ERRC files brief at Czech Supreme Court to challenge erroneous District Court decision in prosecution of violence against Roma

James A. Goldston and Nikolai Gughinski

Crimes committed due to hatred of Roma are not racially-motivated crimes. That at least was the conclusion of the District Court located in Hradec Králové, 100 kilometres east of Prague. In terms hauntingly reminiscent of long-discredited 19th century notions of race, a district court in the falt of 1996 ruled that the racial-motivation provisions of a Czech criminal code article could not be applied to two ethnic Czechs found guilty of threatening and/or assaulting four Roma on a train. This was so, the Court found, even though both defendants admitted they had acted because their victims were Roma and because, in their view, the train was for whites only.

The case originated on October 30, 1995, when on a train running between Hradec Králové and Sadova, Czech Republic, L.A. and P.B. threatened to beat up and throw from the train four Romani passengers, and P.B. kicked one of the Roma as he was getting off the train.

Both perpetrators were subsequently prosecuted and charged with two crimes: (i) violation of Art. 196(1) of the Czech Criminal Code, which makes it a crime to "threaten [] a group of inhabitants with death, injury to health or the infliction of damage of great extent," and (ii) violation of Art. 196(2), which makes it a crime to "use [] violence against a group of inhabitants or against an individual, or [to] threaten [] them with death, injury to health or infliction of damage of great extent for their political convictions, nationality, race, creed, or because they have no creed..." The penalty for violation of Art. 196(1) is "imprisonment for up to one year"; violation of Art. 196(2) results in "imprisonment for a period from 6 months to 3 years." During the trial at the Hradec Králové District Court both defendants pleaded guilty and it was accepted as proven that they had told the Roma that the train was only for whites.

On November 20, 1996 the District Court in Hradec Králové found the defendants guilty under Art. 196(1), but acquitted them of the charge under Art. 196(2). In its written judgement, the District Court offered two principal arguments in support of its legal conclusions.

First, the court reasoned, Art. 196(2) of the Czech Criminal Code does not encompass the actions at issue in the case, because (i) that provision prohibits violence or threats carried out on account of, among other things, the "race" of the victims, and (ü) for purposes of interpreting the statutory language, the Romani victims in the instant case "belong [] to the same race" as the defendants. The premise of the District Court Opinion was that members of the Roma minority are not a distinct racial group in the Czech Republic, and thus that prohibitions against threats or violence motivated by the race of the victims do not apply to them. In so holding, the District Court relied on a narrow, biologically-rooted notion of race according to which Roma, like Czechs, are members of the same, "Indo-European" race. Second, the District Court further ruled that two other possible bases for prosecution – that the defendants were motivated by the "skin colour" or "ethnic origin" of the victims were not applicable, because, notwithstanding the fact that such factors are prohibited under Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination to which the Czech Republic is party, Article 196(2) of the Czech Criminal Code makes no mention of them.

The Court declined to impose punishment on either defendant, citing their minor status and the absence of a prior criminal record. The Court opined that the fact that the defendants had been required to appear in court to defend themselves against the charges constituted "sufficient remedy".

An appeal of the District Court Opinion initially filed by the public prosecutor was subsequently withdrawn. Accordingly, as of February 19, 1997, the verdict of the District Court entered into force.

On August 8 1997, acting under an extraordinary procedure for review of unlawful court rulings, the Ministry of Justice filed a motion in the case asking the Czech Supreme Court to declare that the District Court's rationale for acquitting the defendants of the charge under Art. 196(2) was in breach of Czech law.

In early October, the ERRC filed a brief with the Czech Supreme Court, addressing the first basis for the District Court ruling. The ERRC believed that international jurisprudence might offer the Supreme Court assistance in assessing the District Court's interpretation of the concept of "race" in a statute manifestly designed to punish racially-motivated threats and violence. Drawing upon the case law and commentary of international treaty and non treaty-based supervisory organs, the ERRC submission argued that the District Court Opinion erred in refusing to apply the provisions of Art. 196(2) to defendants whose actions were clearly motivated by the fact that their victims were Roma. The District Court's cramped, anthropological interpretation of the concept of "race" was out of step with international jurisprudence. From the 1930s to the present day, international legal authority – as set forth in decisions of the Permanent Court of International Justice, the International Court of Justice, the United Nations Human Rights Committee and various regional bodies – has given the term "race" a progressively more inclusive connotation, and has affirmed that "race" and "ethnicity" are inter related and overlapping concepts.

International law makes clear that prohibitions against racial discrimination and racially-motivated threats or violence – such as those contained in Art. 196(2) – are to be interpreted broadly, to provide the broadest possible protection to victims of abuse.

The Supreme Court heard oral argument on the matter in Brno on October 9, 1997, following which it annulled the District Court opinion and ordered that the case be returned to the District Court for further proceedings. The written Supreme Court judgement is expected shortly.

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