Ministry of Interior of the Czech Republic
Report on State Strategy in Punishing Criminal Offences Motivated
by Racism and Xenophobiaor Committed
by Supporters of Extremist Groups
Appendix No. 1 SURVEY OF INTERNATIONAL CONVENTIONS AND INTRA-NATIONAL
LEGAL PROVISIONS CONCERNING THE PROBLEM OF RACISM
1. International Conventions
(“International treaties concerning human rights and fundamental freedoms which have been duly ratified and promulgated and by which the Czech Republic is bound are directly applicable and take precedence over statutes“ – Article10 of the Constitution of the Czech Republic).
International convention on eliminating all forms of racial discrimination
(The decree of the Ministry of Foreign Affairs No. 95/1974)
- Article 1 - Offers a definition of the term “racial discrimination“.
- Article 2 - Binds the countries to policy of eliminating racial discrimination.
- Article 3 - States parties condemn racial segregation and apartheid.
- Article 4 - Binds the countries to adopt positive measures designed to eradicate all incitement to, or acts of racial discrimination and make adequate changes in its law.
- Article 5 - Guarantees the right of equality before the law to everyone, without distinction as to race, color, or national or ethnic origin.
- Article 6 - Assures to everyone protection against any acts of racial discrimination and adequate reparation or satisfaction for any damage suffered as a result of such discrimination.
- Article 7 - Binds the countries to adopt immediate and effective measures, particularly in the fields of teaching, education, culture and information, with a view to combating prejudices which lead to racial discrimination and to promoting understanding, tolerance and friendship among nations and racial or ethnical groups.
International Covenant on Civil and Political Rights
(A decree of the Ministry of Foreign Affairs No. 120/1976)
- Article 2 - Binds the countries to guarantee the rights recognized in the Covenant, without distinction of any kind.
- Article 20 - Prohibits any advocacy of national, racial or religious hatred.
- Article 26 - Guarantees to all persons equal right before the law and equal and effective protection against discrimination on any ground such as race, color, national or ethnic origin, etc.
- Article 27 - Stipulates that persons belonging to minorities must not be denied the right to enjoy their own culture, to profess and practice their own religion, or to use their own language.
International Covenant on Suppressing and Punishing the Crime of Apartheid
(The decree of the Ministry of Foreign Affairs No. 116/1976)
- Article I - Pronounces apartheid a crime against humanity.
- Article II - Defines apartheid.
- Article III. – IV. – Determines international legal responsibility of those guilty of crime of apartheid and binds the states parties to adopting needed legislative and administrative measures for efficient implementation of the convention.
International Covenant on Economic, Social and Cultural Rights
(The decree of the Ministry of Foreign Affairs No. 120/1976)
- Article 2 - Binds the states to guarantee, that the rights enunciated in the Covenant will be exercised without any discrimination.
The European Convention for the Protection of Human Rights and Fundamental Freedoms
(The notification of the Ministry of Foreign Affairs)
- Article 14 - Binds the state parties to ensure enjoyment of the rights and freedoms set forth in this Convention without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
Convention on discrimination (employment and profession)
(statute No. 465/1990)
Convention on the Rights of a Child
(statute No. 104/1991)
2. INTRA- NATIONAL LEGAL PROVISIONS
- The statute No. 1/1993 (Constitution of the Czech Republic)
- Article 6 - Political decisions emerge from the will of the majority manifested in free voting. The decision-making of the majority shall take into consideration the interests of minorities.
- The statute No. 2/1993 (Charter of Fundamental Rights and Freedoms)
- Article 3 - Fundamental rights and freedoms are guaranteed to everybody irrespective of sex, race, color of skin, language, faith, religion, political or other conviction, ethnic or social origin, membership in a national or ethnic minority, property, birth or other status.
- Article 24 - The national or ethnic identity of any individual shall not be used to his or her detriment.
- Statute No. 81/1996 on periodical press and mass media
- Statute No. 21/1971 on united system of social and economical information according to reading of ensuing provisions
- Statute No. 84/1990 on the freedom of assembly in reading of ensuing provisions
- Statute No. 85/1990 on the right of petition
- Statute No. 83/1990 on association of citizens in reading of ensuing provisions
- Statute No. 424/1991 on political parties and political movements in reading of ensuing provisions
- Statute No. 455/1991 on licensed enterprise in reading of ensuing provisions
- Statute No. 256/1992 on protection of personal data in the information systems in reading of ensuing provisions
- Statute No. 634/1992 on protection of consumer in reading of ensuing provisions
- Statute No. 40/1964 (civil code) in reading of ensuing provisions
- Statute No. 501/1990 (civil court regulations) in reading of ensuing provisions
- Statute No. 450/1992 on employment
- Statute No. 335/1991 on courts and judges in reading of ensuing provisions
- Statute No. 40/1995 on regulation of advertisement and amendment of statute 4681991 on radio and television broadcasting in reading of ensuing provisions
- Statute No. 140/1961 (penal code) in reading of ensuing provisions; in relation to extremism the provisions involved are especially following provisions of criminal law:
- § 196 Violence against a group of inhabitants and against individual
(1) A person who threatens to a group of inhabitants with killing, bodily harm or damage to a large extent shall be punished by a custodial sentence of up to one year.
(2) A person who uses violence against a group of inhabitants or an individual, or threatens them with bodily harm or damage to a large extent on the grounds of their political conviction, nationality, race, belief or absence of a belief, shall be punished by a custodial sentence of up to two years.
(3) A person who unites or assembles to commit such an act shall be punished as in section 2.
- § 198 Vilification of the nation, race and conviction
(1) A person who vilifies in public:
- any nation, its language or any race, or
- group of inhabitants for their political conviction, belief or absence of a belief, shall be punished by a custodial sentence of up to one year.
(2) A person who commits a crime stated in section 1 together with at least two more persons shall be punished by custodial sentence up to three years.
- §198a Incitement to a national and racial hatred
(1) A person who incites in public to hatred towards any nation or race or to restraint of rights and freedoms of their members, shall be punished by a custodial sentence of up to one year.
(2) The same punishment is for those, who unite or assemble to commit an act mentioned in section 1.
Other criminal acts with racial subtext are to be found in Chapter X. The Criminal Acts Against Humanity:
- § 259 Genocide
(1) A person who has the intention to destroy fully or partially any national, ethnic racial or religious group
- brings the members of such group into living conditions which should cause their complete or partial physical annihilation,
- adopts measures leading to prevention of bearing children in such group,
- transfers by force children from one such group into another, or
- causes a member of such group grievous bodily harm or death, shall be punished by a custodial sentence of up to fifteen years or by exceptional punishment.
(2) The same punishment will be inflicted on the person who takes part in an act mentioned in section 1.
- §260 Support and propagation of movement aiming at suppressing the rights and freedoms of the citizens
(1) A person who supports or propagates movement demonstrably aiming at oppressing the rights and freedoms of citizens or declares national, racial, class or religious hatred, shall be punished by a custodial sentence from one up to five years.
(2) A person shall be punished by custodial sentence up to three years in following case:
- if he/she commits the act stated in section1 by means of press, film, radio, television or by similar efficient means,
- if he/she commits such act as a member of an organized group, or
- if he/she commits such act during military preparedness of the state.
- § 261
Who publicly shows sympathy for fascism or other similar movements stated in § 260, shall be punished by custodial sentence from six months up to three years.
- § 263a Persecution of inhabitants
(1) A person who in the course of war enforces apartheid or terrorizes defenseless civilians by violence or by threats of violence shall be punished by a custodial sentence from three up to ten years.
(2) In the same way anyone will be punished who, in the course of war:
- destroys or severely impairs the source of necessaries for civilians on occupied territory or contact zone or licentiously refuses to render the inhabitants help necessary for survival,
- without reason prolongs the return of civilians or war prisoners,
- settles occupied territory with inhabitants of his/her own country, or
- licentiously renders it impossible for the civilians or war prisoners to be decided about their wrong in an impartial court trial.
(3) The one who causes by the act stated in section 1 or 2 grievous bodily harm or death or other extra serious consequence shall be punished by a custodial sentence from eight up to fifteen years or by exceptional punishment.
COMPARISON WITH THE FEDERAL REPUBLIC OF GERMANY
The German and Czech penal code contains some similar provisions concerning extremism (for instance sabotage, approval of criminal act, incitement to racial hatred, genocide, bodily harm, hi-jacking). But there are also such provisions as §84 – continuing the activity of the party pronounced unconstitutional and §85 – violating prohibition of association. The acts stated in these provisions are according to Czech law punished maximally as a trespass. Our law does not solve at all the problem of the distribution of propagation materials (pamphlets). Germany has statute (§86 – Distribution of propagation materials of anti-constitutional organizations – where by propagating material are meant such writings, which stand up against fundaments of liberal, democratic order or the idea of understanding between nations).
Publishing of non-periodicals is specified by statute No. 37/1996 but there is no law for propagation materials of the political parties and political movements, civil associations, churches, religious societies etc.
The Czech Constitutional Order also does not contain any provision comparable to the article18 of the fundamental law of the Federal Republic of Germany. According to this article a person, who makes ill-use of freedom of expression, especially freedom of the press, freedom of teaching, freedom of assembly, freedom of association, secrecy of correspondence, posts and telecommunications or the right of asylum and uses these freedoms to stand against free, democratic order, will be denied these fundamental rights. The loss of a person’s fundamental rights and its extent is decided on by the German Federal Court. Czech law does not recognize such general loss of certain fundamental rights.
3. Protection of the rights
3.1 Freedom of expression
The Charter in its article 17 guarantees freedom of expression and the right to information: Everybody has the right to express freely his or her opinion by word, in writing, in the press, in pictures or in any other form, as well as freely to seek, receive and disseminate ideas and information irrespective of the frontiers of the State.
Censorship is not permitted. The freedom of expression and the right to seek and disseminate information may be limited by law in the case of measures essential in a democratic society for protecting the rights and freedoms of others, the security of the State, public security, public health, and morality.
The periodical press is regulated by statute No. 81/1966 in reading of ensuing provisions. The right to publish periodicals starts with registration. The organ making the registration is to do so within 15 days after receiving the application. The application has to contain specifications of “the content orientation“ of the press. Nevertheless a specific orientation cannot be a reason for denying registration. The law determines the measures of protection against the ill-use of freedom of expression, speech and press, but these measures are directed against the physical person who is responsible (publisher, editor-in-chief etc.) and not the company itself.
Publishing non-periodical press is specified by statute No. 37/1996. The statute does not apply to propagation materials of the political parties and political movements, civil associations, churches, religious societies etc. Non-periodical publications have to contain certain obligatory information (for example indication of the publisher), breaking this duty is legally sanctioned. In practice it is sometimes questionable whether the statute applies also to the pamphlets.
Running radio and television broadcast is specified by statute No. 468/1991 in reading of ensuing provisions. The runners are obliged to ensure that no programs are broadcasted, which would collide with the Constitution or the Charter. The granted license may be taken away if the runner breaks in a serious way the duties stated by this or other statutes.
Production, distribution and archiving of audio-visual work is specified by the statute No. 273/1993 in reading of ensuing provisions. Audio-visual works have to be rated in a prescribed way. For the protection of the moral development of the under-aged a rating system according to age-level has to be designated as to what can be legally viewed or listened to.
According to statute No. 40/1995 the advertisement must not contain material which would be in dissention with morality, especially elements insulting national or religious feeling, menacing morality in general or propagating violence. It must not contain elements belittling human dignity or use a motive of fear.
Freedom of scientific research and freedom of the arts is guaranteed. (Article 15 of the Charter)
Freedom of teaching as a subjective right is not specified by the Czech law. The statute on Universities No.172/1990 guarantees to the members of the university freedom of scientific research and the publishing its’ results, freedom of art, freedom of teaching and learning etc., provided these rights and freedoms are being exercised in keeping with principles of democracy, humanity and law. The individualization of these rights is missing, though.
3.2 The right to assemble
The Charter guarantees the right to assemble peacefully. This right may be limited by law in the case of assemblies held in public places, if measures are involved, which are essential in a democratic society for protecting the rights and freedoms of others, public order, health, morality, prosperity or the security of the State. However, assembly shall not be made dependent on permission by an organ of the public administration.
The details are specified by statute No. 84/1990 on the right to assemble in reading of statute 175/1990.
Because of the complexity of the latent situations under various circumstances, the law concerning the right to assemble is quite complicated. For the present time it does not seem insufficient, only it has to be rightly interpreted and applied.
3.3 The right to associate
The Charter guarantees the right to associate freely. The details are specified by statute No. 83/1990 on associating of the citizens in reading of ensuing provisions. This statute states that for exercising the right to associate freely there is no need for permission of a state administrative organ. Exercise of this right is based on the principle of registration with the Ministry of Interior, which results in establishment of association as a legal person.
The statute on associating of the citizens explicitly says which associations are not allowed:
- those, whose goal is to deny or suppress personal, political, or other rights of citizens because of their nationality, sex, race, origin, political or other attitude, religious faith, social position, to kindle hatred for these reasons, support violence or in other way break the constitution and statutes.
- those, which try to achieve their goals by means which are in dissention with the constitution and statutes;
- those, which are armed or with armed bodies.
The civil association becomes recognized through its’ registration with the Ministry of Interior. The Ministry refuses registration if it is obvious from the association’s rule book, that it is in dissention with the law – especially if the goals of the association are in dissention with demands of §5 or if it is an illicit association in the sense of §4.
The law does not specify any special state supervision over civil associations. The civil associations are subjected to administrative supervision in basically the same way as other legal persons (including the function of the CR Police, the Security and Information Service, etc.).
The registered civil association is a legal person and as such it may also officiate in civil-law and public-law relationships. Basically nothing prevents existence and activity of non-formal groups (only they lack legal subjectivity). Some limitations might issue from provisions concerning the right to assemble.
In recent years the registration has been denied for various reasons in eight cases. The most striking one has been the registration proposal of the preparatory committee of the Ku-Klux-Klan. This has been refused for the reason stated in §8 section 1c) of the statute.
The Ministry of the Interior consistently uses provision §7 section 2 of the statute. In case the proposal of the preparatory committee does not meet the requirements, the Ministry immediately points it out to the preparatory committee. Only after that does it start the administrative proceedings.
The freedom of assembly is protected by the provision §238a of the penal code. On the other hand establishing unregistered associations does not seem to be administrative or other trespass (only if it is a trespass against the right to assemble according to §14 of the statute No. 84/1990)
The use of uniforms, symbols, signs, etc is not generally specified by law. The unauthorized wearing of a military or service uniform in public might be a trespass (according to §21 sect.1i of the trespass statute).
The churches and religious societies
For the establishment of a church or religious society registration with the Ministry of Culture is sufficient; the registered churches are legal persons.
Establishing the church or religious society must not be in dissention with statute No. 308/1991 or other statutes.
Law does not specify any special state supervision over the churches. Together with the registration proposal of the church or religious association, which is not a member of the World Council of Churches, a certificate is needed proving that there are at least 10 000 adult persons (with permanent residence in the Czech Republic) acknowledging the church.
In practice, there is sometimes a problem to decide, whether the civil association of religious nature is legal, if there is less then 10 000 members who want to associate in this way. The opinion of the Ministry of Interior seems to be negative on this issue, which may lead to the establishment of actual associations neither registered as a religious society nor as a civil association).
Political parties and political movements
The conditions of the establishment and activity of political parties are defined by statute No. 424/1991 on associating in political parties and political movements. Besides others, the law explicitly forbids the establishment and activity of political parties, which:
- break the constitution and laws or aim at abolishing democratic foundations of the state,
- tend to seize and hold power in a way which would prevent other parties from applying for power by constitutional means, or which aim at suppression of the equality of citizens.
- through its program or activity would endanger morality, public order or the rights and freedoms of citizens.
The parties must not be armed and must not establish armed bodies.
Establishment of a political party is not conditioned by permission, only by registration. The Ministry of Interior shall refuse the registration in case the party’s rulebook is in dissension with §1 to §5 of the statue on political parties or does not fulfill the conditions concerning the name or residence of the party.
The law does not specify the means of supervision of political parties.
The registrational acceptance of a party may be revoked if its activity is in dissension with the provision §1 to §5 of the statue on political parties. The possible reasons for stopping the activities of a party are not stated completely clearly, it seems though, that one of the stated reasons is sufficient §13 section 6, §14 section 1)
3.4 The secrecy of correspondence and transported messages
Article 13 of the Charter states that nobody may violate the secrecy of letters and other papers and records whether privately kept or sent by post or in another manner, except in cases and in a manner specified by law. Similar protection is extended to messages communicated by telephone, telegraph or other such facilities.
In an even broader sense than in Article 13 of the Charter, there is a secrecy of correspondence specified in §8 of the statute on posts (statute No. 222/1946). The governmental order No. 240/1949 nevertheless excludes absolutely from post transportation (besides those things, transportation of which is forbidden by law) also “consignments, which by its external arrangement or content aim at the peoples democratic regime or are harmful to the public interest“ and “consignments in which its outward appearance or obvious content are offensive, abusive or immoral“. What deserves extra attention is the so-called leaflet delivery (§19 of the statute on posts), which “organizations“ may address to a group of recipients, to which the post may deliver these without further ascertaining.
3.5 The property
According to Article 11 of the Charter, everybody has the right to own property but with the notion that ownership is binding and it may not be misused to the detriment of the rights of others or against legally protected public interests.
Extra statutes specify ownership, holding and use of such things as firearms and ammunition, explosives, poisons, drugs, etc.
Physical person is permitted to acquire into possession (except inheritance), hold or wear fire arms liable to registration and ammunition for these arms only in case he or she has a firearms license. The license can be obtained through a department of the CR Police (§27 of the statute No. 288/1995). The condition for issuing such license is besides others the probity and reliability of the applicant. The condition of probity is fulfilled if the applicant has not committed any of the criminal offences stated by law. Estimation of reliability is done with regard to the protection of life, health, property and other rights, and also to the protection of public interests.
Manipulation with explosives is specified by the statute of the Czech National Council No. 61/1988 on mining activity, explosives and state mining administration in reading of the statute of the Czech National Council No. 542/1991 including procedural regulations.
3.6 The right of asylum
According to article 43 of the Charter, the Czech Republic gives asylum to foreigners persecuted for exercising political rights and freedoms; asylum may be denied to anyone, whose acts have been in dissention with fundamental rights and freedoms. There is not yet accordance as to whether the right of asylum should be considered part of the fundamental rights and freedoms in the sense of the Charter.
The status of foreigners on the territory of the Czech Republic is specified by statute No.123/1992 on residence of foreigners in reading of ensuing provisions.