Almost 2,000 applications for compensation for forced sterilizations filed with Czech authorities - what evidence can be submitted if original medical records no longer exist?
The Czech Health Ministry has received almost 2,000 applications for compensation for the illegal sterilizations which were performed in particular on Romani women starting in the 1960s. That number significantly exceeds the original estimates. The information was revealed during Tuesday's discussion called "Last Chance", held by the ROMEA organization and moderated by journalist Jarmila Balážová.
According to the law on compensation for these abuses, victims have been able to apply since 2022 and can do so until the end of this year. Those who underwent the surgery without freely consenting to it and without being given information ahead of time about its repercussions can receive a one-time payment from the state of CZK 300,000 [EUR 12,000].
The Health Ministry has processed almost 1,400 applications so far, awarding compensation to 658 people and paying almost CZK 200 million [EUR 8 million]. The numbers were reported by the Senior Director of the Legislative Section at the ministry, Radek Policar. “The original estimate of the Health Ministry was about 400 applications total, but ultimately, according to the current numbers, 1,979 applications have arrived, in other words, five times as many,” he said.
VIDEO OF THE FULL DISCUSSION (in Czech only)
Anna Šabatová: These sterilizations were criticized in 1978, but compensation did not come until decades later
The systematic sterilization of women, sometimes during Cesarean delivery, was codified by a 1971 directive from the Health Ministry in what was then Czechoslovakia. In 1973, the state created financial incentives to individually motivate women to undergo sterilization by tubal ligation. Allegations of such forced sterilizations continued to be made into the 21st century, including after regulations on sterilization were improved in 2012. Anna Šabatová, the former ombudswoman, reminded the audience during the discussion that in 1978, the Charter 77 group published a samizdat document criticizing the position of Romani people in Czechoslovak society that mentioned for the first time the fact that Romani women were being individually pressured to undergo sterilization.
The problem was stated quite diplomatically, but the document warned that if the sterilizations were to continue under such conditions, they could be interpreted as a form of genocide. “The statement was diplomatic and indirect, but it is important that the subject was raised in the public space for the first time,” said Šabatová.
In 1990, Charter 77 published another document dedicated entirely to the question of the targeted sterilizations of Romani women. It was sent to the Prosecutor General, which undertook a detailed investigation that found administrative errors had been committed through the process. Despite this, nothing was done for several years until a group of 10 women from Ostrava, represented by the League of Human Rights, contacted the Public Defender of Rights (the ombudsman) with more complaints of their forced sterilization.
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Šabatová, who was Deputy Ombudsman at the time, emphasized that the ombudsman’s investigation was quite thorough and took more than a year to complete. “On the basis of our inquiry, we discovered that none of those requests for sterilization had been undertaken in accordance with the law. At the same time, unlike the Prosecutor-General, we made use of the human rights view, not the administrative view,” she explained.
Despite the ombudsman’s conclusions, nothing happened again for a long time on the issue. It was not until 2009 that the caretaker cabinet of Jan Fischer, with the significant contribution of then-Czech Human Rights Minister Michael Kocáb, published an apology for the illegal sterilizations. Šabatová said that was an important step, but the road to compensation was still a long one. “It was not until 2021 that the law to compensate the victims of these practices was adopted,” she said.
Helena Válková: Political courage and collaboration across the political spectrum led to the compensation of the forcibly sterilized women
Czech MP Helena Válková, a former Czech Government Human Rights Commissioner, then described the initiative to actually compensate the forcibly sterilized women as having begun on 1 October 2019, when members of the lower house received bill no. 603. “It was important that the Government recommended adopting the bill and that a broad spectrum of political parties participated in it,” she said.
Válková emphasized that pushing for adoption of the law was a result of “political courage” and the confluence of favorable circumstances. “I had a list of tasks which I had set for myself as Commissioner, and compensating the [forcibly] sterilized women was one of my main aims,” she said.
According to her, an irreplaceable role was played by nonprofit organizations and her collaboration with people such as Monika Šimůnková and Anna Šabatová. “Without the support of the nonprofit sector, we would never have managed it,” emphasized Válková.
Elena Gorolová: I signed a form while I was in labor pain without knowing it was consent to sterilization
Romani forced sterilization survivor Elena Gorolová contributed her own personal story to the discussion, describing how she was sterilized and what happened next. Ahead of her Cesarean delivery, a nurse came to her with a form and Elena, who was in labor pain at the time, signed it without knowing it meant she was agreeing to be sterilized. “I didn’t even know what sterilization meant. I was 21 years old and nobody had ever told me anything about it,” she described her experience.
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Elena and her husband felt cheated because they had been denied the right to decide whether or not to have another child. “I could have had another child, it could have been the little girl we wanted,” she said with regret.
In 2004, when she saw news reports about women with similar experiences, she decided to fight for her rights. “I wanted to do something, but I didn’t know what. When I learned about the group of women who were facing the same problem, I decided to join them,” Elena said. Together with the other women she started fighting for an apology and compensation, which ultimately succeeded.
Jana Řepová of the League of Human Rights: The Health Ministry is rejecting any evidence other than original medical records
The compensation process, however, involves great difficulties, which was pointed out during the discussion by Jana Řepová, a lawyer and psychologist from the League of Human Rights (Liga lidských práv). The Health Ministry, in its instructions on how to apply, states that the evidence for an illegal sterilization generally includes documents, expert evaluations, forensic evaluations, eyewitness testimonies or background materials from other authorities. According to Řepová, though, in reality the Health Ministry is insisting that the only proof it will recognize are original medical records, and that has been significantly complicating the efforts of these women to get justice.
“We are up against the ministry’s unwillingness to accept any other evidence,” the lawyer from the League of Human Rights said during the discussion.
Řepová said the state has already acknowledged that systematic sterilizations without free and informed consent have happened. Currently the burden is on the applicants to submit reliable indications that this happened to them, but at the same time the ministry itself should bear some responsibility for proving whether a specific sterilization was voluntarily requested. “The state has acknowledged systemic sterilization already, and that is why the ministry now should be responsible for proving these sterilizations were voluntary,” Řepová said.
How can one prove a sterilization was unlawful when original medical records have been destroyed?
Řepová explained in detail during the discussion what kinds of proof women can submit should their original medical records no longer exist.
The lawyer admitted that in many cases it is quite difficult to find any other proof. Many years have passed since the women were sterilized without their free and informed choice and consent, and most eyewitnesses to these events are either no longer alive, or are elderly. “To find documents which would prove that these women were provided, for example, a welfare benefit or other form of compensation at the time is quite difficult because an awful lot of time has passed since then,” Řepová said.
Řepová mentioned the option of using birth registration books from hospitals as evidence, which may record when exactly a woman was sterilized if the procedure was performed during the delivery of a child. Similarly, the records on other operations often include aggregate records of surgeries performed even if the original medical records of a specific surgery have been destroyed.
According to Řepová, it is also problematic that the Health Ministry is just willing to accept eyewitnesses for questioning who were directly present during the performance of the sterilization itself or during the signing of the consent forms. For most women, that would be impossible, because at the time of their sterilization their partners were not present in the hospital, especially in cases of Cesarean delivery. Řepová stressed that in those days the hospitals did not allow partners to be present during deliveries, which is common today.
However, the lawyer said she believes the ministry should accept as witnesses those family members who were present when the woman learned that she had been sterilized. “According to the decision of the Supreme Administrative Court, family members can be accepted as eyewitnesses if they are able to describe how the woman experienced the news of her sterilization,” she explained.
Other proof might be media reports about a particular case, police investigation records, or reports from the Public Defender of Rights. Řepová also suggested that women who kept diaries could submit that content as supplementary evidence of their experience with sterilization and what it was like to live through discovering they could no longer naturally conceive.
“Even if the [original] medical records have been destroyed, there are many other options for proving an illegal sterilization took place,” Řepová said.
Radek Policar of the Health Ministry: The court decision of July 2024 is basically changing the ministry’s approach
Policar, the Senior Director of the Legislative Section at the Health Ministry, stressed that the decisions on these cases have to be based in law first and foremost.
The official mentioned a recent decision by the Supreme Administrative Court, which has handed down five decisions so far during the compensation process, four of which were published during the last few months. According to Policar, the most important decision was handed down on 4 July 2024, in which the court reviewed the case of a woman whose original medical records were shredded after 10 years, making it impossible for her to prove what had happened to her.
The court ruled that the Health Ministry itself has to take active steps to verify whether an application for compensation is justified. By doing so, the court has rejected the ministry’s approach to deciding these claims so far, which required that the women themselves prove their eligibility for compensation. The court also clarified the procedure that the ministry must use for situations where the original medical records of an applicant no longer exist or are apparently unreliable.
“The Supreme Administrative Court has taken up an interesting role and said that if crucial evidence is missing, it is for the state, not the victim, to resolve the situation,” explained Policar. In his view, however, the court did not state that victims’ claims are automatically to be considered correct if original medical records are unavailable. The court requires the allegations of the victims to be consistent, “plausible”, and underpinned by a series of indicators supporting the probability that the sterilization was illegal.
“The courts are saying: Use the administrative code differently in these specific cases, which is why misunderstandings might occur,” explained Policar. He asserted that on the basis of these new court interpretations, the ministry will now try to be more proactive about securing the original medical records so the women themselves do not have to do so. If applicants indicate the health care facility involved, the ministry can request the original medical records itself.
Policar also said the ministry’s process has two phases: First, a bureaucrat decides whether to award compensation, then the applicant can appeal if rejected, and that appeal is decided by the Health Minister on the basis of recommendations made by an Appeals Commission. Those commissions are comprised of external experts, frequently Faculty of Law professors, and in most cases the minister decides according to their recommendations.
The official stressed that these cases are complex and said the courts have now introduced a new perspective on these proceedings, one which cannot be directly deduced from the law itself in many cases. “This is a signal to us, because we know the courts will decide along these lines in the future, and we can proceed in a more effective way on that basis,” concluded Policar.
In August, ministerial spokesperson Ondřej Jakob responded to a query from the Czech News Agency (ČTK) with the information that roughly 30 rejected applications for compensation for forced sterilization are still being reviewed by the courts.
Balážová reminds the public that the promised commission for civil society input into assessing the applications for compensation was never created
Journalist Jarmila Balážová, who moderated the whole discussion, pointed out to Policar that in 2021 then-Health Minister Adam Vojtěch had promised to create a commission where nonprofit organization representatives would aid with deciding the applications for compensation. No such commission was ever created, however.
According to Policar, the reason was that such an element was never anchored directly into the law such that it could have facilitated an actual influence on the decisions.
Policar also pointed out that the ministry’s current practice uses the Administrative Code, which is quite strict, and within that framework an official person renders the decisions on the basis of the arguments submitted and the law itself. That means an external commission or other opinions cannot influence the outcome of the decision, which in his view is not ideal for this kind of sensitive case.
The Health Ministry is not meeting its own deadlines, some women have been waiting more than a year for a decision about their compensation
Řepová said another big problem is that the Health Ministry is not meeting the deadlines established by law. “The Health Ministry, by law, must render a decision within two months, but some women have been waiting for a decision for more than a year at least. That is a big problem, especially since these women are older and many are also seriously ill. Some have died before being compensated,” Řepová said. She gave the example of a client with cancer who waited for a decision from the ministry for almost a year and who currently is again waiting a long time for her appeal to be decided.
During the discussion, Řepová also warned of other problems in communicating with the ministry, for example, the information phone line that is rarely answered. “The information phone line at the ministry works just one day a week, and on that day it is quite difficult to get through. Moreover, women are frequently being given incorrect information through that line, which significantly complicates the situation for us as their legal representatives,” she said, adding that clients who believe what they hear from the ministry then lose faith in their legal representatives.
“It happens that the ministry claims to have not received an application for compensation even though we have proof that it was sent through our databox. Distrust of us is a big problem,” Řepová said.
Policar admitted that the Health Ministry, in “some cases”, is not managing to process the applications within the timeframe established by law and explained the delays as due to a lack of personnel and the complexity of some cases. The department handling the applications had just three employees at the start of 2022. According to Policar, this is not because the ministry is unwilling to process the applications, but because there is a problem with capacity and the significant increase in the number of applications.
“From the start we had problems with insufficient capacity. The Finance Minister agreed to increase the number of staffers for this agenda, but in reality we got just one more systematized position. Due to the fluctuation of employees, however, we started working on this with three people, far fewer than we need,” explained Policar. According to him, the ministry is doing its best to do the maximum it can with these resources, but the bureaucrats are overwhelmed.
Aneta Krulcová of Dentons: The ministry is interpreting the law on compensating illegally sterilized persons such that applicants will not qualify
Aneta Krulcová of the Dentons law firm spoke of her experience with providing legal aid to women who have been disabled by forced sterilization. Dentons collaborates with the League of Human Rights as part of its pro bono services, and Krulcová stressed that their attorneys get involved with the process once the applicants fail to secure compensation from the Health Ministry.
“Our role starts during the court proceeding phase, when we file administrative lawsuits against the Health Ministry once an applicant is rejected. We do our best to convince the court that the ministry’s decision was illegal, and if it is overturned by the court, the ministry must reassess the application and award compensation,” Krulcová explained before describing two specific cases of women who have been represented by the law office.
According to Krulcová, the ministry often interprets the compensation law such that applicants will be rejected. “In our experience, the paragraph that specifies what is considered to be illegal sterilization is interpreted by the ministry to be the opposite of what the law’s purpose is,” Krulcová said. In her view, that interpretation subverts the very point of the law and complicates the delivery of justice.
“These women have been betrayed more than once. First they were disappointed by the state when the eugenic policy was in place here, then they were failed a second time by the hospitals which sterilized them, then they were let down by the hospitals once more when they illegally shredded their original medical records. Now they are being betrayed once again by the state when they are supposed to be compensated,” Řepová of the League of Human Rights concluded the discussion.
