By Att. Marian Mandache
Abstract
The present article aims at revealing that distinction must be drawn between the usefulness of the actual implementation of affirmative action (or positive action) and the legal incrimination of such affirmative action. Hence, the purpose of the present article is not that of advocating for the usefulness of affirmative action[1], but rather that of asserting that rendering affirmative action unconstitutional constitutes an infringement of Community and International law. It is, therefore, the opinion of the author that, albeit there is no legal obligation on Slovakia to actually put in practice affirmative action, there is a legal obligation, both under International as well as under Community law, not to render affirmative action illegal.
There are also presented the author's views concerning the legal provisions in question, namely the provisions of the Antidiscrimination Act on Admissible Differential Treatment and the provisions of the Slovak Constitution on equality in rights, as well as with regard to the compliance of the Decision of the Constitutional Court with the legally-binding documents ratified by Slovakia.
Moreover, the article offers a brief insight of human rights situation in Slovakia and asserts that banning affirmative action based on racial or ethnic origin is indirectly targeted at Roma, amounting to racially-motivated administration of justice.
Background
In its Post-Communist history, Slovakia has experienced a number of episodes of racial outburst, many of them having directly targeted Roma. Use of excessive force by the police, racially-motivated crime committed by extreme right-wing groups, forced sterilisation of women, discrimination, and particularly segregation, in the field of education, employment, health and housing are common to the 21st century Slovak society. Often, such actions go unpunished by the Slovak judiciary[2], offering a state of impunity for the perpetrators, and hence contributing to the fostering of such barbarian practices.
Excessive use of force by police officers in Slovakia, as well as racially-motivated crime committed by skinheads, targeted mainly at Roma, is revealed by a number of Human Rights reports[3] and goes unchallenged by the judicial system.
Started out in the Communist period, sterilisation of Romani women and other vulnerable individuals, without their full of informed consent, has continued in the recent years, and constitutes in fact a serious infringement of basic human rights standards[4].
Discrimination, and particularly segregation, in the field of education, employment, health and housing is substantive and wide-spread. In this respect, the US State Department 2004 Report on Slovakia states: "The Roma minority faced considerable societal discrimination, particularly in the areas of education, employment, and health care".
Furthermore, in the field of education, Roma are subject to segregation, being channelled to "special schools". In some areas, up to 80% of the Roma children attend "special schools". Segregated classes on ethnic origin criteria are also feature of Roma education in Slovakia, ECRI says[5]. Little has been done to ensure equal access for the Roma to the educational system and to mother-tongue education[6].
In February 2004, following a 50% cut of the social welfare, Roma in Eastern Slovakia openly protested and clashed with the police to demand a change to the system. Roma representatives in countries like the Czech Republic, Germany, Hungary or Romania have protested with regard to the events in Slovakia[7].
According to ECRI, despite positive steps taken with a view to combating racism, discrimination and xenophobia, such as extending criminal provisions to combating racism, adopting antidiscrimination legislation, "the progress made remains limited in many respects"[8].
Legal arguments
On 18.10.2005, the Constitutional Court of the Slovak Republic has ruled on a 15- month legal dispute between the Government and the Parliament, rendering affirmative action based on racial or ethnic criteria unconstitutional.
The Constitutional Court has, therefore, maintained that the provisions of the paragraph 8 of the Antidiscrimination Act on Admissible Differential Treatment[9], which allows for affirmative action on the basis of racial or ethnic origin, are incompatible with those of the Slovak Constitution on equality in rights.
Onwards, the legal opinion of the author on the constitutional provisions related to the basic principle of equality, the provisions of the Antidiscrimination Act concerning affirmative action the relation between the two and the obligation in the field under international and community law is presented.
Article 12 on Equality of the Slovak Constitution reads:
"(1) People are free and equal in dignity and their rights. Basic rights and liberties are inviolable, inalienable, secured by law, and unchallengeable.
(2) Basic rights and liberties on the territory of the Slovak Republic are guaranteed to everyone regardless of sex, race, colour of skin, language, creed and religion, political or other beliefs, national or social origin, affiliation to a nation or ethnic group, property, descent, or another status. No one must be harmed, preferred, or discriminated against on these grounds.
(3) Everyone has the right to freely decide on his nationality. Any influence on this decision and any form of pressure aimed at assimilation are forbidden.
(4) No one must be restricted in his rights because he upholds his basic rights and liberties."
Paragraph 8 (8) on Admissible Differential Treatment of the Antidiscrimination Act states:
"(8) With a view to ensuring full equality in practice and compliance with the principle of equal treatment, specific positive actions to prevent disadvantages linked to racial or ethnic origin may be adopted."
Along with other situations (e.g. differential treatment based on genuine and determining occupational requirements), positive discrimination (or affirmative action) constitutes an exemption from the principle of equal treatment.
Under international law[10], affirmative action is not considered to be discriminatory against, provided that it meets the following requirements:
Þ its objective is to ensure the equal enjoyment or exercise of human rights of a certain minority group;
Þ the minority group in question requires such a protection because of past or ongoing discrimination against;
Þ it does not lead to the maintenance of separate rights;
Þ it is subject to time limit;
Þ it is not to be continued after its objectives have been achieved.
Nevertheless, the Slovak Constitution does allow for affirmative action, but only related to gender, age and disability. To this end, article 38 of the Slovak Constitution maintains:
"(1) Women, minors, and persons with impaired health are entitled to an enhanced protection of their health at work as well as to special working conditions.
(2) Minors and persons with impaired health are entitled to special protection in labour relations as well as to assistance in professional training".
That is to say that, should a person be discriminated against on the basis of age, gender or disability, (s)he could find a general solution to address this problem, meaning, inter alia, that the authorities are to implement affirmative action policies, which are designed to ensure the equal exercise of the rights of the individuals belonging to that specific group.
Therefore, the question to be asked is why is affirmative action considered unconstitutional only when it deals with racial or ethnic origin but it is perfectly legal, when it is linked to gender, age or disability?
This legal differential treatment itself has considerable negative effects.
On the on hand, it may be considered discriminatory against, since individuals that find themselves in similar positions of disadvantage receive differential legal treatment and remedies. Members belonging to disability, age or gender groups are at a situation of clear disadvantage compared to that of the majority and, in the author's opinion, affirmative action is necessary both in law and in practice. But, so are members of certain ethnic groups in Slovakia, e.g. the members of the Roma community. No objective and reasonable justification, consisting in a legitimate aim and a relationship of proportionality between the means employed and the aim sought to be realised, comes to mind. Such requirements are mandatory for a differential treatment not to amount to discrimination, according to the European Court of Human Rights case-law[11].
On the other hand, such an approach leads to an inherent hierarchy of the protections offered against various types of discrimination. Therefore, the legal protection granted against discrimination on the grounds of gender, age or disability is considerably higher than that granted for discrimination based on racial or ethnic appurtenance.
Moreover, positive action, though not compulsory, is allowed for under international and community law. The EU Race Equality Directive, as well as the ICERD, clearly provides that affirmative action on the basis of racial or ethnic origin is not considered to be discriminatory against and is not a violation of the principle of equal treatment. Furthermore, both are compulsory for Slovakia; the Race Equality Directive is part of the community law and the ICERD since it has been ratified by Slovakia[12].
By rendering positive action on ethnic or racial appurtenance illegal, the decision of the Slovak Constitutional Court comes to flagrant contradiction with the provisions of the art. 5 of the EU Race Equality Directive and that of the art. 1 of the ICERD and results in infringement of international obligations assumed by Slovakia.
The effects of the decision of the Constitutional Court may be redressed taking into consideration the provisions of the article 11 of the Slovak Constitution which ensures the precedence of international provisions in the field of human rights over national laws, provided that the former guarantee greater rights and freedoms.
To this end, article 11 of the Slovak Constitution states: "International treaties on human rights and basic liberties that were ratified by the Slovak Republic and promulgated in a manner determined by law take precedence over its own laws, provided that they secure a greater extent of constitutional rights and liberties".
Racially-motivated administration of justice
The unmotivated and, in the author's opinion discriminatory, decision of the Constitutional Court has been largely supported by Slovak politicians, and notably by the Slovak Minister of Justice, Mr. Daniel Lipsic. In presenting the arguments of the Constitutional Court, the Court's Chairman, Mr. Jan Mazak, has declared: "Slovak Constitution allows for advantages of underage youths, women and the physically handicapped. But any other standard that establishes advantages for certain groups of citizens and does not directly stem from the Constitution is a violation of the basic principle of equality"[13].
Mr. Mazak also said that, since article 8 of the Antidiscrimination Act has not stated any time limitation for the advantages to be provided "Permanent advantages could cause other groups of citizens to feel discriminated against".[14]
The statements of the Chairman express a view that is not taking into account any of the provisions of the international and community law in the field of positive action. Furthermore, by stating that the only acceptable advantages are those provided for under the Constitution, and any other advantage would result in a violation of the basic principle of equality, Mr. Mazak is entirely wrong, since, according to the Slovak constitution itself, international legislation takes precedence over national laws if they guarantee greater rights and freedoms. Advantages for certain groups of citizens does not mean guaranteeing "greater constitutional rights and freedoms", just like the Slovak Constitution asks for?
As regards the inconsistent argument related to the temporary character of the advantages granted for, time limitation is a feature that is strongly associated with the very notion of the positive action. The EU Race Directive itself says nothing about time limitation for the positive action[15]. By definition, positive action is limited in time and it cannot continue after it has achieved its goal. Moreover, the wording of the article 8 of the Antidiscrimination Act, similar to that of art. 5 of the EU Race Directive, presents the fact that positive action is designed to "prevent disadvantages linked to racial or ethnic origin". Obviously, once the ethnic or racial group in question has reached an equal enjoyment and exercise of basic human rights, the positive action would not have any further support, since it would not have its very object: disadvantages linked to racial or ethnic origin.
But perhaps the strongest advocate of banning affirmative action has been the Minister of Justice – Mr. Daniel Lipsic. In October 2004, Mr. Lipsic, supported by most members of the government, requested that the Constitutional Court examine the law for compliance with the Slovak Constitution, the Slovak Spectator says[16].
Moreover, the Justice Minister, who represented the government at the court, considered the verdict "a great step in the constitutional development of Slovakia" and he declared that "the so-called affirmative action or positive discrimination is no better than the negative one. The Constitutional Court clearly said that any form of discrimination violates the equality of citizens before law"[17].
In Mr. Lipsic's opinion, the justification is that positive discriminating on the basis of race or ethnicity is a kind of racism and "it would be something else if the law gave advantages to certain groups on the basis of their social situation"[18].
The logics-free thinking of the Justice Minister is clearly revealed. Taking into account the two statements little can be concluded. On the one hand, Mr. Lipsic considers affirmative action on the basis of ethnic or racial origin to be harmful and discriminatory against, just like "regular" discrimination and racism. On the other hand, when it comes to affirmative action based on the social situation, the Mr. Lipsic thinks the opposite. Accepting this reasoning, one might ask why is the affirmative action based on the social situation not discriminatory against. Is that not a double standard policy?
It is generally accepted that positive action on the basis of ethnic or racial origin would mainly benefit the Roma community in Slovakia[19].
Therefore, this decision must not be taken into account alone, but in the broader context of the human rights situation of the Roma in Slovakia.
According to ECRI, Slovak judges are reluctant to find for racially-motivated crime (most of the victims being Roma), because of harsher sentences involved. Also, society in general is not particularly concerned by the issue of racist crime and the attitude of police officers when receiving and investigating complaints is pretty much the same, despite the legal requirements in the field. Furthermore, situations of state administration bodies or local self-government bodies acting in a discriminatory manner towards members of certain minority groups do occur, albeit no complaints have been received by the competent body[20].
Police mistreatment and violence against Roma in Slovakia, which sometimes leads to the death of the victim, is ongoing and, amazingly, in only in one case have the perpetrators been brought to justice[21].
ERRC considers that the official criminal investigation into allegations of coercive sterilisations of Romani women in Slovakia was fundamentally flawed, noting inter alia that "human rights activists and possible victims were threatened with criminal charges for speaking out and documented violations were ignored (e.g. even in situations where the Slovak Government expressly confirmed that sterilisations had indeed been performed without any consent, it regardless failed to proceed and provide the victims with redress)"[22].
Such instances lead to reasonably argue that the ruling of the Constitutional Court banning affirmative action linked to ethnic origin is, in fact, mens rea targeted at the Roma community in Slovakia. Along with the fact that only affirmative action linked to ethnic origin, and not affirmative action linked to the social situation, has been rendered unconstitutional, this results in one more episode of racially-motivated administration of justice. Second-class justice for second class citizens?
Ironically, the Slovak Government itself has strongly committed to adopting affirmative action in favour of Roma, since it finds such action to be “inevitable”[23].
Zero-Tolerance Policy against Racism
At the European level, racism and discrimination must be of particular concern. Zero-tolerance policies against racism must be designed and applied. To this end, a clear political signal must be given to the fact that racism has no place in the Europe. Racially-motivated administration of justice is not to be accepted in Europe.
Furthermore, the European Commission has already started infringement procedures against six of the "Old" Member states failing to adequately transpose the Equality Directives (i.e. Race Equality Directive[24] and the Employment Equality Directive[25]).
With regard to the Race Equality Directive, cases are pending in front of the ECJ – European Court of Justice, in respect of non-communication infringement proceedings, opposing the European Commission to Austria, Finland, Germany, Greece and Luxembourg[26]. As for the Employment Equality Directive, the same countries have been brought to the ECJ for failure of adequate transposition.
Concerning the "New" Member States, evaluation was still under way, as of October 2005. Within this process, particular attention should be paid to issues highlighted in this article, namely those associated with discrimination in the field of administration of justice and the adequate transposition of the art. 5 of the Race Equality Directive which, without asking for the actual implementation of the positive actions, does impose a clear obligation on Member States not to render affirmative action on grounds of racial or ethnic origin illegal.
[1] For further details with respect to advocating for the usefulness of affirmative action in Slovakia, see Valeriu Nicolae - Forbidding affirmative action in Slovakia – between hypocrisy and stupidity, available at http://www.erionet.org/Slovakia.html, last visited on 03.11.2005.
[2] U.S. State Department 2004 Report on Slovakia asserts: "Police officers used excessive force, particularly against Roma. Lengthy pretrial detention was a problem. Racially-motivated crime, predominantly by organized neo-Nazi groups targeting Roma, persisted. The crimes were not prosecuted to the fullest extent of the law, and police occasionally did not investigate the crimes thoroughly", available at http://www.state.gov/g/drl/rls/hrrpt/2004/41707.htm, last visited on 03.11.2005. Council of Europe – European Commission against Racism and Intolerance (ECRI) Third Report on Slovakia, par 16, reads as follows: "Despite these and other measures taken, implementation of criminal law provisions remains problematic. ECRI notes that governmental statistics show that the number of persons convicted of racially-motivated crime has decreased over the period 1996-2001. At the same time, numerous sources continue to report acts of violence, committed mainly against members of the Roma minority but also against members of other groups, on the part of skinheads and others, and, most alarmingly, on the part of the police officers. It is widely reported that the number of cases brought, and the small number of successful outcomes in the court, is greatly under-representative of the real scale of racist crime in the country today", available at http://www.coe.int/T/E/human_rights/Ecri/1-ECRI/2-Country-by-country_approach/Slovakia/third%20report%20Slovakia%20-%20cri4-4.pdf, last visited on 03.04.2005.
[3] U.S. State Department 2004 Report on Slovakia, , last visited on 03.11.2005; Council of Europe – European Commission against Racism and Intolerance (ECRI) Third Report on Slovakia (par. 16); European Roma Rights Centre - More police abuse of Roma in Slovakia; Slovak courts don't mind, available at http://www.errc.org/cikk.php?cikk=1228&archiv=1, last visited on 03.11.2005.
[4] Centre for Reproductive Rights and Poradna pre Obcianske a l'udske prava in consultation with Ina Zoon, Body and Soul: Forced Sterilisation and Other Assaults on Roma Reproductive Freedom in Slovakia, 2003, page 14, available at http://www.crlp.org/pdf/bo_slov_part1.pdf, last visited on 03.11.2005.
[5] Council of Europe – European Commission against Racism and Intolerance (ECRI) Third Report on Slovakia, par. 103 and 104.
[6] Idem, par. 105.
[7] RSK – Roma Press Center (Hungary) Special Report: Hunger Riot in Slovakia after Government Cuts Social Benefits, available at http://66.249.93.104/search?q=cache:-A5vLNs4S_8J:www.rroma.hu/domain3/files/modules/module15/107369ADF946850D.doc+slovakia+roma+riot&hl=en&lr=lang_en|lang_fr, last visited on 03.11.2005.
[8] Council of Europe – European Commission against Racism and Intolerance (ECRI) Third Report on Slovakia, Executive Summary.
[9] Antidiscrimination Act no. 365 of 20 May 2004 of the National Council of the Slovak Republic on Equal Treatment in Certain Areas and Protection against Discrimination, amending and supplementing certain other laws.
[10] In this respect art. 1, par. 4 of the ICERD – International Convention for the Elimination of all forms of Racial Discrimination reads: "Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved". Furthermore, art. 5 of the EU Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin OJ L 180 - 19/7/2000, further on the Race Equality Directive, clearly states that: "With a view to ensuring full equality in practice, the principle of equal treatment shall not prevent any Member State from maintaining or adopting specific measures to prevent or compensate for disadvantages linked to racial or ethnic origin".
[11] See, inter alia, Karlheintz Schmidt vs. Germany, § 24.
[12] For further details see http://www.unhchr.ch/pdf/report.pdf.
[13] According to Romservis - Slovak anti-discrimination law is against Constitution, available at http://www.romea.cz/english/index.php?id=servis/z_en_2005_0274, last visited on 03.11.2005.
[14] Idem.
[15] Supra.
[16] The Slovak Spectator - Court rules affirmative action not in line with constitution, available at http://www.slovakspectator.sk/clanok.asp?cl=21306, last visited on 03.11.2005.
[17] According to Romservis - Slovak anti-discrimination law is against Constitution.
[18] Idem.
[19] According to EU Observer, the Roma representatives called the legal ruling banning positive action linked to racial or ethnic discrimination a "tragedy" and the Slovak Government's envoy for Roma minority issues considers "Positive action is meant to be a temporary tool to improve Roma’s start-up line". For further details see EU Observer - Slovakia bans positive discrimination, available at http://euobserver.com/9/20123, last visited on 03.11.2005.
[20] ECRI Third Report on Slovakia, para. 18 and respectively para. 31.
[21] ECRI Third Report on Slovakia, para. 48.
[22] For further details see European Roma Rights Center (ERRC) - Developments Related to the Coercive Sterilisation of Romani Women in Slovakia, Including Government Failure to Provide Redress to Victims, available at http://www.errc.org/cikk.php?cikk=1326&archiv=1, last visited on 03.11.2005.
[23] Council of Europe – European Commission against Racism and Intolerance (ECRI) Third Report on Slovakia - Appendix: "The of the Slovak Republic admits that a high percentage of members of the Roma national minority are currently not at the same level as the majority population and it therefore considers necessary to take measures in different areas in order to reach equality of opportunities. ... the principle of affirmative action has become an inevitable basis for improving the situation of Roma in the most sensitive areas: education; employment and social issues; housing; health-care; human rights; cultural development."
[24] Supra.
[25] Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation, Official Journal L 303 , 02/12/2000 P. 0016 – 0022.
[26] C-335/04 Commission vs. Austria, Official Journal 25.09.2004/C 239/15, C-327/04 Commission vs. Finland, Official Journal 25.09.2004/C 239/12, C-329/04 Commission vs. Germany, Official Journal 25.09.2004/C 239/13, C-326/04 Commission vs. Greece, Official Journal 25.09.2004/C 239/11, C-320/04 Commission vs. Luxembourg Official Journal 11.09.2004/C 228/69. For further details see The European Network of Legal Experts in the non-discrimination field – European Anti-Discrimination Law Review, No. 1, 2005, page 31.
