European Roma and Travellers Forum (ERTF) v. Czech Republic
Complaint No. 104/2014
(Adopted by the Committee of Ministers on 22 February 2017, at the 1278th meeting of the Ministers’ Deputies)
The Committee of Ministers,
Having regard to Article 9 of the Additional Protocol to the European Social Charter providing for a system of collective complaints;
Taking into consideration the complaint lodged on 3 March 2014 by the European Roma and Travellers Forum (ERTF) against the Czech Republic;
Having regard to the report transmitted by the European Committee of Social Rights containing its decision on the merits, in which it concluded:
– unanimously, that there is a violation of Article 16 of the 1961 Charter on the ground of insufficient access to housing, poor housing conditions and territorial segregation;
In a recent conclusion under Article 16 of the 1961 Charter, it was found that the situation was not in conformity on the ground that housing conditions of Roma families were not adequate (Conclusions XX-4 (2015), Czech Republic).
The government has provided very general information on measures to increase the availability of housing such as the Social Housing Policy until 2020, subsidies and loans and specific programmes targeted at Roma, however there are few details. Measures have been taken by the government to improve more generally the integration of Roma: Integrated Operational Programme (IOP), Roma co-ordinators and the work of the Social Inclusion Agency. However, there is no information on needs in the housing field, targets or achievements to date (number of beneficiaries of loans subsidies, number of housing units, constructed or renovated etc.), and little concrete evidence has been provided that sufficient action has been taken or that measurable progress have been made in the field of housing for Roma.
There is considerable evidence of the poor housing situation of Roma from other sources: the European Commission against Racism and Intolerance (ECRI) conclusions adopted in 2012 and in 2015 ECRI’s report of the Czech Republic (fifth monitoring cycle) adopted June 2015 (CRI(2015)35), the Commissioner for Human Rights in his report of 2013 (CommDH(2013)1), the UN Committee on Economic, Social and Cultural Rights (Concluding Observations on the second periodic report of the Czech Republic, June 2014, E/C.12/CZE/CO/2), the report commissioned by the European Commission (Roma Health Care report, the Health Status of the Roma Population, Data collection in the member States of the EU, August 2014).
– unanimously, that there is a violation of Article 16 of the 1961 Charter on the ground of forced evictions;
Legislation permits the eviction of individuals and families without requiring the provision of alternative accommodation. Furthermore, not all legislation permitting evictions ensures the necessary safeguards required by Article 16 of the 1961 Charter, such as the prior consultation of affected parties, or the obligation to propose alternative accommodation.
There have been examples where local authorities did not proceed in accordance with the law when trying to evict Roma families, for example in Ostrava and Usti nad Labem.
– unanimously, that there is a violation of Article 11 of the 1961 Charter on the grounds of exclusion in the field of health and of inadequate access to health care services;
The principle of universal access to health care is embodied in Article 31 of the Czech Charter of Fundamental Rights and Freedoms, which provides for the right of the citizens to health protection. More precise provisions are included in the Act No. 20/1966 Coll. on Care of People’s Health which in Section 11 sets out the following principle:
“Availability of health care without direct payments, based upon the public health insurance (within the extent stipulated by a separate Act), or based upon a contractual health insurance.”
Under Article 11 of the Charter, the health care system must be accessible to everyone, especially the health care should be available to all who require it, and free of charge to those without the necessary resources. States Parties must ensure the best possible state of health for the population according to existing knowledge. Health systems must respond appropriately to avoidable health risks, i.e. ones that can be controlled by human action (Conclusions XV-2 (2001), Denmark).
In the instant case, as regards the situation of persons who have not registered with the Labour Authority or who have been excluded from the register of unemployed persons, such persons are left without health coverage (unless they pay the contributions themselves) given that eligibility for “non-contributory” state health coverage is linked to unemployed persons being on the Labour Authority register. A job seeker can be excluded from the job seeker register on many grounds, e.g. if a job seeker: works illegally and receives unemployment benefits at the same time; refuses to take up a suitable employment or retraining; obstructs co-operation with the Labour Office; does not present him/herself at the relevant branch of the Labour Office or to the contact point of public administration at the arranged time; or withdraws his/her consent to personal data processing.
There is no evidence that a person without resources requiring medical services would receive the necessary care. The measures adopted by the government do not sufficiently ensure health care for poor or socially vulnerable persons who become sick, such as Roma who have lost health insurance.
Moreover, data on the health status of Roma families is limited but shows disparities between the health status of the Roma and non-Roma communities.
Numerous sources confirm that Roma families face disproportionate health risks and discrimination in accessing health care, for example: Committee on the Framework Convention for the Protection of National Minorities, Third Opinion on the Czech Republic, §§19,50, 1 July 2001, ACF/OP/III/(2011)008; UN Committee on Economic, Social and Cultural Rights, Concluding Observations on the second periodic report of the Czech Republic, June 2014, §9; Roma health report, Health Status of the Roma population, data collection in the member States of the European Union (Executive Summary written by Matrix, for the European Commission). There is sufficient evidence which shows that Roma communities, in many cases, do not live in healthy environments.
Despite the measures taken by the government, there is little evidence of progress. ECRI’s report on the Czech Republic (fifth monitoring cycle) adopted in June 2015 (CRI(2015)35) noted that the first Concept for Roma Integration was widely regarded as having had little effect and little progress had been made.
The State has failed to meet its positive obligations to ensure that Roma families enjoy adequate access to health care, in particular by failing to take reasonable steps to address the specific problems faced by Roma communities stemming from their often unhealthy living conditions and difficult access to health services.
The problems encountered by many Roma families in accessing health care services, as well as the failure of the authorities to take appropriate measures to address the exclusion and marginalisation in the field of health to which Roma communities are exposed, constitute a breach of Article 11 §§ 1, 2 and 3 of the 1961 Charter in light of the Preamble.
– unanimously, that there is no violation of Article 11 of the 1961 Charter on the grounds of segregation of Roma children.
As regards the segregation of Roma children in education and in particular their placement in schools for children with disabilities due to discrimination and/or the use of allegedly unreliable diagnostic tools, this falls outside the ambit of the right to health as guaranteed by the 1961 Charter.
Having regard to the information submitted by the delegation of the Czech Republic during the meeting of the Rapporteur Group on Social and Health Questions (GR-SOC) of 17 November 2016 (see Appendix to the resolution),
1. takes note of the report of the European Committee of Social Rights (ECSR);
2. looks forward to the Czech Republic reporting, on the occasion of the submission of the next report concerning the relevant provisions of the European Social Charter, on the implementation of the measures adopted, and keeping, within this framework, the Committee of Ministers informed of all progress made.
Appendix to the Resolution CM/ResChS(2017)2
Information submitted by the delegation of the Czech Republic during the meeting of the GR-SOC of 17 November 2016 –
European Roma and Travellers Forum (ERTF) v. Czech Republic, Complaint No. 104/2014
Response of the Czech Republic to the Council of Europe Committee of Ministers on the Report of the European Committee of Social Rights in Complaint No. 104/2014, European Roma and Travellers Forum (ERTF) v. Czech Republic
The Czech Republic has given careful consideration to the report of the European Committee of Social Rights (ECSR) in respect of the above-mentioned complaint and welcomes this opportunity for providing its opinion on the report and to update the Committee of Ministers on recent developments in the respective fields.
As regards the alleged violation of Article 16 of the Charter:
1. The government repeatedly stated its disagreement with the extensive interpretation of the 1961 Charter in the light of the revised Charter by the ECSR. This being said, the confirmation provided by the ECSR in para 69 of the decision, namely that “the interpretation given under the European Social Charter of 1961 remains valid for those provisions that were not amended by the revised Social Charter”, is on the one hand welcomed, on the other, however, can hardly be considered reassuring. Reading through the Decision on the Merits, it is obvious that the ECSR did not prevent itself from applying obligations arising from the revised Charter, for example by referring to “individuals” or by using a notion of “adequate housing”, thus applying Article 31 of the revised Charter to a country which has not ratified this instrument. Another example sui generis is paragraph 128, where the ECSR obviously acted beyond its powers when assessing what violation would a situation amount to should the Czech Republic ratify the revised Charter.
2. Secondly, the government regrets that the ECSR did not take fully into consideration the arguments submitted as well as the policies implemented by the government in the respective fields. While the text of the decision admits that the government had provided information on measures to increase the availability of housing, such as the Social Housing Policy until 2020, it is the assessment of the Committee that “there are few details” and that “little concrete evidence has been provided that sufficient actions and measureable progress has been made in the field of housing for Roma”. This statement causes certain difficulties: according to the experts, it is more and more obvious that the issue of the housing of Roma cannot be dealt with separately, as this would only lead to further segregation. The only possible solution when creating tools for accessible social housing in general is to take into consideration a specific situation of Roma and other groups with similar characteristics, such as large families, for example. Based upon these arguments, the government adopted the 155 pages long Social Housing Policy, which does not explicitly target Roma, but, more generally, encompasses vulnerable groups and ethnic minorities and provides an important and detailed background for improving the access to housing by these groups.
3. Adoption of the Social Housing Policy was a significant step forward in creating a background for the new Law on Social Housing, which, being one of the priorities of the government, is currently in its final stage of completion. Moreover, the government adopted the Policy on Prevention and Coping with the Problem of Homelessness and Social Inclusion Strategy 2014-2020, both documents aimed at coping with issues raised within this collective complaint. The government is fully aware of the seriousness of the problem of persons facing the threat of social exclusion and, among these, of the specific position of Roma population. As proven by the respective policies and strategy mentioned above, the government pays due attention to these issues and makes efforts to eliminate risks which may lead to social exclusion. In this framework, the government does its best to proceed conceptually and systematically, being aware of the fact that these issues require long-term and intensive attention of all parties involved.
As regards the alleged violation of Article 11 of the 1961 Charter:
1. The Czech Republic welcomes the observation of the Committee that current exemption from paying health care contributions for unemployed persons registered with the Labour Authority ensures that some of the most disadvantaged sections of the community have access to health care.
2. However, the government cannot concur with the ECSR holding that the Czech Republic is in breach of Article 11 of the Charter due to problems encountered by Roma in accessing health care services. The government cannot but insist that health care in the Czech Republic is accessible to all. According to the Law No. 372/2011 Coll., on medical services, every medical facility is obliged to provide all necessary care to everyone without being directly reimbursed. In relation to this collective complaint, there was no single piece of evidence proving that any practitioner refused to provide such a treatment. The ECSR claim that a person without resources requiring medical services would not receive the necessary care is wrong and does not correspond to reality.
3. When providing its reasoning, the ECSR worked upon its previous decision in the case of Collective Complaint No. 46/2007 ERRC v. Bulgaria. This complaint alleged a violation of Article 11 (the right to protection of health) and Article 13 (the right to social and medical assistance) of the revised Charter, while the Collective Complaint ERTF v. Czech Republic encompasses Articles 11 and 16 of the 1961 Charter. Although the direct reference to Article 13 had been partly deleted from the quotations copied from the complaint ERRC v. Bulgaria, the ECSR did not prevent itself from its application when repeatedly dealing with a question of “medical assistance” in its assessment. For obvious reasons, the government did not put forward any arguments related to an article the violation of which had not been alleged by the complainant organisation and the ECSR consequently noted that “the Committee has been provided with no evidence that a person without resources requiring medical services would receive the necessary care”, which may have led to its final conclusion of the Czech Republic being in violation of Article 11 of the 1961 Charter.
4. Another issue is raised by para 124 of the report, which is, without being properly referenced, a complete copy-paste from the above-mentioned decision on ERRC v. Bulgaria. This paragraph mentions the lack of protective measures put forward by the government to guarantee clean water in Romani neighbourhoods. However, the government is not aware of any reference to the problem of clean water in any expert report on the situation in the Czech Republic, nor is such a report being quoted in the decision.
The government regrets these discrepancies as they to a great extent depreciate the impact of the decision and from an external point of view may cast doubts on the work of the ECSR as a monitoring body of the Council of Europe. Needless to add, they are in no way instrumental in supporting efforts for further signatures and ratifications of the Protocol providing for a system of collective complaints.
In conclusion, while disagreeing with some parts of the report, the Government of the Czech Republic will continue its efforts in the area of Roma integration, recognising the importance of the role and responsibility of the Roma community themselves in progressing this objective. The Czech Republic remains ready to update the Committee of Ministers on future developments, in the context of the annual reporting mechanism on compliance with the provisions of the 1961 European Social Charter.