The manufactured troubles of L'udovit Gorej
15 July 1997
Ľudovit Gorej is a Rom who was born a Czechoslovak Citizen in 1976. He has lived almost all of his life on the territory of the country now called the Czech Republic. At the age of seventeen, as a combined result of the dissolution of the Czech and Slovak Federation and the new Czech citizenship regulations, he was deemed “Slovak”: a foreigner in his own country. At eighteen, he was sentenced to expulsion from the Czech Republic by a Czech court. At nine teen, he was homeless and de facto state less. Additionally, not only was he prohibited from staying in the country he considered his own – the Czech Republic – but he was also refused entry into the country of his citizen ship, Slovakia.
In the 1970s, Ľudovit Gorej’s mother took her child and went from Slovakia to the Czech Republic in search of a job and a place to stay in the Czech lands. She was doing nothing more than moving from one city to another within the same country. It soon became clear that her many relatives who had already been living for a long time near Prague were not able to help her, since they themselves were in a precarious financial situation.
In 1983, the seven-year-old Ľudovit was placed in a Czech orphanage by court order. At the age of fifteen, he was transferred to another orphanage, in Chrastava, northern Czechoslovakia, where he remained until reaching maturity.
This second orphanage was probably not a very nice place, but he received professional training as a construction worker there. Two different types of young people were located there: juvenile offenders and orphans. Juvenile offenders had to follow much stricter rules than the orphans. As an orphan, Ľudovit was not treated as severely as some of the other youths. Out of forty people located there, only seven were Roma. Due to the dominant offender/orphan distinction, Ľudovit did not consider that his being a Rom made him very much different from non-Roma. Ľudovit recalls that he was frequently allowed to leave the dormitory even late at night because his custodian was a drinker and she would often send him to get alcohol.
In January 1993, the Czechoslovak Federation ceased to exist and two successor states emerged: the Czech Republic and the Slovak Republic. Each administration was con fronted with the necessity of defining the new state’s initial body of citizens. Czech political leaders designed a new citizenship law which established restrictive eligibility criteria for Slovaks living in their territory. Without being discriminatory on its face, the law had a devastating impact on the Roma community because all but a few of its members are of Slovak origin.
Ľudovit Gorej did not realise that this event would dramatically affect his life. He was not aware that according to the new regulations, he became, overnight, a “foreigner” – a per son who needed permission to continue to reside in the Czech Republic, who needed per mission to work and who was, if he committed an offence, at risk of expulsion. He continued to live the life of a Czech teenager in a Czech orphanage.
The orphanage personnel did not make any effort to clarify the legal status of the children placed into their care. They could have contacted the parents or asked the court for permission to apply for Czech citizenship on behalf of these children. They could have contacted one of the non-govern mental organisations providing assistance to people like Ľudovit or they could have discussed the problem with the competent authorities. But they did none of these things and Ľudovit Gorej, like many other Roma children, was released from institutional care as an undocumented alien with no place to live and no right to work.
Although Ľudovit kept in contact with his mother for many years, he could not ask her for help because she herself was homeless. He went to the town of Chožov, where one of his uncles resided. His uncle’s house was already overcrowded and the family did not have the financial means to support one more person. However, the uncle agreed to let Ľudovit stay for a while, until he could fend work or another place to live.
Ľudovit looked for work as a construction worker, the skill for which he was trained. He was systematically rejected, however, because he did not have valid papers documenting his citizenship and residence status. In the afternoon of November 3, 1995, Ľudovit Gorej’s uncle told him that if he wanted to continue to stay in the house, he had to help him which Ľudovit helped carry. They were caught by the police. The uncle, a Czech Citizen, was fined for the theft. Ľudovit Gorej, who was a “foreigner” and on probation for a previous theft, was sentenced to expulsion following a trial at which he was not represented by counsel. The district court in Louny (decision no. 2T 60/96 - 44, 1996) decided:
The defendant, Ľudovit Gorej, [...] is guilty of stealing 175 kg. of beets, worth 140 Czech crowns (approximately five US dollars) commit ting the act in the afternoon of November 3, 1995 at a stockpile of beets near the village of Choov, the District of Louny, to the detriment of ZD Orasice, despite the fact that on December 22, 1994, in a verdict of the district court in Jablonec nad Nisou (ref. 1T 487/93), he had been found guilty of criminal activity pursuant to Article 238 (1) and (2), Article 247 (1) section b), Article 247 (2), Article 257 (1) of the Criminal Code and sentenced to conditional imprisonment with the probationary period ending on August 18, 1996 [...] for the criminal act of theft pursuant to Article 247 (1) section (e) of the Criminal Code, and he has therefore been sentenced, according to Article 57 of the Criminal Code, to the punishment of expulsion.
Ľudovit Gorej’s criminal offence was no more than helping somebody else to steal five dollars worth of sugar beets from a field. However, the court regarded him as such a significant social danger to Czech society that it deemed that his re-entry into the country should be prohibited forever. Since upon the verdict’s announcement both the prosecutor and the defendant waived their right to appeal under Article 314 (2) of the Criminal Procedure Code, the judge was not required to produce a thorough account of the decision in writing. There is therefore no detailed artefact of the reasoning which went into the verdict. During an interview conducted by Article 8 Project (a project established by the Tolerance Foundation, a Prague-based non-governmental organisation), Ľudovit stated:
“In the courtroom there were about four people and everybody agreed that the best solution was to send me to Slovakia. During the trial, nobody asked me anything about my life in the Czech Republic or about my relatives. My girlfriend was in the courtroom and she was eight months pregnant but nobody asked what would happen to her or to our child if I had to go to Slovakia.”
The court decision did not specify any term for Ľudovit’s departure from the Czech Republic. Ľudovit and his girlfriend Juliana were now homeless, and Ľudovit was afraid to remain in the Czech Republic since the court had sentenced him to expulsion. A social worker acting on Ľudovit’s behalf requested and received a copy of the decision. This, however, did not contain a date by which Ľudovit was required to leave the country.
Ľudovit then decided to leave the Czech Republic voluntarily and go to Slovakia. His girlfriend agreed to go with him. According to Ľudovit’s statement, at the Czech-Slovak border the Slovak police denied him entry to Slovakia because he did not have a Slovak passport. He showed the police both a document certifying that he had lost his (Czechoslovak) ID and a copy of the judicial expulsion, but he was not allowed to cross the border. Consequently he returned to Prague. For a few months, Ľudovit and his girlfriend lived in the main train station. At present they live at a friend’s house.
On July 10, 1996, Ľudovit’s girlfriend Juliana gave birth to a child in a hospital in Prague. She cannot remember the name of the hospital and she never saw the child. She did not know whether it was a boy or a girl. She left the hospital three hours after she gave birth. According to Juliana, immediately after she gave birth she was given a paper to sign and she signed it without knowing what it meant. The Article 8 Project later discovered that the child is a girl and that she was placed in state care in the Czech Republic and immediately sent to an orphanage in Slovakia.
Soon thereafter, Ľudovit Gorej became a frequent visitor to the offices of the Article 8 Project. He agreed to be represented by the project’s lawyers and to undertake alt steps necessary to appeal the decision of expulsion. On September 25, 1996, the Article 8 Project wrote to the Ministry of Justice on behalf of Ľudovit Gorej to urge that the Ministry review the legality of the decision against Gorej. Article 8 Project alleged that the decision to expel Ľudovit Gorej had violated the legal principle of proportionality and that, if carried out, the expulsion would constitute interference with the private and family life of the applicant in violation of Article 8 of the European Convention.
In October 1996, the project assisted Ľudovit Gorej in applying for Czech citizen ship under Article 7 of the citizenship law, read in conjunction with Article 11 of Law 123/1992 as amended by Law 139/1996. Ľudovit asked the Ministry of Interior to grant him Czech citizenship by exercising its discretion to waive the requirement that applicants have a clean criminal record for the previous five years. Ľudovit noted that he had been a permanent resident on Czech territory since 1977. He additionally pointed out that close relatives of his live in the Czech Republic and have Czech citizenship. He explained that the reason he had not applied earlier was that, according to the rules, he was supposed to fill out the application in person in the local office, but that he had been afraid to contact the authorities due to the decision of expulsion which had been issued against him.
In January 1997, Ľudovit Gorej was apprehended by the police on the territory of the Czech Republic and charged with violation of court order because he had not left the country after having been sentenced to expulsion. Several months later, in May 1997, the Department for Citizenship of the Czech Ministry of the Interior rejected his citizenship application. The stated reason for denial was the fact that one’s residence is automatically cancelled when a decision of expulsion enters into force against the person concerned. Shortly after the Ministry of Interior decision, the Ministry of Justice informed the Project (Letter no. 4 Tp 1/97, May 5, 1997) that Ľudovit Gorej’s case had been sent to the Supreme Court. Public hearing was held on May 28, in Brno.
Ľudovit Gorej won. In its decision, the Supreme Court held that by imposing the punishment of expulsion, the district court in Louny breached the law to the detriment of Ľudovit Gorej. In the opinion of the court,
According to Article 3, paragraph 1 of the Criminal Code, a crime is an act dangerous to society featuring aspects specified in the Criminal Code. However, in addition to the formal aspects of a crime [...] provisions of Article 3, paragraph 2 of the Criminal Code [...] set forth that an act with an imperceptible degree of threat to the society is not a criminal act, although it may otherwise feature alt aspects of a criminal act. In determining if an act is a criminal act, one must ascertain that the act not only fulfils the formal aspects of a crime, but that it also features a degree of threat to society which is higher than imperceptible. Circumstances governing the degree of threat are specified in Article 3, paragraph 4 of the Criminal Code.
The Supreme Court held that Ľudovit’s assistance in the theft of five dollars’ worth of beets did not constitute a crime in law, because the social danger caused by the act was negligible.
In June 1997, following the Supreme Court decision, the Ministry of Interior nullified its previous decision to reject Ľudovit Gorej’s application for citizenship. Criminal procedures pending against him related to the violation of the court expulsion order were ceased.
From a narrow legal point of view, the case of Ľudovit Gorej is closed and is a success. But from a human rights standpoint, there are several disturbing questions still to be addressed:
First of all, the case reveals that the Czech citizenship law has long-term negative consequences which are not merely legal: social status, the right of residence and the right to respect for family and private life are significantly affected by the law.
Secondly, the case of Ľudovit Gorej cannot be taken out of its social and political con text. Ľudovit Gorej is not an immigrant who was accepted by the Czech state under well established conditions. He grew up within the boundaries of one country – Czechoslovakia. While it is clear that the new Czech state, as a successor state of the federation, enjoys significant discretion in determining the conditions of entry, residence and exit of immigrants, Ľudovit Gorej is not an immigrant. A separate and specific set of criteria should apply when the subject is a person who is not an immigrant, but who has been deemed a foreigner through a change in the legislation governing nationality. The Supreme Court failed to address this issue and made only vague reference to the due respect which Czech authorities should have for the family and private life of individuals placed under their jurisdiction.
Moreover, the fact that Ľudovit Gorej did not have legal assistance raises questions related to the manner in which the Czech administration ensures the access to justice for indigents and, in this context, for Roma persons who are in a particularly vulnerable situation. Finally, perhaps the most troubling issue in this case – and in many similar cases – is the question of to what extent an element of racial discrimination affected the decision of the district court in Louny. Czech civil society and the Czech authorities bear the moral responsibility for clarifying all of the troubling aspects of the Gorej case mentioned above.