Czech attorney David Strupek: The compensation law for those unlawfully sterilized came late

Strupek has focused his practice as an attorney on litigation above all. He specializes in protecting human rights and liberties, discrimination, and family law. He represents his clients regularly before the Czech Constitutional Court and the European Court of Human Rights. For instance, he was a member of the international legal team representing the plaintiffs in the watershed case of D. H. and others vs. the Czech Republic, about ethnic discrimination in special education. There have been more such cases brought on that issue. Apparently that is why he was given the Lawyer of the Year award in 2006 in the field of family law (as a member of the collective serving the Legal Aid Help Line for the Our Child Foundation). He was also nominated that year for his work in the field of human rights and freedoms. Since 2013 he has also been a civil society member of the Committee for the Rights of the Child. part of the Czech Government Human Rights Council.

Q: When did you first hear of the subject of forced sterilization and why did it capture your attention professionally (and perhaps even on a personal level)?

A: I’ve been involved with human rights, focused on the situation of the Romani minority, since the late 1990s. The subject of these unlawful sterilizations was something I noticed right away when it became discussed in the media and professional circles. It’s a sad subject and a strong one, where what is most disturbing is that this repugnant practice was part of the social engineering that was advocated for by the communist regime without any respect for the fates of individuals. It is exactly individuals whose stories were so seriously impacted by this practice. So I followed the issue from the start, but an offer to legally represent somebody did not come until the compensation law was adopted in 2021.

Q: Does the current wording of the law to compensate the victims of forced sterilization make it possible for the Health Ministry to interpret it unambiguously and justify some of its decisions on the basis of the law?

A: No law in the world can be written in such a way as to not yield a problem with its interpretation, it cannot be so specific as to describe and resolve every conceivable case. Legislation is always general and general concepts and formulations always require interpretation. The problem of the compensation law is not that its wording is unclear, but that it was adopted late. Evidence no longer exists for most cases since the medical records were shredded long ago and that shredding, in and of itself, was absolutely legal.

The Health Ministry has proceeded the way it usually does with administrative proceedings. It called on the applicants to demonstrate that their request is justified, and where evidence did not exist, it decided against awarding them compensation. This procedure did not directly violate the wording of the law on compensation or the administrative code. However, the courts have reproached the ministry for ignoring the specific character of this law and the specific position of these applicants for compensation.

The law was adopted in response to critical voices saying the state was not addressing the problem of unlawful sterilizations, including international criticism. However, since the state decided to adopt this legislation in 2021, it has to constitute effective remedy, not just the formal fulfillment of the task it has been assigned. The law has to be applied such that the applicants have a real chance of succeeding with their proceedings and such that its aim will be fulfilled. That is why the courts said the ministry cannot proceed as strictly as is otherwise typical for an administrative proceeding on requests.

Q: From your perspective as a lawyer who is currently representing several of these injured parties in the courts, how do you see the Health Ministry’s decisions in some of these controversial cases? (For example, those that mention a patient’s Romani origin in the documentation of the sterilization).

A: The ministry is in an unenviable situation. It has been tasked with addressing these applications according to a law that was adopted too late. The evidence is not there. The ministry, naturally, is obliged to save the state money and not to award compensation if it is not convinced that eligibility for it has been proved. We probably agree with that as taxpayers. For that reason, from the start, it proceeded as usual, as it does for proceedings about other kinds of requests.

If I were to speak of an opinion or a procedure that is erroneous at first glance, it is that some kind of template was applied in the beginning according to which the ministry rejected requests where original medical records had been shredded with the justification that the existence of such documentation is the unavoidable requirement for awarding compensation. That template was destroyed by the rulings from the first-instance courts, which clearly expressed that the law does not know any hierarchy of evidence and that the ministry must also research other proof, assess it, and then consider if it constitutes strong enough substantiation of the conclusion that an illegal sterilization did take place.

The ministry’s other mistakes were not obvious ones. As I said in my answer to your previous question, the ministry proceeded in its typical way in these matters. Now the court verdicts have expressed the view that cases of illegal sterilization are atypical, as is the context of the adoption of the compensation law, and therefore it is necessary to adapt the procedural process and address these cases in a specific way.

Q: You have also been representing the family of the late Mrs. Holubová (one of the victims harmed), whose request for compensation was initially rejected by the Health Ministry because the original medical records had been shredded by the maternity ward where the illegal sterilization transpired. Did you meet Mrs. Holubová in person, or was it already too late? Why did you “take the case”?

A: Unfortunately, I did not have the honor of speaking with Mrs. Holubová in person, although we certainly must have met each other on other occasions in the past. As far as legal representation goes, there’s nothing noble about it. When the nonprofit organizations realized that the application of the compensation law was leading to most applicants being rejected, they started considering a coordinated legal procedure. Given my previous and ongoing collaboration on addressing the difficulties of a legal character which ethnic Roma encounter, I was probably the logical option for these cases. Once I was contacted there was no reason not to take the case. At the end of the day, an attorney should not have the right to choose, properly speaking, it’s his job, he provides his services to anybody interested with whom he can reach agreement as to the terms of cooperation. At the most, what he considers is whether he has the capacity for the case, whether he comprehends the issue or is able to study up on it. He should not have any other reason to refuse. However, that doesn’t mean I wasn’t glad to take on the sterilization cases, at the end of the day, as I’ve already said, human rights issues and legal aid to the Romani minority are what I have long dedicated myself to. Naturally, it is an honor for me that I was able to handle these cases, including Mrs. Holubová’s, and I’m glad that they are developing positively right now.

Q: What about the judgment from the Supreme Administrative Court which basically, to put it in lay persons’ terms, could influence the Health Ministry’s decision-making on other requests?

A: The adjudication of the Supreme Administrative Court in the matter of Mrs. Holubová is important because, in a fundamental way, it adjusted the distribution of the burden of proof. As I said before, generally in a proceedings on a request the applicant bears the burden of proof and must show that without a doubt he is eligible for what he claims. However, the courts said that in the proceedings on these requests for compensation for illegal sterilizations, the ministry must proceed as it would if this were a case of discrimination or, for instance, a case where the state is responsible for the treatment of somebody in its custody (e.g., a prisoner). This creates the assumption, the presumption, that the alleged situation did happen and that the other party must refute that assumption.

In the sterilization cases, therefore, it is currently enough if the applicant presents a sufficiently defensible claim and has at least some proof that makes it plausible. That can be, for instance, medical records, but it can also be the testimony of witnesses, or proof that the applicant has been engaged with this issue many years and has striven to clarify her situation, which was the case of Mrs. Holubová in particular. Once the applicant presents such allegations and evidence, the presumption is created that the sterilization was unlawful, and the ministry must refute that presumption. If the ministry fails to do so, then eligibility for compensation arises and must be recognized.

The approach of the Supreme Administrative Court in the case of Mrs. Holubová is important from another perspective as well. The court said that eligibility for compensation for an illegal sterilization belongs among the kinds of claim that are included in an inheritance if the applicant dies during the course of the proceeding. That had not been at all clear from the wording of the law.

Q: The compensation process has just a short time more to run. From your perspective, how has the Czech Republic, through the Health Ministry, coped with this?

A: The deadline for filing requests is coming up – nevertheless, the proceedings which have already begun will continue. Certainly years of work on these cases await us. Once again, I repeat, I see the basic problem as being that the law came too late. There is certainly no ill will on the part of the bureaucrats at the ministry. It’s just turned out that it’s difficult to proceed according to typical administrative procedural rules when the crucial evidence has been missing for decades already. The main problem on the side of the state hasn’t happened just now. The problem was that it took almost 20 years for the state to show the will to solve this problem. Now it’s just putting out fires, metaphorically speaking.

Q: Why aren’t more lawyers interested in this subject? Or are they and the lay public just doesn’t know about it?

A: The communication happens in the reverse direction. Somebody has to come to the attorney and request representation. Attorneys do not seek out cases, they don’t claim them, strictly speaking we’re forbidden to offer our services without being first approached by the client, although there are always certain opportunities for getting involved. However, all of this happens absolutely privately, I actually do not know how many attorneys are representing cases of illegal sterilizations. The first watershed verdict from the Municipal Court in Prague was achieved by another attorney before me. So there are certainly more of us, it’s just not visible.