Sensitive or controversial issues

• Author: Jakub Tomsej
• Pages: 87-88

87

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national leve l

The main issue regarding transposition of the Racial Equality Directive 2000/43/EC is

securing equal access in practice to education for Roma children.241 Despite the significant

development that has occurred since the judgment in D. H. and Others, in the amendment

of the Schools Act No. 82/2015, the segregation of Roma children in education is still an

issue. Such segregation takes the form both of placing Roma children into schools/classes

for pupils with special needs, as well as in mainstream basic schools where classes for

Roma children may be formed in areas where Roma communities are concentrated.

Although the legislation has been changed, discriminatory practices may still be seen.

Another potential point of non -compliance with EU law migh t be found in relation to the

wording of Section 10 of the An ti-Discrimination Act, which states that victims of

discrimination can be awarded monetary compensation for non-pecuniary damage as a

subsidiary remedy. Specifically, Section 10 of the Anti-Discrimination Act provides that

should none of the forms of redress appear adequate, the victim of discrimination also has

the righ t to monetary compensation for non-pecuniary damage. Although the monetary

compensation for non-pecuniary damage should be awarded alongside another form of

redress, in Czechia, it inherently represents a subsidiary remedy.242 As a result, the author

has doubts whether this provision is in compliance with Article 15 of Directive 2000/43/EC

– stating that payment of compensation to the victim must be effective, proportionate and

dissuasive – as well as of Article 17 of Directive 2000/73/EC and Article 8d of Directi ve

1002/73/EC.

There is no legislation expressly prohibiting discrimination based on association with

persons with particular characteristics. Judicial interpretation is needed to reach a clear

conclusion as to whether discrimination based on association is prohibited by Czech

legislation.

There are almost no existing activities to promote dialogue between social partners to give

effect to the principle of equal treatment within workplace practices, codes of practice and

workforce monitoring (Article 11 of Directive 2000/43/EC and Article 13 of Directive

2000/78/EC).

As discuss ed in section 4.3 abo ve, the Cz ech Ombudsman has also expressed concerns

about the compliance of Act No. 361/2003 on service by members of the security forces

and Act No. 221/1999 on service by members of th e armed forces with Directive

2000/78/EC. These acts provide for a complete exclusion of some discrimination grounds

(age and/or disability) from the equal treatment principle within the public service relations

regulated by such acts. There appears to be no justificati on for such a b road excepti on,

and the Ombudsman has found a breach of the UN Convention on the Rights of Pe rsons

with Disabilities and the Convention for the Pr otection of Human Rights and Fundamental

Freedoms.

11.2 Other issues of concern

There are still only a limited number of discrimination cas es brought before Czech courts.

Bringing a case to court is widely considered by the public as the last resort. People prefer

to solve their problems by alt ernative means, because they have insuff icient trust in the

justice system as well as for other social and legal reasons discussed above.

241 The Ombudsman uses the term ‘segregation’; however, this term is not defined by Czech legislation.

242 Public Defender of Rights (Ombudsman) (2015), Diskriminace v ČR: Ob diskriminace a její pekážky v

pístupu ke spravedlnosti (Discrimination in the Czech Republic: Victims of discrimination and obstacles to

the access to justice), pp. 99-100.