Justice Delayed

Tens of thousands of women were coercively sterilized in Czechoslovakia and its successor states. Romani women were particularly targeted for these measures. These practices stopped only in 2004, as a result of international pressure. Although some measures have been taken to ensure that these practices are not repeated, to date neither the Czech Republic nor Slovakia have completed the work of providing effective remedy to victims, as is their right. This article focusses on efforts in the Czech Republic. It concludes that, inter alia, an administrative mechanism is needed to provide financial compensation to victims, since the road to remedy via courts is effectively blocked. Claude Cahn is a human rights officer at the Regional Office for Europe of the Office of the United Nations High Commissioner for Human Rights. Disclaimer: The views herein are those of the author and do not necessarily reflect those of the United Nations. Please address correspondence to Claude Cahn. Email: [email protected]. Competing interests: None declared. Copyright © 2017 Cahn. This is an open access article distributed under the terms of the Creative Commons Attribution NonCommercial License (http://creativecommons.org/licenses/by-nc/3.0/), which permits unrestricted non-commercial use, distribution, and reproduction in any medium, provided the original author and source are credited. Health and Human Rights Journal HHr HHR_final_logo_alone.indd 1 10/19/15 10:53 AM c. cahn / Romani People and the Right to Health, 9-22 10 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal Introduction In addition to having been a practice of Nazi Germany, the coercive sterilization of women from pariah, marginalized, or stigmatized groups was a feature of a number of systems of social control in Europe that began as a result of the eugenics movement in the 1920s.1 We still do not have a full account of all practices, but target groups appear to have included, in particular, women with disabilities (especially mental or intellectual disabilities), older women, and transsexuals. For example, between 1935 and 1975, around 63,000 people were sterilized in Sweden, of whom 93% were women and around 40% of whom were sterilized without any form of consent.2 Very particularly targeted, however, have been persons—especially women—deemed degenerate or inferior, including Roma and minorities regarded as “Gypsies.” Countries with strong social systems—the Nordic countries and those of central continental Europe—were particularly prone to adopting coercive sterilization as a mode of social control of Roma and related groups.3 Following World War II, in Western Europe, coercive sterilization practices—seen as “hard” and associated with Nazi Germany—were generally replaced (at least with regard to Roma and others deemed vagrant or antisocial) with measures such as the forced removal of children from families. These practices, which had also been ongoing since the 1920s, now became the primary mode of invasive social control of these persons and groups. By the mid-1970s, they appear to have ended as policy in key countries such as Switzerland, Norway, and Sweden. For reasons that are unclear, precisely at the time that these practices were ending in Western Europe, both coercive sterilization and the forced removal of children from their families were reinvigorated as policy in communist Czechoslovakia. From the late 1960s until the end of communism, authorities in Czechoslovakia strongly pressured Romani women to undergo sterilization in exchange for monetary compensation and also used explicit and actionable threats to place their children into state care. These efforts became particularly intensive and frenetic toward the end of communism. The first post-communist government in Czechoslovakia explicitly ended these policies in 1990. However, doctors and social workers in Czechoslovakia and its successor states (the Czech Republic and Slovakia) continued these practices covertly, extensively, and systematically until the early 2000s, until a series of international advocacy efforts brought them generally to a halt. The late Czech ombudsman Otakar Motejl stated publicly in 2009 that he believed there were as many as 90,000 victims in the countries of the former Czechoslovakia. Remedies for coercive sterilization tend to include three categories. The first involves acknowledging the practices, describing their general scope and details, and expressing regret or apologizing officially. This first category also frequently involves a competent setting out of the historical record. The second category involves ensuring that the practices are not repeated, which usually means designing and implementing measures and procedures to secure the genuine free and informed consent of the person concerned. Education measures for health care professionals and social workers is also a part of this category. Finally, the third category involves specific reparations for the victims—usually in the form of restorative surgery or other health measures, measures to address the psychological consequences of the actions, and monetary compensation reflective of the nature and gravity of the harms concerned. This last category is also deemed to require the punishment of perpetrators. In recent years, Norway, Sweden, and Switzerland have undertaken efforts to provide remedies to victims of these practices. All three countries have delivered—between 1986 and 2017—significant segments of the remedies summarized above.4 This has not happened all at once but rather in successive waves of efforts to rectify these abuses. Meanwhile, the Czech Republic and Slovakia have begun efforts to provide remedies but have not yet had the success of the three countries named above. Attempts to provide both full acknowledgement and compensation to victims have faced great difficulties, in particular because of the widespread public view that Roma do not constitute “deserving victims.” Even basic recognition that Roma have c. cahn / Romani People and the Right to Health, 9-22 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal 11 been particularly targeted has sometimes been challenged, despite overwhelming evidence.5 This essay focusses on the Czech Republic, where, despite an official government “expression of regret” in 2009, very few victims have received any form of individual compensation or other reparations. Repeated obstacles—notably a hardened definition of the statute of limitations for court-ordered remedies that sets out a three-year limit for claims—have stood in the way of the provision of such remedies. This paper argues that without an ex gratia mechanism similar to the one adopted by Norway, Sweden, and Switzerland—one with lightened evidentiary burdens, recognition of a historical context of harm, minimal or no usage costs, and other specifications—the vast majority of victims in the Czech Republic effectively have no hope of securing justice. Coercive sterilization of Romani women in the Czech Republic Starting in the late 1960s, under the influence of resurgent eugenics, doctors in Czechoslovakia systematically coercively sterilized Ro mani women with the support of policy makers, official state organs, and social workers. Immediately following the fall of communism, the new democratic government endeavored to end these practices, but they endured throughout post-communism in both the Czech Republic and Slovakia. Non-Romani women, including women with disabilities and older women, have also evidently been victims of these practices. However, coercive sterilization in the Czech Republic and Slovakia has had very clear racist underpinnings, with Romani women being explicitly targeted for invasive, degrading measures to end their ability to bear children. Contraceptive sterilization was governed, as a result of Ministry of Health directives adopted in the early 1970s, as a matter requiring the consent of the person concerned (evidenced by their signature), as well as the approval of a three-doctor panel. The sterilization of Romani women was actively promoted in Czechoslovakia via a number of measures, including a series of social benefits.6 Financial incentives were coupled with strong pressure whereby social workers threatened to take the woman’s children into state care if she did not agree. Pressure was also exerted on women to undergo abortion. Particularly striking is the fact that these measures were implemented in the context of pro-natalist birth policies that sought to avoid a declining general birth rate, which was seen as a threat to development.7 One group, however, was to be stopped from having so many children. In the confines of political correctness prevailing under late communism, Roma were not named explicitly as a target of these policies.8 Generally, references were made to those with “high, unhealthy” birth rates.9 However, official reporting makes clear that the Roma were the target. Thus, reports such as this one—a 1979 report from the District National Committee in Tábor to the South Bohemian Regional National Committee—were typical: Fifteen Gypsy children were born in our territory in 1978, of which three were with a low birth weight; all the children are alive. In 12 cases abortion was performed and sterilizations were performed on four Gypsy women.10 In 1978, the Czech dissident group Charter 77 issued “Document 23” concerning the “situation of the Gypsies in Czechoslovakia,” which, inter alia, protested the use of coercive sterilization as a tool in the service of “the solution of the Gypsy ‘problem’ in the elimination of this minority and its integration with the majority.” The group argued that the government’s approach was based on the idea that “[b]y eliminating the minority, one eliminates the minority problem.”11 Despite Charter 77’s efforts to protest these practices, they remained policy until the end of communism—and even appear to have become more frantic and intensive in the run-up to the collapse of communism. In 1989, dissidents Ruben Pellar and Zbyněk Andrš launched a field study among Czech and Slovak Romani women to map sterilization practices between 1967 and 1989. As a result of their research, they published a document entitled Report on the Examination in the Issue of Sexual Sterilization of Romanies in Czechoslovakia. c. cahn / Romani People and the Right to Health, 9-22 12 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal The authors concluded, among other things, that there had been a steady increase in sterilizations during this period, with a peak in 1988 and 1989: 38% of the women surveyed had been sterilized in those two years.12 The first post-communist Czechoslovak government, composed of many individuals who had taken part in the Charter 77 effort, acted quickly in 1990 to strike down a number of the laws and policies targeting Romani women for sterilization. Also, the Czechoslovak General Prosecutor’s Office used its powers to open an ex officio investigation into the coercive sterilization of Romani women. The federal prosecutor then forwarded the complaints to republic-level prosecutors in the Czech Republic and Slovakia so they could conduct inquiries. The prosecutors’ inquiries followed two general strands: on the one hand, investigation into the impact of social benefits offered as incentives for sterilization and, on the other, non-compliance with binding law. Concerning their inquiry into compliance with binding law, the republic-level prosecutors requested that the district-level prosecutors investigate. In the Czech Republic, district-level prosecutors revealed that either no consent whatsoever had been obtained or that the procedure for obtaining consent had been extremely deficient or even in some cases entirely lacking; this latter scenario was the case in localities such as České Budějovice, Cheb, Kladno, and Ostrava. For example, in Kladno, “In the case of J.G., the in tervention was performed for health reasons on her third delivery, which was like the previous two by caesarean section ... This woman however had not consented to the sterilization and as her testimony shows, the consent had not even been requested.”13 The Czech General Prosecutor’s Office concluded its investigation by requesting that Czech district prosecutors advise all medical authorities in areas where breaches of law had taken place that such breaches had occurred, and to retain sterilization as an area requiring the monitoring of legal compliance. In its response to the complainants, the prosecutor stated, “The findings of the General Prosecutor’s Office of the Czech Republic suggest that the Commission of the Chief Expert for Gynaecology and Obstetrics in Prague is preparing draft amendments to the legal regulations on sterilization.”14 However, no such changes to law were made pursuant to this request. Such reforms would ultimately not be made for close to two decades. Despite the cancellation in the early 1990s of explicit policies supporting the coercive sterilization of Romani women, these practices continued. In the absence of explicit policy, doctors and social workers appear to have colluded extensively to stop Romani women from conceiving or giving birth. Although cases varied extensively, a frequent scenario involved the application of a particular type of Caesarean section for Romani women pregnant with their second child, in which uterine rupture poses a significant risk in the case of a third pregnancy. Thereafter, during the second such birth, doctors would, with limited or no consent, sterilize the woman via tubal ligation while she was still on the operating table for the Caesarean section. In aggregate, there were various profiles of (il) legality in the cases arising after 1989: (1) cases in which consent was reportedly not provided at all, whether in oral or written form, prior to sterilization; (2) cases in which consent was secured during or shortly before delivery, stages when the mother is in great pain or under intense stress; (3) cases in which consent appears to have been provided (a) on a mistaken under standing of terminology used, (b) after the provision of apparently manipulative information, or (c) absent explanations of consequences or possible side effects of sterilization, or adequate information on alternative methods of con tracep tion; and (4) cases in which officials pressured Romani women to undergo sterilization, including through the use of financial incentives or threats to withhold social benefits. In some cases, racial animus was written explicitly into the file. In 2004, on the basis of new documentation, the European Roma Rights Centre sent a communication to the United Nations Com mittee against Torture summarizing 31 individual cases of alleged co ercive sterilization of Romani women between c. cahn / Romani People and the Right to Health, 9-22 D E C E M B E R 2 0 1 7 V O L U M E 1 9 N U M B E R 2 Health and Human Rights Journal 13 1987 and 2003, plus a further three cases in which Romani women had been improperly pressured to undergo sterilization but had successfully refused. The cases provided by the European Roma Rights Centre triggered a chain of events leading to international and national pressure in the Czech Republic to end the practices. As a result, in 2004 the Czech Public Defender of Rights (Ombuds person’s Office) opened a new investigation into the issue. The following year, the office issued a report summarizing its research into coercive sterilization. The report notes that the Ombudsperson’s Office received more than 80 complaints during 2005 but that the report is based on the office’s review of the first 50 such cases. A central conclusion of the report was that “the problem of sexual sterilization carried out in the Czech Republic, either with improper motivation or illegally, exists, and Czech society has to come to terms with this.”15 In 2009, the ombudsman stated publicly that he believed there had been as many as 90,000 victims of these practices in the former Czechoslovakia.