IMMIGRATION APPEAL TRIBUNAL
OP & Others (Roma - Ethnicity) Czech Republic CG [2001] UKIAT 00001
CC/10140/2000; CC/11150/2000;
CC/15233/2000; CC/16145/2000;
HX/54954/2000.
Date heard: 18/12/2000
Date notified: 09/03/2001
Before:
Mr J Barnes (Chair)
Mr D K Allen
Mr J Freeman
OLGA PUZOVA, MARCELA KOLKAKOVA, STANISLAV KOLCAK, PAVEL MIKO & ROBERT CIKOS
Appellant
The Secretary of State for the Home Department
Respondents
Determination and Reasons
Representation:
For the first Appellant: Mr G Hodgetts of Counsel instructed by Irving & Co
For the second and third Appellants: Mr P Jorro of Counsel instructed by Wilson & Co
For the fourth and fifth Appellants: Ms L Hooper of Counsel instructed by Christian Fisher
For the Respondent: Mr S Wilken of Counsel instructed by the Treasury Solicitor and Miss J Jeffery, Senior Home Office Presenting Officer
1. All the Appellants are citizens of the Czech Republic of Roma ethnic or racial origin whose appeals have been consolidated for hearing before us because in each case it was the primary submission of the Appellants that by reason of their ethnic or racial origin alone they were entitled to refugee status. For ease of reference, we shall in this determination refer to the first Appellant as Ms Puzova; the second Appellant as Ms Kolkakova; the third Appellant as Mr Kolcak; the fourth Appellant as Mr Miko; and the fifth Appellant as Mr Cikos. Although the hearing has been consolidated, the Tribunal has, of course, considered the appeal of each Appellant individually. In the case of Ms Puzova the Tribunal had given her leave to call Dr David Chirico to give expert evidence. The Secretary of State was given similar leave to call oral expert testimony if he so wished. He has not done so but, like each of the Appellants, has filed bundles of relevant documents on which reliance is placed together with written submissions, a schedule of evidence and skeleton arguments which have been added to in the course of the hearing. At the commencement of the hearing it was agreed that Ms Puzova's appeal should be treated as the lead appeal and that Mr Hodgetts would formally call Dr Chirico to give his evidence in chief, with the right then for Ms Hooper and Mr Jorro to examine him further before cross-examination on behalf of the Secretary of State with any re-examination in reverse order. Mr Wilken appeared only on the first day of the hearing during which Dr Chirico's evidence was taken, and submissions, including Mr Wilken's written submissions, were heard on the concluding day when Ms Jeffery formally represented the Secretary of State in respect of each appeal. The Tribunal wishes to record its indebtedness to the assistance and co-operation of Counsel and Ms Jeffery during the course of the hearing.
2. It is now necessary to outline briefly the facts relating to each Appellant.
Ms Puzova's asylum claim
3. Ms Puzova was born in Kladno in the Czech Republic on 3 February 1980. She arrived in the United Kingdom on 10 September 1998 and claimed asylum at the port. Her appeal against the Secretary of State's refusal of her claim to refugee status pursuant to which he issued removal directions to the Czech republic on 17 December 1999, was heard on 3 May 2000 by Mr F T W Pinkerton, a Special Adjudicator, who found her generally credible. He found that she had an unhappy childhood, being taken into care from the age of six to sixteen as her mother was said to be unable to support her. She was no longer in contact with her mother who a drink problem. She suffered discrimination in the home where care workers called her a "dirty gypsy". She suffered discrimination and harassment at school from students and the teacher. She had run away from school on one occasion. She was attacked in 1993 when 13 by seven older boys who insulted her, pulled her hair and kicked her in the face. The police were involved but later they sent a letter to her father saying they had not found the boys who attacked her. At the age of 14 or 15, three skinheads pushed her onto a piece of wood with nails in it. One of the nails injured her and they ran off when they saw that she was bleeding. She was given stitches to the wound at the hospital and her mother reported the incident to the police who, it is said, responded that they had more important things to do. In a separate incident at about the same time she was attacked by a group of skinheads who spat at and pushed her around. In August 1997, in Kladno she and her mother were attacked by a group of skinheads and she was pushed and her hair was pulled. She reported it to the police there but they said there were so many skinheads around that they could not arrest them all. Finally in June 1998 she was threatened with a knife and beaten by skinheads but did not report this to the police because she thought it would be futile. In relation to the last two incidents, the Special Adjudicator thought they were one incident about which differing accounts had been given but we are satisfied from the papers that they were two separate incidents. Having regard to the general acceptance of her credibility by the Special Adjudicator, we therefore accept they occurred as she claimed.
Ms Kolkakova's asylum claim
4. Ms Kolkakova was born on 31 March 1972 at Ostrava in the Czech Republic. She arrived in the United Kingdom on 29 August 1998 and claimed asylum. She is the daughter of Mr Kolcak, who arrived on the same date with his wife and another daughter who were treated as his dependants but this Appellant claimed also in her own right. The family had last lived in Liberec. At interview, she said that she had been sent for her education to a special school for children with physical and learning difficulties because she was a Roma. In 1994 she had been attacked in a park near her home by skinheads but the hospital would not treat her and the police had not taken a statement although they kept her waiting until the early hours of the morning. She claimed generally that such attacks were happening all the time although she did not refer to any other specific incident relating to her until an attack on the first floor flat, where she lived with her family, at night on 20 August 1998. Shortly prior to this the family had obtained passports with a view of coming to the United Kingdom. She had lived on state assistance since leaving school in 1992 because she had never been able to obtain employment. In the incident on 20 August 1998 skinheads they could not identify had thrown a bottle into the kitchen of their flat, which set fire to it. They were in the sitting room. They ran to the local police station where her father went in but the police refused to speak to him. They summoned the fire brigade and a fire engine arrived to put out the fire, which had caused extensive damage. There was damage also to the flat on the ground floor but she did not know how much because they had little to do with their neighbours. They lived in the damaged flat until leaving for the United Kingdom. The Secretary of State refused her asylum claim on 30 November 1999, giving directions for her removal to the Czech Republic. Her appeal against this decision was heard before a Special Adjudicator, Mrs P H Drummond Farrall, on 24 July 2000. By the time of the hearing she had changed her account of the last incident, saying that they had hidden in the woods when they ran out and saw a fire engine, which they assumed would go to the flat to put out the fire come but they had not called for it. She had not returned to the flat and did not know whether her father had done so. They found a derelict house and lived in its cellar until leaving for the United Kingdom. By reason of the discrepancies in the accounts, the Special Adjudicator rejected her claim of the attack on the family flat and the earlier attack in the park. There was no appeal against the adverse credibility findings in relation to the attack on the flat.
Mr Kolcak's asylum claim
5. Mr Kolcak was born at Presov, now in Slovakia, on 14 September 1957 but was a Czech citizen having last lived there at Liberec at the flat referred to in the preceding paragraph. At interview, he did not claim to have been physically attacked, although he had suffered frequent verbal abuse, and had made no previous complaints to the police until the incident on 20 August 1998. He said that the flat had been attacked by about twenty skinheads, who had thrown something through the kitchen window, which set fire to the flat. The family had left through the back door and had never returned. They had slept in cellars until they left the country. He could not identify the attackers. He had on the same night reported the incident to the police, who did not believe him. It was after the attack that the family had decided to leave. The main reason was attacks on his family by skinheads. He had not worked since 1989 because he suffered from diabetes for which he received medical treatment and which precluded undertaking heavy work. From that time he had been dependent on state benefit. His claim was refused on 6 June 2000 when removal directions to the Czech Republic were given. His subsequent appeal was heard on 18 August 2000 by Mr R J Manuell, a Special Adjudicator. He did not believe the account of the firebombing incident because he found it incredible that neither Mr Kolcak nor anyone else had summoned the fire brigade in relation to an attack on public housing, which comprised at least one other flat whose occupants had also been at risk. For the same reasons he did not accept that the police would not have carried out investigations in respect of so serious a crime. Nor did he accept that Mr Kolcak had not returned to investigate the damage caused and that by coincidence the only thing saved beyond the clothes they were wearing was his wife's handbag containing the family's passports and money. He noted that since the family's arrival in the United Kingdom, the elder daughter had returned to the Czech Republic to join her boyfriend. He accepted the claims that the Appellant had been subject to long term discrimination, having left school at 15, been unable to carry out heavy work since being diagnosed as diabetic, and lived in public housing of a poor standard which was overcrowded, relying on state benefits. He also accepted there was societal discrimination against Roma and referred to the 1994 incident where he claimed that Ms Kolkakova had been attacked by skinheads and suffered a broken tooth. All this had led him and his family to decide to leave by August 1998. Leave to appeal was granted because it was noted that leave had already been granted to Ms Kolkakova and her case turned on substantially similar facts. Ground 3 of those grounds of appeal challenged the Special Adjudicator's adverse credibility finding in relation to the claimed arson attack. Mr Manuell was not, of course, aware of the differing accounts of the incident of 20 August 1998 which had been given by Ms Kolkakova.
Mr Miko's asylum claim
6. Mr Miko was born on 8 April 1965 in and had largely lived in Rokycany in the Czech Republic. He arrived in the United Kingdom on 27 August 1998, accompanied by his wife, his son born in 1990 and his two daughters, born respectively in 1992 and 1994. He claimed asylum with his wife and children as his dependants. Notice of removal to the Czech Republic was given on 18 April 2000 following refusal of his asylum application. His appeal was heard on 31 August 2000 by Mr Christopher Deavin, a Special Adjudicator. He said he had lived in a council flat in a block of fifteen flats in which there was one other Roma family but the remainder were "white" Czechs. He referred to three incidents which the Special Adjudicator found to have taken place. The first was shortly after the communists were overthrown and racial abuse, both verbal and physical, by skinheads first started. Whilst out walking he became involved in an argument with a middle aged man which led to blows being exchanged, in which the other struck the first blow. As a result Mr Miko was subsequently charged with assault, convicted and sentenced to six months' imprisonment. The second incident was some years later in 1995 when he and his wife were attacked by skinheads and so badly beaten they had to be taken to hospital. He was stabbed in the chest. The third incident was in August 1997 when he was returning home and saw a skinhead at the entrance to their block of flats. This man pulled out a gun and pointed it at him. Mr Miko called to a passing policeman who searched the skinhead and found the gun. The local police were contacted and the skinhead taken away by them. Later that day, he saw the man in the town. Two weeks later Mr Miko was called for an interview but after the case was passed to another department, he said at interview that there was no further action taken to his knowledge. The Tribunal notes that there appears to be some confusion in relation to the last incident. At interview Mr Miko claimed this took place in about February 1998 and in his later statement, he said that he was told the skinhead was to be fined but that he did not have to appear in court. There was an earlier incident in August 1997 when someone known to Mr Miko, not a skinhead, had pulled a gun on him near the entrance to his flat, threatening to kill him because he was a gypsy, but ran off when he saw a neighbour coming out from another entrance. Mr Miko reported this incident to the police, who said they would investigate but did not take a statement and he heard nothing further from the police. This incident was also mentioned at interview although in lesser detail. Six months after the last incident he had decided to leave. He did not leave earlier because according to the record of his evidence to the Special Adjudicator, he hoped the situation would improve. He had said in his statement that he was employed as a labourer from 1980, when he left school, until two months before leaving when he started working as a self employed labourer.
Mr Cikos' asylum claim
7. Mr Cikos was born on 20 May 1968 in Most in the Czech Republic. His extended family remain there. He arrived in the United Kingdom on 1 March 2000 accompanied by his wife and four children, two sons born in 1981 and 1989 respectively, and two daughters born in 1984 and 1995, all of whom claim as his dependants. Notice of refusal of leave to enter and of his asylum application was given on 12 April 2000 with removal directions to the Czech Republic. At his appeal heard on 28 July 2000 before Miss S Jhirad, a Special Adjudicator, she found him to be credible in his claims. At the age of 16 he left school, where he complained of discrimination by pupils and teachers, but had been in continuous employment from then until he and his family left on 19 February 2000, save during military service, possibly for one short period in 1993 when he and many others were made redundant on privatisation of the coal mining industry, and whilst medically unfit following the incident in November 1998 referred to below. He never had any difficulty in obtaining work because he was known to be a hard worker. There was a short period of discrimination during his military service from 1987 until October 1989 but this is not described as serious and was dealt with by transfer some two months later to a different unit. In 1993 he was threatened by five skinheads in the street but managed to get away without any assault. Also in 1993, his 12 year old stepson was assaulted at the local swimming pool by skinheads who started to beat him up and tried to drown him. There were lifeguards in attendance but he was told no-one intervened to help the boy and no ambulance was called for him. He made his own way home. He then took his stepson to the local hospital and subsequently sought to complain to the police, who ridiculed him and expressed disbelief although the boy said he knew one of his attackers. After this they feared going out as a family. In November 1998, he was attacked by skinheads at the railway station, kicked, punched and thrown through a plate glass window. He suffered significant lacerations to his arm as a result of which he was treated in hospital for one week. He was off work for a year but received health benefits from his employers during his absence. After his discharge he reported what had happened to the police, supplying them with the names of various witnesses including a "white" Czech woman who was willing to testify on his behalf. The police took his statement and he was told the assault would be investigated. None of the witnesses were interviewed and no action was taken by the police. He referred to a well-known incident in Most in the summer of 1999 when the sons of his friend, Stefan Cina, were drowned at the reservoir as a result of skinheads tying them up and throwing them into the reservoir. He said the culprits received only suspended sentences and he believed the police failed to protect Roma from even the most serious crimes. In February 2000, his wife and youngest child were assaulted in the street by three skinheads. Her face was badly injured and she had to go to the hospital for treatment. His child was in shock. It was this which led them to leave the Czech Republic. Apart from this, his children had been bullied at school and the school teachers failed to take action when his wife complained but suggested that she could remove her child. His children were segregated in the school. They experienced discrimination in everyday life. On two occasions when he had been refused service because he was a gypsy and had called the police to complain, they had ridiculed him and said they would take no action. On one occasion they told him to go to a local gypsy bar. He had also tried to buy a council flat being offered for sale so that his mother could live there but, when the local authority found out it was to house a gypsy, they refused to sell him the flat.
8. In each case, the Special Adjudicator had accepted that there was discrimination against Roma in the Czech Republic but had found that it was not such as to amount to persecution for the Convention reason of their race, and that there was a sufficiency of protection in the Czech Republic against the actions of non-state actors such as skinheads.
9. As noted above, a ground of appeal common to all the appeals before us is that there is in the Czech Republic a lack of sufficiency of protection for Roma from the state in respect of attacks from skinheads which, coupled with the general level of discrimination both by members of Czech society and emanations of the state in matters of housing, educational and employment opportunities, cumulatively gives rise to a well founded claim to fear persecution simply on the basis of race or ethnicity without more. That is the first issue to which we direct our attention. In addition to voluminous documentary evidence, to which we shall refer as appropriate in the course of this determination, we heard the oral evidence of Dr Chirico with which we shall now deal.
Dr Chirico's evidence in chief (paragraphs 10 to 46)
10. He adopted as part of his evidence in chief the report which he had prepared in relation to Ms Puzova in September 2000. During 1996 and 1997 he lived in Prague where he worked as the local monitor for the European Roma Rights Centre (ERRC), a non-governmental organisation based in Budapest whose aims are to monitor the human rights situation of Roma in Europe and to provide legal support for Romani victims of discrimination or racially-motivated violence. The ERRC is a cooperating member of the International Helsinki Federation for Human Rights and has consultative status with the Council of Europe. During this period he had contact with both victims, police and court officials, and government and local government officials in the Czech Republic. Since January 1998 he had frequently visited the Czech Republic and remains in close contact with his successor. He maintains substantial contact with various international bodies in relation to the situation of the Roma in that country. He has previously written reports for the Tribunal, most recently in the cases of Marek Tancos (20446) and Jindrich Kovac (00/TH/00026). [It appears that Dr Chirico gave oral evidence in both these cases although this is not apparent in the determination in Tancos.] The report runs to some 16 pages which we summarise below.
11. In relation to Ms Puzova, with whom he had no direct contact, he assumed from her account in her statement and in Mr Pinkerton's determination, that she had, as a teenage girl, been "subjected to a series of racially motivated attacks" in respect of which she lost confidence in reporting them because of the lack of police action. The weight of the objective evidence supported the conclusion that the Czech criminal justice system failed to deter those who perpetrated racially motivated crime. He had considered the Second report on the Czech Republic adopted by the European Commission against Racism and Intolerance (ECRI, a Council of Europe body); the 1999 United States' State Department report; and the United Nations document published on 14 August 2000, "Concluding Observations of the Committee on the Elimination of Racial Discrimination: Czech Republic" (CERD). He considered this particularly relevant because the Committee existed specifically to assess protection against racial discrimination both in statute and in legal practice; it also incorporated full submissions by the state, responses by non-governmental organisations and reported oral responses from the state. In particular he considered the comments in a report dated 22 February 2000 on the state's submissions by the Counselling Centre for Citizenship/Civil and Human Rights (CCC/CHR), a Prague based non-governmental human rights organisation, as it was the only organisation to have carried out research into the treatment of Roma by the Czech criminal justice system. The Centre's expertise had been accepted by a differently constituted Tribunal in the case of Kindrich Kovac. [We note at this point that the CCC/CHR is not specifically referred to in that decision although there is a reference to the "Advice Centre on Citizenship in the Czech Republic" as being a non-governmental organisation of repute. If this is the same organisation, however, its expertise was relevant only to the issue of entitlement to Czech citizenship and is cited in no other context. We further note that at pp. 26-27 of that determination Dr Chirico, commenting on the fact that the Special Adjudicator had preferred the UNHCR evidence to that of him and Dr Stewart, who had also given a written opinion as an expert, is quoted as stating: "As I understand it, the UNHCR has made it clear that, against a general background of discrimination, there are 'some instances' in which 'such discriminatory treatment may lead to consequences of a substantially prejudicial nature as to amount of [sic] persecution. ... I will not quote further, but will note that the UNHCR document repeatedly differentiates between the 'generality' and the 'instances' or 'cases' in which persecution may be said to have taken place. I note that neither I, nor Dr Stewart, nor in fact any of the documents submitted, claim that Romany asylum applications should be recognised on a 'prima facie basis'".]
12. He noted that the CERD observations referred to "ineffective implementation of existing legislation to persecute the perpetrators of incitement to racial hatred and support to racial movements", one result of which was a rapid growth in skinhead membership over the past two or three years, as observed by the Ministry of the Interior. CERD also referred to its "concern about the lack of effectiveness and confidence in the criminal judicial system to prevent and combat racial crimes" which he considered led to an "increasing number of incidents of racially motivated violence against minority groups" as also noted in the CERD report. He said that reasons for the failure to deter potential racist offenders from racially motivated crime included: widespread failure to open investigations; failure to apply criminal code provisions consistently and properly; widespread failure to apply criminal code provisions against organised crime, particularly in failure to use pre-trial custody to prevent consultation and witness intimidation; failure to take account of the organised nature of the skinheads; perceived and actual involvement of state agents; and the background discrimination against Roma, isolating them in vulnerable and concentrated areas, and limiting their chances of obtaining employment or adequate education.
13. Currently some 250,000 Roma lived in the Czech Republic and were the largest non-Slavic minority in the country. Although there for many centuries, they maintained a cultural and social identity distinct from the majority of the community; many were darker skinned than ethnic Czechs and many still spoke a dialect of Romani as their first language. Since 1991 they were officially recognised in the Czech Republic as a national minority, of which they were numerically the largest and most easily distinguished example. The majority [some 80% according to the State submissions to CERD] originated from Slovakia but, following the virtual extermination of the native Czech Roma population during the Second World War, moved into Czech and Moravian lands, partly immediately after the war and partly in the 1960's and 1970's under government resettlement. These were areas of state subsidised heavy industry, which had suffered substantial redundancies in the post 1989 privatisation. Kladno, from which Ms Puzova came, was such a town with a Romani population of some 5000; rates of unemployment and poverty there were higher than the national average and this had particularly affected Romani workers who were largely employed as unskilled labourers. These conditions had also led to it being a breeding ground for skinhead movements.
14. Whilst post-1989 political and economic reforms were essentially completed, Roma had not benefited equally from them. There had been a steady rise in racist attacks on Roma with slow and inadequate response from central government. Since the brutal murder of Tibor Berki in 1995 had raised attention from foreign observers, there had been statements from leading politicians of the ruling coalition condemning racism and it had led to a change in the criminal code to deal with racially motivated crime but such matters had rarely led to effective action. Political activities against racism were hampered from December 1997 until June 1998 by the unstable political situation "as there is no popular support ... for measures which are seen as 'favouring' Roma, and all parties avoided making clear pronouncements in this area". The Interministerial Commission on Affairs of the Romani Community, appointed in Autumn 1997, had, however, continued to function and in Autumn 1998 Petr Uhl was appointed as Commissioner for Human Rights. He had been active in seeking solutions to more obvious problems of discrimination and racially motivated crime, whilst being openly critical of the country's past record with regard to Roma. He had in October 1998 publicly explained his role as being to examine the legal basis of discrimination; where existing laws were not being applied − he cited the example of refusal to serve Roma in public places − he would establish why; where there were no laws − citing employment discrimination − he would suggest ways of harmonising domestic legislation with the international obligations which had been accepted by government. Their principal joint achievement had been securing the passing on 7 April 1999 of a parliamentary resolution adopting a new 'Conception of Government Policy towards Members of the Romani Community', equivalent to a United Kingdom white paper, setting goals of reduction of Romani unemployment, combating discrimination, and support for Romani language and culture as a precursor of specific draft legislation by December 1999. Similar resolutions in 1995 and October 1997 had not brought about concrete shifts in legislation or practice [we assume that Dr Chirico has overlooked the specific amendments to the criminal code in respect of racially motivated crimes to which he earlier referred] and the deadline had not been met. In June 2000 a further Concept paper had been produced but not concrete legislation. In his view such actions might be taken "as signs of possible goodwill from the Government, but have no effect on the day-to-day situation of individual Roma". Mr Uhl's office did not enable him to deal with individual complaints and was not the equivalent of that of ombudsman. An opposition attempt to establish laws for an ombudsman in Spring 1997 had been rejected by parliament, but was passed in 1999. The role had not yet been filled so that there was currently no statutory body to which individuals could appeal directly to defend their rights. Whilst some politicians and officials were genuinely committed to fighting discrimination and racist violence, there had been alarming government inactivity because of the unpopularity with the Czech electorate of any moves to defend Roma, with the result that local administrations, police and the judiciary were repeatedly allowed to continue to act in a discriminatory way. He considered the case of a proposed wall around a Romani section of Usti nad Labem in north Bohemia to be a clear indication of this distinction between governmental policy and local practice. The ECRI Second Report published on 21 March 2000 referred to this distinction.
15. He then dealt with the Czech skinhead movement to which he ascribed the majority of acts of racially motivated violence against Roma. In his view it was wrong to consider these the random acts of individuals. If the skinhead movement was to be regarded as an organised movement, committed to racist criminal activity and able to protect its members from the law, "common sense suggests that the criminal justice system will find it harder to deter skinheads from criminal activity than citizens acting individually".
16. He relied on a Report on the Progress of State Organs in the Prosecution of Crimes Motivated by Racism and Xenophobia issued by the Czech Ministry of the Interior in spring 1998 and approved by the government on 22 June 1998. No copy of this document was produced to us but Dr Chirico's report contains a lengthy extract comprising paragraph 3.2.2. describing the "Right-wing extremist scene", which he had translated. It begins with a history of the scene from the beginning of the 1990's, saying that the early activities comprised organising demonstrations and marches, then changed to 'cultural activities' in 1992 such as benefit and cult music group concerts and the creation of their own media, mainly in magazine form. After suspended sentences were given to the publishers of 'Politics Weekly', an anti-Semitic magazine, the emphasis changed from informative to recruitment publications, leading to production of more magazines by the sub-groups which were emerging. From mid-1994 extremists began to organise skinhead group concerts, whose organisation drew respect and admiration of foreign extremist movements who were covertly providing financial support. The Czech movement split into 'fascist skinheads' with links to western European similar organisations, and 'national skinheads'. This continued through 1995 when younger members, known as 'Fashion Skins' became radicalised and committed brutally racially motivated crimes. Publications became more extreme. In 1996 the propagation of ideologies marking out not only racial or other ethnic groups as enemies but also representatives or other ideological, political and religious groups was recorded. There was also an increase in commercial activity by right wing extremists through cult CDs, T-shirts and badges. Skinheads are identified as those most closely involved in violent activities with illegal publications containing explicit racist, fascist and neo-Nazi material and skinhead concerts as an important part of their activities. The Czech Republic concerts are among the most massive in Europe and provide a meeting place for the leaders, which has led the police to break up concerts with prosecutions of several organisers, including musicians, being undertaken. The result was to reduce the number of concerts and has led to an increasingly conspiratorial nature of the skinhead scene.
17. The report continues:
"The right-wing extremist scene continues to be more and more marked by the radicalism of young people, who often do not fully think out the content of the ideas declared. Although their beliefs are superficial and sloganeering, they express them more in fanaticism than in argument. They are attracted by 'direct action' and act more often en masse than individually. The perpetrators of violent, not only racially motivated, activities are in the main persons standing on the fringe of right-wing extremist organisations or their sympathisers."
18. It then goes on to categorise them into two main right wing extremist groups; neo-fascists of the Italian type, whose ideals include the leadership principle, the corporate state and, often, fanatical nationalism and fundamentalist Catholicism; and neo-Nazi groups whose ideals are 'White power', race war and ethnic cleansing. Czech Roma are the most common targets of their attacks. Both groups have international connections. Additionally, there are "ideologically unprofiled skinheads and 'spontaneous' movements, which occupy themselves with 'Romani-hunting', attendance of concerts and similar activities".
19. He quoted also that the conclusion in s.4.2 of the report was: "Crimes with a racist or nationalist subtext are exclusively committed by supporters of the skinhead movement, are mainly the domain of young people, and are mainly aimed against the Romani community"; and that according to s.4.3: "The physical attacks of skinheads are marked by increasing brutality".
20. Earlier in his report, Dr Chirico had noted that the Secretary of State had produced for the Adjudicator hearing of Ms Puzova's appeal, an extract from Business News dated 11 March 1999, which referred to five prosecutions of skinheads, including a racially motivated attack in Ceske Budejovice. This reported that three youths had been charged with insulting behaviour which was racially motivated on two occasions, the second being outside a Roma council house two windows of which had the glass broken in the course of their actions. He said, although no evidence was produced to confirm this, that the attack involved at least fifteen skinheads and that the three charged were minors who would face halved sentences under Czech law.
21. He continued:
"The pattern of organized and large-scale racially motivated attack resulting in charges against only a few minors is common in the Czech Republic, and seems to reflect a practice, among skinhead organizations, of persuading younger members to plead guilty to their part in large-scale attacks, in the knowledge that they will receive halved sentences, which are then customarily suspended."
22. He noted that the Interior Ministry report made it clear that the skinhead movement must be regarded as an organised movement and that the absence of proof of links between skinhead groups in a specific case should not be taken as implying such links did not exist. He considered the report showed the skinhead movement had an organised core with a less organised fringe whose members were in contact with the core through the skinhead press and large organised events. He noted that in the four years since the prosecution of the publishers of 'Politics Weekly' there had been only one similar prosecution although the report recognised the publications as illegal. Although police vigilance in monitoring and controlling large skinhead gatherings might have increased, there were still numerous examples of such concerts and of marches and demonstrations being permitted, which, under Czech law, could not be broken up until provable racist activities had taken place at the event.
23. The section of the Ministry report quoted did not deal with the fact that attacks by large groups of skinheads on Roma often involved skinheads from a number of different local organisations acting in concert although there was some evidence for this in the case by case section of the report [not produced to us]. The report also failed to mention relations between unregistered skinhead organisations and the legally registered Republican Party, whose success was largely based on anti-Roma rhetoric and whose rallies were a further meeting place for skinheads. [The authority quoted for this was paragraph 11 of the CERD report of 14 August 2000 which says: "The Committee is concerned that some organizations, including political parties, promoting racial hatred and superiority, are hidden behind legally registered civic associations whose members are promoting xenophobia and racism." We note at paragraph 74 below, however, the fate of the Republican Party in the 1998 elections.] He noted further that the Czech government had accepted on 14 July 1999 the new Interior Ministry report which found no change in the structure and activities of the skinhead movement and that the number of skinheads increased by 40% from 1997 to 1998. He said that the frequency of skinhead attacks had continued to increase since then [but we note also what he said in cross-examination − see particularly paragraphs 57 to 59 below] and concluded that the rise in membership and attacks suggested that the Czech criminal code and those charged with applying it were failing to deter skinheads from attacking Roma.
24. He noted that since 1998 there had been two murders, a number of fire-bombings and many attacks on Roma. He then went on to deal with the three most serious cases which, in his view, illustrated the continuing failure of the criminal justice system and two of which had been cited in the 1999 Interior Ministry report as the gravest examples of racially motivated crime in 1998.
25. In the first case, a firebomb had been thrown through the ground floor window of a flat in Krnov, North Moravia in the early morning of 17 January 1998 resulting in serious injuries to one of the five occupants. Krnov was visited by a government minister who regarded it as a test case of the commitment to prosecution. Three youths were quickly arrested and their homes contained skinhead material. The trial did not begin until 18 months later and was held in camera. The accused, who had been on bail, were acquitted for lack of evidence on 7 December 1999. In the meantime skinhead attacks had continued in Krnov and a petition by local Czechs was signed against Roma living there; although this was in contravention of the law on petitions, no arrests had been made and there were similar incidents elsewhere in the country.
26. In the second case, on 15 February 1998, Helena Bihariova, a Roma, was beaten and forced to wash herself in the Elbe by some men and was drowned. Those responsible, who were skinheads possessing racist literature, were arrested almost immediately and there was a Czech witness who had tried to save her from drowning. On 25 June, the prosecutor said that the accused would not be charged with racially motivated offences and the original charge of murder was reduced to aggravated coercion [possibly voluntary manslaughter − see below and paragraph 76 as to the original charges in the Tibor Danihel case]. Dr Chirico said that international observers, whom he does not identify, considered the judge lax with the defendants, that the prosecutor, who had himself been involved in a fight with a Romani 7 years previously, had not put in their previous convictions and that witnesses were frightened to give evidence. On 29 September 1998 two of the accused were convicted and sentenced to 6.5 and 8.5 years of imprisonment respectively. The man with the lesser sentence subsequently had it reduced on appeal to fifteen months imprisonment. The family representatives had sought a charge of murder with racial motivation and subsequently requested the Minister of Justice to make a complaint to the Supreme Court that the charge should have been prosecuted under racial discrimination laws but he declined to do so, indicating he saw no evidence of racial motivation. Dr Chirico saw this case as illustrating several major concerns of Czech Roma, namely: biased prosecutors; the difficulty in using racial motivation provisions in Czech criminal law; inappropriate qualification of the nature of criminal acts (citing the same argument about coercion being used in the September 1993 case of Tibor Danihel who had similarly lost his life whereas the Supreme Court had held in February1998 that forcing a person into a river and failing to help him out constituted murder in Czech law); and the limitation on complaints to the Supreme Court in such cases which could be initiated only by the Minister of Justice [but see further paragraph 60 and the references to these cases at paragraph 75 below].
27. The third case was that of Milan Lacko, who was attacked in Orlova in North Moravia on 16/17 May 1998 by a group of skinheads who left him unconscious in the road, where he was subsequently run over and died as a result. Four skinheads were arrested and charged. Three were released on bail in July and the fourth, who was also the subject of investigation for another racially motivated offence, was released on bail in August. On 26 October all four were convicted of attempted actual bodily harm with racial motivation and disorderly conduct. They were given suspended sentences ranging between 15 and 22 months on the basis that although racial motivation was proved, the evidence had not shown the defendants had caused injuries leading to the victim's death. The accused were disruptive in the court. There were disturbances outside the court where large numbers of skinheads had gathered and the police response to protests of a Romani activist there that he had been forced to wait outside with threatening skinheads, was that his presence was acting as a provocation. The victim's family appealed and the second instance court sent the case back on the basis of inadequacies of investigation. It appears from the statement that this may be concerned with how death was caused because the report continues that in June 2000 a policeman had been charged as the driver of the vehicle which ran over Mr Lacko although there was evidence that earlier forensic evidence had been produced by the police to show that the victim was run over by a lorry. Following the original court hearing and the disturbances which occurred, the police investigated and arrested five skinheads. They were not held in custody and, in the course of the investigation, on 25 November 1998 at least two of the accused attacked a Romani man on a bus. Charges were brought in relation to this incident and the prosecutor linked the incidents. The trial began on 7 June 1999 but the report does not give its outcome. It records, however, that on the day the trial started one of the accused attacked a photographer; later the same week the lawyer for one of the original victims and a senior official of the Czech President's Office were attacked in a restaurant by skinheads who included some of the accused. There had also been intimidation of at least two witnesses who had refused to testify. In Dr Chirico's view the case had offered no deterrent against skinhead activity in the region, which had included a number of serious reported attacks in Spring 2000. The original appeal had depended upon assistance from non-government organisations, which was not typically available.
28. He cited these cases as illustrative of the general problems but there were further examples in the United States State Department Reports. Despite encouraging signs of goodwill on the part of government over the last two years, there had been no practical increase in the security of individual Roma and he was of the view that Ms Puzova would be at significant risk of discrimination and skinhead violence in the Czech Republic.
29. The Secretary of State had produced a document which set out the eleven paragraphs of the Czech criminal code dealing with racially motivated crimes, which included statistics showing the number of prosecutions under them since 1995. He was not aware of the source of the document, which appeared to be an official statement of intent, but it must be read in the context of what happened in practice.
30. He drew attention to paragraph 30 of the Second report of ECRI, the salient passage being:
"The Czech Republic disposes of an adequate legal battery to combat racist violence. However, despite welcome efforts, the implementation of the relevant legal provisions is still unsatisfactory. Firstly, police and investigators appear often to misclassify racially motivated crimes and do not follow through investigations. ... Secondly, problems arise at the level of prosecutors. These often seem to have difficulties gathering the evidence necessary to prove such motivation, partly due to the unwillingness of witnesses to testify. A certain reluctance has also been noted in some cases to prosecute this type of crime. ECRI therefore calls for the strengthening of the efforts already undertaken to ensure that prosecutors pay special attention to crimes which may involve a racist motive and ensure a speedy and effective legal process in such case. Thirdly, the interpretation of "racial motivation" rendered by some judges is a very restrictive one. In this respect, ECRI had already noted in its first report that sentencing in cases of racist crimes showed some inconsistency. ... All the above-mentioned difficulties are compounded by prejudices and stereotypes held by individuals. The result is that perpetrators of racially motivated crime often escape being brought before the courts, and even when they are found guilty of such crimes, punishment is relatively light."
31. In his view, the statistics in the Secretary of State's document were also misleading. This was partly because the translated titles of the offences had been shortened, making them appear more specific to racial cases than they were. For example, that shown as 'racial and similar reasons' actually read 'for reasons of nation, race or creed' and so was of wider application. The Interior Ministry's reports showed that the majority of such prosecutions did not involve Roma but groups of 'white' Czechs; they related primarily to conflicts between skinheads and anarchists, protected by reference to 'creed', and public prohibited skinhead activity, such as wearing a swastika. They were also inflated by prosecutions arising from a police operation during 'Reclaim the Streets' demonstrations which led to clashes between police and anarchists, which had no racial context. Further, the statistics gave a misleading impression that they led to prison sentences. This was not so, partly because of the large numbers of guilty pleas by minors and partly because of the courts' tendency to suspend skinheads' sentences. In 1998 a total of only 13 persons received prison sentences under all the provisions concerning racially motivated offences.
32. In Slovakia, considered by the House of Lords in Horvath, there was a serious lack of objective evidence on the functioning of the judiciary and the police. In the Czech Republic the objective evidence is extensive [although as later appears, there remains little focussed information − see, e.g., paragraphs 41, 43, 44, 57, 93 and 97 below]. It shows, firstly, that in practice the provisions as to racially motivated crime are not used and that overall the criminal justice system does not deter skinheads from committing racially motivated crime; secondly, the civil code lacks effective provision to remedy discriminatory treatment, including discriminatory or irresponsible treatment by the judiciary and police; thirdly, shortcomings in legal assistance schemes prevent Roma, who are (as a result of discrimination in education and employment) largely indigent, from obtaining legal representation. These conclusions are supported by the ECRI and CERD reports as well as by the CCC/CHR and the ERRC, for which he had worked in Prague. He was not convinced that the Czech legal system provided protection of the kind envisaged in Horvath.
33. Dr Chirico then dealt with discrimination in terms of education, employment and housing, prefacing his comments with the fact that opinion polls in the Czech Republic consistently revealed high levels of prejudice by ethnic Czechs in which 91% had expressed antipathy towards Roma, necessarily including teachers, public and court officials. His own experience confirmed this as did the October 1997 Czech government Council for Nationalities Report.
34. According to the official Statistical Yearbook on Education in the Czech Republic, 1998, a Romani child was 15 times more likely to be designated 'intellectually deficient' and placed in a special school provided under the Schools Act, 1996 and the Specialised Schools Decree, 1997. Intellectual deficiency was defined as being such that the pupil 'cannot successfully be educated in elementary schools'. Special schools did not have the same syllabus as elementary schools or provide equivalent qualifications; they did not previously lead to secondary school education, although there was recent legislation to enable special school students to study in secondary schools, and restricted apprenticeship choices. The recent legislation would not enable most students to enter secondary school as special school students were three years behind a mainstream student in terms of syllabus by age 14. More than two thirds of Romani children passed through special schools with many having over 80% Romani pupils. The reasons for this were the linguistic and cultural specificity of IQ tests used, failure of elementary schools and assessment systems to take into account the linguistic situation of Romani children, and sometimes discrimination by teachers and educational psychologists who saw special schools as the 'natural home' for Romani children. That most Romani children were inappropriately placed in special schools was supported by recent retesting surveys in Prague, testimony of many special school teachers and, at national level, in the 1997 report referred to in paragraph 26. Its serious criticisms of the education system included reference to "the hitherto prevailing practices which have led to excessive numbers of Romani children being placed in special schools without any conclusive evidence as to their intellectual and learning capacity". There was currently an application to the European Court of Human Rights by twelve Romani parents who had unsuccessfully sought to have their children's placement in special schools ruled illegal by the Constitutional Court.
35. As to employment prospects, the main unemployment was in the unskilled and semi-skilled sectors so that a person with special school education had a greatly reduced chance of finding employment; in the case of Roma this was aggravated by discrimination by employers for which there existed no specific remedy in civil or administrative law for the person suffering discrimination. It was estimated that unemployment among Roma was ten times the national average.
36. As to housing, discrimination was supported by the State Department reports. The proposed wall in Usti nad Labem intended to separate non-Roma residents on one side of a street from the Roma residents on the other side of the street illustrated the general problem. On 13 May 1998 the District Mayor announced it would be built, ostensibly as a sound barrier. The Romani ghetto had resulted from relocation of Roma to a concentrated area of low-grade high-rise housing there. There was widespread international reaction and on 26 August the council suggested a wire fence instead of the wall. CERD took up the mater with the Czech government under its emergency procedures. On 14 January 1999 the government responded that it viewed the proposal as 'grave and alarming' and submitted a resolution intended to deal with the issue. On 26 May the government passed a resolution opposing its construction, which generated a debate as to the powers of the local authority to do so irrespective of government wishes. Whilst this continued, the Mayor announced on 3 September that the wall would be built. Building commenced on 5 October but was interrupted as a result of protests by Romani leaders and the local Romani community. On 13 October the Czech parliament annulled the town council resolution but the building of the wall was completed on the same day by the local council. There then followed a month of protest and negotiation, which led the local council on 23 November to resolve to remove the wall, which it did on the following day. Part of the settlement was that central government would provide a grant to buy back the houses of the non-Roma community so that they could move elsewhere. Subsequently the local council had sought to challenge the validity of the parliamentary decision of 13 October before the Constitutional Court, which had very recently held in favour of the local council. The wall had not yet been rebuilt.
37. Dr Chirico said that this demonstrated the ineffectiveness of central government pronouncements about the need to fight racism and that three other local councils were reported to be considering similar constructions.
38. Many returned failed asylum seekers had found it impossible to be housed by the local authorities, which meant they had to live in crowded conditions with family or friends. Without an official place of residence, they were ineligible for social security, jobcentre, educational and health services.
39. Mr Hodgetts then continued his examination in chief orally.
40. Dr Chirico said that while working in Prague in 1996 and 1997 he was recognised as having a speciality in the subject of Romani education and had presented a paper on Roma in the education system at a government sponsored conference in Prague. Additionally, he had been involved in some one hundred individual cases of complaints by Roma as victims of racially motivated crimes, which involved visits to police stations to assist Roma in registering complaints about investigation of their original complaints, attendances at court, assisting Roma to obtain legal representation and the general monitoring of newspaper reports of racial incidents. In the course of this he had also visited the areas of incidents and talked to victims, when he would hear allegations of other incidents that had occurred. Of the individual cases with which he had been concerned during this period, some two thirds involved racially motivated crime and the remainder discrimination issues. The main trends in crime were attacks on individuals by skinheads, often in fairly large groups. Attacks on property, such as fire-bombings, were less frequent. He had dealt with perhaps ten or twelve during two years and they were usually on isolated buildings or in areas that were exclusive to Roma. The location of skinhead attacks on individuals was variable; mainly at railway stations or parks and in public places like discos.
41. Since his departure, he had maintained his contact with the government Commission for Human Rights − particularly with its Deputy Commissioner − and with CCC/CRH, which was an emanation of the Helsinki Committee. The latter had been concerned with problems of Roma of Slovak birth in obtaining Czech citizenship after the split from Slovakia but these were decreasing as a result of amendments to the law in 1999. They were now carrying out a study into the incidence of discrimination against Roma in the Czech criminal justice system − both as victims and defendants − as there was no overall study providing concrete statistics on this subject.
42. He was then referred to the skeleton submissions filed on behalf of the Secretary of State.
43. The document filed by the Secretary of State headed 'Reports submitted by States Parties under Article 9 of the Convention' of 14 April 2000 was the submission made by the Czech Republic to CERD produced as an appendix to the CERD Report. It accordingly reflected the perception of the Czech government and was the document in response to which non-governmental organisations had the opportunity to submit comments. He did not accept the assertion in the skeleton submissions of the Secretary of State that the position since the fall of Communism had been one of continual improvement. This was not reflected in the most recent Country Information and Policy Unit (CIPU) report of the Home Office of October 2000 as appeared in paragraphs 7.16, 7.20, 7.51 and 7.66, nor in the Czech Republic's own submissions above (paragraph 72) and the introduction to the UNHCR Guidelines of December 1999. The issue was to what extent there had been improvement since 1995 and it was difficult to respond in terms to this question because reports did not consider the situation of the Czech Roma in general terms but only in relation to specific issues. His view was that despite a recognisable improvement in government attitudes and intentions and certain government institutions, there remained two areas in which the situation was deteriorating, namely racially motivated violence and in housing provision, although he did not have firsthand knowledge of the latter. In employment there had been specific anti-discrimination legislation in the previous year but it was not yet known how the courts would interpret it.
44. He did not think there was any evidence of increasing numbers of convictions for attacks on Roma. There were increasing convictions under the relevant provisions but they were not solely concerned with Roma. The only statistical information currently available was that of the actual numbers of convictions and there was no officially available information about the number of investigations effected. There was some information as to numbers of attacks on Roma from non-governmental organisations (see references at paragraph 79 of the Czech Government's Submissions to CERD and paragraph 7.67. of the latest CIPU Assessment). The Document Centre for Human Rights, one of the non-government organisations referred to, considered there was substantial under-reporting of attacks, perhaps by about five times.
45. In his skeleton submissions, Mr Wilken had said (paragraph 7.6) that the current recommendations for the Czech Republic were at the level of monitoring and gradual improvement; that there was no suggestion from CERD or the EU Commission that drastic action needed to be taken to protect the Roma or that there were any major flaws in the protection offered by the Czech Republic. Asked to comment, Dr Chirico referred to paragraph 10 of the CERD Report of 14 August 2000, which deals with the Committee's concerns about "the existing situations of de facto segregation in the areas of housing and education" and recommends that the state "undertake effective measures to eradicate promptly practices of racial segregation" in these fields. He suggested that such segregation was not commonly found in other countries and that a direction to "eradicate promptly" was not monitoring gradual improvement. The EU was critical in tone of the Czech Republic, which had been made subject to 'urgent action' in 1993 additionally to two yearly regular reports. 'Urgent action' had been taken in relation to the wall in Usti nad Labem. Only eight states in the world had been made subject to 'urgent action' status out of more than 150 signatories. The only other countries in Europe were the Federal Republic of Yugoslavia in relation to Kosovo and Bosnia.
46. Referred to what he had said as to the cause of death of Mr Lacko and the further investigations arising from what he had referred to as a police cover-up, he said there had been serious concerns about the forensic evidence produced and that, as a result of the further investigations by the first instance court at the direction of the second instance court, two court-appointed forensic scientists had now given evidence challenging the original forensic evidence; it now appeared that the policeman was admitting running over the body of Mr Lacko and the current issue was whether that had been the cause of death.
Dr Chirico's cross-examination (paragraphs 47 to 66)
47. He was then cross-examined by Mr Wilken. He agreed there were significant numbers of Czech politicians who were committed to securing improvements and had a generally positive attitude. There were areas in which the situation had neither deteriorated nor improved. Many of the government's good intentions were not reaching practical implementation. So far as attacks and discrimination on Roma were concerned, he did not understand what was meant by the concept of a sufficiency of protection referred to in Horvath. He could reach no conclusion as to whether there was in that sense effective protection of Roma although there was evidence the criminal justice system was failing to deter those who wished to commit racially motivated crimes. He agreed that skinheads as a whole had a racial ideology and that individually or collectively they might have plans to carry it out by attacks. He thought that referring to such actions as being to achieve a political goal might be overstating the position. He accepted the goal was to harm people who were not white. He accepted it was difficult to deter such persons and relatively difficult to catch them but the fact of the existence of legal penalties suggested to him that, if effective, they would deter offenders. It was right that the Czech government took the non-governmental organisations seriously and that they were allowed to function freely.
48. He was referred to the report of the Special Rapporteur to the Commission on Human Rights of the Economic and Social Council of the United Nations dated 7 February 2000.
49. Paragraph 30 of his report, relating to measures taken by the government and the local communities, read:
"The Czech Government's readiness to recognize the facts already constitutes vital progress towards solving the problems confronting the Roma. The authorities encountered throughout the visit showed great openness and a desire to cooperate and find appropriate solutions. They replied to the Special Rapporteur's questions without prevarication and furnished him with relevant documentation. To judge from the reports already submitted to [CERD] and to OSCE and the Council of Europe, it would appear that the Czech Government has shown great objectivity with regard to the Roma problem."
50. Dr Chirico agreed that the Special Rapporteur was an independent third party but he had spent only three days in his visit and had been criticised by non-government organisations although he could produce to us no evidence of such criticism. He accepted the document was very useful and that, in general terms, he did not disagree with it.
51. Dealing with the 'urgent action' point and the wall, he was not saying the Czech Republic was equivalent to Kosovo or Serbia and he accepted the government took urgent steps to address the issue. Having regard to the view of the law taken by the Constitutional Court, which related to the degree of independence constitutionally given to local administrative bodies, he accepted it was a moral rather than legal view that he was taking. There had been no response to date by CERD to the court ruling.
52. He was referred to paragraph 11 of the CERD Report, which reads:
"The Committee is concerned that some organisations, including political parties, promoting racial hatred and superiority, are hidden behind legally registered civic associations whose members are promoting xenophobia and racism. Concern is also expressed at the ineffective implementation of existing legislation to prosecute the perpetrators of incitement to racial hatred and support to racist movements. In light of article 4 of the Convention, the Committee recommends that the State party strengthen law enforcement to ensure that these organisations be dismantled and their members prosecuted."
53. He accepted that since 1995 there had been full legal provisions in Czech law against racial attacks and that recommendations were in existence to remedy the situation referred to. He also accepted the CERD recommendation was calling for strengthening of systems already in existence.
54. Dealing with the case of Mr Lacko [see paragraph 27 above], he accepted the existing systems had led to re-investigation of a 'cover-up' that could happen in any system and that this was the only case where illegal police involvement was suggested.
55. He was referred to the ECRI Report of 21 March 2000. He agreed this recorded a number of steps taken by the Czech government: ratification of the Framework Convention on the Protection of Minorities; preparations for the signature of the European Charter for regional or Minority Languages; discussion in parliament of ratification of the revised European Social Charter (paragraph A.1.); amendment of the 1993 citizenship law in April 1996 following considerable international comment and criticism (paragraph B.5.); amendment of the criminal code in 1995, following considerable increase in racially motivated violence, affecting Roma and other visible minorities (paragraph C.8.); introduction of improved legal protection against discrimination in employment, following publication of ECRI's first report (paragraph D.9.); and the establishment in recent years since that first report of government bodies with advisory functions on matters relevant to combating racism and intolerance, namely the Interministerial Commission for Romany Affairs and a Council for Human Rights (1998) under the Government Commissioner for Human Rights (also 1998) (paragraph F.12.). He considered there were serious problems with their operations, expressed by those involved in the various bodies, although they had good people working for them.
56. He was referred to his specific criticisms recorded at paragraph 12 above. As to the reference to perceived and actual involvement of state agents, he was not saying this was widespread; there was a widespread perception and some actual involvement.
57. Referred to the reference to slow and inadequate responses from central government to rises in racist attacks (see paragraph 14 above) he said he was referring in the main to the period up to 1998 and it was perhaps better if this was put as the situation in the past. The same comment applied to his reference to changes in the criminal code having rarely led to effective action (see paragraph 14 also). He agreed there had been an increase in reporting of racially motivated crime and that this might reflect increased confidence on the part of those doing so. For the period after 1997 there was no breakdown of the statistics to show which related to attacks and which to matters of discrimination. In the case of attacks on Roma homes, it was very difficult to find the perpetrators so that if there was a continuation of discriminatory housing policies, this would increase the potential for such attacks, which normally took place on property in isolated areas.
58. Referred to his comment about tactics to avoid criminal sanctions, such as guilty pleas by minors (see paragraph 21 above), he accepted that it was necessary for any criminal system to hold a balance between those accused and their accusers and that this was a difficult area of criminal law.
59. He had no reason to doubt that there was increased vigilance on the part of the authorities (see paragraph 22 above) or that skinheads were taking steps to avoid that vigilance by actions deliberately intended to evade the law, accepting it was difficult to deter them. His earlier remarks as to limitations on police powers in relation to preventing demonstrations was not a criticism of their powers in any way. His views as to increases in attacks were derived from the Ministry of Justice Report, the CERD Report of August 2000 and statements from non-governmental organisations that there was under reporting.
60. The three specific cases on which he had commented were then addressed. The failure to take the accused into custody in the Krnov fire-bomb case was a fact. It was very difficult to say in the context of a particular case whether it was a matter for criticism. Failure to take skinheads into custody gave rise to repeated complaints; he felt it would have been helpful for them to have been remanded in custody but had no knowledge of the applicable bail laws in the Czech system. In the Bihariova case, the Minister of the Interior had acknowledged it was a racially motivated attack but the Minister of Justice had refused to refer the point to the Supreme Court. He was not saying that one was right and the other wrong but it was evidence for the widely held view that the racial motivation provisions were not useful in practice. Whilst in some ways he was approaching the situation in the Czech Republic on a 'counsel of perfection' basis, he did not think that was right in this case because there was a public interest in clarification of the point.
61. Mr Wilken then took the witness through a number of specific passages in the CIPU Assessment and the Czech Government written submission to CERD relating to government action relevant to Roma. We deal with these shortly below because they set out much of the government approach on which the Secretary of State placed reliance.
62. The murder of a Roma in May 1995 by skinheads led to a change in the penal code for stiffer penalties for racially motivated crimes from 1 September 1996 (Paragraph 7.68 CIPU). This was factually correct but the government claimed it was doing the same thing again now. [We understand this to be a reference to continuing steps taken by the Government in training and reinforcing the importance of recognising racially motivated crime.] He accepted it might be that warnings needed to be repeated.
63. Under the heading 'Measures taken to improve the situation', paragraphs 7.77 to 7.90 of the CIPU Assessment recorded the following matters which we summarise:
a. The UN Special Rapporteur stated the government's readiness to recognise the facts already constituted vital progress towards solving the problems confronting Roma (paragraph 7.77);
b. The government adopted a plan of action in 1999 submitted by the Chairman of the Inter-Ministerial Commission for the Affairs of the Roma Community setting out concepts for integration of Roma and proposing a series of legal and institutional measures to eliminate discrimination and to promote Roma culture; it included measures relating to employment, education, democratic development of Roma representation and co-operation between Roma organisations and local and regional authorities; the government position was that integration of Roma as a national minority was absolutely necessary and that their ethnicity was an asset enriching the country (paragraph 7.78);
c. Measures included a bill to parliament on prohibition of discrimination on grounds of race, nationality, ethnic origin and colour with the establishment of an independent Office of Racial Equality to observe and impose sanctions for breaches (paragraph 7.79);
d. These measures would be implemented by 2020 and action would cover access to education and higher qualifications for Roma, special classes, courses and scholarships for Roma students and certain preferential treatment of Roma companies in placing orders; (paragraph 7.80);
e. The education system would be changed to include dismantling the language barrier, preparatory classes, use of Romani as a supplementary teaching language, employment of Roma assistants in schools and an individual approach to students (paragraph 7.81);
f. Romany dialects would enjoy state protection and support; minority culture and history would be incorporated into the general education system which would be multicultural (paragraph 7.82);
g. Roma involvement in the decision making process in Romani affairs would be ensured (paragraph 7.83);
h. Judges and officials involved in criminal procedures would be trained on racism and Roma; the Ministry of the Interior had three new Roma officials with the opportunity to influence security policy; preparatory training course had been organised for Roma wishing to join the police force in which 5 out of 17 passed the course; issues of extremism had been included in police training at all levels; special workshops and lectures were also organised (paragraph 7.84);
i. The inter-departmental Commission on Community Affairs established in 1997 was chaired by the Commissioner for Human Rights and included representatives of various ministries and 12 representatives of the Roma community; it supervises the implementation of the government plan of action, collects information, informs the Roma community about government activities; allocates grants to supplementary programmes for the Roma community and deals with issues covering housing education and discrimination; it has taken an increasingly active role in dispute resolution between communities in towns such as Usti nad Labem and Rokycany in addition to promoting positive initiatives (paragraph 7.85);
j. Several non-governmental organisations and community associations provide legal and social support to Roma; the Roma Movement is concerned with education; the Prague Human Rights Documentation Centre monitors the activities of extreme right wing organisations; the European Roma Centre gives legal aid to victims of racism and discrimination (paragraph 7.87);
k. The National Employment Plan of May 1999 and a subsequent package of measures adopted in June 1999 provide measures to improve Roma employment prospects; an amendment to the Employment Act includes an anti-discrimination provision; the government has approved provisions which will create favourable conditions in schools and special schools for transition of pupils to secondary and apprentice training establishments; a network of offices to co-ordinate labour market demands with the abilities of job applicants will be established by 31 December 2000 by which time re-socialising and re-training programmes will be implemented to allow increased employment of job applicants by then (paragraph 7.88);
l. Other government initiatives have included organisation of a team of specialised Romany inspectors authorised to penalise shop and restaurant owners who refuse Roma service; increased training and seminar activity to promote understanding and tolerance; during 1999 there were active efforts to identify, train and recruit qualified Roma to serve in law enforcement; the National Police Academy introduced a course in Romany language and culture, designed to facilitate improved communication and response to Romany communities at local level (paragraph 7.88);
m. On 14 June 2000, the government approved a second version of its concept of Roma integration covering measures for increased security; elimination of all forms of discrimination in education and by social class, improvement in the Roma's social position, emancipation including the creation of democratic Romany representation, support of Romany culture and language, and creation of a tolerable environment without prejudice (paragraph 7.89);
n. The above plan establishes an advisory body; although lacking legislative power, the spirit behind the plan was welcomed by Romany activists (paragraph 7.90).
64. Dr Chirico accepted all the above measures had taken place although some related to future intention and he did not necessarily accept their degree of impact.
65. He also accepted that Roma as a group did not qualify for refugee status under UNHCR guidelines.
66. So far as Ms Puzova's appeal was concerned, he accepted that the question of discrimination in education was now historic. So far as housing discrimination was concerned the Usti nad Labem wall incident was the most dramatic but he had directed attention also to other examples outlined in the CCC/CHR report, which referred to the designation of certain areas of housing as being for the 'socially unadaptable' which were largely occupied by Roma families evicted for failing to pay rent or for misbehaviour. Such areas were isolated and sub-standard; two examples were quoted − one in Kladno district at Slany housing some 12 families and another in the Lower Hrusov area of Ostrava which had been subject to flooding and where, some three years after the floods, about 150 Roma families were still housed.
67. The hearing was then adjourned for the purpose of hearing submissions on the second day, when Mr Wilken was not present but had served and filed written submissions in relation to Ms Puzova's appeal. Both Mr Hodgetts and Mr Jorro had filed written submissions and Ms Hooper had filed a schedule of evidence. We also heard oral submissions from Mr Jorro, Mr Hodgetts and Ms Hooper for their respective Appellants. Like their written submissions, these were effectively complementary in relation to the assertion of a general entitlement to refugee status for Roma but there were, of course, individual differences in relation to the specific circumstances of individual Appellants. Ms Jeffery made oral submissions relating to the position of the Secretary of State as it affected the Appellants other than Ms Puzova. In broad terms, the submissions related to the proper approach in law to the question of the existence of a sufficiency of protection in the home state against the acts of non-state actors and a review of the evidence applicable on the basis of that legal issue. There was copious reference to Dr Chirico's evidence, both written and oral, as well as to a number of the national and international reports which had been produced and which were effectively common to the bundles produced by the parties' representatives or adopted by them in argument. We propose therefore briefly to consider the relevant documents, which are those cited in Ms Hooper's schedule of evidence.
Documents referred to in Ms Hooper's Schedule of Evidence
68. They comprised:
a. UNHCR Guidelines on the eligibility of Czech Roma asylum seekers of December 1999 published 10 February 2000;
b. Czech Helsinki Committee Report on the State of Human Rights in the Czech Republic of 1999;
c. United States State Department Report for 1999 published 25 February 2000;
d. United Nations Special Rapporteur's report of 7 February 2000;
e. ECRI Second report of 18 June 1999 published on 21 March 2000;
f. Czech Government submissions to CERD of 14 April 2000;
g. CCC/CHR Comments on the Czech Government submissions dated 22 February 2000;
h. CERD Concluding Observations of 14 August 2000; and
i. CIPU Assessment of October 2000.
69. There is, of course, much common ground between these documents and, in particular, all reports accept that there is underlying discrimination in the Czech Republic against the Roma minority that is also in some instances shown by emanations of the state, principally at local level.
The UNHCR Guidelines of December 1999 (paragraphs 70 to 82)
70. The UNHCR Guidelines confirm that Roma have the opportunity to enjoy the benefits of political and economic freedom like other Czech citizens but have become increasingly marginalized in the transition to a market economy both socially and economically. Dormant anti-Roma attitudes, suppressed under the Communist system, emerged in societal discrimination and, less frequently, violent attacks which had led some members of the Roma community to seek a better future through migration. The preferred social distance maintained by many Roma further contributes to their placement on the fringes of society and is an added obstacle to successful integration which is an important factor in considering the differences between Roma and non-Roma communities. Asylum claims are usually based on discrimination in education, housing and employment and lack of state protection with regard to racially motivated denial of services or acts of violence.
71. As to education, it was noted that the educational level among Roma was particularly low, most not completing the 9 years compulsory schooling. Government estimates that currently 70% or 80% of Roma students do not receive a basic education, either because of failing to complete schooling or attending 'special schools'. In some cases parents do not encourage their children and in others there is harassment from ethnic Czech students. The government recognises the extent of the problem and in mid-1997 pre-school preparatory classes were established open to all children but are at the discretion of school administrations. By October 1999 such classes were benefiting over 1200 children of whom over half were in regular primary schools and some 400 in special schools for those with teaching disorders or socially disadvantaged. There was a significant over-representation of Roma in special schools, particularly where they did not speak standard Czech at home or were from impoverished families. The decision to send them there was often made by a child psychologist at an early point after entering regular schooling for linguistic or social reasons rather than based on learning potential, but in some cases was at the parents' request because of abuse from non-Roma children or to avoid isolation of the child from other neighbourhood Roma children. The measures referred to at paragraph 63 e and f above were noted and by October 1999 140 Roma assistants were working in primary and secondary schools. It remained too early, however, to evaluate adequacy of funding or the effect on attendance and achievement.
72. Housing was an acute problem for the Czech population in general but was markedly worse for Roma who lacked resources to enter the private housing market and sometimes faced discrimination in obtaining public flats. There were large concentrations of Roma on the outskirts of cities some of which lacked easily accessibly water, electricity and sanitation facilities. Opinion polls indicated they were the least preferred neighbours. Their forced movement into urban flats in the 1950's and 1960's had resulted in some damage and disrepair of flats which reinforced negative attitudes on the part of ethnic Czechs. Since 1989 and the restitution process [presumably to original owners] which followed, Roma had frequently been moved to flats of a substantially lower standard, sometimes with compensation but in other cases without compensation because of the absence of a lease.
73. Lack of education reflected adversely on Roma in terms of job opportunities and unemployment amongst Roma was quite high, with estimates reaching 70% and 80% in some areas compared to the national average of 7%. Many low skilled jobs were now being performed at rates below the official minimum wage by immigrants, who were not entitled to social benefits. Social benefits were currently quite comparable to, and sometimes higher than, wages in low skill professions but a new welfare policy of minimum wage increases was proposed to eliminate the present disincentive to find employment. The employment initiatives referred to at paragraph 63 d and k were noted but it was too early to evaluate their impact.
74. Widespread anti-Roma feelings existed among the ethnic Czech population which were reflected in exclusion from bars and restaurants or, to a much lesser extent, to racist statements and skinhead violence. Popular attitudes were sometimes mirrored by local officials. The Usti nad Labem wall was specifically cited in this context. It was, however, a sign of progress that the anti-Semitic and anti-Roma Republican Party had received less than 5% of the vote in the 1998 legislative elections and was no longer represented in parliament.
75. The Guidelines then dealt with the issue of state protection for Roma, referring to the bodies created by government since 1994, the effect of being classified as a national minority and the international treaty obligations entered into, which have been largely cited already. The changes in the criminal code in 1996 were noted as were the instructions to state prosecutors to seek the highest sentence in crimes where race was a motive and the instructions to police diligently to investigate such acts. It was noted that a special unit in the criminal police was formed to combat extremist groups and that since 1 January 1996 each District Police Department had an expert to combat racial violence. On 29 October 1997 the government accepted, on its third submission, the Council for National Minorities' Report on Roma, expressly acknowledging in such acceptance the level of racism in society, including the behaviour of some state and local administrative officers, but there was little progress until the Social Democrats (CSSD) came to power in the summer of 1998. Thereafter there had been increased public debate and central efforts to promote tolerance including the twelve point plan of action in 1999 referred to in paragraph 63 b. − h. above. The EU report on progress towards accession of 13 October 1999, however, noted that the situation of Roma had not 'evolved markedly over the past year. In practice the record of enforcement and proper use of the new laws was mixed, particularly at local level. Judges had a broad discretion and had not, in some cases, recognised racial motive where it appeared clear, resulting in short terms of imprisonment. The cases of Mr Lacko and Ms Bihariova attract specific comment, where it is noted that in the second case the court found that the attack was a reprisal for an alleged earlier theft rather than for a racial motive. On appeal in September 1998 [February 1999 according to the Czech Government submissions at paragraph 77], the conviction and sentence of one assailant to 8.5 years of imprisonment for 'duress resulting in death' [referred to as 'extortion resulting in death' in the submissions at paragraph 77] was maintained but that of the second defendant, convicted for disturbing the peace, was reduced to 15 months and he was released on the same day. The case of Tibor Danihel, drowned in 1993 when a group of several dozen skinheads prevented him leaving a lake, resulted in sentences for three skinheads of between 7 and 8.5 years in prison but this was annulled in January 1999 in the High Court. On further appeal to the Supreme Court in May 1999, that finding was reversed and the case remitted to the High Court for retrial.
76. [The state submissions deal also with this case at paragraph 75. They are indicative of the careful, albeit lengthy, criminal process which may be taken in relation to such cases and also have some bearing on the validity, in terms of timing, of Dr Chirico's point that in the Bihariova case the prosecution had failed to 'learn the lesson' relevant to classification of similar attacks. We set out the relevant paragraph in full:
"Complaint about violation of law has been raised twice in proceedings against the skinheads who caused the death of a 17-year-old Roma boy, Tibor Danihel, in Pisek in October 1993. The case was returned to the Regional Court in Ceske Budejovice on the basis of a complaint about violation of law filed in 1997 by Vlasta Parkanova, then Minister of Justice; this requirement, initiated by Senator Pavel Rychetsky (currently Deputy Prime Minister and the Chairman of the Government's Council for Legislation) was unanimously supported by the Senate of the Czech Parliament. In 1998 the principal culprits were sentenced on charges of racially motivated murder [the original charges of which they were found guilty had been voluntary manslaughter according to the UN Special Rapporteur's Report at paragraph 20(a)] to punishments applicable to adolescent offenders (adolescents aged 15 to 18 years may be sentenced for murder to five-to ten-year terms in prison). Although in January 1999 the High Court cancelled the ruling of the Regional Court for formal procedural reasons, the Minster of Justice Otakar Motejl filed a complaint about violation of law against the ruling of the High Court. On 27 May 1999 the Supreme Court of the Czech Republic upheld the complaint. On 30 June 1999 the High Court turned down the defendants' appeal against the ruling of the Regional Court and confirmed the original judgement in terms of both the guilt and the punishment."]
77. The Documentation Centre for Human Rights (see paragraph 63.j. above), which tracks racial crimes, recorded that as at 30 September 1999 there were 1781 racially or ideologically motivated crimes committed since 1990. This included both violent and non-violent offences of which some 90 were committed against non-Roma. Of these 830 were violent attacks, leading to death in 22 cases, and the remainder were verbal. 390 of the attacks had taken place in 1998 and this represented a significant increase from previous years which the Centre attributed to better organisation and radicalisation of the skinhead movement, improved record keeping and a perception by skinheads that they had tacit support of the police. This perception was reinforced by insufficient sentences imposed in earlier years. The Centre stated that out of 138 convictions for racial crime in 1998, all but 13 received 'conditional sentences (probation)' and only 6 were imprisoned for terms of one year or more. The Ministry of Justice figures for the first half of 1999 recorded 266 arrests for crimes with a racial context leading to 238 charges of which 76 related to support and promotion of movements to suppress citizens' rights and freedoms (Articles 260,261 of the Criminal Code). In the same period 81 were sentenced (compared to 61 in the first half of 1998), of whom only 11 were for violent crimes, 3 for bodily harm and 6 for racially motivated disorderly conduct. Of these 7 were sentenced to terms of imprisonment. Of the remaining 45, 32 were charged with Article 260/261 offences and 12 for defamation of nation, race, and belief and incitement of racial hatred. Those not given custodial sentences were sentenced to probation, public work or received no specific punishment.
78. There was clear government awareness of the problems. President Havel is quoted as saying in 1997, after disclaiming racism on the part of the government or the law, that
"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".
79. The Guidelines then dealt with problems for those born in Slovakia obtaining Czech citizenship, which had not then been largely resolved by the changes in law which have followed preparation of the guidelines.
80. In the light of the matters covered in the report, the UNHCR then considered the question of refugee status, stating that:
"While it cannot be reasonably disputed that Czech Roma are frequent victims of discrimination and on occasion incidents of violence, conditions in the Czech Republic do not warrant the recognition of such asylum claims on a prima facie basis. Applications must be assessed individually to establish if the treatment experienced amounts to or creates a reasonable fear of persecution in the context of the 1951 Geneva Convention".
81. The Guidelines then express the UNHCR's views as follows in the concluding paragraph:
a. "In regard to discrimination, while there is no official policy to discriminate against Roma on the basis of their ethnicity and despite the recent series of measures to counteract discrimination, it is a fact that at the popular level discrimination 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. Claims should be assessed based on the nature of the discriminatory treatment encountered, the persistence of such discriminatory action, the cumulative aspect of it, and the severity of the consequences on the applicant or on his or her immediate family members.
b. Where it is assessed that the discriminatory actions amount to persecution or that the acts themselves, such as violent extremist attacks, are in themselves persecutory in nature, it will be necessary to evaluate the well-foundedness of the claim. Thus, it must be determined whether the authorities have afforded or are able to afford the applicant effective protection. As described above, authorities at the local level have not in all cases provided effective remedies against discrimination or threats to physical safety, and in a limited amount of cases the local authorities can be said to have condoned or themselves engaged in discriminatory treatment in contradiction with [sic] the declared policy of the Czech central government. For status determination purposes, in view of the comprehensive legal framework available and the increasing willingness on the part of the authorities to provide protection in practice to all Czech citizens regardless of ethnicity, the circumstances of each case will need to be evaluated in order to determine whether it would be reasonable for the applicant to have relied on national protection."
82. We have dealt with these Guidelines in some detail because they are the only views of an independent international body that is solely concerned with consideration of Czech Roma in terms of refugee status.
The Czech Helsinki Committee Report of 1999 (paragraphs 83 to 85)
83. The Czech Helsinki Committee paper on 'Position and Protection of National Minorities' was prepared by Petra Tomaskova, who is a lawyer and member of staff at the CHC Legal Counselling Centre. It deals with all national minorities in the Czech Republic, noting that the position of the Romany Minority is different from the others because it does not arise from a national minority with ethnic links to a neighbouring state but is classified as a social minority because of the distinct problems which it faces, including "low education and qualification levels, high unemployment and relatively considerable participation in criminality". As a result of "marked differences in appearance and social and cultural features, it is the only minority, which encounters discrimination in everyday life". The paper notes the existence of many minority Romany organisations, numerous artistic groups, the Museum of Romany Culture and several editorial boards of good periodicals as being a "significant positive feature of the position of the Romany minority" but the negative aspect is "the difficult, often controversial communication between Romany groups and organisations, the inability to reach agreement on common interests, activities, goals and programmes". It notes the existence of numerous Romany organisations, of which the best known include Romany Initiative, Community of Romanies in Moravia, Council of the Democratic Union of Romanies of the Czech Republic, and the Democratic Alliance of Romanies of the Czech Republic. It says that "publishing activity plays an important role in the cultural process of Romany emancipation in CR (numerous professional publications on history, culture and language) as well as lessons in the Romany language at some universities and secondary schools".
84. The paper also give some helpful background information as to the dispute relating to the Usti nad Labem wall which came about as a result of a dispute in Maticni Street in Nestemice in a district of the city. The background to the dispute is recorded as follows:
"This was primarily a dispute between the occupants of family houses and the occupants of four apartment houses. These apartment houses were formerly temporary accommodation facilities where "problematic" families, mostly Romany ones (four non-Romany ones), were moved on the basis of an inappropriate decision. The subject-matter of the dispute was the noise and mess which was being caused by the occupants of the apartment houses and which was ever more sharply criticised by the owners of the family houses in their complaints and petitions filed with the local board of representatives. The owners of the family houses proposed, among other things, constructing a four-meter wall. After the dispute heated up as a consequence of a certain incident, the mayor of Usti n. L. promised the owners of the family houses that the wall would be constructed.
The local Romanies established a citizens' association called Romany Rainbow in spring 1998 and cleaned up the mess in co-operation with the town hall. They themselves also proposed some accommodating measures. At that time the representatives of the municipal district and the representatives of the city probably underestimated the possibility of communication between the antagonistic groups and did not organise necessary negotiations, which could have led to an amicable agreement, which would have involved action though. On the 15th September 1998, the council and the board of representatives for the municipal district of Nestemice decided to construct a ceramic fence, sidewalks and a playground for the children who had been making noise in the surroundings of the houses up until that time.
The dispute over the fence or wall in the Maticni street, the unpropitious popularity of which resulted from considerable interest of the local as well as foreign mass media to a considerable degree, is having after effects in the legal circles. The reason is that this dispute necessitated clear definition of the powers of the government (the Parliament), municipalities, districts, but also clear definitions of issues concerning the subsidiarity of law and the validity and ways of implementing human rights standards in the context of the legal system of CR. However, above all, the said dispute became a memento of the necessity of sensitive negotiations with the representatives of heterogeneous groups of inhabitants and reminding the need to encourage the utilisation of multi-lateral communication and mediation in solving such issues as the construction of the fence-wall in the Maticni street."
85. Interestingly, the CHC report concludes that implementation of the rights of national minorities and their position is essentially a task for all the signatories to the Framework Convention for the Protection of National Minorities which for the first time includes such protection among internationally protected rights. It points out that national approaches differ; France, for example, does not recognise the existence of minorities on the basis that all living in France are either French citizens or aliens whereas other signatories, such as Hungary, approach the issue on the basis that there should be considerable participation in self-government by such minorities. It also draws attention to the "uncertain legislative basis of the opinions and recommendations of the Council of Europe, which assesses the implementation of the provisions of this Convention through the Committee of Ministers". In the meantime it recognises a need to seek national solutions to the issues concerning the position and rights of the minorities living in the Czech Republic.
The United States' State Department Report 1999 (paragraphs 86 to 90)
86. The United States State Department Report for 1999 summarises the position in the Czech Republic at the beginning of its report. We consider an overview of the political, economic and human rights structure of the country to be important in approaching the issues in this appeal and we therefore now set out that summary, with any relevant updating of the position taken from the latest CIPU Assessment added in the passages within square brackets, as follows:
"The Czech Republic is a constitutional parliamentary democracy with a bicameral Parliament. Following elections in June 1998, Prime Minister Milos Zeman formed a minority Government comprising almost exclusively members of his left-of-center Social Democratic Party. The Parliament elects the President for a 5-year term. President Vaclav Havel was re-elected in January 1998 by a narrow margin and remains an internationally recognized advocate of human rights and social justice. Although the country essentially has completed the reform of political structures initiated after the 1989 "Velvet Revolution", some institutions are still in a state of transformation. The judiciary is independent legally but is hampered by structural and procedural deficiencies and a lack of resources.
The Ministry of the Interior oversees the police. The civilian internal security service known as the Security and Information Service (BIS), is independent of ministry control but reports to Parliament and the Prime Minister's office. Police and BIS authorities generally observe constitutional and legal protection of individual rights in carrying out their responsibilities. However, some members of the police committed human rights abuses.
The economy is market-based, with over two-thirds of gross domestic product (GDP) produced by the private sector. The economy recently has contracted as the transition to a full market economy stalled because of unfinished structural reforms, including industrial decision-making. The sharpest recession in the country's history occurred in 1998 when the economy contracted by 2.7 per cent. Inflation has been brought down sharply in recent years, while unemployment reached 8 per cent [now over 9% and approaching 20% in some regions] and was expected to reach double-digit levels by 2000 as long overdue industrial restructuring was implemented. The work force is employed primarily in industry, retail trade and construction.
The Government generally respects the human rights of its citizens: however, problems remain in several areas. Occasional police violence remains a problem. Lengthy pre-trial detention and long delays in trials are problems, due to a lack of resources for the judicial system. There is some violence and discrimination against women. Discrimination and sporadic skinhead violence against the Romani community remain problems. Trafficking in women and children is a problem. In January the Government formed a Human Rights Council, headed by the Commissioner for Human Rights, to advise the Government in human rights issues and prepare legislative proposals for improving human rights in the country."
87. In section f entitled 'Arbitrary Interference with Privacy, Family, Home, or Correspondence' only two matters are cited, one of which deals with several searches by armed police in Rokycany of Romani homes conducted without warrant in February and March after local activists sent a letter to the mayor protesting about racial discrimination. One house belonged to the son of a prominent national Roma rights activist, Ondrej Gina. This led to complaints being filed against the police by Roma and in November Gina was charged with inciting racial hatred, assault on a public office and criminal slander from matter allegedly published on the internet. The trial had not started in 1999. [There is nothing in the general documentary evidence to suggest that this case is in any way typical but rather it appears that it is isolated and unusual.]
88. The report deals at some length with the situation of Roma under National/Racial/Ethnic Minorities'. It reflects the general discrimination against Roma referred to above but notes state funding of television and radio programmes for Roma on public stations and for Roma press publications. It noted there was one full-time Romani anchorman on Czech Television and that there was generally increased publication of information on Romani issues in the mainstream press. It noted NGO and individual efforts in health and education had only minimal impact, which was "sometimes due to the attitudes or intransigence of local authorities", but went on to add:
"Romani leaders themselves have had limited success in organising their local communities, which often are disunited and where many are reluctant to foster contacts with the majority."
Much of the material in this part of the Report reflects what has been noted above in the UNHCR Guidelines. There are, however, specific references to charges against skinheads: in January six skinheads were charged with a racially motivated attack in 1998 on a Romani man at Havlickuv Brod railway station; on July 17, six skinheads were charged with defamation of race and disturbing the peace following an attack on a Romani man in a bar at Jesenik; on 27 August, following an hour-long attack by some 30 skinheads on Romani homes in a village near Jaromerice nad Rokytnou, during which the skinheads threw bricks and stones injuring two Roma and damaging property, police investigations led to 12 skinheads being charged with rioting, property damage and violence, although not on the basis they were racially motivated crimes; on November 20 after some 30 skinheads attacked some 60 Roma in a restaurant in Ceske Budejovice and 6 people were injured, 23 skinheads were charged with racially motivated violence and now face prison sentences of up to 3 years if convicted.
89. The report also deals in greater detail with the case taken to the Constitutional Court by Roma parents referred to at paragraph 34 above in Dr Chirico's evidence. These proceedings were commenced in June 1999 to protest the "de facto segregation" of Romani children into special schools, and sought establishment of a compensatory educational fund, an end to racial segregation within 3 years, and the development of an educational reform plan. In November 1999 the complaint was rejected on the grounds that the court "did not have the power to order the Ministry of Education to create programmes to end racial discrimination". The report continues:
" The Ministry of Education later took steps independently to implement some of the recommended changes. In December the Parliament approved legislation allowing qualified Romani students, previously relegated to the special schools, to return to attend mainstream secondary or upper-level public schools. The legislation was drafted by Parliament's sole Romani representative and constituted a significant step in opening access to higher education to the Romani minority."
90. The report also adds some detail in relation to discrimination in daily life experienced by Roma in respect of which there are civil law remedies based on constitutional prohibitions of discrimination, although there is no current criminal provision. The report deals with this in the following terms:
"Some restaurants, pubs and other venues refuse service to Roma and post signs prohibiting their entry. In July two discos in Plzen denied entry to 5 Romani students prompting a boycott of the clubs by over 600 students at West Bohemia University. The club owners eventually apologised. In some cases, local authorities intervened to have such signs removed, although in a 1998 retrial a Rokycany pub owner was acquitted of refusing to serve Romani patrons in 1996. The state attorney appealed the verdict, and the case was heard during the year: a decision is expected in early 2000. In October the Hotel Imperial in Ostrava agreed to pay an out-of-court settlement of $715 (25,000 Czech Crowns) to 3 Roma who it refused to serve in 1998. In October press reports revealed that certain employment offices regularly mark records of persons who appear to be Roma with the letter 'R'. The findings of a subsequent government inquiry into the matter suggested that the problem was not as widespread as originally reported: however, authorities still took steps to prevent this practice in future, including updated instructions and clarification of existing policy from the Ministry of Work and Social Affairs regarding the administration of databases and personal records, and more frequent audits by Ministry officials at the regional employment offices."
Report of the United Nations' Special Rapporteur of 7 February 2000
91. The United Nations' Special Rapporteur's Report has been referred to earlier at paragraphs 48 to 50. and again in paragraph 63.a. Although it is criticised by Dr Chirico as being the result of a three day visit, it is a 32 page report dealing with Hungary and Romania in addition to the Czech Republic. He records that in the Czech Republic he met representatives of government, including the Vice-Ministers of the Ministries of the Interior and Justice, Mr Petr Uhl, the Government Commissioner for Human Rights and the Chief State Attorney; the mayors of the city of Usti nad Labem and of the district of Nesternice; representatives of the Law Faculty of the Masaryk University in Brno; the Director of the United Nations Information Centre; and representatives of six Roma non-governmental organisations including those earlier referred to as the leading organisations. It was stated at the beginning of the report that:
"This mission was motivated by the allegations the Special Rapporteur has received of systematic discrimination (particularly in education, employment and housing) against the Roma citizens of these countries and the frequent acts of violence against them by members of extreme right organizations and the police. ? The Special Rapporteur was particularly alarmed by the plan of the municipal council of the town of Usti nad Labem ? to build a wall down a street in order to separate Roma homes from those of the other inhabitants."
In paragraphs 7 to 56 of the Report, the Special Rapporteur covers the broad spectrum dealt with in the evidence before us in a way which makes it clear that the issues have been clearly perceived (certain aspects being dealt with in some detail by reference to statistics and specific examples which have been rehearsed above in other reports) and that he has taken into account the views of all those whom he met. One point which we have not seen elsewhere is dealt with in paragraph 46 where he makes the point that there has been no actual research describing the structure of the Roma community, the behavioural patterns of individual groups, or ways of achieving non-problematic coexistence but that "it is a known fact that in some places the coexistence of Roma and the majority population is good, for example in Cesky Krumlov". The report ends with conclusions and recommendations which we set out in full because the comparison of the issues highlighted in respect of each of the three countries is, in our view, instructive:
"This mission report, while quite general in nature, aims to highlight the problems faced by the Roma in this part of Europe and to give the Commission some information on efforts by the three Governments to help them. The Czech Republic, Romania and Hungary were chosen because of the resource and time constraints within which the Special Rapporteur had to work and not because of any desire to stigmatize these countries for problems that are of a regional nature. Nevertheless, the mission has made comparisons possible: while there are many similarities in the situation of the Roma population in all three countries, there are also differences. It has been seen that prejudice against the Roma is the same in the Czech Republic as in Romania and Hungary but, whereas violence against them is under control in Romania, it persists in the Czech Republic and Hungary. Whereas in the Czech Republic and Romania, Roma affairs are managed by administrative bodies with representatives of Roma associations as partners, in Hungary the Government works with elected Roma representatives on the design and development of programmes for their community, even thought the system of "self-governments" still raises some doubts. All in all, it should be stressed that in their common desire to become members of the European Union, the Governments of all three countries are genuinely committed to carrying out reforms which will benefit the Roma and which, if they are followed through, should meet with success in the medium or longer term. It is therefore with the intention of supporting this process and allowing the Commission on Human Rights to continue to follow closely the situation of the Roma that the Special Rapporteur makes some recommendations for the Governments of the Czech Republic, Romania and Hungary.
A. Czech Republic
Roma and non-Roma families in the town of Usti nad Labem should be encouraged to come together and hold talks on living side by side on better terms.
The segregation of Roma schoolchildren should be stopped through steps to ensure equality of opportunity for this population and equitable access to education for all.
The Czech Government should speed up the process of passing a law to curb racial discrimination in all walks of life by following the example of the Model National Legislation for the Guidance of Governments in the Enactment of Further Legislation against Racial Discrimination, prepared by the United Nations.
The Czech Government should plan cultural exchange programmes that would allow the Roma and the majority of the population to draw closer together.
B. Romania
Action is needed to prevent the disparagement of the Roma in the media, to raise awareness of Roma culture and to carry out a campaign to educate the general public in human rights and tolerance.
The Romanian Government should involve the Roma more closely in taking decisions that concern them.
The Romanian Ministry of the Interior should pursue its efforts to change police officers' attitudes to ensure that the Roma receive better treatment.
C. Hungary
The Hungarian courts should come down harder on racist crimes or acts committed by individuals or by state officials.
The Hungarian Government should pass a law along the lines of the Model National Legislation for the Guidance of Governments in the Enactment of Further Legislation against Racial Discrimination, prepared by the United Nations in order to combat racist acts in all areas of economic and social life.
The Hungarian Ministry of Education should take steps to end the segregation of Gypsy schoolchildren by developing teaching methods that promote equal opportunities for these children and equitable access to education for all.
The Hungarian Government should take action in local communities in rural areas in order to promote a better integration of Gypsy communities and put a stop to their expulsion."
The ECRI Report of 21 March 2000 (paragraphs 92 to 95)
92. The ECRI Second report on the Czech Republic published on 21 March 2000, begins its report by defining itself as a body of the Council of Europe, composed of independent members, whose aim is to combat racism, xenophobia, anti-Semitism and intolerance at a Pan-European level and from the angle of the protection of human rights. It states its aim to be analysis of the situation in the relevant member state of the Council of Europe and to make suggestions and proposals as to how to tackle the problems identified. It is based on contact with government and non-governmental organisation sources and relates to the situation as at 18 June 1999; it follows up the position identified in its first report published in September 1997. It notes continuing concern in relation to acquisition of Czech citizenship affecting Roma, despite interim steps in April and August 1996, although it is clear from the latest CERD Report that the amendments to legislation suggested by ECRI have now been effected largely to resolve that issue. It notes the amendments to the criminal law in 1996 in regard to introduction of racial motivation and other changes introduced by the government following an increase in racially motivated violence in 1995. It notes that its main focus in its earlier report was on discrimination in employment and housing and that the government has taken positive steps by enacting improved legal protection against discrimination in employment but advocates establishment of a comprehensive anti-discrimination law covering all fields of life with establishment of an independent specialised body on racism and racial discrimination issues (which would follow from existing constitutional provisions) and the provision of free legal aid for victims of discrimination. It notes the establishment in recent years of a number of specialist governmental bodies with advisory functions in such matters but, although they can make a valuable contribution, advocates additional funding and staffing. The proposed establishment of an ombudsman then currently under discussion in a draft bill is noted, with a recommendation for very wide powers and funding.
93. The report then notes that because "collection of data on ethnic origin is prohibite, out of concern for data protection and privacy", there is a lack of reliable information about the situation of minority groups which makes "evaluation of the extent and cause of possible discrimination against them, or the effect of actions intended to combat such discrimination, difficult".
94. ECRI expresses concern at complaints received by non-governmental organisations about "differential treatment" of Roma in relation to cases where they are under criminal investigation or in need of administrative documents and that "the reaction of some law enforcement officials" to cases involving racially-motivated crimes is inadequate. It is noted that police conduct their own investigations into allegations of misconduct and that there is little information to the public or complainants as to the results of such investigations. It is also noted that "while local authorities in some districts are at the origin of several positive initiatives as regards the situation of minority groups, and particularly the Roma/Gypsy community in some others they are also responsible for discriminatory practices of concern to ECRI". The Usti bad Labem wall is then specifically referred to. Strict central government control is advised but the establishment in most district governments of "social curators for national minorities" is welcomed and similar such initiatives advised. Finally it expresses concern at negative media coverage and recommends codes of media self-regulation.
95. The second part of this report then goes into some detail on the issues of racially motivated crime and discrimination in education and employment, which adds little to what has been recorded above. In dealing with the former, the report reads:
"Following a marked increase in violent racist offences in the early-1990's, official statistics show that in recent years the number of prosecutions and convictions for most racially motivated crimes involving acts of violence has dropped. However, members of minority groups living in the Czech Republic, notably Roma/Gypsies, consider that, despite some improvements, the situation as regards racially motivated violence still constitutes a major problem. Regrettably, many Roma/Gypsies still feel insecure in everyday life circumstances. In addition, the number of reported cases is deemed vastly to underestimate the scope of the problem as attacks often go unreported due to fear of reprisals or lack of confidence in the response of the criminal justice system."
Paragraph 30 of the report (noting the adequacy of the legal provisions but making comments as to three identified areas causing problems in its implementation) is dealt with at paragraph 30 of this determination but it is appropriate to set out here the following paragraph which reads as follows:
"Comprehensive efforts are needed to cope with this persisting problem. Not only must criminal enforcement be intensified and the problems identified at each institutional level addressed, but these efforts should be combined with a broader approach. As is the case in many other countries, in the Czech Republic, these crimes are linked with problems of disaffected youth, unemployment and widespread stereotypes and prejudices about the Roma/Gypsies and members of other minority groups."
The Czech Republic's Submissions to CERD of 14 April 2000 (paragraphs 96 to 103)
96. As to the Czech Government's own submissions to CERD of 14 April 2000, they set out the many initiatives which have been taken generally in relation to racism and discrimination, most of which are referred to in the body of evidence before us. We note that at paragraph 79 they record that between 1990 and 1998 13 people were known to have died as a result of racially motivated attacks, of whom 11 were Roma; that in seven cases the accused were found guilty of murder, in four cases of less serious offences and in two cases either not charged or acquitted (the report is not clear as to this). Of those 13 offences, 8 occurred between 1990 and 1993.
97. Paragraph 80 then comments on the crime statistics relating to racially motivated attacks as follows:
"The frequently cited claim that the number of racially motivated attacks increased only after 1994 should probably be ascribed to statistical effects. The low number of all racially motivated offences (including verbal attacks) recorded before 1994 is probably due to factors such as the following: before 1994 the Czech Police did not have departments specializing in this type of crime, the police and the courts underestimated the racial aspect of crime, and racial manifestations were not systematically recorded. Hence it is difficult to make any valid comparisons. There had been no separate records on "criminality with extremist motivation" until the end of 1997, and even the official records for 1998 were found to contain significant errors, so that no serious conclusions can be drawn from them. Thorough checks of the statistics on extremist criminality have only been in place since 1 January 1999; hence the statistics for the first half of 1999 provide the first data offering a true reflection of the actual numbers of identified criminal acts with extremist motivation (predominantly racist). Nevertheless, it is possible that even these records fail to reflect all the racially motivated attacks, both physical and, particularly, verbal, which have been committed in reality. It is a well-known fact that many of the less dangerous attacks are not reported by persons belonging to the Roma, Vietnamese and other minorities.
98. Paragraphs 80 and 81 then continue:
"As suggested by information from the Ministry of the Interior, until 1997 the prosecution of racially motivated attacks was affected by a lack of uniformity in the interpretation of the Penal Code's provisions applicable to such attacks. The measures which have helped to unify the practice of the courts as well as the practice of the police include the workshops organized by the Investigation Office for the Czech Republic, the publication entitled "Extremism" issued by the same office and the establishment of a new advisory body under the Attorney-General's Office at Brno. These advisers are authorized to develop unifying interpretations and positions relating to the issue of racially motivated crime. All the constituent authorities of the judiciary and police involved in the prosecution of these criminal activities are represented on the new advisory body.
With a view to creating the conditions for thorough investigation of all racially motivated criminal acts, the Attorney-General issued a general guidelines [sic] on 15 May 1995 laying down the details of the procedures to be followed by the prosecution in handling such acts; it is still in effect. This guideline places emphasis on the speed of the procedure and assigns specific responsibilities to the prosecutors in respect of the supervision of the cases before an action is filed and during the representation of the plaintiff in court. The Ministry of Justice believes that the increased number of criminal proceedings relating to racially motivated crime in the period 1997-1999 proves that the prosecutors are following the guideline and paying increased attention to racially motivated offences. A particularly marked increase was recorded in 1998 in comparison with 1997 in the number of punished cases of offences committed through printed material and other offences, such as for example wearing fascist symbols and other manifestations of support for fascism."
99. Finally, on this subject, the state sets out its philosophy in relation to racially motivated crime in the following terms at paragraph 86:
"Repression can never be the only solution to racially motivated crime. With this in mind, the Government in its Resolution No. 789/1999 assigned the Human Rights Commissioner to work out, in cooperation with the Minster of Labour and Social Affairs, a pilot programme for the resocializing of perpetrators of less serious racially motivated offences. The purpose of the programme is to use alternative penal methods under the supervision of the probation service."
100. The submissions deal at length also with steps taken in relation to discrimination in housing, education and employment of Roma, and record specific steps taken in all these areas, the majority of which are referred to in the other documents considered.
101. The passage dealing with housing refers to government support for housing programmes but acknowledges difficulties in local funding. It refers specifically, however, to conversion of a block of flats (Hope House), formerly inhabited by Soviet army officers, in the centre of Ceska Trebova, and now administered by the Hope civil association (NGO) which additionally provides general social assistance to the tenants; the Halfway House at Valasske Mezirici, designed and built by a Roma construction firm who inspired the project, for housing of young people, mainly Roma, who have grown up in foster homes; and financial support under Resolution 978/1999 for the Coexistence Village project in Ostrave-Muglinov on land and infrastructure supplied by Ostrava City for the purpose of rehousing families, both Roma and non-Roma, who lost their flats during flooding there in 1997. It notes also that the government is seeking to address the problem of rehousing returned failed asylum seekers [see paragraph 36 above], many of whom have sold their belongings and homes, or which, where council-owned, have been allocated to people on the local housing waiting list. When they return, "municipalities cannot allocate new flats to them outside their waiting lists so that most of the repatriates must stay in crowded flats together with their relatives and friends". A working group at Ministry level has been established to tackle this issue.
102. Referring to educational issues, the submissions state at paragraph 136:
" The Czech Government is aware that resolving the issue of education in the Roma population is the key to overcoming their disadvantaged position in the Czech society. It its Resolution No. 686/1997 on the report on the Situation of the Roma Community in the Czech Republic, the Government declared that the area of education is the primary area to be addressed within any effort to change the current position of the Roma community, including the views and attitudes of the majority society towards the Roma. When determining the budgetary priorities in June 1999, the Government declared that education is priority No. 1, followed by the strengthening of all features and elements relating to the accession of the Czech Republic to the European Union. Education of the Roma population definitely belongs among these priorities. In addition, the fact that it is very difficult to return from a special school to the primary school is a problem of a broader group of children, not just those of the Roma population."
The submission then details a number of steps taken by the relevant Ministry including appointment of a Roma co-ordinator in November 1997; changes in procedures to avoid errors in evaluation of the capabilities of Roma children; provision of pre-school preparatory classes for Roma children which had risen to 100 classes by 1998/99; appointment of Roma assistants to overcome language barriers at Ministry expense on request from schools; 110 had been appointed by 30 March 1999, including Ministry funding of education and training for this purpose; the provision of publications on Roma issues to all primary schools; funding for specific schools and to promote job-finding for Roma holders of apprenticeship certificates; and government consideration for proposals for education of Roma from the community, especially the Roma community. It noted that Parliament was then debating amendments to the School Act to permit entry to secondary schools from special schools. In addition there were a number of initiatives aimed at education against racism in schools generally.
103 In its conclusions, the submissions claimed that government efforts to overcome problems associated with racial discrimination had markedly intensified and that, whilst accepting the need to provide consistent enforcement of relevant provisions of the Penal Code, legislative changes to deal with discrimination in employment and service were regarded as no less important; it was recognised that targeted multicultural education and education towards human rights at all levels of the school system were an inseparable and often dominant part of such programmes. Many tasks must be regarded as long-term undertakings since the problems arose from 40-year-long isolation, abuse of the newly gained freedom, lack of preparedness for the country opening up to the world and fears caused by economic uncertainty, the importance of which had been underestimated in the first half of the 1990's. Finally, we note that the Czech Republic had at 31 December 1998 1463 accepted refugees and a further 2125 applicants, most of whom were living in refugee camps outside larger cities. Additionally, they had identified 44672 cases of illegal entrants through the Czech national borders, often with criminal assistance and many of whom were detained and subsequently temporarily legalised their presence by making asylum applications before trying to continue their journeys westwards illegally. These figures were substantially higher than in the preceding year. [It seems to us proper to have regard to treatment of asylum seekers as indicative of a general acceptance of the need to implement human rights standards by the Czech government which runs entirely counter to the general criticism and claim made by Ms Hooper in her submissions that the government was projecting an international persona on a narrow basis; see paragraph 121 below.]
The CCC/CHR Comments of 22 February 2000
104. The comments on these submissions by the CCC/CHR, whilst acknowledging the efforts undertaken by the Czech government, remained critical on the basis that they had so far proved insufficient to ensure effective implementation of the state's obligations under the International Convention on the Elimination of All Forms of Racial Discrimination, compliance with which was the concern of CERD. They are broadly reflected in the evidence of Dr Chirico. In relation to racially motivated violence, the comments are:
"Racially motivated violence (physical and verbal attacks) is the most open form of racism directed towards the Roma. As highlighted in the report submitted by the Czech government, racist attacks against minorities are prevalent and judicial reaction to the crimes is unsatisfactory. According to the statistics of the Ministry of Justice, Ministry of Interior and Bureau of Investigation for the Czech Republic, number of racially motivated crimes is substantially increasing. For example, in 1999, the number of reported cases increased from 157 to 198, crimes from 285 to 371. Although the increase could reflect the higher level of identification and prosecution of these attacks, it is also probable that the number of these crimes in the recent year have increased.
The current situation of repressing action against racially motivated crimes is highly unsatisfactory. Roma who are victims of racial critics are often treated as the perpetrators of the crimes and their testimony, concerns and basic human rights are dismissed. Czech authorities usually only view crimes as racially motivated if the perpetrators are overheard using racist language but since they also tend to dismiss the testimony of the victims, many racially motivated crimes go unpunished. There is no redress of the victims of those crimes against their attackers or against the government agency that fails to recognise the problems."
CERD Concluding Observations of 14 August 2000
105. The concluding observations of CERD dated 14 August 2000, welcome both the "frank and constructive dialogue with the State party delegation, composed of representatives of a wide range of governmental offices" and the positive steps taken; we note that by the time of publication the foreshadowed legislation facilitating entry from special schools to secondary schools had been passed; but also voice continuing concern about discrimination in housing, education and employment. As to criminal prosecutions, it states:
"While noting the information provided by the State party on the number of court sentences for racially motivated offences, the Committee is concerned by the increasing number of incidents of racially motivated violence against minority groups, in particular against members of the Roma community, many of which may not even be reported. The Committee recommends that the State party strengthen the measures already undertaken to intensify enforcement of criminal law against racially motivated crimes.
The Committee reiterates its concern about the lack of effectiveness and confidence in the criminal justice system to prevent and combat racial crimes. In this connection, concern is also expressed about the degrading treatment given by the police to members of minority groups. The Committee recommends the continuation and strengthening of training programmes for police and all officials in charge of implementing the law on issues related to the implementation of the Convention. "
This may be compared with what was said on the subject in the CERD concluding observations of 30 March 1998, which appear to us to be in far more draconian terms, whereas the later recommendations refer specifically to strengthening and confirming measures subsequently put in place:
"Concern is expressed at the persistence of racial hatred and acts of violence, particularly by skinheads and others, towards persons belonging to minority groups, especially Roma and people of African or Asian origin. Reports of anti-Semitic incidents are a further source of concern. The recorded six-fold increase in racially motivated crimes between 1994 and 1996 is also noted with alarm. Additional sources of concern are the presence of a number of organizations and publications which promote racist and xenophobic ideas, and reports that the State party has not been sufficiently active in effectively countering racial violence against members of minority groups.
Concern is expressed at information indicating that the number of charges and convictions, including those of skinheads, is low relative to the number of abuses reported. It is also noted with concern that perpetrators of racial crime are often lightly punished and that, in a number of cases, prosecutors have been reluctant to identify a racial motive. Moreover, in the light of evidence of unnecessarily long proceedings, and slow investigations of acts of racial crime, concern is raised about judicial effectiveness in this respect."
CIPU Assessment of October 2000
106. The Home Office CIPU Assessment of October 2000 is a sourced assessment of the current situation in the Czech Republic. At this point, however, it adds little to the evidence summarised above beyond the references already made in paragraphs 63 and 85, although the Tribunal wishes to make it clear that this is not a criticism of the Assessment which, in common with other country assessments produced by the County Information and Policy Unit, the Tribunal considers to be a balanced and helpful general assessment which benefits from regular updating.
107. We turn now to the submissions made to us. The written submissions made for the Appellants by Mr Hodgetts and Mr Jorro are in broad terms similar.
Mr Hodgetts' written submissions
108. Mr Hodgetts claimed that whether by reason of her fear of racially motivated physical and mental assaults or fear of discrimination in respect of third order rights under Professor Hathaway's classification in the Law of Refugee Status, or by reason of a combination of those two bases of fear, Ms Puzova satisfied the requirement that she has a well-founded fear of persecution by reason of her race.
109. He sought to advance these propositions firstly on the basis that there is not a sufficiency of protection in the Czech Republic against the actions of non-state actors, specifically the skinheads. He prayed in aid the judgements in Horvath [for case references see paragraph 126] both in the Court of Appeal and in the House of Lords to which we refer below. He submitted that following dicta in Danian v Secretary of State for the Home department [1999] INLR 533, the proper approach was to consider the issue of systematic denial of core rights, specifically those equivalent to the rights protected by Article 3 of the European Convention on Human Rights (ECHR) which raised issues analogous to those relevant to persecution under the United Nations Convention on the Status of Refugees (the UN Convention), by reference to European case-law. He referred us particularly to Osman v- UK [1998] 29 EHRR 245, Kaya v- Turkey , Application No 22535/93, [2000] ECHR 129 of 28 March 2000, Selmouni v France 29 EHRR 403, and X and Y v- The Netherlands 8 EHRR 235, as establishing that the assessment of breaches of Article 3 of the ECHR is relative, and that not only the circumstances relevant to the claimant but also necessary constraints on the protecting state by reason of resources must be given due weight, recognising that no state can provide absolute guarantees of protection to any individual. On this basis, he submitted that there will be a failure to provide the requisite level of state protection if there is a serious possibility that the Czech Republic does not provide criminal justice machinery capable of effectively deterring attacks by skinheads on Ms Puzova as a vulnerable young woman from the Roma community. Insofar as the Tribunal had found in Kovac (op.cit.) that there was a sufficiency of protection, the Tribunal had misdirected itself, wrongly focussing on state 'willingness to protect' rather than 'adequacy of protection'. It was a practical standard, following Horvath, and the approach of the Tribunal in Tancos (op. cit.) was to be preferred.
110. So far as persecution based on discrimination was concerned, he relied on the special importance to be attached to discrimination based on race, and that publicly to single out a group for differential treatment on such a basis might constitute a special form of affront to human dignity capable of constituting degrading treatment contrary to Article 3 of the ECHR ( East African Asians v UK 3 EHRR 76 ); that Article 6(1) imposed a duty to provide civil law remedies subject only to reasonable limitations resulting from needs and resources ( Lithgow v UK [1986] 8 EHRR 329); that it was axiomatic that Article 6(1) implied existence of a right to bring action in respect of racial discrimination in employment and other public services ( Tinnelly v UK [1999] 27 EHRR 249) and the responsibility of the home state to make available legal provision in such circumstances ( Young, James and Webster v UK [1982] 4 EHRR 38 and Stedman v UK [1997] 23 EHRR CD 168). These matters, regarded cumulatively, were sufficient to bring Ms Puzova within paragraphs 53-55 of the UNHCR Handbook on the basis that it was recognised in Horvath that cumulative discrimination in relation to violations of third category civil and political rights not grounded in a general lack of resources were capable of being considered as persecution under the UN Convention. The weight of the evidence was that Roma suffered, as a matter of fact, from segregation and apartheid in the Czech Republic.
111. To the extent that Ms Puzova had suffered persecution in the past, this should be taken as indicative of a reasonable likelihood of future persecution in the absence of any fundamental change in her country.
Mr Jorro's written submissions
112. Mr Jorro, for Mr Kolcak and Ms Kolkakova, associated himself with Mr Hodgett's submissions. He submitted further that the absence of a sufficiency of state protection had to be considered in relation to the duty on the state to provide such protection. The Czech Republic had acceded to certain international treaties, including the ECHR, and it therefore followed that this set the standard and level of protection which it was under a duty to provide to its citizens. Since any duty of the United Kingdom to the Appellants was to provide surrogate protection, it followed that the relevant level of protection was that which had been undertaken by the home state. Article 1A(2) of the UN Convention had to do 'not with whether the State can provide protection to the claimant but with whether the claimant can avail himself of it' (per Sedley LJ in Karanakaran) [for case reference see paragraph 124] and on the facts of his Appellants' cases, since they had always been rebuffed and refused help or protection by the Czech authorities in practice, they were unable to avail themselves of the State's protection. In any event the protection afforded by the Czech state was inadequate for the reasons which had been submitted by Mr Hodgetts and because any such protection must be effective. In this respect he relied on the view of Lehane J. in the Australian case of Al-Anezi v Minister for Immigration and Multicultural Affairs [1999] FCA 355, where he said:
"Counsel for the Minister criticised the use of " effective" as an adjective qualifying " protection". As counsel conceded, however, to criticise the use of that adjective is to swim against the tide; in any case, to say that the " protection" must be " effective" is, in my view, simply to emphasise that, in a practical sense, it must be genuine protection."
Mr Wilken's written submissions
113. We turn now to Mr Wilken's written submissions. His primary position was that Dr Chirico's evidence was irrelevant to the issue of persecution; firstly, because there was no direct evidence as to whether the Czech Republic offered protection to Roma, which he had expressly avoided giving; secondly, it was common ground that the government had taken and was continuing to take steps to alleviate the position of Roma and it was only from a consciously critical NGO stance that it was possible to identify some failings of government to adopt a 'counsel of perfection' in relation to Roma; thirdly, the witness's approach rose in part from day to day involvement between 1996 and 1997 in social affairs initially and then in observing the criminal justice system in which he concentrated on economic and social discrimination which, without more, does not amount to persecution. The Appellants' argument was perilously close to submitting that all Roma in the Czech Republic suffer persecution but there was no evidence in Dr Chirico's report as to their individual circumstances and, in the case of Ms Puzova, her experiences arose prior to 1998 and did not suggest she was more at risk than any other Czech Roma. A generic claim was supported neither by Dr Chirico nor the UNHCR. The Czech Republic is a democracy with an independent judiciary, which allowed NGOs freely to work and took their contributions seriously. There must be compelling evidence to suggest effective protection was not offered to Roma; there was no evidence the Czech Republic was unwilling to do so, and minimal evidence that it was unable to do so. The only direct evidence was the three cases cited by Dr Chirico but he had accepted no criticism could be made in the first, that the criticism in the second was of inconsistency and that in the third the state was taking steps through the courts to review and analyse the case. Dr Chirico was not capable of giving evidence that the Czech Republic did not offer effective protection and there was nothing to suggest that the lapses identified were anything other than incompetence or inefficiency on the part of the authorities.
114. The Appellants all relied on a deterrence argument in which the propositions were that skinheads continued to attack Roma; therefore the Czech Republic is not deterring them; and thus there is no effective protection. This, however, failed to take account of the skinheads' motivation. Dr Chirico had finally accepted that skinheads were deliberately abusing the justice system, that they had organised in the face of state control and that, therefore, they would be more difficult to deter. On that basis the position in the Czech Republic was no different form that of any state facing attacks from individuals who do not wish to obey the law.
115. The Appellants' cases all involved the argument that there was an overlap between the ECHR and the UN Convention. In relation to the ECHR it was argued that it defined the standard for effective protection on the part of the Czech Republic because it was a signatory to the Convention and Article 1 enshrines the duty to protect and maintain individuals' rights. The Appellants argued that duty was equivalent to international human rights norms. There were four difficulties with that argument; first, it added little to the analysis in Horvath; secondly it depended on the nascent doctrine of positive obligations in ECtHR jurisprudence but the scope of positive obligations under Articles 2 and 3 was extremely circumscribed, focussing on particular individuals; thirdly, it followed that Ms Puzova could succeed only if she is the subject of attention as a Roma, which is to contend a generic failing in respect of all Roma so that all could claim asylum; fourthly, the positive obligation cases in ECtHR related to serious breaches under Articles 2 and 3, to which the facts of Ms Puzova's case were not comparable. In his submission the overlap argument failed.
116. By the use of ECtHR case law, the Appellants sought to deploy Articles 2,3,6,8 and 14 of the ECHR but their arguments were flawed fundamentally by the restrictive ambit of that case law and by the actual position in the Czech Republic. The case of Kaya was one of extra-judicial execution, disappearance and torture and so was factually far removed from the situation of Ms Puzova. Moreover, Mr Kaya had been the subject of direct state supervision and the risk to him was unique to him and his co-deceased. It was that combination of features which imposed a positive obligation on the state. Osman, another Article 2 case, made clear the restrictive ambit of the nature of the positive obligation, which would be circumscribed by resources and the policing discretion. Although in that case, too, the state was aware that Mr Osman was at risk, that knowledge was insufficient to trigger the positive obligation. It followed that the state's positive obligation in Article 2 and 3 cases was limited by the resources of the state and its discretion as to how to police law and order; further the state must be on direct and specific notice of the risk to the particular individual and membership of a general class which might be at risk was not sufficient. Selmouni, an Article 3 case, was irrelevant as it was a case of direct state action involving beatings and degrading treatment entirely different in nature from that at issue in Ms Puzova's case. X and Y was also irrelevant as it involved a lacuna in Dutch law and was authority only for the proposition that a state could not thereby deprive a particular category of person from protection in relation to obviously criminal acts; it was not authority for the proposition that a state must criminalize particular acts but the acts complained of are, in any event, already criminal under the Czech criminal code. The East African Asians Case had been considered by the Court of Appeal in Horvath, who concluded that it neither assisted nor strengthened the case. It also made clear that particularly serious ill-treatment was required. In that case it was on the part of the state so that the issue of effective protection did not arise. In contrast, the Czech Republic did offer redress for racial discrimination through its courts.
117. As to the UN Convention, it remained his submission that effective protection to those in Ms Puzova's position, namely persons subject to the actions of private persons seeking to interfere with their rights and freedoms, was afforded by the state and thus could not amount to persecution for a Convention reason.
118. The Tribunal also heard oral submissions from Mr Jorro, Mr Hodgetts, Ms Hooper and Miss Jeffery.
Mr Jorro's oral submissions
119. Mr Jorro drew our attention to the fact that in Horvath the factual finding of the Tribunal was that the attacks suffered by Mr Horvath were random and isolated incidents but it was now the Secretary of State's position that in the present cases they resulted from deliberate abuse of the criminal justice system by the skinheads and were organised. That might mean such acts were more difficult to deter but it was not sufficient for the Secretary of State to say that in those circumstances the state could not be blamed for their inability to stop such attacks. It was this inability that was the central issue and appeared largely to have been conceded by the Secretary of State. The reason for inability to offer protection was irrelevant. It was the Appellants' case that the state was not only unable but also unwilling to offer effective protection. Where the motive of the non-state agents was discriminatory and there was an unwillingness on the part of the state to offer effective protection, the Convention was engaged. The critical evidence of the state's unwillingness was the failure of the police force to take appropriate steps to protect Roma. That was the clear evidence of each of the Appellants and had also been the case in the recent Tribunal decision of Josef Hinar (00/TH/02407), which was produced to the Tribunal and to which we shall refer later. In Mr Jorro's submission the relevance of this case was that it showed that Mr Hinar was not assisted by the police when his attackers were actually identified but that he was branded by the police as a trouble maker when he sought to pursue his complaints It was routinely said in these cases that claimants should have taken their complaints further, but Hinar demonstrated the difficulties of such a course. It was significant that the justice system was unwilling to find racial motivation but in the case of Mr Hinar that was the only motivation and in the case of Ms Kolkakova and Mr Kolcak their evidence was that they had been told to get out by the police. In order to offer the requisite protection, the state must have willingness, desire and ability to do so. The test was that of a reasonable likelihood of that being the case. It was a question of degree and not of guarantees and such an argument was relevant to a situation of isolated and random attacks but that was no longer the Secretary of State's case. A serious possibility of attack by reason of their Roma ethnicity was the reality and on that basis the Appellants qualified for refugee status. The actual situation must be considered in order to evaluate the risk.
Mr Hodgetts' oral submissions
120. Mr Hodgetts adopted Mr Jorro's submissions on behalf of Ms Puzova. In his submission, the history of discrimination in education and in employment should be taken into account with her history of physical attacks by non-state actors on an almost yearly basis. The emphasis in his written submissions on ECtHR case law was to explore and make explicit factors which were relevant in considering the responsibilities and duties of the state. In his judgment in Horvath, Lord Hope had made clear that the guidance given in that case by Stuart-Smith LJ in the Court of Appeal was not to be regarded as exhaustive. The standard to be applied was a practical one. He did not accept the limitations on the effects of the European case law made by Mr Wilken. He referred us to the summary of the position under the ECHR in the Supplement to the 1st edition of Lester and Pannick's Human Rights Law and Practice, the relevant passages of which, dealing with the right to life under Article 2, are as follows:
"4.2.6 [contd] The ECtHR continues to recall that the first sentence of art 2(1) enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. A State is therefore obliged by art 2 to put in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and punishment of breaches of such provisions. It may also, in appropriate circumstances, be under a positive obligation to take preventive operational measures to protect an individual or individuals whose life is at risk from the criminal acts of another individual. However, the scope of this positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, 'bearing in mind the difficulties to policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources'. [citing Kilic v Turkey (Application No 22492/93, 33 EHRR 58 of 28 March 2000), Kaya and Osman]
4.2.7 [contd] Not every claimed risk to life can entail for the authorities a Convention requirement [the ECHR is here referred to] to take operational measures to prevent that risk from materialising. As established in Osman ... and successfully invoked in Kilic ... and Mahmut Kaya ... for a violation of the positive obligation to protect the right to life to arise, 'it must be established that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.' This is essentially a two-limb test with the first limb resting on the extent of the State's knowledge and the second limb resting on the reasonableness of the steps taken. As for the risk, it can be considered 'real and immediate' when the authorities are aware of a significant number of incidents involving the killing of persons similar to the individual concerned, who appear to have been targeted because of their political views by either the security forces or other non-State actors acting with the State's knowledge and acquiescence. A request to the authorities for protective measures may also support a finding of a 'real and immediate risk'.
4.2.8 [contd] Certain defects may undermine the effectiveness of the criminal law provisions put in place by the State to protect the right to life. In both Kilic ... and Mahout Kaya ... the ECtHR held that defects which permitted or fostered a lack of accountability of the security forces for their actions undermined the legal protection accorded by the State to the right to life. These defects included the lack of an independent and effective procedure for investigating deaths involving members of the security forces, the repeated failure of the public prosecutors to pursue complaints by individuals claiming that the security forces were involved in an unlawful act, and the use of State Security Courts which did not comply with the requirements of independence imposed by art 6(1).
4.2.9 [contd] The absence of any operational measures of protection will also undermine the effectiveness of the position accorded by a State to the right to life. Where there is no evidence of the authorities taking any steps in response to a request for protection, either by applying reasonable measures of protection or by investigating the extent of the alleged risk with a view to instituting any appropriate measures of protection, the ECtHR will likely conclude that the authorities have failed to take reasonable measures available to them to prevent a real and immediate risk to life.
4.2.10 [contd] Notwithstanding its traditional reluctance in finding violations of the positive obligation to protect the right to life, the ECtHR on 28 March 2000 held in two cases ... that Turkey had failed to protect two of its citizens from a known risk to their right to life. There had, however, been a pattern of 'unknown perpetrator' killings in south-east Turkey at the time, which were allegedly committed by elements within the security forces, or contra-guerrilla groups acting under their aegis, thereby putting into question the rule of law in the region."
Whilst Mr Hodgetts had drawn our attention to paragraph 4.2.7 above particularly, it seems to us necessary to an understanding of the approach of the ECtHR in article 2 cases to quote the whole of the relevant passage. Similarly, it is appropriate at this point to quote also the later passage dealing with the state's responsibility under article 3 of the ECHR, which is as follows:
"4.3.9 States are unlikely to be able to escape liability for torture and other ill-treatment committed by their public officials. In Cyprus v Turkey [ 4 EHRR 482 ], Turkey was liable for acts, including rape, committed by Turkish soldiers during the invasion of Northern Cyprus in 1974, because it was not shown that adequate measures had been taken to prevent them occurring, or that perpetrators had been disciplined. In Ireland v United Kingdom [(1978) 2 EHRR 25], the court declared that states were 'strictly liable for the conduct of their subordinates: they are under a duty to impose their will on subordinates and cannot shelter behind their inability to ensure that it is respected'. 'Strict' liability should probably be understood as indicating not automatic liability, but that liability will attach unless it can be clearly shown that all reasonable measures have been taken to prevent such acts occurring, and to investigate and punish where appropriate.
4.3.10 In addition, the court has imposed a positive obligation on contracting states under arts 3 and 13 of the Convention, to carry out a prompt, impartial and effective investigation into allegations of torture, which is capable of leading to the identification and punishment of those responsible. Failure to carry out such an investigation will result in a finding of a violation of art 3.
4.3.11 States may be responsible for acts contrary to art 3 committed by 'unofficial' groups or even private individuals. In Costello-Roberts v United Kingdom the court held that a contracting state may be held responsible for degrading corporal punishment in private schools, because the state has an obligation under art 2 of the First Protocol to secure to children their right to education, of which a school's disciplinary system forms a part. The state cannot absolve itself of responsibility by delegating that obligation to private bodies or individuals. In A v United Kingdom, the Court held that, pursuant to their obligations under art 1, states are required to take measures designed to ensure that individuals are not subjected to torture or inhuman or degrading treatment or punishment, including such treatment administered by private individuals. Children and other vulnerable individuals in particular are entitled to state protection in the form of effective deterrence against such serious breaches of personal integrity. In this case the United Kingdom was found to have violated art 3 on the grounds that national law failed adequately to protect a child who was caned by his step-father, because of the availability of the defence of 'reasonable chastisement' to a criminal charge of assault." [The Tribunal notes that the ratio of the decision was that, following the case of Costello-Roberts, the government had introduced specific legislation to provide protection for children punished at private schools providing, amongst other things, that it "cannot be justified if the punishment was inhuman or degrading", that in the case of punishment by a parent there was a statutory defence to an assault charge on the basis that it was lawful because it was reasonable and moderate physical punishment of a child in respect of which the burden of proof lay on the prosecution to the criminal standard of proof, and that the UN Committee on the Rights of the Child had already expressed concern on this point because the "imprecise nature of the expressions of reasonable chastisement as contained in these legal provisions may pave the way for it to be interpreted in a subjective and arbitrary way" which, on the facts, was precisely what had happened in the step-father's acquittal by a jury. (See paragraphs 48 to 59 of the ECtHR judgment.)]
Ms Hooper's oral submissions
121. We also heard oral submissions from Ms Hooper which, whilst we have recorded and taken them into account, consisted largely of commentary on the evidence before us and did not add anything in terms of legal submissions to what had been advanced by Mr Hodgetts and Mr Jorro. The essential thrust of her submissions was that because the Roma citizens of the Czech Republic were easily identifiable by their physical appearance and their tendency to be in specific places as a result of discrimination they suffered, and because skinheads were equally easily identifiable, if the state were seriously concerned about actions of a persecutory nature against Roma, they could easily identify those who they should question or apprehend. She submitted the Czech Republic was not really interested in dealing with the discrimination suffered by the Roma as a result of attitudes prevalent throughout Czech society. On a narrow basis the government was presenting an international public persona but government at large was able to avoid any effective action. There was a manifest difference, in her submission, between a state failing to protect its citizens and failing to do anything at all. Were the Czech government serious about dealing with the situation there were special steps which they could reasonably be expected to take.
Purpose of consolidation of the hearings of the appeals
122. The reason for the consolidation of the hearing of these five appeals before a division of the Tribunal composed of legally qualified members is that the Tribunal decisions in Tancos and Kovac, both of which were heard by a legally qualified chairman sitting with lay members, were being put forward as conflicting decisions on the issue of whether Czech Roma had a well founded fear of persecution in the Czech Republic simply by reason of their race or ethnicity. We are also aware that there are conflicting decisions at Adjudicator level. Dr Chirico had given evidence in the two Tribunal decisions to which we refer, and in the case of Ms Puzova her representatives sought leave to call him once more to give oral evidence on the issue of the situation of Czech Roma. Further, the appeal in Horvath had been heard by the House of Lords after the promulgation of those two Tribunal decisions. It was therefore considered appropriate for this issue to be reconsidered by the Tribunal with the assistance of such oral evidence as either party wished to call and the benefit of full submissions directed to the common grounds on which each Appellant relied. The decision of this Tribunal is, of course, concerned with the factual issue of an evaluation of the current situation of Roma in the Czech Republic as it refers specifically to the Appellants before us and, in that sense, cannot in terms of facts found bind any future tribunal. Nevertheless, the situation in the Czech Republic is one of relative stability for the foreseeable future and the issues which we have considered relate to an ongoing programme on the part of the Czech Government for dealing with the problems of discrimination against the Roma minority in that country. To that extent it is hoped that this determination will provide an authoritative view on an issue which is frequently raised both before the Tribunal and adjudicators so as to enable decisions to be focussed on the specific claims of individual asylum seekers rather than on generalised claims as to the situation of the Roma minority in the Czech Republic.
The law and the burden of proof
123. The starting point is, as always in asylum cases, the definition of a refugee contained in Article 1A(2) of the UN Convention, as amended, which defines a person as a refugee who:
"owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it."
Each of the Appellants was refused leave to enter the United Kingdom following refusal of their respective asylum claims and were notified of the intention of the Secretary of State to issue directions for their removal to the Czech Republic. Each appealed against those directions under s.8(1) of the Asylum and Immigration Appeals Act, 1993, which provides that:
"A person who is refused leave to enter the United Kingdom under the 1971 [Immigration] Act may appeal against the refusal to a special adjudicator on the ground that his removal in consequence of the refusal would be contrary to the United Kingdom's obligations under the Convention."
The relevant obligation is that contained in Article 33(1) of the Convention which provides:
"No Contracting State shall expel or return ('refouler') a refugee in any manner whatsoever to the frontiers of territories where his life or freedom would be threatened on account of his race, religion, nationality, membership of a particular social group or political opinion."
124. The burden of proof is on the Appellants to the standard that, after taking into account all the evidence before the Tribunal and evaluating it as a whole, disregarding only such matters as the Tribunal has no real doubt did not in fact occur or are not currently occurring, the Tribunal must be satisfied that there is a serious possibility of persecution of the Appellant in question for a Convention reason (see Karanakaran -v- Secretary of State for the Home Department CA [2000] INLR 122).
125. The Appellants have advanced their cases initially on the basis that they each have a well founded fear of persecution based on their belonging to the Roma minority in the Czech Republic as a result of the treatment of that minority by the state in so discriminatory a way in relation to housing, education and employment needs as to amount to persecution, and the carrying out of attacks on them by that part of the Czech population colloquially known as skinheads in respect of which the state is unable or unwilling to afford the level of protection to the Roma minority which a state is under a duty to provide to its citizens without discrimination. Insofar as any elements of that claim do not amount to persecution, they further say that they should be looked at collectively to see whether on a cumulative basis, they amount to persecution on the basis of their race.
Consideration of the effect of the decision in Horvath and non-state actors
126. These appeals therefore raise issues similar to those which came before the Tribunal in the case of Horvath v- Secretary of State for the Home Department [1999] INLR 7, which has subsequently, albeit on a more restricted basis, been the subject of appeal to the Court of Appeal, [2000] INLR 15, and to the House of Lords, [2000] 3 WLR 379.
127. It was accepted by the Tribunal in Horvath, a Slovak Roma, that it is proper to look at the cumulative effect of areas of discrimination in the home state even if, taken individually, they would not cross the threshold between discrimination and persecution. The Tribunal also endorsed the categorisation of rights propounded by Professor Hathaway in the Law of Refugee Status at pp. 109 to 111 of the 1991 edition. It is not necessary for us to reproduce the passage, which is set out in Horvath, but simply to note that, save for the claimed fear of physical attack from skinheads, which involves non-derogable category 1 rights, all the rights relied on are category 3 or 4 rights relating to housing, education, employment and general societal discrimination. In respect of category 3 rights, these do not impose absolute and immediately binding standards of attainment, but rather require states to take steps to the maximum of their available resources, progressively to realise such rights in a non-discriminatory way (see Hathaway op. cit. at p.110). These rights comprise:
"... the right to work, including just and favourable conditions of employment, remuneration, and rest; entitlement to food, clothing, housing, medical care, social security, and basic education; and the freedom to engage and benefit from cultural, scientific, literary and artistic expression. While the standard of protection is less absolute than that which applies to the first two categories of rights, a state is in breach of its basic obligations where it either ignores these interests notwithstanding the fiscal ability to respond, or where it excludes a minority of its population from their enjoyment. Moreover, the deprivation of certain of the socio-economic rights, such as the ability to earn a living, or the entitlement to food, shelter or health care will at an extreme level be tantamount to the deprivation of life or cruel, inhuman or degrading treatment, and hence unquestionably constitute persecution.
Category 4 rights comprise those recognised in the UN Universal Declaration of Human Rights (adopted 10 December 1948) but not codified in the UN International Covenant on Civil and Political Rights or the UN International Covenant on Economic, Social and Cultural Rights (both adopted on 19 December 1996). They include the right to be protected against unemployment and the right to own and be free from arbitrary deprivation of property, and will not "ordinarily suffice in and of themselves for a claim of failure of state protection" (ibid p.111). 128. With regard to category 3 rights, it should be noted that their scope is also limited by the terms of their incorporation in the relevant International Covenants. Thus, for example, the right to education requires universal access only to primary education and the right to health only obliges the state to work to reduce infant mortality, improve hygiene, control diseases and establish basic medical services (ibid p.117).
129. For breach of such rights to engage the Convention there must be the element of discrimination which, combined with risk of serious harm, may lead to persecution but even then that must " go to the heart of the right as elaborated in international law" (ibid p.120). This is further explained in the following passage at pp.120-121:
"... the Board regularly characterised as insufficient the concerns of non-communist East Europeans who were relegated to inferior accommodation and were denied access to the full range of food and other amenities available to adherents of the ruling party. These claims have been accurately assessed as raising the spectre of discrimination short of persecution. Polish claimant Helena Olearczyk, for example, had been a member of Solidarity, and refused to join the ruling Communist Party. The Board found that:
... indeed she has been the victim of some harassment. Her superiors exercised some control over her union activities and it is probable that she was denied promotions and employment benefits. However, this harassment cannot be considered persecution in the sense of the Convention.
This judgment was affirmed on judicial review, the Federal Court of Appeal noting that it agreed with the Board's view "that the harassment described was not sufficiently serious to amount to persecution". Because socio-economic rights are intentionally defined in international law in terms of minimally acceptable standards, not every instance of unfairness broadly related to an enumerated right will support a finding of persecution. While, for example, the rights to food and shelter are among those recognised in the ICESCR, it is only an "adequate standard of living" that is guaranteed by law, not access to the full range of desirable commodities and services."
All these passages indicate the high threshold which must be crossed to show that serious harm exists in discriminatory denial of category 3 rights both by reason of their restriction to very basic levels to be met, and by reason of the degree of harm necessary to raise the treatment complained of from even severe discrimination to persecution.
130. We turn now to the law relating to state responsibility for non-state actors, which has recently been the subject of consideration by the Court of Appeal and the House of Lords in Horvath.
131. These appeals were confined to this issue, there being no appeal against the finding of the Tribunal that neither individually nor cumulatively did the breach of category 3 rights claimed in that case cross the threshold from discrimination against the Roma minority to persecution in the case of Mr Horvath.
132. Before the House of Lords, the question of the stage of the enquiry into whether persecution existed at which the failure or adequacy of state protection was to be considered, was definitively settled as being the subject of a holistic approach at both stages of what, for convenience, had been broken down into the 'fear' and 'protection' tests in the judgment of Lord Lloyd of Berwick in Adan v Secretary of State for the Home Department [1999] 1 AC 293. In the leading judgment, Lord Hope of Craighead deals first with the then relevant issues in the following terms:
"The following issues arise in the determination of the question raised by the problem that the parties have identified in regard to the allegation of persecution by non-state agents: (1) does the word "persecution" denote merely sufficiently severe ill-treatment, or does it denote sufficiently severe ill-treatment against which the state fails to afford protection? (2) is a person "unwilling to avail himself of that protection" of the country of his nationality where he is unwilling to do so because of his fear of persecution by non-state agents despite the state's protection against those agents' activities, or must his fear be a fear of being persecuted there for availing himself of the state's protection? (3) what is the test for determining whether there is sufficient protection against persecution in the person's country of origin − Is it sufficient, to meet the standard required by the Convention, that there is in that country a system of criminal law which makes violent attacks by the persecutors punishable and a reasonable willingness to enforce that law on the part of the law enforcement agencies? Or must the protection by the state be such that it cannot be said that the person has a well-founded fear?"
He then refers at p. 383 to the existence of the principle of surrogacy in the following terms:
"As Professor James C Hathaway in The Law of Refugee Status (1991), p.112 has explained, "persecution is most appropriately defined as the sustained or systemic failure of state protection in relation to one of the core entitlements which has been recognised by the international community". At p. 135, he refers to the protection which the Convention provides as "surrogate or substitute protection", which is activated only upon the failure of protection of the home state. On this view the failure of state protection is central to the whole system. It also has direct bearing on the test that is to be applied in order to answer the question whether the protection against persecution which is available in the country of his nationality is sufficiently lacking to enable the person to obtain protection internationally as a refugee. If the principle of surrogacy is applied, the criterion must be whether the alleged lack of protection is such as to indicate that the home state is unable or unwilling to discharges its duty to establish and operate a system for the protection against persecution of its own nationals.
At p. 397, he concludes as to the first issue:
"... I consider that the obligation to afford refugee status arises only if the person's own state is unable or unwilling to discharge its duty to protect its own nationals. I think that it follows that, in order to satisfy the fear test in a non-state agent case, the applicant for refugee status must show that the persecution which he fears consist of acts of violence or ill-treatment against which the state is unable or unwilling to provide protection. The applicant may have a well founded fear of threats to his life due to famine or civil war or of isolated acts of violence or ill-treatment for a Convention reason which may be perpetrated against him. But the risk, however, severe, and the fear, however well-founded, do not entitle him to the status of a refugee. The Convention has a more limited objective, the limits of which are identified by the list of Convention reasons and by the principle of surrogacy."
He then deals with the second and third issues in the following terms:
"I do not think that it is necessary for the disposal of this appeal to dwell further on the matters that were discussed in regard to these two remaining issues. As regards the second issue, I wish merely to say that on the view which I have taken about the proper approach to the first issue it loses much of its significance. But it follows from that approach that, if the second part of the definition is to be satisfied, the applicant's fear must be a well-founded fear of being persecuted for availing himself of the state's protection.
As regards the third issue, the answer to it also is to be found in the principle of surrogacy. The primary duty to provide the protection lies with the home state. It is its duty to establish and to operate a system of protection against the persecution of its own nationals. If that system is lacking the protection of the international community is available as a substitute. But the application of the surrogacy principles rests upon the assumption that, just as the substitute cannot achieve complete protection against isolated and random attacks, so also complete protection against such attacks is not to be expected of the home state. The standard to be applied is therefore not that which would eliminate all risk and would thus amount to a guarantee of protection in the home state. Rather it is a practical standard, which takes proper account of the duty which the state owes to all its own nationals. As Ward LJ said [2000] INLR 15, 44g, under reference to Professor Hathaway's observation in his book, at p.105, it is axiomatic that we live in an imperfect world. Certain levels of ill treatment may still occur even if steps to prevent this are taken by the state to which we look for our protection."
He concludes:
"Where the allegation is of persecution by non-state agents, the sufficiency of state protection is relevant to a consideration whether each of the two tests − the "fear" test and the "protection" test − is satisfied. The proper starting point, once the tribunal is satisfied that the applicant has a genuine and well founded fear of serious violence or ill-treatment for a Convention reason, is to consider whether what he fears is "persecution" within the meaning of the Convention. At that stage whether the state is able and willing to afford protection is put directly in issue by a holistic approach to the definition which is based on the principle of surrogacy."
133. In his judgment Lord Clyde deals with the scope of the state's duty in relation to non-state actors by reference to the statement in the Joint Position of the Council of the European Union on the harmonised application of the definition of the term 'refugee' in Article 1 of the 1951 UN Convention in the following terms:
"... as the Joint Position itself recognises, persecution for those purposes may also occur where the immediate act of persecution is not that of the state or its agents. In paragraph 5.2 it is stated:
"Persecution by third parties will be considered to fall within the scope of the Geneva Convention where it is based on one of the grounds in article 1A of that Convention, is individual in nature and is encouraged or permitted by the authorities.
Where the official authorities fail to act, such persecution should give rise to individual examination of each application for refugee status, in accordance with national judicial practice, in the light in particular of whether or not the failure to act was deliberate".
Professor Goodwin-Gill ( The Refugee in International Law, 2nd ed., p.73) observes "where the state is either unable or unwilling to satisfy standard of due diligence in the provision of protection, the circumstances may equally found an international claim". The important consideration here to my mind is that the persecution is encouraged or permitted by the authorities or they are unable or unwilling to prevent it. Even in cases where the state may not immediately initiate or direct the acts complained of, its encouragement, permission, toleration or helpless acceptance of the acts, may constitute a case of persecution. Thus the acts may be seen as constructively acts by the state and so be within the kind of acts which the Convention is concerned to cover. It is suggested that paragraph 5.2 of the Joint Position is not intended to be definitive. But insofar as it seeks to express the necessary element of state participation, whether direct or indirect, active or passive, it seems to me to be expressing one basic ingredient in the concept of persecution for the purposes of the Convention. In the present case, the activities immediately complained of are the activities not of any agents of the state but of third parties. The skinheads are a body independent of the state authorities. But if their oppressive behaviour was encouraged or permitted by the state authorities, or the state was unable or unwilling to provide protection, a case of persecution could be made out.
A question arises, and it has been canvassed in some detail in the oral and written submissions before us, as to the level of protection which is to be expected of the home state. This was identified by the applicant as the third of three issues which he set out in his case. Priority was however given to it in the useful written submission which was provided on behalf of the Refugee Legal Centre, who regarded it as the principle issue in the appeal. I do not believe that any complete or comprehensive exposition can be devised which would precisely and comprehensively define the relevant level of protection. The use of words like "sufficiency" or "effectiveness", both of which may be seen as relative, does not provide a precise solution. Certainly no-one would be entitled to an absolutely guaranteed immunity. That would be beyond any realistic practical expectation. Moreover it is relevant to note that in Osman v United Kingdom [1998] 29 EHRR 245 the European Court of Human Rights recognised that account should be taken of the operational responsibilities and the constraints on the provision of police protection and accordingly the burden upon the authorities. At the least, as is noted in condition (iii) in Rule 334 [HC395] which I have quoted earlier, the person must be able to show that if he is not granted asylum he would be required to go to a country where his life and freedom would be threatened. There must be in place a system of domestic protection and machinery for the detection, prosecution and punishment of actings contrary to the purposes which the Convention requires to have protected. More importantly, there must be an ability and a readiness to operate that machinery. But precisely where the line is drawn beyond that generality is necessarily a matter of the circumstances of each particular case.
It seems to me that the formulation by Stuart-Smith LJ in the Court of Appeal may well serve as a useful description of what is intended, where he said [2000] INLR 15, 26, para.22:
"In my judgment there must be in force in the country in question a criminal law which makes the violent attacks by the persecutors punishable by sentences commensurate with the gravity of the crimes. The victims as a class must not be exempt from the protection of the law. There must be a reasonable willingness by the law enforcement agencies, that is to say the police and courts, to detect, prosecute and to punish offenders".
And in relation to the matter of unwillingness he pointed out that inefficiency and incompetence is not the same as unwillingness, that there may be various sound reasons why criminals may not be brought to justice, and that the corruption, sympathy or weakness of some individuals in the system of justice does not mean that the state is unwilling to afford protection. "It will require cogent evidence that the state which is able to afford protection is unwilling to do so, especially in the case of a democracy." The formulation does not claim to be exhaustive or comprehensive, but it seems to me to give helpful guidance.
Finally at pp. 401-403, Lord Clyde gives further guidance as to the appropriate approach to the issue of prevention and sufficiency of that protection:
"Of course in the ordinary use of words and out of the context of the Convention persecution may well comprise simply acts of ill-treatment. But it is in the context of the Convention that the matter has to be approached. As I have already observed the context in which the definition occurs, although not expressly so stated in the terms of the Convention, is that of the protection which the individual may expect from his or her home state. In that context it seems to me inevitable that the persecution to which the Convention refers is a persecution which takes account of the protection available. Of course where the state it itself through its agents the persecutor, the question does not require to arise. Active persecution by the state is the very reverse of protection. In that context it is sufficient to proceed simply upon dictionary definitions to stress the high standard of oppression which has to be found, as in Reg. v. Immigration Appeal Tribunal, ex parte Jonah [1985] Imm AR 7. So also in Demirkaya v. Secretary of State for the Home department [1999] INLR 441 where the complaint was of persecution of the agents of the state attention could be concentrated upon the issue of the gravity of the oppression. It is in the context of persecution by third parties that the problem of protection becomes more significant.
It is no part of the international scheme that people should qualify as refugees merely because private persons in their home state seek to interfere with their rights and freedoms. If there is a sufficiency of protection available to them in that state, then there should be no obligation on another state to afford a surrogate protection. The persecution with which the Convention is concerned is a persecution which is not countered by a sufficient protection. The responsibility to protect the citizen which is abrogated in a case of active state persecution is still relevant in assessing what may be seen as a constructive state persecution, where the ill treatment by other citizens is encouraged or tolerated by the state without direct participation on its own part. Here the concept of encouragement or toleration on the one hand may be seen as expressing the same thing as the failure by the state to provide adequate protection. A toleration which amounts to a constructive persecution by the state and the failure by the state to provide adequate protection may be the two sides of the same coin. It may be permissible to use the language of a failure in protection against the abuse as equivalent to an encouragement or toleration of the abuse or to an acquiescence in it.
... As regards case law, in Sandralingham v. Secretary of State for the Home Department: Ravichandran v. Secretary of State for the Home department [1996] Imm AR 97, 114 Staughton LJ stated that persecution is "persistent and serious ill-treatment without just cause by the state or from which the state can provide protection but chooses not to do so". The applicant pointed out that that observation was made in the context of a case concerned with persecution by the state; but the observation is expressed in quite general terms. Moreover that point of distinction cannot be made in respect of Reg. v. Immigration Appeal Tribunal, ex parte Shah [1999] 2 AC 629, 653 where Lord Hoffman noted the two elements which in that case comprised the persecution which the appellants feared − personal threats of violence to them by, principally, their husbands, and the inability or unwillingness of the state to protect them. These two elements had to be combined to constitute persecution within the meaning of the Convention. He quoted and adopted the concise formula "Persecution = Serious harm + The Failure of State Protection".
The applicant argued that the view of the majority of the Court of Appeal produced an anomalous result. Counsel referred to a recent tribunal decision in Kovac v. Secretary of State for the Home Department (unreported), 15 Feb. 2000, where the tribunal observed that but for that view they would have treated the issue of the likelihood of protection simply as an aspect of assessing the real risk of persecution: "otherwise it seems to us that one will be returning a refugee to a country in which ex hypothesis there is a serious risk of persecution". This apparent difficulty leads one back to a consideration of the level of protection required for the purposes of the Convention. If the matter of protection is treated simply as an aspect of assessing the existence of a real risk of an abuse of rights, asylum would be granted even although there was in the way which I have already sought to describe, a reasonable level of state protection. But that would be contrary to the basic intention of the Convention. The sufficiency of state protection is not measured by the existence of a real risk of an abuse of rights but by the availability of a system for the protection of the citizen and a reasonable willingness by the state to operate it.
134. Finally on this issue, we note Lord Clyde's reference to ECtHR jurisprudence in the passages which we have quoted. The Appellants' representatives sought to incorporate the position under the ECHR into setting the level of the Czech Republic's duty to its citizens. Mr Jorro submitted that the international obligations entered into by the Czech Republic were determinative of the level of protection to which the Appellants were entitled under the principle of surrogacy. We have no hesitation in rejecting that submission. It is contrary to what Lord Hope says in Horvath [see paragraph 132 above]. What the Appellants seek is recognition as refugees. Whether they succeed depends not on whatever may be the extent of the home state's obligation to them but on whether, having regard to international law standards generally applicable, the fear which they express of what may happen to them in their home state will mean that their return to it would put the United Kingdom in breach of its international obligations under the UN Convention. The same approach would apply if we were considering a claim under the Human Rights Act 1998 in relation to obligations under the ECHR although in the present appeals, by reason of the date of the decisions from which they lie, we have no jurisdiction to do so.
135. Where it does seem to us that the ECtHR jurisprudence may assist is in identifying the practical level of protection which the Appellants are entitled to expect from their home state. It is in this context that Lord Clyde refers to Osman. We have considered the ECtHR cases to which we have been referred in the course of argument on this basis. They are first specified in paragraphs 109 and 110 above. Save as to general principles, which are summarised in the extracts from Lester and Pannick in paragraph 120 above, it does not seem to us that any of these cases, which for the most part concern direct claims of state violations of Article 2 or 3 rights, are of any particular relevance to the issues in these appeals with the exception of Osman.
136. In that case Ali and Ahmet Osman were shot at by their former teacher, who had developed an obsessional interest in Ahmet which had led to his dismissal. There were complaints to the school, the education authority and the police about his activities. He was suspected of a related theft at the school of certain files and of responsibility for graffiti referring to Ahmet. He was said on three occasions to have uttered threats which could have been seen as presaging his later attack in which Ahmet was wounded. The Osman family complained of a failure by the police properly to investigate their claims over a long period or to provide appropriate action in breach of their Article 2 rights. Having accepted that the article 2 obligations extended to "putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions", and that each case must be considered on its own facts, the judgment contains the following informative general passages:
"4. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in articles 5 and 8 of the Convention.
In the opinion of the Court, where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person ... it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take reasonable measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk...
9. In the view of the Court the applicants have failed to point to any decisive stage in the sequence of events leading up to the tragic shooting when it could be said that the police knew or ought to have known that the lives of the Osman family were at real and immediate risk from Paget-Lewis. While the applicants have pointed to a series of missed opportunities which would have enabled the police to neutralise the threat posed by Paget-Lewis, for example by searching his home for evidence to link him with the graffiti incident or by having him detained under the Mental Health Act 1983 or by taking more active investigative steps following his disappearance, it cannot be said that these measures, judged reasonably, would in fact have produced that result or that a domestic court would have convicted him or ordered his detention in a psychiatric hospital on the basis of the evidence adduced before it. As noted earlier ... the police must discharge their duties in a manner which is compatible with the rights and freedoms of individuals. In the circumstances of the present case, they cannot be criticised for attaching weight to the presumption of innocence or failing to use powers of arrest, search and seizure having regard to their reasonably held view that they lacked at relevant times the required standard of suspicion to use those powers or that any action taken would in fact have produced concrete results."
137. As to Mr Jorro's submission that the case now put forward by the Secretary of State was not that actions by skinheads against the Appellants were random and isolated attacks but that they were part of a deliberate campaign by organised skinheads aimed at subverting the rule of law, we do not understand Mr Wilken's submissions to be to that effect nor to be supported by the evidence as an exclusive proposition in the way in which Mr Jorro puts it. Our interpretation is that Mr Wilken is saying no more than that there is some element of planning to avoid detection and the imposition of heavy sentences on the part of some skinheads, and that this is an element to be reflected when considering the practicalities of investigations and criminal process open to the authorities.
138. In our approach to the evidence before us, we have first given careful consideration to that of Dr Chirico. We are bound to say that it became clear in the course of his evidence, taking into account the modifications which he made under cross-examination to the sense of his written report which was adopted as his principal evidence in chief, that some caution was necessary in considering the conclusions which he sought to draw from his selection of facts which he considered relevant. There was force in Mr Wilken's observation that his focus was that of someone from a non-governmental organisation whose specific purpose was to provide support to the Czech Roma, and that he was approaching issues on a 'counsel of perfection' basis. We do not suggest that there was any intention on his part to mislead us but it became very clear that he had little or no knowledge of the workings of the Czech legal system but was nevertheless prepared to comment on its efficacy; that some of his information was based on unattributed anecdotal material from the Czech Roma which perhaps received more emphasis than it was strictly entitled to in the face of lack of independent statistics; and, perhaps most importantly of all, that he made clear in the course of his oral evidence that he did not understand what was meant by the concept of a sufficiency of protection in asylum law and yet felt able to assert, at paragraph 38 of his report, that he was not convinced that the legal system in the Czech Republic provided protection of the kind envisaged in the House of Lords judgments in Horvath, with which he claimed to be familiar. Whilst, therefore, we have derived much help from the way in which he presented the factual background in a comprehensive manner, drawing together a variety of sources to give a comprehensive overview, we do find it necessary to make the reservations which we have recorded above.
139. We take a somewhat similar view of the ECRI and CERD reports of 21 March and 14 August 2000. It is important to keep in mind the stated purpose of these reports and that they are very much concerned to consider what steps are necessary from a human rights point of view to achieve the elimination of the discrimination which the Czech Roma, in common with the Roma communities in many parts of Europe, suffer so that their focus is very much fixed on that long-term goal. Whilst we appreciate that the CERD reports are produced under UN auspices, their purpose and vision is very different from that of the UNHCR. Even in these reports, however, there is no suggestion that the actions of the Czech government are seen as other than seeking genuinely to address the long-term position of the Czech Roma in Czech society, and that the proposals are welcomed as being positive and constructive with some discernable progress already. They rely, of course, on information from government and non-governmental organisation sources. The degree to which those sources present different pictures of the same issues is apparent from a comparison between the Czech Government's submission to CERD which emphasise the steps which they have taken and are taking, whether immediate or long-term in nature, and the CCC/CHR comments which are concerned to emphasise how much there remains to do.
140. Overall, it seems to us that the balance which addresses the issues with which we are concerned is, perhaps not surprisingly, to be found in the UNHCR Guidelines of December 1999 and the United Nations' Special Rapporteur's Report of 7 February 2000, since they are produced by those peculiarly concerned with the issues of refugees and who have world-wide expertise acquired over many years to enable them to establish a balance which may be more difficult for those concerned with a less extensive or long-term focussed brief. We have therefore placed particular reliance on those documents in considering the current situation in the Czech Republic from a refugee law standpoint. We also regard the US State Department Report as a further source of general background information approached from a basis of broad experience throughout the world. We have not placed any particular reliance on the CIPU Assessment in this case, not because we entertain any general doubt as to its reliability but because, with the volume of reports produced to us, it was not necessary in this case to refer to it in any detail.
The issue of discrimination generally (paragraphs 141 to 148)
141. The Czech Republic, which emerged from the break-up of the former Czechoslovakia into the separate countries of the Czech Republic and Slovakia in the 'Velvet Revolution' on 1 January 1993 soon after the fall of communism in 1989, is historically a part of Europe with a long democratic tradition. It became isolated in 1939 when it was occupied by the Nazis and subsequently came under the control of the Soviet Russian hegemony. That isolation from western Europe continued until 1989. It has had a Roma minority for many centuries but most of those native to what is now the Czech Republic died in concentration camps under the Nazis during the Second World War. Some four fifths of the current Roma population estimated at between 200,000 and 300,000 are originally from Slovakia and were resettled during the Communist era, mainly in the north of the country in the towns which were formerly the sites of heavy industry in the country. This occurred during a period in which it was attempted to integrate the Roma community with the ethnic Czech population, who currently make up some 94% of the estimated total population of something over 10 million, according to 1996 estimates.
142. Despite the integration measures taken under the Communist regime, the Roma largely retain their own culture and many speak Romani or a dialect different from that of their Czech neighbours, which, with their often traditionally darker skin colouring, makes them easily distinguishable from the ethnic Czechs. There is no question that they are subject to substantial discrimination in the Czech Republic and are generally disadvantaged in terms of education, employment and housing. These are historical matters, to a large extent inherited by the present Czech Government. There is no question that it is educational problems which are fundamental to their situation and that they have been ill-served in this respect over many years with large numbers of Roma children being educated in 'special' schools which, with the educational disadvantages attached to them which are illustrated by the evidence which we have recorded above, have resulted in a current generally low standard of education for the Roma minority in the Czech Republic. This has led in turn to restricted employment opportunities for many Roma which, with the marked decline in heavy industry and the consequent loss of a part of the labour market which offered substantial scope for employment in manual labour, combined with a general level of intolerance on the part of the ethnic Czech population, has resulted in disproportionately high levels of unemployment amongst the Czech Roma. No doubt their overall situation was exacerbated by the difficulties which many had in achieving registration as Czech citizens in the aftermath of the break up of the former Czechoslovakia, although that difficulty has, it is generally accepted, been now adequately addressed by changes in citizenship law progressively enacted over the past few years.
143. Much of the background evidence emphasised that they have been marginalized in society by being moved into separate settlements on the edge of large towns although there is little clear information as to when such moves took place or the extent to which this affects the Roma population. It would certainly appear to be the case that those identified as 'problem' families have been moved to specific areas, the area in Usti nad Labem to which there has been extensive reference being one such case. The general situation is, we are satisfied, fairly set out in paragraph 72 above where we summarise the UNHCR Guidelines on this issue but, from the situations of the individual Appellants, it is clearly not a uniform picture. Mr Kolcak and his daughter lived with the family in a flat on the first floor of a sub-divided house. The ground floor was occupied by another family and, since they made it clear they had little to do with them, it may be they were an ethnic Czech family. It was not suggested that it was isolated or in a Roma ghetto. Mr Miko lived in a block of council flats in which only two out of the fifteen families living there were Roma. Mr Cikos appeared to have been regularly housed over many years and voiced no complaint on this account. It seems to us unlikely that these Appellants, all of whom lived in different towns in their home state and have no connection save that their cases have been listed jointly before us, should be wholly atypical. Similarly, we have noted at paragraph 91 above in our summary of the Special Rapporteur's report, the point which he makes in paragraph 46 as to lack of research on the structure of the Roma community and its interaction with the majority population, specifically noting that "it is a known fact that in some places the coexistence of the Roma community and the majority population is good". We note that it is not a matter in respect of which he seeks to make any specific recommendation save in relation to the Usti nad Labem situation. That there is a problem in relation to overcrowding and sub-standard housing we accept but no-one has produced statistics which give any clear indication of the extent of the problem. In his written report, Dr Chirico referred to the US State Department Report as supporting the existence of discrimination in housing but there is no reference to the situation as a whole; only to the 'wall' and to a problem relating to relocation of a pig farm currently on the site of a former World War Two concentration camp. We note that Dr Chirico makes a specific reference to problems of returned failed asylum seekers who have given up their homes on leaving (paragraph 38). We have recorded at paragraph 101 that the Czech government acknowledges this problem in its submissions to CERD and, whilst acknowledging that housing problems exist, there also sets out a number of positive steps which have been or are in the course of being taken. There is nowhere any suggestion that members of the Roma minority are homeless, although housing conditions generally leave much to be desired in terms of quality of accommodation. The Czech Republic has been changing from a heavy industrial society to a modern market based economy and the UNHCR Guidelines record (paragraph 72) that housing is an acute problem for the Czech population at large. Bearing in mind that the right to housing is a level 3 right, and the specific resource limitations which are accepted as relevant to such rights, it does not seem to us that any discrimination which may exist can in general terms be said to cross the threshold to persecution in relation to housing issues.
144. In reaching this view, we have taken full account of the Usti nad Labem wall incident highlighted by Dr Chirico in his report. Whilst we can well understand that it was properly recognised as most important in symbolic terms, the information from the Czech Helsinki Committee report summarised at paragraph 84 (which although perhaps more detailed is echoed in general terms by the other reports) seems to us to put the matter more into perspective. It was certainly not a discriminatory initiative undertaken by the local council. It is clear that they were put under considerable pressure by local householders who were complaining about a nuisance caused by "problematic" families, who happened to be largely Roma and who had been put into the adjacent blocks of flats. If the facts are as reported, it would seem that the local householders did have some cause to complain at the situation which had been created by settling these families into those flats. It seems to be a theme common to at least the Special Rapporteur's and CHC reports that, with a little goodwill on both sides before attitudes became too entrenched, it might have been possible to resolve matters amicably. The incident seems to us also testimony to the ability of the Roma to organise themselves to deal with a specific situation and, in the process, to achieve positive results and a high and widely reported profile both at local and national levels.
146. We have referred briefly to discrimination in education in paragraph 142 above. Dr Chirico's evidence at paragraph 34 reveals the extent of a problem which has been endemic for many years and arises clearly from a system inherited from the Communist era. It would therefore certainly not be right to consider it as having been recently produced by the attitudes and actions of the post-Communist era governments of the Republic. We have, however, also noted the generality of measures being taken to improve the overall situation set out at paragraph 63 above, and those specific to educational needs referred to in the UNHCR Guidelines and recorded at paragraph 71. We have also noted at paragraph 102 the submissions made by the government to CERD, which clearly recognise the need to take fundamental steps to tackle the educational needs of Roma as an essential element in their proposals for closer integration of the Roma minority into Czech society and the breaking down of existing discriminatory barriers. A number of important basic steps have already been taken. We see no basis to doubt the sincerity of the Czech Government, which seems to us rightly to have recognised the fundamental importance of the education programme which is proposed. Although we have not otherwise referred to it, the recent OSCE report into the situation of Roma generally throughout Europe was among the documents produced to us. Whilst it is in too general terms to be of great assistance in relation to the issues with which we are concerned, we note that an elementary school primarily for Roma, which has incorporated virtually all the important initiatives proposed and partly implemented by government at this level, was founded in 1994 under the auspices of the Catholic charitable foundation, Caritas at Ostrava (the Premsyl Pitter School) and is apparently achieving substantial progress. Having regard to the general proposals of the government, and subject also to resource issues which are relevant to the limited nature of this level 3 right (see paragraphs 127 to 129 above), it seems to us that this will operate as a template for what the government is seeking to achieve in this field. Whilst we appreciate that reforms will come too late for the majority of Roma who are now in the school system, it is clearly the conclusion of the UNHCR that existing discrimination in the educational field does not give rise to persecution in terms of the Convention. That is a view with which we concur on the evidence before us. Finally, we note also Dr Chirico's reference to the application by twelve Romani parents to the ECtHR referred to at paragraph 34 above. The more detailed information given by the US State Department Report at paragraph 89 above seems to us to show this case as not being simply illustrative of a negative government attitude or response, as implied by Dr Chirico's reference, but rather to show this as part of a Roma inspired campaign, being carried out through constitutional processes, to test their complaint of 'de facto segregation' which they seek to end. We note the more detailed information shows the Constitutional Court's ruling to have been based on want of jurisdiction, but that the Ministry of Education then put into effect some of the changes which were the subject of the parents' application. Again it seems to us a further example of Roma success in initiating change by means of appropriate constitutional steps.
147. As to employment, we have already noted the general position in paragraph 142 above. Dr Chirico deals with the situation as recorded at paragraph 35 but agreed, at paragraph 43 in response to a question from Mr Hodgetts, that there had been anti-discrimination legislation relating to private sector employment recently enacted by the Czech parliament, also accepting that the reference at paragraph 63 k. to the National Employment Plan of May 1999 and a subsequent package of measures in June 1999 were all part of the government initiatives to tackle discrimination in terms of employment. That there had been relevant steps is acknowledged in the ECRI Report (paragraph 92). So far as employment in the public sector is concerned, it is clear that some employment specific to Roma is being created in education by the employment of Roma assistants (paragraph 102) and within the police force (paragraph 63 h.). Whilst none of these initiatives will of themselves resolve the problems, they all show a settled intention to tackle this area of discrimination which, taken with the important initiatives in the education of Roma are, in time, designed to have a substantial impact on employment discrimination. The situation of the Appellants shows that Mr Miko and Mr Cikos were in full-time employment in the Czech Republic throughout their working lives there and that Mr Kolcak was the victim of the decline in heavy industry but was further disadvantaged in the employment market by his health which precluded him from taking heavy labouring work. Nevertheless, Mr Kolcak's situation shows that long-term social support programmes operate in the Czech Republic for those who cannot obtain employment. Paragraph 73 records the comment in the UNHCR Guidelines about the further adverse impact that immigrant labour, a recent phenomenon, was having in the low skilled job market as well as the distortion in job-seeking which is produced by the level of social benefits and the fact that the step proposed to deal with this was a general increase in minimum wage rates to eliminate a current disincentive to find employment. Again, therefore, we conclude that the situation is not uniform amongst the Roma minority although there is no question that shortage of employment opportunities currently has a disproportionate impact on them. The UNHCR does not consider that discrimination in this field crosses the threshold to becoming persecutory in nature and we accept their view on this aspect also.
148. This leads us finally on this aspect to consider the general discrimination on the part of the Czech ethnic population. Again, whilst discriminatory it is not seen as generally persecutory by the UNHCR and paragraph 63 at letters b., c. f. g., i., l. and m. all record relevant government initiatives. Some detail of Roma cultural organisations is given at paragraph 83 from the CHC Report and material from the US State Department Report is set out at the beginning of paragraph 88 and, more importantly, at paragraph 90, where practical steps to counter discrimination both on the part of government and members of the Czech population are recorded. The action taken by the University students to assist their fellow Roma students seems to us to give some evidence of changing attitudes on the part of at least some of the younger generation of the ethnic Czech population. This seems to us precisely the sort of progress which the government is seeking to engender by a series of low-key measures aimed at persuasion rather than coercion where possible. We note here Mr Cikos' complaint (paragraph 7) of police indifference when he sought their help following refusal of service by an ethnic Czech. That seems to us to be a misunderstanding of the position on his part. The police had no power to act since it was not a matter engaging the criminal law. Given the widespread nature of anti-Roma sentiment among the ethnic Czech population, it must be a matter for the political judgment of the government as to whether it is better to approach these matters, where not involving clearly criminal actions, on a civil rather than a criminal basis and the exercise of such judgement cannot be equated with acquiescence in, or inability of the state to take appropriate steps to counter, discriminatory action on racial grounds. Here also we accept the UNHCR view that these forms of discrimination do not cross the threshold to become persecutory in nature although we have no doubt that they are a continuing source of irritation and annoyance to the Roma minority and currently reinforce feelings of isolation from mainstream Czech society for many Roma.
The issue of skinhead violence
149. We turn now to the issue of skinhead violence. It is first necessary to define the scope of the enquiry which we must make in considering whether the Czech Republic currently discharges the duty which it owes to its citizens to provide protection against the acts of non-state actors. It is axiomatic that when considering this issue in relation to Czech Roma applicants, we must have regard to the references made by Lord Clyde to what is understood by persecution in this context. He has expressly referred to the definitions given by Staughton LJ in Sandralingham and Ravichandran and by Lord Hoffman in Shah and Islam. They refer, in one case explicitly and in the other implicitly, to situations which have an element of persistence. It seems to us that in the case of non-state actors this must be a necessary element because the ability or willingness of the state to provide protection can be evaluated only in relation to persistent conduct and not to a single incident.
150. It is further clear from all the passages in Horvath which we have quoted that in considering the state's ability or willingness to protect it is a prerequisite that the state must have in place a general system of criminal law enforcement for its citizens from which, by its terms, the asylum applicant or the class to which he belongs, is not excluded. It has not been suggested in these appeals that there is not in place such a system and, indeed, it is clear from reference to the US State Department Report that there is.
151. We emphasise that this requirement is met not by considering the position of a particular class of citizens but by considering whether the duty to its citizens at large is met by the provision made. Much has been made before us of the fact that until 1996 the Czech criminal code did not treat racially motivated crime as an aggravated form of the general criminal acts already proscribed by the code, and that, although that provision has now been made, crimes are not sufficiently frequently classified as including the aggravating element of racial motivation, which will result in the potential imposition of more severe penalties. The serious harm of which the Appellants complain will be criminally actionable irrespective of whether this element is present. In order to discharge the general duty to all its citizens it does not seem to us necessary for the criminal code to include enhanced penalties where what are in any event criminal actions are shown additionally to be racially motivated. The serious harm which is feared must also be discriminatory in order to bring it within the Convention reasons, but all that is needed is that the serious harm feared should be recognised as giving rise to a breach of the general criminal law.
152. The next issue to be addressed is whether the system of criminal law in place is operational in the sense that it acts as a deterrent to criminal activity which it proscribes. Again, the focus is general, in respect of citizens at large rather than the specific claimant or the class to which he belongs. That this must be so follows from the way in which Lord Hope of Craighead deals with 'the third issue' which he identifies, emphasising that the standard is not one which would eliminate all risk but is a practical standard, taking "proper account of the duty which the state owes to all its citizens". The point is again clearly made in the passage from the judgment of Lord Clyde in which he quotes from the Joint Position of the Council of the European Union (paragraph 133 above). It is most forcefully and clearly expressed by Lord Clyde in the final passage quoted from his judgment, which we repeat here:
"If the matter of protection is treated simply as an aspect of assessing the existence of a real risk of abuse of rights, asylum would be granted even although there was in the way in which I have already sought to describe, a reasonable level of state protection. But that would be contrary to the basic intention of the Convention. The sufficiency of state protection is not measured by the existence of a real risk of an abuse of rights but by the availability of a system for the protection of the citizen and a reasonable willingness to operate it."
153. What remains specific to the asylum applicant, or the class of which he forms part if the matter is put forward generically as the Appellants seek to do before us, is whether the claimant can show to the relevant standard that the state is unable or unwilling to provide that general protection to him. This, of course, was precisely the position found to apply in the case of Shah and Islam where, notwithstanding the existence of the relevant state machinery, it was found that the state was at that time unwilling to operate it for the assistance of the particular social group of which she was a member, namely women in Pakistan.
154. In the present appeals that is not what the Appellants are putting forward. What they are saying is that the general application of the criminal law in the Czech Republic does not have the effect for them of providing sufficient deterrence against the actions of the skinheads because they are continuing to carry out those actions. It seems to us, however, that it is in this context that regard must be had to the operational limitations applicable to any system of law enforcement. The relevant passage is set out at paragraph 133 and includes the references in Lord Clyde's judgment to the limitations referred to by Stuart-Smith LJ in the Court of Appeal judgments as well as the reference to the approach of the ECtHR in Osman, which we explored in more depth at paragraph 136. It is immediately apparent on the evidence that there is under-reporting of incidents to the police. There are estimates that this is to a very great extent and is based upon the perception of the Roma minority that there is little prospect of any positive action being taken by the police. It cannot be said, however, whatever may be the general perception by Czech Roma, that reporting matters of which they complain is futile. There is ample evidence that prosecutions are mounted by the state when they have appropriate evidence. If a claimed offence is not reported, then the state can do nothing and the victims in question have failed to take all appropriate steps within their home country to seek protection from the harm which they profess to fear. In this respect, their perception, which Mr Jorro prays in aid, is subjective. Objectively it is not on the evidence justified and it is a fundamental part of the principle of the right to surrogate protection that a claimant must first exhaust all steps reasonably open to him in his home state. It is only when this demonstrates the lack of provision of relevant protection that the claimant's specific circumstances may give rise to entitlement to seek surrogate protection when there is a general compliance with the home state's duty to its citizens in this respect. Similarly, if a complainant cannot give information which will enable the police to identify his attackers, there is little that any police force anywhere can do. It has been said that Roma have lost confidence because prosecutions alleging racial motivation will not be taken unless there is evidence that the accused has expressed a racial motivation for his actions. That does not seem to us to imply any unwillingness on the part of the state to classify crimes as racially motivated. Any prosecution system requires at least that it is more likely than not that a conviction can be secured on the evidence available. Racial motivation, however obvious it may be to the victim, has to be proved. It is clear that prosecutions on such a basis are successfully mounted in the Czech Republic (see paragraphs 75-77, 88) but it is again an operational requirement that appropriate evidence is available and provable statements by an accused are clearly the most likely to lead to conviction on the enhanced basis. It is clearly recorded in the evidence before us that a further frequent problem is the unwillingness of witnesses to testify but this again is likely to render a successful prosecution unattainable. In his evidence, Dr Chirico drew attention (paragraph 30) to what was said in the Second report of ECRI. It seems to us that the three points there made, whilst understandable from the point of view of a human rights organisation seeking a specific outcome, demonstrate a fundamental misunderstanding of the real operational problems which arise. Moreover, the government of any democratic state must be entitled to take policy decisions in relation to law enforcement so long as it is not thereby led into breach of the general duty owed to its citizens. We noted the Czech government's philosophy in relation to racially motivated crime at paragraph 99. It seems to us wholly within their discretion as to the proper approach to dealing with these sort of crimes to follow the programme which they there set out, notwithstanding that the Roma minority may not agree with such an approach.
155. In his evidence Dr Chirico referred to three specific cases from which he sought to extract general propositions (paragraphs 24 to 28). We do not consider that the evidence bears out these propositions. In the Krnov firebombing case, as he later accepted, the accused were properly discharged for lack of evidence. We do not see that the fact of continuance of skinhead attacks in the area or evidence of anti-Roma feeling on the part of the population generally is an effect of the particular incident. What it does show is that there was immediate government condemnation followed by police investigation which led to charges being brought. That it was ultimately recognised by the prosecution that their evidence was insufficient to secure a conviction is not an indictment of the general system. It is simply specific to that case and the accused, too, are citizens with the rights which follow from that status. If it is meant to suggest that bail should not be granted in such cases, the outcome simply demonstrates the fallacy of that argument since it cannot be right for any state to keep in custody those against whom charges are laid simply as a generally deterrent measure but only where there are very specific circumstances which make the pre-trial deprivation of liberty necessary. In the Bihariova case, other reports quoted above showed that it was claimed that there was some personal difference between the victims and the accused which was not referable to race. The point is that those immediately responsible were convicted and the principal actor received a substantial sentence, in the face apparently of some difficulty in obtaining witnesses. Comments about the past of the prosecutor or perceived laxity of the judge do not, even if true, seem to us to be relevant, having regard to the outcome of the trial. The precise basis of prosecution must be a matter for the prosecuting authorities. Victims and their families frequently disagree and seek a harsher course or the imposition of heavier penalties, but the prosecution is by the state. If some motive other than racial discrimination may have been operative, any responsible prosecutor, whose aim is to secure a conviction, would have to consider very carefully how charges should be framed on the basis of the specific evidence he is able to call and what he anticipates the defence may be able to show. That the Minister of Justice took a similar view suggests, in view of general government concern in relation to such types of crime, that there was sound reason in that case for the view which was taken. So far as the Lacko case is concerned, it seems clear that there were two separate incidents. The first was the beating and leaving him unconscious in the roadway. The second was his being run over by a vehicle driven by a third party who it is not claimed was involved with Mr Lacko's attackers. It is obvious that the cause of death is a vital consideration in deciding who should be charged and with what offence. The driver of the vehicle which may well have been the immediate cause of death, was himself a policeman and it appears that he and his colleagues attempted to cover up his involvement. That is an entirely separate issue but the case clearly illustrates that the courts and prosecutors have shown a determination to get at the truth. Otherwise the facts show that there was a highly charged public order situation concerning the trial of those concerned in the assault. There is nothing to explain why this particular trial should have caused such a situation in any of the evidence before us. Nor does it appear that such trials usually arouse so much intense feeling. It may be that there are operational criticisms to be made about the way in which the situation was dealt with but what is clear is that it can hardly be said that the authorities were either unwilling or unable to take action under the law.
156. On the evidence before us, it cannot be said that it has been shown that the state is unable or unwilling to provide the level of protection which it is its duty to provide on the basis of the test laid down in the judgments in Horvath.
157. The issue of whether the harm feared by Roma is part of a co-ordinated plan on the part of the skinheads does not in our view raise any issues relevant to these appeals. That there is some loose organisation of the skinheads we do not doubt but, bearing in mind the relative numbers of skinheads in comparison with the Roma population, the attacks are in general terms random, clearly frequently opportunistic and primarily carried out by strangers to the victim. It might be that an individual claimant who could show that he was being so targeted to the knowledge of the state authorities, and that they had failed in their specific duty to him (compare the circumstances in Osman) would be entitled to invoke the principle of surrogacy because of a failure in the state system specific to that claimant, but it is not, on the facts we have found, an argument which can be successfully advanced in putting forward a general claim to persecution as a class.
158. In the course of the proceedings, particular reliance was placed on the Tribunal determination in Tancos. Although it is by no means clear from the determination, we are informed that Dr Chirico gave oral evidence in that case. There is no record of what that evidence was but, as it was contemporaneous with the case of Kovac in which he did not seek to claim any generic basis for fear, it is not unreasonable to assume that he would have given evidence similarly specific to the situation of Mr Tancos. The Tribunal said:
"We have reviewed all the evidence especially in the light of the up to date situation given by the two experts before us. We are unable to say that there is in place in the Czech Republic either effective protection or a sufficiency of protection which will enable this Appellant to return safely to the Czech Republic and which will enable him to seek domestic protection on account of his being a Roma. We emphasise that each case must depend on its own facts. [Emphasis added].
By the narrowest of margins, we find that the Appellant has proved objectively his past persecution by skinheads, without a sufficiency of protection from the authorities, and his subjective fear of return to the Czech Republic."
It would be difficult to imagine a determination which could do more to say that it was to be regarded as turning on its own specific facts and, additionally, it is not clear precisely what test as to the duty of the home state was being applied. Nor, we note, does it say that the Tribunal had found Mr Tancos to have an objectively current well founded fear of persecution. Certainly, following Horvath, we are satisfied that Tancos cannot be regarded as authority for any general proposition at all. So far as Hinar (for reference see paragraph 119 above) is concerned, the Tribunal were clearly at pains to make clear that they were not seeking to state any general proposition, referring specifically to their decision being based "on the very particular facts of this case". These make clear that Mr Hinar was not only unable to obtain any action from the police in his area in relation to two violent attacks carried out by persons whom he was able clearly to identify, but that he then sought to pursue his remedies through the Czech courts to a point where the Tribunal were satisfied that he had been branded as a troublemaker by the local police, whom they found to have informed skinheads where Mr Hinar could be found shortly prior to the second attack and were satisfied would pass information in relation to him to the police in any area to which he moved. We are satisfied that on this basis, Hinar is to be regarded as a case which depends entirely on its very specific and unusual facts, where there was clear evidence not only of an unwillingness to provide him with protection going to a comparatively high level but also some involvement in the commission of the harm which he experienced.
159. For the reasons which we have set out above we are satisfied that none of the Appellants can succeed before us on the basis that the Roma minority in the Czech Republic have a well founded fear of persecution by reason of their race whether the areas of discrimination put forward and the feared harm are viewed individually or cumulatively.
160. We have therefore considered whether, on the individual bases of their claims, any of the Appellants has demonstrated that he or she is reasonably likely to be subjected to persecution on account of his or her race, the Convention reason put forward, if now returned to the Czech Republic.
Determination of Ms Puzova's appeal
161. So far as Ms Puzova is concerned, the facts are set out at paragraph 3 above. The Special Adjudicator, having carefully reviewed the evidence found that she had not been persecuted in the past. Whilst we have taken into account what Mr Jorro urged on us, it was only the fact of there being apparently conflicting Tribunal decision in Tankos and Kovac which led to the grant of leave to appeal. That conflict has been resolved. On the facts the Special Adjudicator was properly entitled to reach the decision which he did and which, in our judgment, shows no error of law or of approach. On the basis of the evidence before us, we would reach the same decision. The appeal is dismissed.
Determination of Ms Kolkakova's and Mr Kolcak's appeals
162. So far as Ms Kolkakova and Mr Kolcak are concerned, their situation is set out at paragraphs 4 and 5 above. Although each claimed asylum in their own right, they had come here together as part of Mr Kolcak's larger family who are now his dependants. We note that Ms Kolkakova claimed to have been the victim of an opportunistic attack in a local park in 1994 and otherwise to have suffered discrimination in her education and her inability to obtain employment since leaving school. Mr Kolcak did not claim ever to have been attacked physically but he, too, had not worked for many years, in his case because he suffered from diabetes and was unable to undertake heavy work which he had previously carried out. To this point their accounts were accepted as credible by the different special adjudicator before whom each appeared. They claimed to have been the subject of a firebomb attack on their home on 20 August 1998, shortly before leaving for the United Kingdom, although this was not the cause of their leaving. Neither Special Adjudicator believed that claim. On the evidence before them, we are of the view that each adjudicator was properly entitled to reach the decision which was made. We, however, have the additional benefit of having seen what each Appellant said in this respect and it is clear that each Appellant initially gave a different account of the claimed firebomb attack in important respects but that by the time of the hearing, Ms Kolkakova had amended her account so that it largely tallied with her father's account. To our mind this simply reinforces the validity of the rejection of this claimed incident by each adjudicator. On the accepted facts, neither of these Appellants can show a current well founded fear of persecution for a Convention reason and the adjudicators were clearly each properly entitled to reach the decision which they did on the accepted facts. Even if we had accepted that the firebomb attack did take place, however, it would not, in our judgment, have brought either Appellant within the Convention but would still have fallen into the category of criminal acts by non-state actors in respect of which there existed a general sufficiency of protection for the reasons set out above. We dismiss each of these appeals.
Determination of Mr Miko's appeal
163. Mr Miko's basis of claim is set out at paragraph 6 above. He refers to a number of unrelated incidents some years apart. Although there was one particularly serious incident, this took place in 1995 and he and his family continued to live in the same flat until they left some three years later. That attack was clearly not, therefore, the proximate cause of departure. There were two further unrelated incidents when he was threatened, but not attacked, the last of which took place some six months before he decided to leave for the United Kingdom. He told the special adjudicator that he did not leave earlier because he was hoping the situation would improve. On these facts, it seems to us again that there is nothing to distinguish Mr Miko from Czech Roma in general save that he was in continuous employment and lived in a flat for many years in which the majority were ethnic Czechs without referring to any discord. We are therefore satisfied in his case also, that there is nothing to distinguish him from Czech Roma generally. It follows that the Special Adjudicator's decision was one which was properly open to him and that his appeal, too, is dismissed.
Determination of Mr Cikos' appeal
164. Finally, we consider the case of Mr Cikos, who arrived with his family on 1 March 2000. The basis of his claim is set out at paragraph 7. He, too, came from a settled background with a history of employment to which we have referred earlier. He was assaulted and seriously cut when thrown against a plate glass window in November 1998, but he recovered from this and resumed employment. The immediate cause of his departure appears to have been an unrelated skinhead attack in the street on his wife and youngest child in February 2000. Otherwise his complaints were of general discrimination. Again, whilst we have sympathy with his obvious desire to make a new life outside a country in which he has been subjected to discrimination, with occasional unrelated attacks upon his immediate family, there is nothing which sets him apart as someone whose past experiences would give rise to a current well founded fear of persecution, once the generic basis of the appeal is gone. His appeal is, therefore, also dismissed.
Summary
165. In summary, we are satisfied that any claim that Czech Roma are by reason of their ethnicity alone entitled to refugee status is unsustainable and that each case must be looked at on its own facts to see whether those facts show to the relevant standard that the specific claimant has a well founded fear of persecution for a Convention reason. Following Horvath, it is likely that those who can succeed in showing such a fear on the basis of feared actions of non state actors will be the exception since there is currently in place in the Czech Republic a system of criminal law which offers effective protection to Czech citizens generally, including Czech Roma. Applying the appropriate test, none of the Appellants succeeds in discharging the burden upon them and each of the appeals before us is dismissed.
J. Barnes
Vice President
