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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 9 August 2001,
Adopts the following:
Opinion
1. The petitioner is Miroslav Lacko, a Slovak citizen of Romany ethnicity.
He claims to be a victim of violations by the Slovak Republic of articles 2,
3, 4, 5 and 6 of the International Convention on the Elimination of All
Forms of Racial Discrimination. He is represented by the European Roma
Rights Center, a non-governmental organization based in Budapest, acting as
legal counsel.
The Facts as Submitted by the Petitioner
2.1 On 24 April 1997 the petitioner, accompanied by other persons of Romany
ethnicity, went to the Railway Station Restaurant located in the main
railway station in Kosice, Slovakia, to have a drink. Shortly after entering
the restaurant the applicant and his company were told by a waitress to
leave the restaurant. The waitress explained that she was acting in
accordance with an order given by the owner of the restaurant not to serve
Roma. After requesting to speak with her supervisor, the petitioner was
directed to a man who explained that the restaurant was not serving Roma,
because several Roma had previously destroyed equipment in the restaurant.
When the petitioner related that neither he nor his company had damaged any
equipment, the person in charge repeated that only polite Roma would be
served.
2.2 On 7 May 1997, the petitioner filed a complaint with the General
Prosecutor's Office in Bratislava, requesting an investigation to determine
whether an offence had been committed. The case was assigned to the County
Prosecutor's Office in Kosice who referred the matter to the Railway Police.
In the meantime the applicant also sought remedy from the Slovak
Inspectorate of Commerce, responsible for overseeing the lawful operation of
commercial enterprises. In a letter to the petitioner, dated 12 September
1997, the Inspectorate reported that it had conducted an investigation into
the complaint during the course of which it had been observed that Roma
women had been served at the restaurant and that the owner had arranged that
there would be no other discrimination of any polite customers, Roma
included.
2.3 By resolution dated 8 April 1998, the Railway Police Department in
Kosice reported that it had conducted an investigation into the case and
found no evidence that an offence had been committed. The petitioner
appealed to the County Prosecutor who, in a resolution dated 24 April 1998,
ruled that the decision of the Railway Police Department was valid and
indicated that there was no further legal remedy available.
The Complaint
3.1 Counsel states that the failure to remedy the discrimination in the
instant case reflects the absence of any Slovak legislation, which expressly
and effectively outlaws racial discrimination in access to public
accommodations. Mr. Lacko has been forced to live with continuing
uncertainty - dependent on the restaurant owner's racially motivated whim -
as to whether he will be admitted to the restaurant on any given day. If the
owner determines that on one day 'polite' Roma will be served, then the
applicant may be served if he is deemed sufficiently polite. If, however,
the owner decides that no Roma will be served that day or that the applicant
is not sufficiently polite, he will be denied service.
3.2 Counsel claims that a number of rights secured to the petitioner under
the Convention have been violated, including article 2, paragraph 1 (d)
taken together with article 5 (f); and articles 2, paragraph 2; 3; 4 (c);
and article 6 of the Convention.
3.3 Counsel claims that Slovak criminal law has no provision applicable to
the violation at issue in the instant case as required by article 2,
paragraph 1 taken together with article 5 (f) of the Convention. The
petitioner was denied equality before the law in that he and his Romany
company suffered discrimination in access to service in the restaurant on
grounds of race and/or ethnicity.
3.4 Counsel claims that by being refused service in the restaurant and told
to leave solely for racial reasons, and then being told that only polite
Roma would be admitted, the petitioner was subjected to policies of racial
segregation. The State party's failure to provide any remedies and the
absence of any legal norm expressly prohibiting non-discrimination in access
to public accommodations constitute failure to comply with its obligation
under article 3 of the Convention.
3.5 The State party's failure to sanction or remedy the restaurant's
racially-motivated discrimination against the petitioner and his Romany
colleagues, in fact, promoted racial discrimination in violation of article
4 (c) of the Convention. In addition, the continued leasing of space to the
restaurant by the main railway station, a public institution, further
constitutes promotion by public institutions of racial discrimination.
3.6 Counsel further states that the objective of the communication is a
recommendation by the Committee that: 1) the State party provide
compensation for the humiliation and degradation the applicant has suffered
in being subjected to racial discrimination in his access to the restaurant;
2) the State party take effective measures to ensure that racial
discrimination is no longer practiced at the restaurant; and 3) the State
party adopt legislation expressly prohibiting, and providing effective
remedies for, racial discrimination in places or services intended for use
by the general public.
Observations by the State Party on Admissibility
4.1 By submission of 23 June 1999 the State party challenges the
admissibility of the communication on grounds of non-exhaustion of domestic
remedies. In accordance with section 30, paragraph 2, of Act No. 314/1996 on
the Prosecution Authority the applicant had the possibility to file an
application for review of the lawfulness of the Resolution with the Regional
Prosecution Office in Kosice. A decision by the Regional Prosecution Office
could have a substantial impact and result in new proceedings by the
District Prosecution Office and the Railway Police.
4.2 Furthermore, the petitioner had the possibility of initiating a civil
action under Section 11 of the Civil Code, which states that natural persons
shall have the right to the protection of their honour, human dignity,
privacy, name and manifestations of personal nature. Belonging to a
particular national minority or ethnic group is also one of the attributes
of personality, therefore, the injured person may claim the protection of
his/her personality in civil proceedings and ask the competent court to be
given adequate satisfaction or granted compensation of immaterial injury.
The resolution of the District Prosecution Office indicated in this respect
that it was without prejudice on the entitlement of the injured party to
damages that might be claimed in civil proceedings before a competent court.
4.3 Furthermore, the petitioner could have filed a complaint against the
procedure and the result of the investigation carried out by the
Inspectorate of Commerce, with the Central Inspectorate of the Slovak
Inspectorate of Commerce or with the Ministry of Economy, to which the
Slovak Inspectorate of Commerce reports. He could also have filed a
complaint with the Office of the Government of the Slovak Republic, which,
under section 2 of Act No. 10/1996 Coll. on the inspection in state
administration, reviews the processing of petitions, complaints,
communications and applications. He also failed to file a petition with the
competent Trade Licence Office, in accordance with section 1 of Act No.
71/1967 Coll. on administrative procedure (the Rules of Administrative
Procedure). Indeed, the District Prosecutor informed him on 3 July 1997 that
he could file petitions with the above professional bodies.
4.4 The State party further submits that the communication does not make it
clear which rights of the petitioner guaranteed under national law were
violated, which domestic remedies were claimed and when the alleged
violations took place. In his complaint with the General Prosecutor the
petitioner alleged a crime of support and promotion of movements aiming at
suppressing the rights and freedoms of citizens under section 260 of the
Criminal Code. The Railway police suspended the examination of the case in
view of the fact that it did not find grounds for such a crime and that the
petitioner and his colleagues were served in the bar. In his appeal against
the decision of the Railway police the petitioner did not object to the
police conclusion regarding the alleged crime, but rather he claimed a
violation of Act No. 634/1992 Coll. on consumer protection. Moreover, in his
complaint to the Inspectorate of Commerce the petitioner sought
investigation into the violation of a non-existent law on the protection of
integrity. None of the complaints made it clear which violation of Act No.
634/1992 Coll. on consumer protection the petitioner claimed and what kind
of remedy he sought.
4.5 According to the State party, staff from the Inspectorate of Commerce,
as communicated to the petitioner by letter dated 12 September 1997, visited
the restaurant accompanied by several Roma women who were duly served and in
no way discriminated against. The Inspectorate carried out other subsequent
visits to the restaurant but did not find any irregularity of the kind
pointed out by the petitioner in his communication, nor did it receive
complaints similar to Mr. Lacko's.
Counsel's Comments
5.1 In a submission dated 2 August 1999 counsel objects to the State party's
argument regarding the exhaustion of 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.
5.2 Counsel argues that a petition with the Regional Prosecution Office
cannot be considered an effective remedy. Having filed a criminal complaint
and waited for almost a year for the completion of the criminal
investigation, having then timely appealed the conclusion of the police and
having finally had his appeal rejected, the petitioner was under no
obligation to pursue any further criminal remedy, especially insofar as he
was expressly told that no further complaint was admissible.
5.3 Counsel states that the State party has pointed to no law or facts to
suggest that a second petition would have met with any more favorable
response than the criminal complaint initially filed; repeated petitions are
not 'effective remedies' for the purpose of admissibility requirements.
Since the Resolution of the District Prosecution Office was issued on 24
April 1998, no new facts, which might have justified a renewed petition have
arisen.
5.4 Counsel indicates that the petitioner was not required to seek any
criminal remedy for the racial discrimination to which he was subjected,
because, as a matter of law, there are no effective criminal remedies for
racial discrimination in the State party. The State party has not pointed to
a single criminal code provision, which expressly punishes discrimination on
the grounds of race or ethnicity in access to public accommodations. The
only articles of the criminal code, which address racism relate to racist
speech and racially motivated violence.
5.5 Counsel objects to the State party's argument regarding the petitioner's
failure to initiate civil action. It is stated that there are no effective
civil or administrative remedies for racial discrimination available under
Slovak law. Article 11 of the Civil Code is directed against acts of
defamation or breach of privacy and makes no mention of discrimination on
the grounds of race or ethnicity. Nor do any consumer protection laws
contain a specific anti-discrimination provision with respect to race, which
would make it possible to consider the instant case under the terms of the
Convention.
5.6 The only remedies the Trade Licensing Board and the Slovak Inspectorate
of Commerce could have afforded to the applicant, had they found his rights
violated, would be to impose a fine on the restaurant and/or revoke its
licence. These remedies are not effective or sufficient and are no
substitute for the promulgation of legal norms capable of ensuring that
individuals are not subjected to acts of racial discrimination.
5.7 Counsel contends that even when a given legal framework provides for a
number of remedies capable of redressing the violation alleged, an
individual is not required to pursue more than one. Where there is a choice
of effective and sufficient remedies, it is up to the applicant to select
one.
5.8 Counsel points out that the European Court has made clear that
government actions to terminate a violation of the European Convention, once
one has occurred, do not in themselves erase the initial fact of the
violation or render an application to the Strasbourg organs inadmissible. On
the basis of that jurisprudence counsel contends that any subsequent
termination of the refusal to serve the petitioner on the grounds of race in
no way redresses the initial violation to which he was subjected or deprives
him of victim status for the purpose of the present communication.
5.9 Finally, with respect to the State party's assertion that other Roma
have been served at the Restaurant, counsel argues that such facts would in
no way remedy the discrimination to which the petitioner was subjected. The
fact that such rights may be arbitrarily afforded to others does not
mitigate their arbitrary and discriminatory denial to the petitioner.
The Committee's Decision on Admissibility
6.1 At its 55th session in August 1999, the Committee considered the
admissibility of the communication.
6.2 The Committee noted the State party's claims that the petitioner had
failed to exhaust domestic remedies available to him. The Committee recalled
that article 14, paragraph 7 (a), of the Convention provides that the
Committee shall not consider any communication unless it has ascertained
that all available domestic remedies have been exhausted. The Committee has
held in its previous jurisprudence that a petitioner is only required to
exhaust remedies that are effective in the circumstances of the particular
case. [FN1]
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[FN1] Cf. Anna Koptova v Slovak Republic, Communication No. 013/1998,
paragraph 6.4.
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6.3 The Committee has noted that the decision of the District Prosecutor was
a final decision as far as the criminal procedure was concerned. The State
party failed to demonstrate that a petition for review, which would be a
remedy against the legality of the decision, could in the present case lead
to a new examination of the complaint. Furthermore, the Committee finds that
the facts of the claim were of such a nature that only criminal remedies
could constitute an adequate avenue of redress. The objectives pursued
through a criminal investigation could not be achieved by means of civil or
administrative remedies of the kind proposed by the State party. Therefore,
the Committee found that no other effective remedies were available to the
petitioner.
6.4 The Committee found that it lacked sufficient information to assess
whether, as the petitioner stated, there was legislation in the State party
guaranteeing for everyone the right of access to any place or service
intended for use by the general public without distinction as to race,
colour, or national or ethnic origin.
6.5 The Committee observed that the requirements for admissibility
established under rule 91 of its Rules of Procedure had been met and decided
that the communication was admissible. It requested the State party and the
petitioner to provide information about domestic legislation and remedies
intended to protect one's right of access to any place or service intended
for use by the general public without distinction as to race, colour or
national or ethnic origin, as contemplated in article 5(f) of the
Convention.
State Party's Observations on the Merits
7.1 In submissions dated 25 November 1999 and 8 January 2001, the State
party provides information on domestic legislation and remedies for the
protection of individuals against racial discrimination in the criminal,
civil and administrative fields.
7.2 The State party submits that fundamental rights are guaranteed to every
person without discrimination in article 12, paragraph 2, of the
Constitution. Protection of those rights can be enforced through
administrative, civil and criminal procedures. Anyone is entitled to
compensation of damage caused by an unlawful decision of a court, another
state body or a public administration body on the basis of Act No.58/1969
Coll.
7.3 The State party further submits that administrative proceedings against
the decision of a state organ commence with a complaint in which an
individual or a legal entity claim to have their rights breached and request
the court to review the lawfulness of the decision. The decision of the
court is binding. The court can also rule on decisions of administrative
bodies, which are not yet final. The State party admits that the
Inspectorate of Commerce did not comply with the administrative procedure
under which it is obliged to deal with the merits of the case. However, the
petitioner could have filed a complaint with the Ministry of Economy, which
is the central body of state administration in the field of consumer
protection. He could also have filed a complaint under Act No. 58/1968 Coll.
on State's liability for the unlawful decision of a state body. If the
petitioner had used all the possibilities contemplated in the Slovak legal
order, the restaurant owner could have been sanctioned.
7.4 Sections 11 to 17 of the Civil Code regulate the protection of personal
integrity. Under section 13, a natural person has the right to have
arbitrary or unlawful interference with his/her integrity stopped, the
consequences of such interference removed and to be given appropriate
satisfaction. If the moral satisfaction would seem insufficient because the
dignity or respect enjoyed in society by the natural person was
significantly harmed, this natural person is also entitled to compensation
for non-pecuniary damage. The amount of compensation shall be determined by
the court taking into account the magnitude of the damage and the
circumstances under which the violation occurred. Part III, chapter V of the
Code of Civil Procedure regulates the proceedings in matters concerning the
protection of personal integrity. The system of civil remedies also
distinguishes between regular remedies (appeal) and extraordinary remedies
(renewal of proceedings and recourse).
7.5 The petitioner also had the option to seek the protection of his rights
pursuant to Sections 74, 75 and 102 of the Code of Civil Procedure,
according to which a court may order preliminary measures in case it is
necessary to have the situation of the parties regulated temporarily or if
there is concern that the enforcement of the court decision might be
endangered. Furthermore, on the basis of articles 1, 2, 12, 13, 17, 19 and
20 of the Constitution, Sections 11 and 13 of the Civil Code should be
interpreted as guaranteeing the protection of personal integrity against
acts of racial discrimination.
7.6 The legal order of the Slovak Republic also contains legal provisions on
consumer protection, in particular Act No. 634/1992 Coll. Section 6 of this
law prohibits discrimination explicitly. According to it, the seller may in
no way discriminate against consumers, except when the consumer does not
satisfy conditions set up under special rules, such as Act No. 219/1996
Coll. on the protection against abuse of alcoholic drinks. Public
administration bodies can impose a sanction of up to 500 thousand crowns for
breaching these provisions. Repeated violation of the prohibition on
consumer discrimination may be sanctioned with a fine up to 1 million
crowns.
7.7 The Penal Code regulates protection against racial discrimination. In
his criminal complaint the petitioner claimed that the acts alleged fell
under Section 260 of the Penal Code (support and promotion of movements
aiming at suppressing the rights and freedoms of citizens). He did not
invoke Section 121 of the Penal Code (causing harm to a consumer) or
misdemeanour under Section 24 of Act No. 372/1990. Section 196 para. 2
stipulates that everyone who uses violence against a group of citizens or
individuals or threatens them with death, damage to their health and causing
a serious damage because of their political conviction, nationality, race,
confession or for having no confession shall be punished.
7.8 The State party submitted that the General Prosecution Authority of the
Slovak Republic asked the Regional Prosecution Office of Kosice to examine
the present communication. The latter reviewed the lawfulness of the
procedure applied and the decision reached by the Railway Police and the
District Prosecution Office in order to determine whether the head of the
restaurant had committed a crime of supporting and propagating movements
leading to the suppression of civil rights and freedoms under Section 260 of
the Criminal Code or any other crime. After reviewing the relevant files the
Regional Prosecution Office concluded that the ban issued by the head of the
restaurant to serve people of Romany ethnicity justified suspicion of the
crime of inciting to national or racial hatred under Section 198a para 1 of
the Penal Code. However, in its opinion the acts in question did not entail
a degree of dangerousness for the society to be considered a crime. They
nevertheless satisfied the criteria to be considered a misdemeanour under
Section 49 para 1 letter a) of Act No. 372/1990 Coll. on misdemeanours. It
also considered that a criminal sanction against the head of the restaurant
was foreclosed by the amnesty of 3 March 1998. This opinion was communicated
by the Regional Prosecution Office to the petitioner in a letter dated 15
June 1999.
7.9 After reviewing the files concerned, the Prosecutor General disagreed
with the legal opinion of the Regional Prosecution Office concerning the
degree of dangerousness of the act. It considered that the Regional
Prosecution Office had manifestly overestimated the immediate rectification
by the head of the restaurant after a discussion with the petitioner. In a
written instruction to the Regional Prosecution Office the Prosecutor
General stated that the results of the review sufficiently justified the
suspicion that the head of the restaurant had committed a crime of
instigation to national and racial hatred under Section 198a para 1 of the
Penal Code and instructed the subordinate prosecution office accordingly.
7.10 On 19 April 2000, the Kosice District Prosecutor indicted Mr. J.T. On
28 April 2000, the court declared Mr. J.T. guilty of the crime described in
article 198a, sec.1 of the Penal Code and sentenced him to pay a fine of SKK
5000 or, alternatively, to serve a term of three months' imprisonment. The
sentence became effective on 25 July 2000.
Counsel's Comments
8.1 In a submission dated 17 February 2000, counsel addresses the issues
raised by the State party repeating the arguments of previous submissions,
including the exhaustion of civil and administrative remedies, the existing
criminal remedies against discrimination in access to public accommodations,
the date on which the racial discrimination at issue took place, and the
petitioner's failure to invoke relevant domestic law provisions before the
domestic authorities.
8.2 Counsel submits that the European Commission Against Racism and
Intolerance (ECRI) has repeatedly stated that in Slovakia there are no
criminal remedies for acts of discrimination as opposed to those for racist
speech, thereby implicitly holding that the crime of incitement to ethnic or
racial hatred itself cannot be considered as an applicable remedy for the
violations at issue in the instant case. ECRI has also been unable to find
any relevant case law that would suggest that any of the provisions of the
Slovak Criminal Code would apply to cases of discrimination in access to
public accommodations.
8.3 Counsel argues that a remedy delayed too long cannot be considered to be
an effective remedy. It took almost three and a half years since the
incident at issue and a communication filed with the Committee for the
Slovak authorities only to indict the person responsible. This in itself,
and regardless of the outcome of the proceedings at issue, amounts to a
violation of article 6 of the Convention.
Considerations of the Merits by the Committee
9. Acting under article 14, paragraph 7 (a), of the International Convention
on the Elimination of All Forms of Racial Discrimination, the Committee has
considered all the information submitted by the petitioner and the State
party.
10. In the view of the Committee, the condemnation of Mr. J.T. and the
penalty imposed, even though after a long period of time following the
events, constitutes sanctions compatible with the obligations of the State
party. Taking due account of this condemnation, even if delayed, the
Committee makes no finding of a violation of the Convention by the State
party.
11. Acting under article 14, paragraph 7 (b), of the Convention, the
Committee recommends to the State party that it complete its legislation in
order to guarantee the right of access to public places in conformity with
article 5 (f) of the Convention and to sanction the refusal of access to
such places for reason of racial discrimination. The Committee also
recommends to the State party to take the necessary measures to ensure that
the procedure for the investigation of violations is not unduly prolonged.
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