
5.3 In the instant case none of those conditions has been satisfied: (i) at
no time has the author received an acknowledgment by the domestic courts
that the existence of the resolutions amounted to a violation of domestic
law, of the Slovak Constitution, of the Convention or of any other treaty or
international legal instrument protecting human rights; (ii) at no time has
the author received satisfaction with regard to the past damage suffered by
her by reason of the authorities' initial promulgation and subsequent
maintenance in force of the resolutions for almost two years; (iii) at no
time has the applicant received satisfaction with regard to her complaint
that the resolutions should not have been issued in the first place.
Accordingly, counsel concludes that the author is a "victim" within the
meaning of article 14 and that the matter of the abolition of the
resolutions is relevant only for the purpose of any suggestions and
recommendations that the Committee might address to the State party at the
conclusion of the case.
5.4 Further or alternative to the arguments made above, counsel submits that
the Committee should in any event consider the author's claim for reasons of
"general interest". The Committee ought to have jurisdiction to consider
claims relevant to the general or public interest, even in exceptional cases
where the victim requirement has not been satisfied. A case involving the
promulgation and maintenance in force of resolutions banning an entire
ethnic minority from residing or entering an entire municipality is
precisely the kind of case that should satisfy a "general interest" rule.
5.5 Regarding the State party's argument that an application on the same
matter has also been submitted to the European Court of Human Rights,
counsel contends that the author had already informed the Committee about
that. However, the application filed with the European Court by three other
persons and alleging violations of the European Convention should in no way
preclude the author from filing a separate communication before the
Committee complaining that the resolutions violate the Convention. Counsel
cites jurisprudence of the Human Rights Committee adopting that approach.
5.6 Furthermore, even if the author had filed a separate application with
the European Court of Human Rights concerning the same matter, there is no
provision in the Convention expressly barring the Committee from examining a
case that is already being examined by another international body.
5.7 The substantive features and intent behind this Convention and the
European Convention are totally different. The application before the
European Court alleges breaches of European Convention provisions, including
the prohibition of inhuman and degrading treatment and the right to freedom
of movement and choice of residence. It seeks, inter alia, a declaration
that certain provisions of the European Convention have been violated and an
award of just compensation. By contrast, the present communication alleges
separate and different violations of the Convention on the Elimination of
All Forms of Racial Discrimination (which is more concerned than the
European Convention with the positive duties and obligations of States
parties not to discriminate on the basis of race, colour or national origin)
and seeks suggestions and recommendations concerning the Government's
obligation to remedy the alleged violations. The simultaneous filings of
claims involving similar matters with the Committee and the European Court
are founded on different legal bases and seek different legal remedies. They
are not, therefore, duplicitous claims.
5.8 Counsel further objects to the State party's argument that the author
did not exhaust domestic remedies. He states that, according to
international human rights jurisprudence, the local remedies rule requires
the exhaustion of remedies that are available, effective and sufficient. A
remedy is considered available if it can be pursued by the petitioner
without impediment, it is deemed effective if it offers some prospect of
success and it is found sufficient if it is capable of redressing the
complaint. If a remedy is not available, effective or sufficient the
individual is not required to pursue it.
5.9 First of all, there is no effective remedy available in the State party
for any cases of racial discrimination. In its concluding observations on
the Slovak Republic, dated 4 August 1997, the Human Rights Committee noted
that independent complaint mechanisms for victims of all forms of
discrimination did not exist. The European Commission against Racism and
Intolerance (ECRI) has also noted the absence of effective legal remedies
for racial discrimination in the State party.
5.10 Secondly, the author did exhaust all remedies available. As explained
in the initial submission, the Kosice Legal Defence Foundation reported the
matter to the Office of the General Prosecutor, requesting an investigation
into the legality of the resolutions. Upon request, the Foundation provided
the County Prosecutor in Humenn� with the names of five persons from Nagov
and four persons from Rokytovce who felt they had been discriminated against
by the two resolutions. Soon afterwards the Foundation submitted an
application to the Constitutional Court requesting annulment of both the
resolutions at issue. The Court dismissed the submission on the ground that,
as a legal person, the Foundation could not suffer an infringement of
constitutional rights designed to protect only natural persons. As a result
of that ruling the District Prosecutor's Office decided to suspend its
investigation, as it was not competent to examine decisions of the
Constitutional Court. Subsequent to that, the present communication was
filed with the Committee.
5.11 On 30 March 1999 the Departmental Secretary General of the Office of
the Government of the Slovak Republic informed counsel that the Office of
the General Prosecutor was reviewing the resolutions and that, if they were
found illegal, a suggestion for withdrawal would be filed at the
Constitutional Court, as the only organ with legal authority to withdraw
resolutions of local government councils in order to guarantee their
compliance with domestic and international law. On 31 May 1999 counsel was
informed by the Chairman of the Committee on Human Rights and National
Minorities of the Slovak Republic that the resolutions had been cancelled.
5.12 As for the State party's contention that the applicant did not
cooperate with the investigation, counsel contends that whether or not the
applicant failed to attend an interview at the Office of the General
Prosecutor, which is not admitted, the Prosecutor was still under a domestic
and international legal duty to investigate the complaint. The only
circumstance in which the Prosecutor is not under such a duty is where the
applicant's failure to attend the appointment would hinder the
investigation. In other words, the applicant must be someone whose evidence
is necessary in order to investigate the case. This exception clearly does
not apply in the instant case, because the applicant's alleged failure to
attend for an interview is not a hindrance to continuing investigation by
the Prosecutor as to the compliance of the resolutions with domestic or
international human rights norms. Indeed, despite the alleged failure of the
applicant to appear for an interview, the authorities proceeded with their
investigation until the decision of the Constitutional Court was
promulgated.
5.13 The State party has failed to identify any basis for believing that the
Office of the Prosecutor, having once rejected the complaint, would reach a
different result if faced with a second, identical complaint, given the
absence of new facts or law. Furthermore, on the basis of jurisprudence of
the Constitutional Court, it is questionable whether the prosecutor
possesses the legal power to remedy the violations of the Convention alleged
in the instant case. In fact, in the letter sent to counsel on 30 March
1999, referred to above, the Government itself states that the only
effective and available remedy in this case is an application to the
Constitutional Court. Thus the Government has conceded that a complaint to
the General Prosecutor is not an effective and available remedy because the
Prosecutor's Office is not a judicial body.
5.14 Counsel also argues against the State party's contention that a civil
action pursuant to article 11 of the Civil Code would be an effective
remedy. The applicable provisions of the Civil Code regulate private
relations, whereas the resolutions at issue are not matters of private
individual rights. The municipalities that issued the resolutions are not
private entities, therefore the Civil Code is inapplicable.
5.15 A civil remedy, even if available and effective, would be insufficient,
insofar as a civil court in the Slovak Republic would not have legal
authority to grant sufficient redress for the violations of the Convention
that the applicant has suffered. Thus the civil court lacks the power to:
(i) prosecute, sanction or otherwise punish the responsible municipal
officials for racial discrimination; (ii) declare that the existence of the
resolutions amounted to a practice of racial discrimination and that such a
practice is unacceptable and illegal; (iii) declare that the existence of
the resolutions amounted to a violation of human rights laid down in
international human rights instruments by which the Republic of Slovakia is
bound; (iv) award satisfaction with regard to a complaint that the violating
provisions should not have been made in the first place; (v) order
cancellation of the resolutions. Furthermore, the author should only exhaust
those remedies which are reasonably likely to prove effective.
5.16 Regarding the second constitutional action, filed by the author in her
personal capacity, the State party contends that the author failed to
present evidence of an actual attempt to enter the territories and that the
author should have filed a new petition. According to counsel, these
contentions lack merit. Insofar as the Constitutional Court had already
dismissed several separate applications concerning the same resolutions, the
suggestion that the author should be required to submit yet another
petition, to the very same forum which had squarely rejected her claim,
lacks logical or legal foundation.
5.17 As for the failure to present evidence, counsel reiterates its
arguments concerning the "victim status" of the author and suggests that in
assessing such status the Committee should be guided by the jurisprudence of
the European Court, which entitles individuals to contend that a law
violates their rights by itself, in the absence of an individual measure of
implementation, if they run the risk of being directly affected by it. It is
not necessary for the author to demonstrate that she was actually placed in
an unfavourable position. The author has been personally affected by the
resolutions in the following ways:
Inhuman and degrading treatment. The author has personally suffered
degrading treatment, direct emotional harm, loss of human dignity and
humiliation owing to the existence of the two resolutions, a fact not
altered by their subsequent cancellation. It is therefore not unreasonable
that the applicant, as any other Romany person in Slovakia, feels that she
has been personally offended and publicly shamed in a way different from the
moral outrage which may be felt by even the most sympathetic of non-Roma.
Subjection to undue restrictions on her personal freedoms. The author was
affected by the threat of a potential use of violence; prevented from
entering or settling in the vicinity of Nagov and Rokytovce, thereby
violating her rights to freedom of movement and freedom to choose a
residence; and prevented from having personal contact with persons in the
vicinity of Nagov and Rokytovce, thereby violating her right to private
life.
The author has also been directly affected by the existence of the
resolutions because she is affected by the atmosphere of racial
discrimination around her.
5.18 The State party asserts that the municipalities that issued the
resolutions are not "public authorities" or "public institutions" and that a
municipality is "an independent self-governing territorial unit of the
Slovak Republic". Counsel disagrees with that view, at least with respect to
governmental responsibility for ensuring compliance with the Convention.
Several provisions of the Constitution and the Municipality System Act No.
369/1990 suggest that there is a direct relationship between the State and
the municipality, a relationship which makes it clear that the
municipalities are "public authorities" or "public institutions". The
Committee itself has stated, in its General Recommendation XV on article 4
of the Convention, that the obligations of a "public authority" under the
Convention include the obligations of a municipality. Although
municipalities may be "independent self-governing territorial units", they
are still State organs and part of the State administration and, therefore,
public institutions within the meaning of article 2 (1) (a) of the
Convention.
5.19 As for the fact that the resolutions were cancelled, the government
measures of cancellation were not "effective measures" in the sense of
article 2 (1) (c), because the cancellations were unreasonably delayed.
Prior to cancellation the resolutions did violate the above-mentioned
provision.
5.20 That the resolutions may not have been implemented through the
particular means of criminal prosecution and conviction does not mean they
did not breach the Convention. Part of the point and clearly the effect of
the resolutions was to deter any Roma who might otherwise consider coming to
the affected municipalities. The fact that no Roma dared to defy the
resolutions would indicate that the mere passage and maintenance in force of
the resolutions for almost two years succeeded in intimidating Roma and thus
interfering with their rights under the Convention.
5.21 Finally, counsel provides observations by monitoring organizations
documenting official and racially-motivated violence and discrimination
against Roma in the State party.
Admissibility Considerations
6.1 At its fifty-fifth session the Committee examined the admissibility of
the communication. It duly considered the State party's claims that the
communication should be considered inadmissible on several grounds.
6.2 First of all, the State party argued that the resolutions of the
municipal councils in question were revoked and, therefore, the
communication had lost its relevance. The Committee noted, however, that
notwithstanding their abrogation the resolutions had remained in force from
July 1997 to April 1999. Accordingly, the Committee had to examine whether
during that time violations of the Convention had taken place as a result of
their enactment.
6.3 Secondly, the State party contended that a similar case had been filed
with the European Court of Human Rights. The Committee noted in that respect
that the author of the present communication was not the petitioner before
the European Court and that, even if she was, neither the Convention nor the
rules of procedure prevented the Committee from examining a case that was
also being considered by another international body.
6.4 Thirdly, the Committee did not share the State party's view that
domestic remedies had not been exhausted and considered that neither a new
petition to the Constitutional Court nor a civil action would be effective
remedies in the circumstances of the case.
6.5 Fourthly, the Committee was of the view, contrary to the State party,
that the author could be considered a "victim" within the meaning of article
14, paragraph 1, of the Convention, since she belonged to a group of the
population directly targeted by the resolutions in question.
6.6 Finally, the Committee considered that the municipal councils which had
adopted the resolutions were public authorities for the purposes of the
implementation of the Convention.
6.7 The Committee found that all other conditions for admissibility
established under rule 91 of its rules of procedure had been met.
Accordingly, it decided, on 26 August 1999, that the communication was
admissible. It also decided that, in order to enable the Committee to
examine the case in all its aspects, the State party and the author should
provide information about domestic legislation and remedies intended to
protect the right of everyone, without distinction as to race, colour, or
national or ethnic origin, to freedom of movement and residence within the
border of the State, in accordance with article 5 (d) (i) of the Convention.
Further Observations by the State Party
7.1 The State party admits that the investigation of the complaint carried
out by the District Prosecutor's Office of Humenn� was incomplete, since it
did not address the substantive aspects. However, the Legal Defence Bureau
for Ethnic Minorities did not make use of their legal possibility to have
the lawfulness of the resolutions in question reviewed. A complaint pursuant
to section 11, paragraph 1 of Act No. 314/1996 Coll. [FN2] to the
prosecution authority or a motion by the Prosecutor-General with the
Constitutional Court for incompatibility of the resolutions in question with
the Constitution could have been filed. As the Legal Defence Bureau failed
to utilize these possibilities, neither the regional nor the general
prosecution authorities knew about the way in which the District
Prosecutor's Office of Humenn� had handled the complaint. The State party
emphasizes that the Slovak legal order has effective, applicable, generally
available and sufficient means of legal protection against discrimination.
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[FN2] Pursuant to section 30, paragraph 1.2 of this Act, the prosecutor
shall, upon his own initiative or upon a petition, review the procedure or
decisions by public administrative bodies, decisions of a court, prosecutor,
investigator or police body for compliance with the law. The person who
filed the petition may request a review as to the lawfulness of its
processing with a repeated petition which shall be processed by the superior
body.
Pursuant to section 11 of the same Act, prosecutors shall file protests
against generally binding pieces of legislation, municipal binding
regulations, guidelines, amendments, resolutions, other legal acts and
decisions by public administrative bodies issued in individual cases which
violate the law. If the protest was filed with the body which issued the
decision, this body can either repeal the decision being challenged or
replace it with a decision complying with the law. If this body does not
fully accept the protest, it has the duty to submit it to a superior or
monitoring body. The prosecutor may file a new protest against the decision
rejecting the protest.
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7.2 The State party acknowledges that the adoption of the resolutions in
question in 1997 created an unlawful situation which lasted until their
abrogation in 1999. However, during the time they remained in force no
violation of human rights took place since they were not applied against
anybody. The Constitutional Court found in that respect that the applicants
had provided no evidence of the violation of their rights and freedoms.
[FN3]
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[FN3] See paragraph 2.9.
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7.3 The State party further submits that no direct violation of the right to
freedom of movement and choice of residence, as guaranteed by article 5 (d)
(i) of the Convention, took place in the present case. The legal order of
the Slovak Republic guarantees the equality of citizens before the law.
[FN4] Freedom of movement and residence is also guaranteed to all persons
staying in the territory of the State party regardless of their citizenship.
[FN5] The freedom of residence is understood as the right of citizens to
choose without any restrictions their place of residence. This right may
only be limited as a result of a penal sanction. A ban on residence can be
imposed as a sanction only for intentional crimes, can never be imposed on
juveniles and cannot apply to the place where the offender has permanent
residence. Restrictions to the freedom of movement and residence can only be
based on a parliamentary act and never on decisions of the Government or
other bodies of State administration.
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[FN4] Article 12, paragraph 2, of the Constitution stipulates that
fundamental rights and freedoms are guaranteed to all regardless of their
gender, race, colour, language, faith and religion, political or other
views, national or social origin, belonging to a national minority or ethnic
group, etc. Article 33 stipulates that membership in any national minority
or ethnic group may not be used to the detriment of any individual. Article
34 states that citizens belonging to national minorities or ethnic groups
shall be guaranteed their full development, particularly the rights to
promote their cultural heritage with other citizens of the same national
minority or ethnic group, receive and disseminate information in their
mother tongues, form associations and create and maintain educational and
cultural institutions.
[FN5] Article 23 of the Constitution.
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Counsel's Comments
8.1 Counsel notes the State party's acknowledgement that the resolutions in
question were unlawful. As a result, the only relevant issues left for the
Committee to decide are, firstly, whether the applicant is a victim for the
purposes of a complaint under the Convention and, secondly, whether the
subsequent abolition of the resolutions affects the validity of the
complaint to the Committee.
8.2 In its admissibility decision the Committee already addressed the first
issue when it stated that the author could be considered a "victim" within
the meaning of article 14, paragraph 1, of the Convention, since she
belonged to a group of the population directly targeted by the resolutions
in question. [FN6] The Committee also addressed the second issue when it
noted that, notwithstanding their abrogation, the resolutions had remained
in force from July 1997 to April 1999 and that it had to examine whether
during that time violations of the Convention had taken place as a result of
their enactment. [FN7]
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[FN6] See paragraph 6.5.
[FN7] See paragraph 6.2.
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8.3 Finally, counsel states that the points raised by the State party in its
observations on the merits have already been addressed in his submission of
2 August 1999.
Additional Information Submitted by the State Party
9.1 Upon the Committee's request the State party provided copy of records of
the municipal councils of Rokytovce and Nagov containing the texts of
resolutions Nos. 21 and 22 respectively.
9.2 The English version of the record referring to resolution No. 21 reads
as follows:
"The extraordinary meeting was convoked based on the minutes [of the
meeting] of mayors of settlements of Cabina, Nagov, Cabalovce, Krasny Brod
and Rokytovce in connection with Roma citizens that are homeless in the
District of Medzilaborce.
"Deputies of the Municipal Council after reading and studying the Minutes
have adopted the following standpoint on the matter in question:
The deputies have univocally stated and they declare herewith that those
Roma are not native citizens of Rokytovce, but they are immigrants from
settlements of Rovn� and Zbudsk�. In 1981 one family moved there as
employees of the JRD (Unified Agricultural Co-operative) Kr�sny Brod . . .
In 1981 they received permanent residence status from . . . the former
Secretary of the Municipal National Committee in Kr�sny Brod, as the
settlement of Rokytovce did not exist as an independent settlement and it
was then only a part of the settlement of Kr�sny Brod. The family was
officially registered/reported at a house as tenants . . .
In 1989 the Roma moved from the settlement to the settlement of Sukov (?) as
there was work for them there.
After the settlement of Rokytovce became independent in 1990, the Roma
citizens did not live there; neither did they report there for permanent
residence. As a result we do not count them among our citizens.
Based on findings from the registered entries in the House Book it was
ascertained that of five proposed Roma that should return back to the
settlement of Rokytovce, only two of them have permanent residence in
Rokytovce, those being J�lia Demetrov� and Val�ria Demetrov�.
The Municipal Council declared in conclusion that in case the Roma would
forcefully move into the settlement, they would be, with the help of all
citizens, evicted from the settlement."
9.3 Resolution No. 22 of 16 July 1997, as amended by resolution No. 27/98,
indicates the following: "The Municipal Council cannot agree with
accommodation of the Roma citizens in the cadastral territory of Nagov, as
they do not have any ownership rights, nor origin, nor accommodation, nor
jobs (employment) in the settlement of Nagov."
Examination of the Merits
10.1 Having received the full texts of resolutions 21 and 22 the Committee
finds that, although their wording refers explicitly to Romas previously
domiciled in the concerned municipalities, the context in which they were
adopted clearly indicates that other Romas would have been equally
prohibited from settling, which represented a violation of article 5 (d) (i)
of the Convention.
10.2 The Committee notes, however, that the resolutions in question were
rescinded in April 1999. It also notes that freedom of movement and
residence is guaranteed under article 23 of the Constitution of the Slovak
Republic.
10.3 The Committee recommends that the State party take the necessary
measures to ensure that practices restricting the freedom of movement and
residence of Romas under its jurisdiction are fully and promptly eliminated.
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