Czech compensation procedure for forced sterilizations fails to deliver for many applicants
In June 2023, the compensation procedure for forced sterilization victims will be halfway through. The procedure has been managed such that many of the oldest applicants - those who have suffered the longest - are being rejected because their original medical records no longer exist (by law records only have to be kept for 40 years).
According to the compensation law, the state is responsible for sterilizations performed unlawfully. Especially for communist-era cases, the state incentivized sterilization and justified it with eugenic reasoning. Now the state must provide effective remedy, and compensation is how it takes responsibility for this wrongdoing.
Many applicants have been rejected because their original medical records no longer exist in the hospitals where the sterilizations happened (if the facilities even still exist). Even applicants who obtained copies of their records before those facilities destroyed them have been told that since the originals no longer exist, the Health Ministry cannot be sure the copies are complete, a not very subtle way of suspecting the applicants of fraud.
Rejected applicants can appeal to the ministry, and if the minister does not overturn their rejection (as he fortunately did in one especially egregious case), they can sue free of charge. The Municipal Court in Prague has ruled against more than one rejection, but the ministry has appealed to the Supreme Administrative Court, further delaying redress.
The first-instance court, in its rulings, instructs the ministry that the state itself is supposed to actively attempt to correct its own wrongdoing through compensation. The administrative code and the law make it possible to use evidence other than the original medical records and the burden of proof cannot lie entirely on the applicant, especially in a situation where records are no longer available. According to the court, the ministry must acknowledge it was the state that failed in the past and this compensation must be an effective means of redress. Instead of complying with these verdicts and reversing its rejections, the ministry is appealing.
Rejections on too narrow a basis are just one problem. The law stipulates that applications must be handled within 60 days, but according to civil society, the average turnaround is 154 days. The ministry blames the applicants for not responding to calls for more information to be submitted, but there are many cases where the applicant was never asked for any additional information and did not hear from the ministry until eight months or more after applying.
Since the procedure opened last year, civil society is aware of five applicants who died without receiving an answer from the ministry within the 60 days required by law. Given that Romani women die 15 or so years earlier than their non-Romani counterparts in the Czech Republic, the issue of the ministry taking so long to respond is a very serious one.
Despite these problems, it is extremely important to apply for compensation. Those whose applications have been delayed or rejected should contact their elected representatives to complain and should pursue all the phases of appeal possible. The first-instance courts are reading the law correctly – the question is how long it will take the ministry to improve.
First published in Czech in the magazine Romano voďi 1/2023.
