CERD/C/85/D/49/2011

GE.14-16140 (E)



Committee on the Elimination of Racial Discrimination

Communication No. 49/2011

Opinion adopted by the Committee at its eighty-fifth session,

11–29 August 2014

Submitted by:

L.A. et al. (represented by counsel Vanda

Durbáková of the Center for Civil and Human

Rights)

Alleged victim:

The petitioners

State party:

Slovakia

Date of the communication:

23 August 2011 (initial submission)

Date of the present decision:

15 August 2014

United Nations

CERD/C/85/D/49/2011

International Convention on

the Elimination of All Forms

of Racial Discrimination

Distr.: General

15 September 2014

Original: English

CERD/C/85/D/49/2011

2

Annex

Opinion of the Committee on the Elimination of Racial

Discrimination under article 14 of the International

Convention on the Elimination of All Forms

of Racial Discrimination (eighty-fifth session)

concerning

Communication No. 49/2011

Submitted by:

L.A. et al (represented by counsel Vanda

Durbáková of the Center for Civil and Human

Rights)

Alleged victim:

The petitioners

State party:

Slovakia

Date of the communication:

23 August 2011 (initial submission)

The Committee on the Elimination of Racial Discrimination, established under

article 8 of the International Convention on the Elimination of All Forms of Racial

Discrimination,

Meeting on 15 August 2014,

Having concluded its consideration of communication No. 49/2011, submitted to the

Committee on the Elimination of Racial Discrimination by L. A. et al. under article 14 of

the International Convention on the Elimination of All Forms of Racial Discrimination,

Having taken into account all information made available to it by the petitioners of

the communication, their counsel and the State party,

Adopts the following:

Opinion

1.

The petitioners of the communication dated 23 August 2011 are L. A., a teaching

assistant, born on 31 July 1985, T. K., a field social worker, born on 28 February 1983, and

L. P., born on 17 April 1983, who was on parental leave at the time of the complaint. They

are all Slovak nationals of Roma origin. They claim to be victims of a violation by Slovakia

of articles 5 and 6, read in conjunction with article 2, of the International Convention on the

Elimination of All Forms of Racial Discrimination. They are represented by counsel Vanda

Durbáková of the Center for Civil and Human Rights.

 The following members of the Committee participated in the examination of the present

communication: Alexei S. Avtonomov, Marc Bossuyt, José Francisco Calí Tzay, Anastasia Crickley,

Fatimata-Binta Victoire Dah, Ion Diaconu, Afiwa-Kindena Hohoueto, Yong’an Huang, Patricia

Nozipho January-Bardill, Anwar Kemal, Melhem Khalaf, Gun Kut, Dilip Lahiri, José A. Lindgren

Alves, Pastor Elías Murillo Martínez, Carlos Manuel Vázquez and Yeung Kam John Yeung Sik

Yuen.

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Facts as submitted by the petitioners

2.1

On 14 April 2005, around 11 p.m., the three petitioners undertook a “discrimination

testing”1 in the town of Michalovce, Slovakia, which entailed trying to enter the

discotheque inside the coffee house “Idea”. They were aware that, in the past, people of

Roma origin had been denied entrance to the discotheque. The petitioners were neatly

dressed, well behaved, not under the influence of alcohol, and had enough money to cover

the entrance fees. They carried a recording device to record the entire sequence of events.

The petitioners went to the coffee house entrance with two additional persons of Roma

origin. The employee selling the entrance tickets asked them if they had a club membership

card, and refused to sell them tickets informing them that such a card was required in order

to enter the discotheque. The employee stated that the discotheque was a private club and

that its services could only be used by its members. The petitioners could not see any

indication of the private nature of the club at its entrance. Human rights activists from the

Center for Civil and Human Rights observed the whole scene from a distance. Fifteen

minutes later, a group of human rights activists of non-Roma origin approached the same

staff and were allowed to purchase tickets to enter the discotheque without being asked for

any kind of club membership card.

2.2

Later the same evening, the petitioners and the human rights activists who

accompanied them went to the police station in Michalovce to submit a criminal complaint

for racial discrimination under the penal code, which prohibits defamation and incitement

to national, racial and ethnic hatred. The police considered that the reported facts

constituted an offence and referred the case to the District Authority of Michalovce for

further proceedings. These proceedings were directed against the employee who had denied

entry to the petitioners, in his personal capacity, and not against the company that owns and

manages the coffee house. The petitioners were heard as witnesses. On 20 June 2005, their

lawyer discovered fortuitously, without having been officially notified, that a decision had

been taken to discontinue the proceedings, because the District Authority considered that no

offence had occurred.

2.3

In parallel to the criminal complaint, on 9 June 2005 the petitioners initiated a civil

lawsuit before the District Court of Michalovce against the company that owns the coffee

house.2 They claimed that they had been subjected to racial discrimination because of their

Roma origin and asked that the owner of the coffee house send them individual letters to

apologize for the discriminatory treatment they had suffered. They also requested that

financial compensation of 50,000 Slovak korunas be awarded to each of them for non-

pecuniary damage. During the court proceedings, the defendant (the owner of the coffee

house company) claimed that the place was indeed a private club and that, while its services

may be used by anyone, club members had priority whenever the club is full. But he failed

to explain why the human rights activists were allowed to enter just 15 minutes after the

petitioners were denied entry. In its judgement dated 31 August 2006, the District Court

stated that the company had breached the principle of equal treatment and should therefore

send the petitioners a written apology. However, according to the Court, it was not proven

1 The petitioners note that a “testing experiment” method is used by the Center for Civil and Human

Rights to collect evidence to prove discrimination in courts. Since the 1950s, United States courts

have recognized such testing as an effective means of proving discrimination. The Slovak courts also

recognize such evidence as relevant. The petitioners add that the Committee has also considered such

evidence to be relevant, see communication No. 29/2003, Durmic v. Serbia, opinion dated 6 March

2006, para. 9.6.

2 Civil lawsuit based on article IX of Act No. 365/2004 Coll. on Equal Treatment in Certain Areas and

Protection against Discrimination, amending and supplementing certain other laws (Anti-

Discrimination Act).

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that the discriminatory treatment was due to their ethnic origin, and the Court did not

specify on which grounds it could have been based. The Court did not award any financial

compensation to the petitioners as the discriminatory treatment had not taken place in front

of the public and it had happened in the context of a “testing” experiment, meaning that the

petitioners had been prepared to be discriminated against and had not suffered any kind of

damage. The Court did not require that the letter of apology should include a part about the

impact of the discrimination on the petitioners’ human dignity.

2.4

Both the owner of the coffee house and the petitioners lodged an appeal against that

decision. On 25 October 2007, the Regional Court of Košice decided to annul the decision

of the District Court and ordered the District Court to reconsider the case. On 29 January

2008, the District Court ruled that the company had breached the principle of equal

treatment by discriminating against the petitioners on the grounds of their ethnic origin. The

Court ordered the company to send a letter of apology to the petitioners, but again, without

demanding that a part be included about the impact of the discrimination on the petitioners’

human dignity. It also dismissed the petitioners’ claim for financial compensation.

2.5

On 26 March 2008, the petitioners appealed that decision, arguing that the Court did

not consider the precautionary and vindicatory function of the compensation for non-

pecuniary damage, and that it used the wrong criteria to evaluate the damage suffered by

the petitioners. The defendant also appealed the decision. On 15 July 2010, the Regional

Court of Košice, acting as a court of appeal, found that the petitioners had been

discriminated against on the grounds of their ethnic origin and that, as a result, their human

dignity had been affected. It ordered the company to send a letter of apology, including a

part on the impact of the discrimination suffered on the authors’ human dignity. However,

it refused to award them financial compensation for non-pecuniary damage, considering

that they had not provided the necessary evidence to demonstrate that they had complied

with the criteria established by law to be awarded such compensation,3 i.e. that they had

endured a real and grave diminution of their human dignity, with considerable

consequences on their social status and social functioning. The Court added that the

petitioners had failed to prove that the damage they had allegedly suffered was real (i.e.

factual and objective) but had merely claimed that such damage could have existed. The

Court also noted that the employee of the coffee house had behaved in a polite manner

when he asked the petitioners for their club cards and that he had not explicitly referred to

their ethnic origin.

2.6

On 28 October 2010, the petitioners filed a complaint with the Constitutional Court,

claiming that their fundamental rights4 under the Constitution and international treaties,

including the International Convention on the Elimination of All Forms of Racial

Discrimination, had been violated by the decision of the Regional Court of Košice, which

they regarded as arbitrary. The petitioners requested that the part of this decision relating to

the requested financial compensation be cancelled, and that the Regional Court be ordered

to revise its decision and award a financial compensation of 5,000 euros to each petitioner

for non-pecuniary damage. On 3 February 2011, the Court dismissed the petitioners’

complaint, considering that the decision of the Regional Court had been properly reasoned

3 Article IX (para. 3) of Act No. 365/2004 Coll. on Equal Treatment in Certain Areas and Protection

against Discrimination.

4 Namely, the right to equal treatment under article 12 (para. 2) of the Slovak Constitution and article 5

(f) of the International Convention on the Elimination of All Forms of Racial Discrimination; the

right to a fair trial under article 46 (para. 1) and 47 (para. 3) of the Slovak Constitution, as well as

article 6 (para. 1), in conjunction with article 14 of the European Convention on Human Rights, and

article 6 of the International Convention.

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and did not breach any of the petitioners’ rights guaranteed by the Constitution and other

international treaties.

2.7

The petitioners claim that they have exhausted all relevant domestic remedies.

The complaint

3.1

The petitioners claim to be victims of a violation of article 2, read in conjunction

with article 5, of the Convention. They maintain that the State party failed to eliminate

racial discrimination in all its forms and to guarantee the right of everyone to access to any

place or service intended to be used by the public, without any distinction.

3.2

The authors further contend that they are victims of a violation of article 6 of the

Convention because the State party has not provided them with effective protection and

remedy for the discrimination they were subjected to owing to their ethnic origin, and

because it failed to implement the existing legal means of protection to make sure that such

discrimination would not occur again. Thus, even though the courts stated that the authors

had been subjected to racial discrimination and had ordered the coffee house company to

apologize in writing, they refused to award any compensation for non-pecuniary damage.

According to the petitioners, the sanctions imposed by the courts are not effective for

securing protection from racial discrimination. They consider that the courts failed to

recognize the preventive and deterrent function of the compensation for non-pecuniary

damage that would discourage the coffee house company from committing acts of racial

discrimination in the future and lead to the elimination of racial discrimination in Slovak

society.

3.3

The petitioners further submit that the civil courts failed to recognize that racial

discrimination impairs human dignity and constitutes prima facie damage. They consider

that it is unjustified to limit the assessment of non-pecuniary damage caused by racial

discrimination to the objective damage suffered by the victims. They explain that racial

discrimination is an implicit affront to human dignity and causes damage. This damage,

which is perceived subjectively by the injured person psychologically or emotionally,

cannot necessarily be objectified as damage that can be proved and measured. In this

regard, the petitioners refer to the Committee’s observation that “the degree to which acts

of racial discrimination and racial insults damage the injured party’s perception of his/her

own worth and reputation is often underestimated”.5

3.4

The petitioners also claim that, because the civil proceedings lasted so long, they did

not constitute an effective means of protection from racial discrimination, stressing that in

their case it took five years for the domestic courts to issue a final decision. They submit

that a remedy that is delayed for too long cannot be considered to be an effective remedy.

3.5

Finally, the petitioners submit that, as recognized by the Committee,6 even if the

State party outlawed discrimination in access to public places in 2004 and currently

provides a comprehensive legal framework on protection against racial discrimination, it

has failed to implement the existing legislation effectively. The petitioners consider that the

State party does not ensure effective protection from discrimination, sanctioning of

perpetrators or adequate remedies for damage suffered as a result of discrimination. They

conclude that the violation of their rights in the present case and the necessity to sanction

such acts of racial discrimination ought to be considered against the background of the

existing racial discrimination against the Roma minority in the State party.

5 General recommendation No. 26, para. 1.

6 The petitioners refer to the concluding observations in the report presented by the State party

(CERD/C/SVK/CO/6-8, p. 11).

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State party’s observations on admissibility and merits

4.1

On 27 March 2012, the State party submitted its observations on the admissibility

and merits of the communication. First, the State party says that it considers the

communication to be admissible, as it complies with the formal conditions required by

article 14 of the Convention.

4.2

The State party recalls that the Anti-Discrimination Act7 bans any discrimination

based on sex, religion or belief, race, nationality or ethnicity, disability, age, sexual

orientation, marital and family status, skin colour, language, political or other affiliation,

national or social origin, property, descent or other grounds, and also provides for legal

remedies and the possibility of having the right not to be discriminated against protected by

domestic courts in cases of violation.

4.3

With regard to the alleged violation of article 5 of the Convention, the State party

notes that the domestic courts, in their rulings, expressly acknowledged that the petitioners

had been discriminated against on the basis of their ethnicity. It further observes that the

petitioners were provided with legal satisfaction for the violation of their rights, as the

courts ordered the owner of the coffee house to apologize individually to each petitioner in

the form of written letters that included a specific statement on the impact on the human

dignity of the petitioners, as they had requested.

4.4

The State party notes that the courts in their rulings dealt adequately with the

rejection of the financial compensation for non-pecuniary damage requested by the

petitioners, taking into account the relevant legal provisions8 for awarding such

compensation and the specific circumstances of the case. The State party submits that the

courts found that the petitioners had not proved a considerable diminishment of their

dignity, social status or social functioning and that there had been no proven intent of the

defendant to deeply discredit them. Therefore, the discrimination suffered by the petitioners

did not fulfil the strict criteria provided by the law that allowed a court to grant financial

compensation for moral damage.

4.5

The State party further submits that the petitioners’ claim — namely, that State

authorities had failed to ensure the elimination of discrimination in general, and in the

present case in particular — was unfounded; otherwise the petitioners could not have

obtained the statement of violation of the equal treatment principle and obtained an apology

from the coffee house owner. The domestic courts correctly applied the Anti-

Discrimination Act, as they denounced the discrimination suffered by the petitioners and

provided them with legal satisfaction in the form of individual letters of apology. The State

party considers that, it complied with its obligations under article 2 combined with articles

5 and 6 of the Convention by enacting the Anti-Discrimination Act and having the national

courts implement it.

Petitioners’ comments on the State party’s observations on admissibility and merits

5.1

On 24 May 2012, in the comments they provided on the State party’s observations,

the petitioners reiterated their claim that by refusing to award financial compensation, the

domestic courts had failed to recognize the preventive and deterrent function of

compensation for non-pecuniary damage, and had also failed to recognize that racial

discrimination impaired human dignity and constituted prima facie damage. According to

the petitioners, such failure by the domestic courts in implementing the Anti-Discrimination

Act constitutes a violation of the rights they are guaranteed under the Convention.

7 Act No. 365/2004 Coll. on Equal Treatment in Certain Areas and Protection against Discrimination.

8 Ibid., article IX (para. 3).

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5.2

The petitioners recall their argument that a delay of five years in obtaining a final

decision from the domestic courts should be considered as a failure of the State party to

provide effective protection and remedies to victims of racial discrimination as required

under the Convention.

5.3

Finally, the petitioners submit that the moral satisfaction obtained in the form of

letters of apology was not sufficient compensation and demonstrates that the State party

diminishes the seriousness of such human rights violations and their impact on human

dignity and that such decisions could discourage other victims of discrimination from

bringing a claim of discrimination before the courts.

Issues and proceedings before the Committee

Consideration of admissibility

6.1

Before considering any claim contained in a communication, the Committee on the

Elimination of Racial Discrimination must decide, pursuant to article 14, paragraph 7 (a), of

the Convention, whether or not the communication is admissible.

6.2

The Committee notes that the State party has raised no objections to the

admissibility of the communication, as the petitioners have met the requirements of article

14 of the Convention.

6.3

The Committee declares the present communication admissible.

Consideration of the merits

7.1

The Committee has considered the present communication in the light of all the

submissions and documentary evidence produced by the parties, as required under article

14, paragraph 7 (a), of the Convention and rule 95 of its rules of procedure.

7.2

The Committee notes the petitioners’ argument, according to which the State party

did not fulfil its obligation to guarantee their right of access to any place or service intended

for the use of the general public because it did not provide effective protection and remedy

through its national courts when their right, guaranteed by the domestic legislation, was

violated. The Committee considers that it is not its task to review the interpretation of

national law made by national courts, unless the decisions were manifestly arbitrary or

otherwise amounted to a denial of justice.9 In the light of the text of the judgements of the

District Court of Michalovce, the Regional Court of Košice and the Constitutional Court,

the Committee notes that the petitioners’ claims were examined in accordance with the

Anti-Discrimination Act, which specifically regulates and penalizes acts of racial or ethnic

discrimination. The Committee further notes that all the judicial decisions taken by the

domestic courts in the present case — which concluded that an act of racial discrimination

had occurred and awarded the petitioners with a remedy — had been reasoned and based

on the Anti-Discrimination Act. The Committee considers, therefore, that the facts before

it do not show that the courts’ decisions were manifestly arbitrary or amounted to a denial

of justice and it is of the opinion that the facts as submitted do not disclose a violation by

the State party of article 2 combined with article 5 of the Convention.

7.3

The Committee observes that the petitioners further claim that their right to obtain

protection and an effective remedy in the present case was breached by the State party. The

Committee notes the petitioners’ allegation that acts of racial discrimination necessarily

9 See communications No. 48/2010, TBB-Turkish Union in Berlin/Brandenburg v. Germany, opinion

adopted on 26 February 2013, para. 12.5; and No. 40/2007, Er v. Denmark, opinion adopted on 8

August 2007, para. 7.2.

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cause moral damage to the victim, who should be awarded financial compensation. The

State party, on the other hand, stresses that the petitioners did not prove that they had

suffered non-pecuniary damage (i.e. real and actual harm) that reached the level required by

domestic law10 to obtain financial compensation.

7.4

The Committee considers the question to be whether the remedy awarded by the

State party — moral satisfaction in the form of individual letters of apology — is in

accordance with the right to an effective remedy provided for under article 6 of the

Convention. The Committee recalls the United Nations basic principles on the right to

remedy and reparation, which provide that “reparation should be proportional to the gravity

of the violations and the harm suffered”11 and list financial compensation as one form of

remedy and reparation, along with restitution, satisfaction and guarantee of non-repetition.

The Committee recalls that it is not its role to decide what remedy should be awarded to the

petitioners by the State party or to assess whether the remedy awarded by the domestic

courts was the most adequate or proportional to the harm suffered. Its role is to assess

whether this remedy can be seen as an effective remedy in accordance with international

principles and that it is not manifestly arbitrary or does not otherwise amount to a denial of

justice. It appears that the courts’ decisions to grant satisfaction to the petitioners while

denying them financial compensation, in the light of the specific circumstances of the case,

are not contrary to the United Nations basic principles on the right to remedy and reparation

and are based on the domestic provisions regulating the award of financial compensation

for non-pecuniary damage.12 The Committee considers that denial of financial

compensation in the specific circumstances of the case is not baseless or arbitrary and

cannot, in itself, be regarded as constituting a violation of article 6 of the Convention. The

Committee nevertheless regrets that the Anti-discrimination Act does not provide for

sanctions to be imposed on the authors of acts of discrimination, since sanctions —

including financial fines — can have an effective preventive and deterrent effect.

7.5

The Committee notes the petitioners’ allegation that the five years’ judicial

procedure to obtain a final decision on the alleged violation was too lengthy and could not

be considered as offering an effective remedy. The Committee observes that during the

five-year period, five judicial decisions were taken by different jurisdictions on the case

itself, most of them in response to the appeals made by the petitioners. The Committee is of

the view that the judicial procedure cannot be considered to have been unduly delayed to

the extent that it would amount to a violation of article 6 of the Convention.

8.

In the circumstances of the case, the Committee on the Elimination of Racial

Discrimination, acting under article 14, paragraph 7 (a), of the International Convention on

the Elimination of All Forms of Racial Discrimination, considers that the facts before it do

not disclose a violation of the Convention by the State party.

10 Article IX (para. 3) of Act No. 365/2004 Coll. on Equal Treatment in Certain Areas and Protection

against Discrimination.

11 General Assembly resolution 60/147 of 16 December 2005.

12 Article IX (para. 3) of Act No. 365/2004 Coll. on Equal Treatment in Certain Areas and Protection

against Discrimination.