Jan Husák on RomanoNet's draft amendment to the Czech Antidiscrimination Act: Roma need a law that will be on their side

In an interview with news server Romea.cz, Husák describes why antigypsyism needs to be explicitly defined in law, how changing the burden of proof could make access to justice easier for victims of discrimination, and why it is important to establish a state-guaranteed legal aid fund.

Q: What do you think most clearly demonstrates that the current Antidiscrimination Act is failing to effectively protect the victims of antigypsyism in the Czech Republic?

A: Although the Czech Antidiscrimination Act defines protection against discrimination in access to education, employment, or housing, for instance, it cannot effectively address deep-rooted phenomena such as systemic ethnic segregation in education. The current law does not contain an explicit definition of antigypsyism and therefore lacks specific tools to address this phenomenon. We can also understand antigypsyism as an overarching phenomenon that is the start, and often the root cause, of such discrimination or segregation. I can think of a comparison to a contagious, deadly disease. If a person were to knowingly spread such a disease with the aim of infecting as many people as possible, we know that current legislation would apply to the action of spreading the disease, but not to the disease itself. Antigypsyism is like an infection that causes discrimination or segregation, for instance. It is therefore a systemic issue that affects the lives of Roma on many levels, and yet it is not mentioned in any legal norm. The current wording of the Antidiscrimination Act can be understood more as a reactive tool, that is, it responds to individual rights violations, not to the causes of the violations it seeks to punish. In other words, the law mainly focuses on correcting the consequences of discrimination, without effectively addressing its root causes or preventing its manifestations.

Q: Can you mention any problems you have encountered in practice with the Antidiscrimination Act?

A: One of the biggest problems we repeatedly encounter in practice is that it is extremely hard for discrimination victims to prove discrimination has occurred, especially indirect discrimination. Many discrimination victims simply get upset because the current legal framework places demands on the victim to prove their discrimination based on direct evidence, demands which are too high. Recurring data and reports from various research studies also show this is a persistent problem. Moreover, Romani trust in the police in the Czech Republic is twice as low as non-Romani trust in the police, and that distrust doesn’t just apply to the police, but also to the courts, which can lead to situations where many victims think reporting discrimination would be useless. That brings us to the fact that over time, Romani people have given up on addressing discrimination through the courts. Unfortunately, this shows that the current law, although well-intentioned, does not provide sufficient protection for Roma from discrimination itself, nor does it provide access to rights on an equal basis in practice.

Q: Why is it important that antigypsyism be defined explicitly in law?

A: The explicit definition of antigypsyism in law is important for several reasons which are intertwined. First, it is a clear name for a specific form of racism. Antigypsyism represents a form of discrimination and hatred that has its own manifestations and mechanisms targeting Roma specifically. An explicit definition would aid in identifying this specific issue precisely, which can significantly facilitate its recognition and resolution. Without this specification, antigypsyism frequently gets watered down in general terms such as discrimination on the grounds of ethnic origin, which the Antidiscrimination Act does mention. That prevents effective punishment of its specific manifestations and prevents responding to it in a targeted way. Second, the definition significantly contributes to raising public awareness. It assists policymakers and state institutions with better understanding what antigypsyism looks like and what its impacts are on Romani people. This is important to more effectively combating the prejudices and the unequal treatment which Roma have been exposed to for many years. Furthermore, it supports legal protection. As I have already mentioned, the current Antidiscrimination Act and the Criminal Code do not explicitly mention antigypsyism. While antigypsyism can be punished under the general provisions against hatred on the basis of ethnicity or race, the absence of a specific definition may hinder a uniform interpretation when the courts and law enforcement agencies apply the law. This explicit definition would serve as a supplementary tool to the interpretation of the existing legal regulations and would allow for better punishment of such specific manifestations as the spread of discrimination, hatred, segregation, or violence against Roma. The aspect of prevention and systemic solutions should not be neglected, either. Recognizing antigypsyism as a category of discrimination can significantly help the implementation of educational programs, preventive measures, and social inclusion policies. Last but not least, it would also be of political and symbolic significance. The inclusion of this definition in Government documents or legislation would represent a clear (not just symbolic) expression of the rejection of antigypsyist hatred and prejudice in the legislative milieu. Romani trust in the courts, for instance, could be strengthened.

Q: How could the proposed change to the burden of proof aid discrimination victims?

A: The principle of shifting the burden of proof in discrimination disputes is already enshrined in Czech law. However, in practice, it has been demonstrated that the application of this rule is not always effective enough and does not always apply to all cases of discrimination, which has led to proposals to clarify and explicitly extend this principle. In other words, our proposed change would mean that if, in a legal dispute over discrimination on the basis of ethnic or racial origin, including antigypsyism, the party who feels aggrieved (the plaintiff) succeeds in presenting evidence indicating that unequal treatment has occurred, then he or she will no longer have to prove anything else. Instead, the accused party (the defendant) will have to prove that discrimination did not occur at all and that he or she acted in accordance with the law. This would significantly increase the legal protection of victims by removing that unreasonable obstacle to proving discrimination. The victim would no longer have to give irrefutable evidence of discrimination, but would only need to present credible evidence and facts to the court indicating that the unequal treatment transpired.

Q: What could increasing the maximum amount of compensation for non-pecuniary damage to CZK 500,000 [EUR 20,000] mean in practice?

A: In the Czech legal milieu, the law does not say what the highest or the lowest possible amount of damages awarded in a case of discrimination should be. This means that you are completely dependent on how the court decides. Judges do take into account how much you were harmed by the discriminatory act and under what circumstances the discrimination occurred, but the latitude leads to great uncertainty. Current compensation awards are frequently too low and often do not correspond to the seriousness of the discriminatory acts. Non-pecuniary damage caused by discrimination can have devastating, long-term impacts on the victim’s life, such as deep psychological trauma, or loss of employment or housing. Setting a maximum amount would allow the victim to set a limit on their compensation and would give victims a clearer idea of ​​what compensation they can expect. Critics might argue that since the current standards do not set a maximum limit, victims might lose out, but the current practice is such that compensation is more on the order of thousands of crowns [hundreds of euro]. Setting a maximum (a “cap”) would give victims a clearer idea of ​​how far they can go in their claims. It would also give judges a clearer guide on how to make decisions, which would help to unify judicial practice. It is equally important, however, to consider setting a minimum amount of compensation for discrimination. A minimum limit could then ensure that compensation for proven discrimination never falls below a certain level. That would give victims more certainty and confidence in the legal system, knowing that harm will always be recognized to at least some extent.

Q: How should the proposed new legal aid fund function, in your view?

A: When considering what the new legal aid fund should cover, it is important to realize how much assistance it would mean for people who have experienced discrimination. Such a fund could contribute to the costs of legal representation at the request of the victim or their legal representative. This means the fund would pay lawyers not just in the cases which are dealt with directly under the Antidiscrimination Act, but also in other, related proceedings. Such proceedings would include, for instance, disputes over compensation for damages in civil cases, cases of unjustified dismissal from work, or negotiations with the authorities in administrative proceedings. This would be a great relief to the discrimination victims, because frequently it is their lack of funds for legal representation that prevents them from defending themselves at all. Furthermore, the fund could cover all of the administrative and court fees associated with the victim trying to assert their rights. Such fees, although they may not seem high at first glance, can represent an insurmountable obstacle to access to justice for people in difficult situations. Lastly, the fund could cover reasonable expenses incurred in gathering the necessary evidence. This is particularly important in discrimination cases, as the collection of evidence can be very expensive. This could include expert opinions, travel expenses for witnesses, or other expenses essential in court proceedings. If the fund covered these expenses, it would make it much easier for victims to prepare for court and increase their chances of a fair outcome.