Alleged victim: The author
State party concerned: Slovak Republic
Date of communication: 15 December 1998 (initial
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 8 August 2000,
Having concluded its consideration of communication
No. 13/1998, submitted to the Committee under article 14 of the International
Convention on the Elimination of All Forms of Racial Discrimination,
Having taken into consideration all written information
made available to it by the author and the State party,
Bearing in mind rule 95 of its rules of procedure
requiring it to formulate its opinion on the communication before it,
Adopts the following:
1. The author of the communication is Anna Koptova, a Slovak citizen
of Romany ethnicity. She is the director of the Legal Defence Bureau
for Ethnic Minorities of the Good Romany Fairy Kesaj Foundation in Kosice
and claims to be a victim of violations by the Slovak Republic of articles
2, 3, 4, 5 and 6 of the Convention. She is represented by the European
Roma Rights Center, a non-governmental organization based in Budapest.
1.2 In conformity with article 14, paragraph 6 (a) of
the Convention, the Committee transmitted the communication to the State
party on 25 March 1999.
The facts as submitted by the author
2.1 The author reports that in 1981 seven Romany families
from the villages of Rovne and Zbudske Dlhe, Slovak Republic, came to
work in an agricultural cooperative located in the municipality of Krasny
Brod. Shortly after their arrival each of the families sought and received
permanent residence under Slovak Law (135/1982 Act) in what are today
the municipalities of Nagov and Rokytovce (at the time part of Krasny
Brod). When, at the end of 1989, the agricultural cooperative ceased
operations the Romany families lost their jobs. Insofar as their living
quarters at the cooperative were linked to their employment, they were
compelled to leave the cooperative. Upon their departure, the authorities
demolished the stables which they had occupied.
2.2 In May 1991 the Romany families returned to the municipalities
where they were legally registered, i.e. Rokytovce and Nagov. For various
periods over the following six years, they lived in temporary housing
provided reluctantly by local authorities in the county of Medzilaborce.
On more than one occasion during that period, however, anti-Roma hostility
on the part of local officials and/or non-Romany residents forced the
Romany families to flee. Thus, between May and December 1991 the Medzilaborce
County Department of Social Affairs reserved a trailer for the families
to rent. Although the families raised the money no village (Krasny Brod,
Cabiny, Sukov, Rokytovce, Nagov or Cabalovce) allowed them to place
the trailer on its territory. In 1993, after they had built temporary
dwellings in the village of Cabiny, the dwellings were torn down by
non-Romany residents. Throughout this period the Romany families were
moving frequently from one town to another, in search of a permanent
and secure home.
2.3 In spring 1997 the families again established temporary
dwellings on agricultural land located in Cabiny. Local authorities
from neighbouring villages met to discuss the situation. The mayor of
Cabiny characterized as illegal the movement of Roma to Cabiny and warned
of a possible negative reaction from the rest of the population. The
mayors of Cabalovce and Nagov agreed to accommodate the homeless Roma.
On 8 June 1997 the Municipal Council of Rokytovce, whose mayor had not
been present at the above-mentioned meeting, enacted a resolution which
expressly forbade the Romany families from settling in the village and
threatened them with expulsion should they try to settle there. The
resolution also declared that they were not native inhabitants of Rokytovce,
since after the separation of Rokytovce and Krasny Brod in 1990 they
had neither resided in the village nor claimed their permanent residence
there. On 16 July 1997 the Municipality of Nagov adopted resolution
No. 22 which also forbade Roma citizens to enter the village or to settle
in shelters in the village district. The resolution explicitly provided
that its effect was of permanent duration.
2.4 On 21 July 1997 the dwellings built and occupied by the Romany families
in the municipality of Cabiny were set on fire. To date no perpetrator
has been identified and there is no record of what, if any, steps the
prosecution authorities have taken to investigate the facts.
2.5 The Kosice Legal Defence Foundation sent a letter
to the General Prosecutor's Office in Bratislava requesting an investigation
into the legality of Resolution No. 21 of the Municipal Council of Rokytovce
and resolution No. 22 of the Municipal Council of Nagov. The letter
asserted that the Resolutions were acts of "public discrimination"
against Roma which infringed their rights to freedom of movement and
residence and to protection against discrimination. On 19 September
1997 the General Prosecutor's Office informed the Foundation that the
investigation had been assigned to the County Prosecutor in Humenné.
2.6 On 24 November 1997 the Kosice Legal Defence Foundation
submitted an application to the Constitutional Court of the Slovak Republic
requesting annulment of both resolutions. The submission stated that
these resolutions violated the human rights and fundamental freedoms
not only of Romany citizens with permanent residence in the respective
towns but of all Romany citizens, as well as of the Foundation itself,
which could not carry out its work on behalf of Roma in the affected
towns. It also stated that nine Romany families with permanent residence
in the two villages in question had been forced to leave and that the
resolutions constituted a general ban against Romany citizens, pursuant
to which no citizen of Romany origin was allowed to enter these villages.
It requested the annulment of both resolutions on the grounds that they
violated the rights of non-discrimination and freedom of movement and
residence, as well as the particular rights of ethnic minorities protected
by the Slovak Constitution.
2.7 In its decision of 18 December 1997 the Constitutional
Court dismissed the submission on the ground that, as a legal person,
the Kosice Legal Defence Foundation could not suffer an infringement
of the constitutional rights set forth in its application, since those
rights were designed to protect only natural persons. On 29 December
1997 the District Prosecutor's Office in Humenné notified the Foundation
that, in view of the Constitutional Court's ruling, it had suspended
its investigation concerning the challenged resolutions.
2.8 On 5 May 1998 Ms. Koptova, together with Miroslav
Lacko (another employee of the Kosice Legal Defence Foundation) and
Jan Lacko, one of the Romany citizens whose dwellings were destroyed
on 21 July 1997, filed another submission before the Constitutional
Court. This submission challenged the Nagov resolution on the grounds
that it unlawfully restricted the freedom of movement and residence
of a group of people solely because they were Roma. The submission argued
that not only Jan Lacko, a permanent resident of Nagov, but all Roma
in Slovakia, including Ms. Koptova, suffered infringements of their
rights under the Slovak Constitution to freedom of movement and residence,
freedom from racial and ethnic discrimination and freedom in the choice
of nationality. On the same date Julia Demeterova, a permanent resident
of Rokytovce and another of the Romany citizens whose dwellings had
been destroyed, filed a submission with the Constitutional Court challenging
the Rokytovce resolution on the same grounds.
2.9 On 16 June 1998 the Constitutional Court issued two
written opinions dismissing both petitions on similar grounds. In response
to Jan Lacko's submission the Court reasoned that, as a permanent resident
of Nagov, he had not provided any evidence to show that the Nagov resolution
had in fact been applied in a manner which would infringe his rights.
As to Miroslav Lacko and Ms. Koptova, both of whom had permanent residence
outside Nagov, the Court found no evidence that either had tried to
enter or move into the community of Nagov, or that the community had
tried to stop them. Accordingly, the Court found, their rights had not
been violated. With respect to Demeterova's submission the Court found
that, as a permanent resident of Rokytovce, she had provided no evidence
that the resolution had in fact been applied in a manner which infringed
2.10 Since the adoption of both resolutions at issue Anna
Koptova has not gone to Rokytovce or Nagov. She fears that, as a Slovak
citizen of Romany ethnicity, she would be subjected to violence if she
were to enter either municipality.
3.1 The author asserts that a number of rights to which
she is entitled under the Convention have been violated, including the
Article 2.1 (a). The institutions which have adopted the resolutions
in question are local public authorities and public institutions.
By maintaining the resolutions in force the Slovak Republic has engaged
in acts of racial discrimination against the author and other Roma
and has failed to ensure that all public authorities and public institutions,
national and local, refrain from acts or practices of racial discrimination.
Article 2.1 (c). By maintaining in force the resolutions
at issue the Slovak Republic has failed to take any measures to review
governmental, national and local policies and to amend, rescind or
nullify any laws and regulations which have the effect of creating
or perpetuating racial discrimination.
Article 3. The Resolutions publicly and formally refer
to the author and other persons by their assumed racial/ethnic identity
and single them out for special treatment. As such, the Resolutions
expressly endorse policies of racial segregation and apartheid. By
refusing to withdraw them the Slovak Republic has contravened its
obligation to prevent, prohibit and eradicate all practices of segregation
and apartheid within its jurisdiction.
Article 4 (c). By maintaining in force the resolutions
at issue the Slovak Republic has failed to comply with its obligation
not to permit public authorities or public institutions, national
or local, to promote or incite racial discrimination against the author
and other Roma.
Article 5 (d) (i). The resolutions at issue expressly
forbid the author and other Roma from entering the two municipalities
solely because of their status as Roma. By adopting and maintaining
in force these resolutions the Slovak Republic has infringed the author's
right to freedom of movement and residence.
Article 6. The author complained to local law enforcement
authorities and filed formal complaints with the Constitutional Court.
However, each request for a remedy was rebuffed. The ruling of 16
June 1998 by the Constitutional Court represents the final domestic
decision, from which no appeal is permitted. Accordingly, all domestic
remedies have been exhausted.
3.2 The author states that she is a victim of the above
violations for the purposes of article 14, paragraph 1, of the Convention.
Both resolutions may be reasonably understood by the author, (as, indeed,
by all Roma in Slovakia) to apply to her. The author would like to be
free to visit Nagov and Rokytovce, for instance in order to further
the work of her organization. However, she has not entered either municipality
since the resolutions were adopted, in part because she fears that they
could be enforced against her. The author believes that, by publicly
and formally using the term "Roma" to refer to certain unspecified
persons and by singling out such persons for special and invidious treatment,
the resolutions subject her, as a person of Romany ethnicity, to degrading
3.3 The author further argues that, in assessing her "victim"
status, the Committee should also take into consideration jurisprudence
of the European Court of Human Rights which entitles individuals to
contend that a law violates their rights by itself, in the absence of
an individual measure of implementation, if they run the risk of being
directly affected by it.
3.4 Even though the author does not now and did not previously
reside in the affected municipalities, she is among the class of persons
defined by the challenged resolutions who are adversely affected by
them. Both the text of the resolutions and the background of anti-Roma
hostility which underlies their adoption make it reasonable to believe
that the risk of additional adverse effect - i.e. that, if violated,
the Resolutions might be enforced through, inter alia, physical
force - is high.
3.5 Finally, the author asserts that the matter is not
being examined under any other procedure of international investigation
or settlement, although she notes that a separate case concerning the
events giving rise to the present communication had been filed on behalf
of other persons with the European Court of Human Rights.
State party's observations on admissibility
4.1 By submission of 23 June 1999 the State party challenges
the admissibility of the communication. It informs the Committee that
on 8 April 1999 the Municipal Council of Nagov and the Municipal Council
of Rokytovce held extraordinary meetings, also attended by the District
Prosecutor of Humenné, and decided to revoke resolution No. 22 of 16
June 1997 and resolution No. 21 of 8 June 1997 respectively. The State
party therefore concludes that the communication has lost its relevance.
4.2 The State party further argues that a case concerning
alleged racial discrimination against Roma caused by the adoption of
the above-mentioned resolutions has been filed with the European Court
of Human Rights. Although the applicants are not identical in the two
cases, the subject matter is exactly the same.
4.3 According to the State party, the Roma inhabitants of Rokytovce
were summoned by the District Prosecutor of Humenné by registered letters
dated 20 November 1997. However, they failed to appear in the Prosecutor's
Office, which means that they did not cooperate in establishing the
facts of the case.
4.4 The State party also submits that the author has failed
to exhaust domestic remedies. First of all, the Constitutional Court
rejected the petition filed by the Legal Defence Bureau for Ethnic Minorities
on the grounds that, as a legal entity, the Bureau could not challenge
a violation of fundamental rights belonging to natural persons. The
court, however, also noted that its decision was without prejudice to
the right of natural persons to claim the violation of their fundamental
rights as a result of decisions made by State or local administrative
organs. On the basis of the court's decision the District Prosecutor
of Humenné informed the author that her case would be discontinued.
The author did not appeal the decision of the District Prosecutor, although
it was possible to appeal in accordance with Act 314/1996 on the Prosecution
4.5 As for the decision of the Constitutional Court dated
16 June 1998 to reject the author's petition of 5 May 1998, the State
party submits that nothing prevented the author from filing a new petition
with the Constitutional Court submitting evidence of violation of her
constitutional rights or a causal link between the violation of her
rights and the decision of the municipal council.
4.6 Secondly, the State party submits that the author
could have availed herself of the remedy provided for under section
13 of the Civil Code, according to which everyone is entitled to seek
the protection of the State against violations of his/her integrity
and to be given appropriate satisfaction; in the case of insufficient
satisfaction, mainly because the dignity or respect that the person
enjoyed in society was significantly harmed, the victim is entitled
to compensation, to be determined by a court as appropriate.
4.7 The State party further submits that the resolutions
of the Nagov and Rokytovce municipal councils were never implemented.
During the time they remained in force no act of violence against persons
belonging to the Roma minority took place and the Roma moved within
the boundaries of the two municipalities without restrictions. The Roma
registered as permanent residents in those municipalities when the resolutions
were adopted continue to enjoy that status.
4.8 As for the author's claim that several provisions
of the Convention, including article 2, paragraph 1 (a), have been violated,
the State party indicates that, according to section 1, paragraphs 1
and 2, of the Act of the Slovak National Council No. 369/1990 Coll.
on the Municipal System, a municipality is an independent self-governing
territorial unit of the Slovak Republic and any interventions as to
its powers and/or impositions of responsibilities are possible only
by law. The two resolutions adopted by the municipal councils of Nagov
and Rokytovce did not concern the performance of State administrative
tasks transferred to the municipal level in the field of general public
administration, neither did they concern security and public order affairs
transferred to municipalities, in which case the control and supervision
of a municipality could be applied pursuant to article 71, paragraph
2, of the Constitution.
4.9 The author never tried to move into either municipality, to acquire
or rent a house or to work there. She showed no interest in visiting
the municipalities in order to know the reasons for the issuing of the
resolutions. She provided no evidence, to the Committee or the authorities
involved in the case at the national level, that she had tried to enter
the municipalities or that she had been prevented from doing so.
5.1 In a submission dated 2 August 1999 counsel contends
that even if the challenged resolutions were withdrawn the communication
is still admissible.
5.2 First of all, the author remains a "victim"
within the meaning of article 14 of the Convention. The Committee could
follow in this respect jurisprudence from the European Court of Human
Rights according to which an applicant remains a "victim"
unless the following conditions obtain: (i) there has been an acknowledgment
by the domestic courts of a violation of the substance of the European
Convention rights at issue; (ii) the applicant has received satisfaction
with regard to the past damage suffered by reason of the violating provisions;
and (iii) the applicant has received satisfaction with regard to a complaint
that the violating provisions should not have been promulgated in the
5.3 In the instant case none of those conditions has been
satisfied: (i) at no time has the author received an acknowledgment
by the domestic courts that the existence of the resolutions amounted
to a violation of domestic law, of the Slovak Constitution, of the Convention
or of any other treaty or international legal instrument protecting
human rights; (ii) at no time has the author received satisfaction with
regard to the past damage suffered by her by reason of the authorities'
initial promulgation and subsequent maintenance in force of the resolutions
for almost two years; (iii) at no time has the applicant received satisfaction
with regard to her complaint that the resolutions should not have been
issued in the first place. Accordingly, counsel concludes that the author
is a "victim" within the meaning of article 14 and that the
matter of the abolition of the resolutions is relevant only for the
purpose of any suggestions and recommendations that the Committee might
address to the State party at the conclusion of the case.
5.4 Further or alternative to the arguments made above,
counsel submits that the Committee should in any event consider the
author's claim for reasons of "general interest". The Committee
ought to have jurisdiction to consider claims relevant to the general
or public interest, even in exceptional cases where the victim requirement
has not been satisfied. A case involving the promulgation and maintenance
in force of resolutions banning an entire ethnic minority from residing
or entering an entire municipality is precisely the kind of case that
should satisfy a "general interest" rule.
5.5 Regarding the State party's argument that an application
on the same matter has also been submitted to the European Court of
Human Rights, counsel contends that the author had already informed
the Committee about that. However, the application filed with the European
Court by three other persons and alleging violations of the European
Convention should in no way preclude the author from filing a separate
communication before the Committee complaining that the resolutions
violate the Convention. Counsel cites jurisprudence of the Human Rights
Committee adopting that approach.
5.6 Furthermore, even if the author had filed a separate
application with the European Court of Human Rights concerning the same
matter, there is no provision in the Convention expressly barring the
Committee from examining a case that is already being examined by another
5.7 The substantive features and intent behind this Convention
and the European Convention are totally different. The application before
the European Court alleges breaches of European Convention provisions,
including the prohibition of inhuman and degrading treatment and the
right to freedom of movement and choice of residence. It seeks, inter
alia, a declaration that certain provisions of the European Convention
have been violated and an award of just compensation. By contrast, the
present communication alleges separate and different violations of the
Convention on the Elimination of All Forms of Racial Discrimination
(which is more concerned than the European Convention with the positive
duties and obligations of States parties not to discriminate on the
basis of race, colour or national origin) and seeks suggestions and
recommendations concerning the Government's obligation to remedy the
alleged violations. The simultaneous filings of claims involving similar
matters with the Committee and the European Court are founded on different
legal bases and seek different legal remedies. They are not, therefore,
5.8 Counsel further objects to the State party's argument
that the author did not exhaust domestic remedies. He states that, according
to international human rights jurisprudence, the local remedies rule
requires the exhaustion of remedies that are available, effective and
sufficient. A remedy is considered available if it can be pursued by
the petitioner without impediment, it is deemed effective if it offers
some prospect of success and it is found sufficient if it is capable
of redressing the complaint. If a remedy is not available, effective
or sufficient the individual is not required to pursue it.
5.9 First of all, there is no effective remedy available
in the State party for any cases of racial discrimination. In its concluding
observations on the Slovak Republic, dated 4 August 1997, the Human
Rights Committee noted that independent complaint mechanisms for victims
of all forms of discrimination did not exist. The European Commission
against Racism and Intolerance (ECRI) has also noted the absence of
effective legal remedies for racial discrimination in the State party.
5.10 Secondly, the author did exhaust all remedies available.
As explained in the initial submission, the Kosice Legal Defence Foundation
reported the matter to the Office of the General Prosecutor, requesting
an investigation into the legality of the resolutions. Upon request,
the Foundation provided the County Prosecutor in Humenné with the names
of five persons from Nagov and four persons from Rokytovce who felt
they had been discriminated against by the two resolutions. Soon afterwards
the Foundation submitted an application to the Constitutional Court
requesting annulment of both the resolutions at issue. The Court dismissed
the submission on the ground that, as a legal person, the Foundation
could not suffer an infringement of constitutional rights designed to
protect only natural persons. As a result of that ruling the District
Prosecutor's Office decided to suspend its investigation, as it was
not competent to examine decisions of the Constitutional Court. Subsequent
to that, the present communication was filed with the Committee.
5.11 On 30 March 1999 the Departmental Secretary General
of the Office of the Government of the Slovak Republic informed counsel
that the Office of the General Prosecutor was reviewing the resolutions
and that, if they were found illegal, a suggestion for withdrawal would
be filed at the Constitutional Court, as the only organ with legal authority
to withdraw resolutions of local government councils in order to guarantee
their compliance with domestic and international law. On 31 May 1999
counsel was informed by the Chairman of the Committee on Human Rights
and National Minorities of the Slovak Republic that the resolutions
had been cancelled.
5.12 As for the State party's contention that the applicant
did not cooperate with the investigation, counsel contends that whether
or not the applicant failed to attend an interview at the Office of
the General Prosecutor, which is not admitted, the Prosecutor was still
under a domestic and international legal duty to investigate the complaint.
The only circumstance in which the Prosecutor is not under such a duty
is where the applicant's failure to attend the appointment would hinder
the investigation. In other words, the applicant must be someone whose
evidence is necessary in order to investigate the case. This exception
clearly does not apply in the instant case, because the applicant's
alleged failure to attend for an interview is not a hindrance to continuing
investigation by the Prosecutor as to the compliance of the resolutions
with domestic or international human rights norms. Indeed, despite the
alleged failure of the applicant to appear for an interview, the authorities
proceeded with their investigation until the decision of the Constitutional
Court was promulgated.
5.13 The State party has failed to identify any basis
for believing that the Office of the Prosecutor, having once rejected
the complaint, would reach a different result if faced with a second,
identical complaint, given the absence of new facts or law. Furthermore,
on the basis of jurisprudence of the Constitutional Court, it is questionable
whether the prosecutor possesses the legal power to remedy the violations
of the Convention alleged in the instant case. In fact, in the letter
sent to counsel on 30 March 1999, referred to above, the Government
itself states that the only effective and available remedy in this case
is an application to the Constitutional Court. Thus the Government has
conceded that a complaint to the General Prosecutor is not an effective
and available remedy because the Prosecutor's Office is not a judicial
5.14 Counsel also argues against the State party's contention
that a civil action pursuant to article 11 of the Civil Code would be
an effective remedy. The applicable provisions of the Civil Code regulate
private relations, whereas the resolutions at issue are not matters
of private individual rights. The municipalities that issued the resolutions
are not private entities, therefore the Civil Code is inapplicable.
5.15 A civil remedy, even if available and effective,
would be insufficient, insofar as a civil court in the Slovak Republic
would not have legal authority to grant sufficient redress for the violations
of the Convention that the applicant has suffered. Thus the civil court
lacks the power to: (i) prosecute, sanction or otherwise punish the
responsible municipal officials for racial discrimination; (ii) declare
that the existence of the resolutions amounted to a practice of racial
discrimination and that such a practice is unacceptable and illegal;
(iii) declare that the existence of the resolutions amounted to a violation
of human rights laid down in international human rights instruments
by which the Republic of Slovakia is bound; (iv) award satisfaction
with regard to a complaint that the violating provisions should not
have been made in the first place; (v) order cancellation of the resolutions.
Furthermore, the author should only exhaust those remedies which are
reasonably likely to prove effective.
5.16 Regarding the second constitutional action, filed
by the author in her personal capacity, the State party contends that
the author failed to present evidence of an actual attempt to enter
the territories and that the author should have filed a new petition.
According to counsel, these contentions lack merit. Insofar as the Constitutional
Court had already dismissed several separate applications concerning
the same resolutions, the suggestion that the author should be required
to submit yet another petition, to the very same forum which had squarely
rejected her claim, lacks logical or legal foundation.
5.17 As for the failure to present evidence, counsel reiterates
its arguments concerning the "victim status" of the author
and suggests that in assessing such status the Committee should be guided
by the jurisprudence of the European Court, which entitles individuals
to contend that a law violates their rights by itself, in the absence
of an individual measure of implementation, if they run the risk of
being directly affected by it. It is not necessary for the author to
demonstrate that she was actually placed in an unfavourable position.
The author has been personally affected by the resolutions in the following
Inhuman and degrading treatment. The author has personally
suffered degrading treatment, direct emotional harm, loss of human dignity
and humiliation owing to the existence of the two resolutions, a fact
not altered by their subsequent cancellation. It is therefore not unreasonable
that the applicant, as any other Romany person in Slovakia, feels that
she has been personally offended and publicly shamed in a way different
from the moral outrage which may be felt by even the most sympathetic
Subjection to undue restrictions on her personal freedoms.
The author was affected by the threat of a potential use of violence;
prevented from entering or settling in the vicinity of Nagov and Rokytovce,
thereby violating her rights to freedom of movement and freedom to choose
a residence; and prevented from having personal contact with persons
in the vicinity of Nagov and Rokytovce, thereby violating her right
to private life.
The author has also been directly affected by the existence
of the resolutions because she is affected by the atmosphere of racial
discrimination around her.
5.18 The State party asserts that the municipalities that
issued the resolutions are not "public authorities" or "public
institutions" and that a municipality is "an independent self-governing
territorial unit of the Slovak Republic". Counsel disagrees with
that view, at least with respect to governmental responsibility for
ensuring compliance with the Convention. Several provisions of the Constitution
and the Municipality System Act No. 369/1990 suggest that there is a
direct relationship between the State and the municipality, a relationship
which makes it clear that the municipalities are "public authorities"
or "public institutions". The Committee itself has stated,
in its General Recommendation XV on article 4 of the Convention, that
the obligations of a "public authority" under the Convention
include the obligations of a municipality. Although municipalities may
be "independent self-governing territorial units", they are
still State organs and part of the State administration and, therefore,
public institutions within the meaning of article 2 (1) (a) of the Convention.
5.19 As for the fact that the resolutions were cancelled,
the government measures of cancellation were not "effective measures"
in the sense of article 2 (1) (c), because the cancellations were unreasonably
delayed. Prior to cancellation the resolutions did violate the above-mentioned
5.20 That the resolutions may not have been implemented
through the particular means of criminal prosecution and conviction
does not mean they did not breach the Convention. Part of the point
and clearly the effect of the resolutions was to deter any Roma who
might otherwise consider coming to the affected municipalities. The
fact that no Roma dared to defy the resolutions would indicate that
the mere passage and maintenance in force of the resolutions for almost
two years succeeded in intimidating Roma and thus interfering with their
rights under the Convention.
5.21 Finally, counsel provides observations by monitoring
organizations documenting official and racially-motivated violence and
discrimination against Roma in the State party.
6.1 At its fifty-fifth session the Committee examined
the admissibility of the communication. It duly considered the State
party's claims that the communication should be considered inadmissible
on several grounds.
6.2 First of all, the State party argued that the resolutions
of the municipal councils in question were revoked and, therefore, the
communication had lost its relevance. The Committee noted, however,
that notwithstanding their abrogation the resolutions had remained in
force from July 1997 to April 1999. Accordingly, the Committee had to
examine whether during that time violations of the Convention had taken
place as a result of their enactment.
6.3 Secondly, the State party contended that a similar
case had been filed with the European Court of Human Rights. The Committee
noted in that respect that the author of the present communication was
not the petitioner before the European Court and that, even if she was,
neither the Convention nor the rules of procedure prevented the Committee
from examining a case that was also being considered by another international
6.4 Thirdly, the Committee did not share the State party's
view that domestic remedies had not been exhausted and considered that
neither a new petition to the Constitutional Court nor a civil action
would be effective remedies in the circumstances of the case.
6.5 Fourthly, the Committee was of the view, contrary
to the State party, that the author could be considered a "victim"
within the meaning of article 14, paragraph 1, of the Convention, since
she belonged to a group of the population directly targeted by the resolutions
6.6 Finally, the Committee considered that the municipal
councils which had adopted the resolutions were public authorities for
the purposes of the implementation of the Convention.
6.7 The Committee found that all other conditions for
admissibility established under rule 91 of its rules of procedure had
been met. Accordingly, it decided, on 26 August 1999, that the communication
was admissible. It also decided that, in order to enable the Committee
to examine the case in all its aspects, the State party and the author
should provide information about domestic legislation and remedies intended
to protect the right of everyone, without distinction as to race, colour,
or national or ethnic origin, to freedom of movement and residence within
the border of the State, in accordance with article 5 (d) (i) of the
Further observations by the State party
7.1 The State party admits that the investigation of the
complaint carried out by the District Prosecutor's Office of Humenné
was incomplete, since it did not address the substantive aspects. However,
the Legal Defence Bureau for Ethnic Minorities did not make use of their
legal possibility to have the lawfulness of the resolutions in question
reviewed. A complaint pursuant to section 11, paragraph 1 of Act No.
314/1996 Coll. (2) to the prosecution authority or a motion by
the Prosecutor-General with the Constitutional Court for incompatibility
of the resolutions in question with the Constitution could have been
filed. As the Legal Defence Bureau failed to utilize these possibilities,
neither the regional nor the general prosecution authorities knew about
the way in which the District Prosecutor's Office of Humenné had handled
the complaint. The State party emphasizes that the Slovak legal order
has effective, applicable, generally available and sufficient means
of legal protection against discrimination.
7.2 The State party acknowledges that the adoption of
the resolutions in question in 1997 created an unlawful situation which
lasted until their abrogation in 1999. However, during the time they
remained in force no violation of human rights took place since they
were not applied against anybody. The Constitutional Court found in
that respect that the applicants had provided no evidence of the violation
of their rights and freedoms. (3)
7.3 The State party further submits that no direct violation
of the right to freedom of movement and choice of residence, as guaranteed
by article 5 (d) (i) of the Convention, took place in the present case.
The legal order of the Slovak Republic guarantees the equality of citizens
before the law. (4) Freedom of movement and residence is also
guaranteed to all persons staying in the territory of the State party
regardless of their citizenship. (5) The freedom of residence
is understood as the right of citizens to choose without any restrictions
their place of residence. This right may only be limited as a result
of a penal sanction. A ban on residence can be imposed as a sanction
only for intentional crimes, can never be imposed on juveniles and cannot
apply to the place where the offender has permanent residence. Restrictions
to the freedom of movement and residence can only be based on a parliamentary
act and never on decisions of the Government or other bodies of State
8.1 Counsel notes the State party's acknowledgement that
the resolutions in question were unlawful. As a result, the only relevant
issues left for the Committee to decide are, firstly, whether the applicant
is a victim for the purposes of a complaint under the Convention and,
secondly, whether the subsequent abolition of the resolutions affects
the validity of the complaint to the Committee.
8.2 In its admissibility decision the Committee already
addressed the first issue when it stated that the author could be considered
a "victim" within the meaning of article 14, paragraph 1,
of the Convention, since she belonged to a group of the population directly
targeted by the resolutions in question. (6) The Committee
also addressed the second issue when it noted that, notwithstanding
their abrogation, the resolutions had remained in force from July 1997
to April 1999 and that it had to examine whether during that time violations
of the Convention had taken place as a result of their enactment.
8.3 Finally, counsel states that the points raised by
the State party in its observations on the merits have already been
addressed in his submission of 2 August 1999.
Additional information submitted by the State party
9.1 Upon the Committee's request the State party provided
copy of records of the municipal councils of Rokytovce and Nagov containing
the texts of resolutions Nos. 21 and 22 respectively.
9.2 The English version of the record referring to resolution
No. 21 reads as follows:
"The extraordinary meeting was convoked based on the minutes
[of the meeting] of mayors of settlements of Cabina, Nagov, Cabalovce,
Krasny Brod and Rokytovce in connection with Roma citizens that are
homeless in the District of Medzilaborce.
"Deputies of the Municipal Council after reading
and studying the Minutes have adopted the following standpoint on
the matter in question:
The deputies have univocally stated and they declare herewith that
those Roma are not native citizens of Rokytovce, but they are immigrants
from settlements of Rovné and Zbudské. In 1981 one family moved
there as employees of the JRD (Unified Agricultural Co-operative)
Krásny Brod . . .
In 1981 they received permanent residence status from
. . . the former Secretary of the Municipal National Committee in
Krásny Brod, as the settlement of Rokytovce did not exist as an
independent settlement and it was then only a part of the settlement
of Krásny Brod. The family was officially registered/reported at
a house as tenants . . .
In 1989 the Roma moved from the settlement to the
settlement of Sukov (?) as there was work for them there.
After the settlement of Rokytovce became independent
in 1990, the Roma citizens did not live there; neither did they
report there for permanent residence. As a result we do not count
them among our citizens.
Based on findings from the registered entries in the
House Book it was ascertained that of five proposed Roma that should
return back to the settlement of Rokytovce, only two of them have
permanent residence in Rokytovce, those being Júlia Demetrová and
The Municipal Council declared in conclusion that
in case the Roma would forcefully move into the settlement, they
would be, with the help of all citizens, evicted from the settlement."
9.3 Resolution No. 22 of 16 July 1997, as amended by
resolution No. 27/98, indicates the following: "The Municipal Council
cannot agree with accommodation of the Roma citizens in the cadastral
territory of Nagov, as they do not have any ownership rights, nor origin,
nor accommodation, nor jobs (employment) in the settlement of Nagov."
Examination of the merits
10.1 Having received the full texts of resolutions 21
and 22 the Committee finds that, although their wording refers explicitly
to Romas previously domiciled in the concerned municipalities, the context
in which they were adopted clearly indicates that other Romas would
have been equally prohibited from settling, which represented a violation
of article 5 (d) (i) of the Convention.
10.2 The Committee notes, however, that the resolutions
in question were rescinded in April 1999. It also notes that freedom
of movement and residence is guaranteed under article 23 of the Constitution
of the Slovak Republic.
10.3 The Committee recommends that the State party take
the necessary measures to ensure that practices restricting the freedom
of movement and residence of Romas under its jurisdiction are fully
and promptly eliminated.
1. In so doing the author relies upon jurisprudence of the European
Commission on Human Rights, in particular its decision in East African
Asians v. United Kingdom, in which the Commission found that challenged
immigration legislation had publicly subjected the applicants to racial
discrimination and constituted an interference with their human dignity,
amounting to "degrading treatment" in the sense of article
3 of the European Convention on Human Rights.
2. Pursuant to section 30, paragraph 1.2 of this Act,
the prosecutor shall, upon his own initiative or upon a petition, review
the procedure or decisions by public administrative bodies, decisions
of a court, prosecutor, investigator or police body for compliance with
the law. The person who filed the petition may request a review as to
the lawfulness of its processing with a repeated petition which shall
be processed by the superior body.
Pursuant to section 11 of the same Act, prosecutors shall
file protests against generally binding pieces of legislation, municipal
binding regulations, guidelines, amendments, resolutions, other legal
acts and decisions by public administrative bodies issued in individual
cases which violate the law. If the protest was filed with the body
which issued the decision, this body can either repeal the decision
being challenged or replace it with a decision complying with the law.
If this body does not fully accept the protest, it has the duty to submit
it to a superior or monitoring body. The prosecutor may file a new protest
against the decision rejecting the protest.
3. See paragraph 2.9.
4. Article 12, paragraph 2, of the Constitution stipulates
that fundamental rights and freedoms are guaranteed to all regardless
of their gender, race, colour, language, faith and religion, political
or other views, national or social origin, belonging to a national minority
or ethnic group, etc. Article 33 stipulates that membership in any national
minority or ethnic group may not be used to the detriment of any individual.
Article 34 states that citizens belonging to national minorities or
ethnic groups shall be guaranteed their full development, particularly
the rights to promote their cultural heritage with other citizens of
the same national minority or ethnic group, receive and disseminate
information in their mother tongues, form associations and create and
maintain educational and cultural institutions.
5. Article 23 of the Constitution.
6. See paragraph 6.5.
7. See paragraph 6.2.