Guidelines Relating to the Eligibility of Czech Roma Asylum Seekers

1. Introduction

1. While only 33,000 people identified themselves as Roma in the last census (1991), there are an estimated 200,000 in the Czech Republic. Accurate statistics regarding Czech Roma are thus difficult to ascertain and often are based on the above mentioned census. While Czech Roma are discussed for the purposes of this paper as one group, they are composed of a variety of clans, including the Slovak Roma, who make up the overwhelming majority of Roma now in the Czech Republic, Vlachi, Sinti (German speaking) and Czech or Moravian Roma. The latter were settled in the Czech lands as early as the 15th century but between 6,000-8,000 of their number were killed during the Nazi occupation (reportedly 95% of the then population of Roma in the Czech Republic), leaving only 600 survivors. After the war and subsequent deportation from the Czech Sudetenland to Germany of thousands of Czechs of German ethnicity, thousands of Roma were forcibly settled from Slovakia to western Bohemia to fill the newly vacant flats and factory jobs. The Communist Czechoslovakia's policy toward the Roma ranged from forced settlement and employment, to assimilation and forced integration as a cultural and ethnic group.

2. Following the fall of communism in the then Czechoslovakia in November 1989, the situation of the Roma improved in some respects and deteriorated in others. They are recognized as a national minority, have formed political and cultural organizations, and, like other Czech citizens, have the opportunity to enjoy the benefits of political and economic freedom. However, with the transition to a market economy, the Roma have become increasingly marginalized relative to the majority Czech ethnic population, both socially and economically. Moreover, dormant anti-Roma attitudes, suppressed under the Communist system, emerged in the form of popular discrimination and, less frequently, hate crimes committed by extremist groups. This increased marginalization and feeling of vulnerability has led some segments of the Roma community to seek a better future through migration.

3. In addition to the dire economic situation faced by Roma, the preferred social distance (perhaps as a way to preserve their cultural identity and resist assimilation) maintained by many Roma further contributes to the placement of Roma on the fringes of Czech society. The resulting rift in community relations is often expressed as a conflict in social values. This phenomena is perhaps the most difficult and intriguing aspect for an outsider to understand, yet it is an important factor when discussing the relations between Roma and non-Roma communities. While it is understandable given the history of Roma vis-à-vis dominant cultures (persecution, assimilation campaigns, etc.) it may be viewed as an added obstacle to successful integration.

4. Czech Roma asylum claims largely are made on the basis of discrimination in access to education, housing, and employment and the lack of state protection with regard to racially motivated denial of services or acts of violence. This paper will therefore cover such topics, endeavouring to present objective information from publicly available sources.

2. Education

5. The level of education among Roma is particularly low, most finishing their schooling prior to completion of the 9th grade. (Nine years of school is compulsory in the Czech Republic.) According to the 1991 census, less than 2% of those Roma over the age of 15 have attended or completed secondary school or university. Obstacles to academic success are myriad, including in some cases parents who, not having an education themselves, do not encourage the pursuit of studies, teenage pregnancy, and harassment from Czech ethnic students. Moreover, as Czech curricula do not include Roma history, language or culture, Roma advocates assert that many Roma view the offered education as "foreign" and not relevant to their well-being.

6. Perhaps most significantly, the education that is received frequently does not lead to skills or vocations. Roma children, especially those who do not learn standard Czech at home or who come from impoverished families, are over represented in "special schools", originally intended for those who are mentally or physically handicapped or learning disabled. The decision to send a pupil to a special school is often made by a school psychologist who tests the child in kindergarten or first grade. The de facto segregation is often so great that in some cases the parents request their child's transfer to a special school in response to abuse from non-Roma children or to avoid isolating the child from other neighbourhood Roma children. While these schools receive more funds per student and have a better teacher to child ratio than basic schools, they rarely lead to further education in mainstream school but rather at best prepare students for vocational training. "Tracking" students based on linguistic or social reasons rather than learning potential is a primary obstacle to Roma's future success in finding employment in an increasingly sophisticated economy and is the first step towards continued impoverishment and marginalization.

3. Housing

7. Housing has become an acute problem for the Czech population in general, especially in areas where employment is more readily available. For many Roma, the situation is markedly worse. There are large concentrations of Roma on the outskirts of cities, some communities lacking easily accessible water, electricity and sanitation facilities. In addition to a lack of resources to enter the private housing market, Roma sometimes face discrimination in obtaining flats. According to several polls asking the question over the last few years, Roma are the least preferred neighbours compared to all other nationalities or ethnic groups. Part of the Roma assimilation campaign during the 1950's and 60's was the forced movement of Roma into urban flats in disregard of their preferences, clan relations, life-style and social hierarchy. This resulted in some cases in the damaging or disrepair of flats, incidents which reinforced the resentment and negative stereotypes held by large segments of the majority population towards Roma.

4. Employment

8. With only a basic education and no professional qualifications, Roma have increasingly meagre job opportunities. Although the unemployment rate in the Czech Republic is approximately 5%, the unemployment rate among Roma is quite high, with some estimates reaching 70%. Those that are working are generally performing manual labour or are in the industrial or agricultural sectors. As the market transition results in the closure of non-profitable enterprises, Roma, having few skills and sometimes facing discrimination, have fewer opportunities to find or maintain employment. Moreover, many of the low skilled jobs, such as construction, are now performed by Ukrainians and other migrants who are willing to work for very low wages, Many Roma therefore rely on state benefits and live at or below the poverty line.

5. Discrimination, Intolerance and Violence

9. Widespread anti-Roma feelings exist among the Czech ethnic population. It is often explained that Roma are not disliked due to their colour or ethnicity but because they are lazy, noisy, criminal, etc. Reactions to the Romany lifestyle range from indifference to intolerance, and are reflected in incidents of Roma being excluded from bars and restaurants, or, to a much lesser extent, being subject to racist statements and skinhead violence. Such attitudes are mirrored in the political context, as the Republican Party, espousing anti-Semitic and anti-Roma views, achieved 8% of the vote in the 1996 legislative elections and is represented with 18 seats in the 200 person parliament. Local officials who are members of mainstream parties have also on occasion made anti-Roma statements. In 1997 alone, one Prague municipality mayor suggested that local authorities move "problem citizens" (Roma) out of city centres, and a mayor of Marianske Hory offered to subsidize flights for those Roma who sign their flat over to the city upon their departure to Canada (to ask for asylum).

6. State Protection

a. Legal Framework

10. The Roma are officially considered a national minority and thus under the Czech Constitution and Charter of Fundamental Rights and Freedoms are entitled to enjoy the following:

The right to education in their language;

The right to use their language in official contacts;

The right to develop their own culture;

The right to impart and receive information in their language;

The right to associate in ethnic associations;

The right to participate in the decision-making concerning national and ethnic minorities.1[1]1'

11. Article 24 of the Charter affirms that the "national or ethnic identity of any individual shall not be used to his/her detriment." Moreover, the rights and freedoms guaranteed under the Charter apply equally "to all irrespective of sex, race, colour of skin, language, faith, religion, political or other opinion, national or social origin, belonging to a national or ethnic minority, property, birth or other status." This principle can also be found in other statutes, such as the Labour Code, Administrative Code, Civil Code, Law on State Social Support, Family Code, and the Penal Code and Penal Order.

12. The Czech Republic is a party to the several international treaties protecting the rights of minorities and prohibiting discrimination, including the following:

International Convention on Civil and Political Rights

International Covenant on Economic, Social and Cultural Rights

Convention on the Protection of Fundamental Human Rights and Freedoms

Conventions on the Rights of the Child

International Convention on the Elimination of all forms of Racial Discrimination

13. International treaties on human rights are directly binding and take precedence over Czech domestic legislation under Article 10 of the Czech Constitution.

14. Following the murder of a Roma by skinheads in May 1995, the penal code was changed to include stiffer penalties for crimes determined to be "racially motivated". State Prosecutors were directed to seek the highest sentences in crimes where race was a factor and police were instructed to diligently investigate such acts. A special unit in the criminal police was formed to combat extremist groups and since 1 January 1996, each District Police Department has an expert to combat racial violence.

15. Acts which can constitute racially motivated crimes according to the Czech Criminal Code include the following:

§196 Violence against a group of inhabitants and against individuals for their political convictions, race or belief (6 months - 3 years);

§198 Defamation of race, nation or belief (2 years, 3 if by group of 2 or more);

§1 98a Incitement to national or racial hatred (2 years);

§260 Sponsoring and promotion of movements aimed at suppressing the rights and freedoms of citizens (1-5 years, 3-8 years if by group or through the media);

§261 Public sympathy with fascist or similar movements (6 months - 3 years).

16. On 29 October 1997 the Government accepted, on its third submission, a report on the situation of Roma prepared by the Council for National Minorities. Initiated several months earlier, the report became the subject of particular attention due to the influx of Roma to Canada (resulting in the reimposition of a visa requirement) and a subsequent albeit smaller movement to EU states. In the decree accepting the report, the Government expressly acknowledges with concern the level of racism in society, including the behaviour of some state and local administrative officers. It also notes that the State, its citizens, and the Roma themselves must assist and cooperate in resolving the barriers to full participation of Roma in Czech society. The decree commits the government to several remedial actions in areas such as education, tolerance, discrimination, employment and housing. At the time of writing it is too soon to evaluate the implementation and funding of the various programs called for in the decree.

b. State protection - in practice

17. The record of enforcement and proper use of the above mentioned laws is mixed, especially on the local level. There have been cases in which the racial motivation is seemingly clear yet judges, who have broad discretion in the matter, do not recognize the racial character of the crime and which resulted in short jail terms. In one widely reported case a District Court judge failed to find a racial motive as, in that court's view, both Czech nationals and Roma are part of the Indo-European race. The Ministry of Justice filed a complaint and on 9 October 1997 the Supreme Court reversed the verdict providing instructions to the lower court on the proper interpretation of racial crimes in the context of the Czech criminal code.

18. In regard to local police relations with Roma, as one official report stated "on some occasions, the police did not use all the tools to qualify the crime as racially motivated. At times the police even openly sympathise with skinheads. Therefore, many Roma are losing their trust in the police and are reluctant to report physical attacks." President Havel, commenting on the influx of Roma to Canada in the summer of 1997, provided an accurate reflection of the current situation: "this government is not racist, the Czech law is not racist either, but moods inclining to racism are dormant in society and the society's indifference to racial intolerance are more dangerous than fanatical racism. The indifference and apathy towards racism can be seen, for example in situations where people do not intervene in a brawl between skinheads and Roma, even the police hide around a corner now and then in order to avoid dealing with such cases."

19. The central government has initiated several projects intended to improve the social and economic situation of Roma, particularly in the fields of education and culture, including the following: district governments were encouraged to hire "social curators for national minorities" in order to provide counselling and assistance in improving Roma contacts with local administrative offices; regional offices drafting development plans are now obliged by decree to include measures for the improvement of the living and working conditions of Roma; a Roma cultural centre and history museum received funding as do Roma media; preparatory "zero start" classes are available in some schools; employers are given financial contributions for hiring persons qualified as not easily employable. Such measures have had mixed limited success in their implementation due to insufficient funding, lack of resolve on the local level and the relative failure to associate Roma in program design.

C. The impact of the Czech Citizenship Law

20. In 1969 Czechoslovakia became a Federation and, while maintaining the internationally recognised Czechoslovak citizenship, for internal purposes created subsidiary Czech and Slovak citizenship. Those aged 15 and over and born in the Czech lands were conferred Czech citizenship (jus soli). Those younger than 15 years or born after January 1969 were given the same citizenship as their parents (jus sanguinis). When the Federation split in 1993, this internal citizenship, of no practical importance until then, was used to determine the initial body of citizens in the newly established Czech and Slovak Republics. Those former Czechoslovaks with Slovak internal citizenship who wished to opt for Czech citizenship could do so if they met three conditions: a) release from Slovak citizenship; b) permanent residency in the Czech Republic for at least two years; and c) a clean criminal record over the last five years.

21. Thousands of Roma either did not apply, could not pay required administrative fees, or could not meet the above criteria and were thus considered Slovak citizens and aliens in the Czech Republic, despite having no genuine links to Slovakia. Roma, often having strained relations with local authorities and having a low level of education, had difficulty with the complicated option procedure. As most rights and benefits, such as employment, social welfare, and education are tied to permanent residency, obtaining Czech citizenship is also not seen as the highest priority in a community often struggling to meet their daily needs. Finally, the high incidence of petty crime and the difficulty in proving official rather than factual residence also excluded many from obtaining Czech citizenship. After much criticism from international organisations such as the UNHCR and the Council of Europe, and from local NGOs, an amendment was passed in April 1996 providing the Minister of Interior the discretion to waive the clean criminal record requirement. By the end of October 1997, the requirement was waived in 98% of the 1,800 applications lodged. In early November 1997, the government announced that such waivers would be provided to all those who apply, including those previously denied. The issue of interpreting permanent residency as factual rather than de jure still remains, although recently the Ministry of Interior has indicated some willingness to discuss implementing a flexible approach in this regard. Bureaucratic obstacles, administrative fees, and a lack of a concerted approach by concerned ministries have delayed a successful resolution to this problem, especially in the context of children residing in foster care homes or persons in penal institutions. Although the number of de jure stateless is very small, de facto stateless number in the thousands, most but not all thought to be Roma.

7. Analysis of Claims

22. While it cannot be reasonably disputed that Czech Roma are frequent victims of discrimination, it must be evaluated whether this discrimination amounts to persecution in the context of the 1951 Geneva Convention.

23. The Handbook on Procedures and Criteria for Determining Refugee Status offers some guidance on the standard to be applied in discrimination cases:

"Differences in the treatment of various groups do indeed exist to a greater or lesser extent in many societies. Persons who receive less favourable treatment as a result of such differences are not necessarily victims of persecution. It is only in certain circumstances that discrimination will amount to persecution. This would be so if measures of discrimination lead to consequences of a substantially prejudicial nature for the person concerned, e.g. serious restrictions on his right to earn a livelihood, his right to practise his religion, or his access to normally available educational facilities." (§54)

24. Persecution may also result where the discriminatory measures are not serious but are "cumulative". As the Handbook states:

"In addition, an applicant may have been subjected to various measures not in themselves amounting to persecution (e.g.discrimination in different forms), in some cases combined with other adverse factors (e.g. general atmosphere of insecurity in the country of origin). In such situations, the various elements involved may, if taken together, produce an effect on the mind of the applicant that can reasonably justify a claim to well-founded fear of persecution on "cumulative grounds" Needless to say, it is not possible to lay down a general rule as to what cumulative reasons can give rise to a valid claim to refugee status. This will necessarily depend on all the circumstances, including the particular geographical, historical and ethnological context." (§53)

"Where measures of discrimination are, in themselves, not of a serious character, they may nevertheless give rise to a reasonable fear of persecution if they produce, in the mind of the person concerned, a feeling of apprehension and insecurity as regards his future existence. Whether or not such measures of discrimination in themselves amount to persecution must be determined in the light of all the circumstances. A claim to fear of persecution will of course be stronger where a person has been the victim of a number of discriminatory measures of this type and where there is thus a cumulative element involved." (§55)

25. Claims may therefore be evaluated on the basis of the cumulative effect of discrimination and the absence of effective legal remedies.

26. The following "Framework of Analysis", adapted from doctrine of the Canadian Immigration and Refugee Board, offers another method of determining whether the discriminatory treatment suffered amounts to persecution:

1) identify the type of right or freedom threatened;

- "first level" - right to life; freedom from torture; freedom of thought, conscience and religion; etc.

- "second level" - freedom of movement; freedom of opinion and expression; right to access to public service, etc.

- "third level" - right to work; right to an adequate standard of living; right to education; etc.

- "fourth level" - right to own private property, etc.

2) assess the nature of the discriminatory measures;

is the measure in the form of, for example, harassment and bullying by private citizens, or coercive military measures, or economic sanctions, or systematic abuse?

3) determine the persistence of the discriminatory measures;

systematic discrimination may be evidenced in either a persistent series of measures over a short period of time, or in less concerted but prolonged actions.

4) determine whether the discriminatory measures

a) are serious measures against first level rights, in which case they readily constitute persecution; or

b) restrict rights other than the first level rights, but are nevertheless systematic and seriously affect the integrity and human dignity of the claimant, in which case they would also amount to persecution.2[2]

27. In light of the above, UNHCR's view is that while there is no official policy to discriminate against Roma on the basis of their ethnicity, discrimination at the popular level takes place and is fairly widespread. In some instances, such discriminatory treatment may lead to consequences of a substantially prejudicial nature so as to amount to persecution. Asylum claims must therefore be assessed individually to establish if the discrimination experienced amounts to persecution.

28. Claims should be assessed based on the nature of the discriminatory treatment encountered, the persistence of such discriminatory action, and the severity of the consequences on the applicant or on his or her immediate family members. Where the consequences threaten the applicant's right to life and liberty, this would be considered as severe, similarly, where the applicant's right to earn his livelihood is threatened, this would also be considered as severe.

29. Where it is assessed that the discriminatory actions amount to persecution, it would be necessary to evaluate whether the authorities have afforded or are able to afford the applicant protection. In this regard, it is important to establish whether the applicant had approached the authorities to seek redress and if he/she had not done so, the reasons. Obviously, where the local authorities had condoned or themselves engaged in the discriminatory treatment, the applicant's access to redress measures would have been limited. Given that there is a legal and policy framework for redress of racial-based grievances, unless all reasonable avenues of recourse to national protection have been exhausted, the applicant should not be considered to be in need of international protection.

[2]2 Immigration and Refugee Board, Ottawa, Canada, December 1991.