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Final Statement of the Public Defender of Rights in the Matter of Sterilisations Performed in Contravention of the Law and Proposed Remedial Measures

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Final Statement of the Public Defender of Rights in the Matter of Sterilisations Performed in Contravention of the Law and Proposed Remedial Measures Final Statement of the Public Defender of Rights in the Matter of Sterilisations Performed in Contravention of the Law and Proposed Remedial Measures CONTENTS 1. INTRODUCTION............................................................................................................................................. 1 2. THE COURSE OF THE INQUIRY ............................................................................................................ 3 3. THE LEGAL ADMISSIBILITY OF STERILISATION IN HEALTHCARE................................. 7 3.1. THE LEGAL FRAMEWORK FOR STERILISATION......................................................................................7 3.2. CASE REPORTS ................................................................................................................................. 15 3.3. EVALUATION ....................................................................................................................................21 4. STERILISATION AND THE ROMANI COMMUNITY ................................................................... 23 4.1. HISTORICAL INITIATIVES POINTING OUT ROMANI WOMEN'S STERILISATIONS ................................... 24 4.1.1. Charter 77 Document No. 23/1978................................................................................................. 24 4.1.2. Ruben Pellar's and Zbyněk Andrš's Initiative ............................................................................. 25 4.1.3. Charter 77 Document No. 3/1990.................................................................................................. 27 4.2. THE REACTION OF STATE AUTHORITIES TO CRITICISM OF "ROMANI STERILISATION" ........................ 28 4.2.1. The Inquiry by the General Prosecutor's Offices of the Czechoslovak Socialist Republic, the Czech Republic and the Slovak Republic................................................................................................. 28 4.2.2. The Inquiry of the Office for the Documentation and Investigation of the Crimes of Communism.................................................................................................................................................. 35 4.2.3. Digression – The Investigation in Slovakia ............................................................................... 37 4.3. SOCIAL WORKERS' PRACTICE IN WORK IN THE ROMANI COMMUNITY................................................ 43 4.3.1. The Development of Roma Policy in Czechoslovakia................................................................. 44 4. 3. 2. Sterilisation As a Tool of Social Work in Practice.................................................................... 48 4.3.3. Case Reports...................................................................................................................................... 52 4.3.4. The Dubiousness of Sterilisation As a Social Measure.............................................................. 58 5. DIGRESSION – EUGENICALLY-ORIENTED SOCIAL SYSTEMS ........................................... 59 5.1. SWEDEN .......................................................................................................................................... 60 5.2. SWITZERLAND ................................................................................................................................. 64 5.3. THE EUGENIC MOVEMENT IN CZECHOSLOVAKIA .............................................................................. 68 5.4. EUGENIC DELIBERATIONS IN SOCIAL PRACTICE BEFORE 1989 ........................................................... 71 6. SUMMARY...................................................................................................................................................... 73 7. CLOSING RECOMMENDATIONS ......................................................................................................... 77 1. Introduction On September 9, 2004, the Public Defender received a complaint, via IQ Roma servis, from ten Romani women concerning their sexual sterilisation without due consent. They either claimed that they had not consented to the intervention at all, or admitted they had signed some documents but asserted that they had not been in a situation to make any judgment, due to a lack of information from attending physicians on what treatment they would undergo. These complaints fitted the context of previous events that suggested the Czech Republic would have to come to terms with the burning issue given the working title "the sterilisation of Romani women" for the purposes of this report. 1 The European Roma Rights Center addressed the Public Defender of Rights in February 2004. Based on its staff's interviews with Romani women, the Centre had concluded that the problematic sterilisation of Romani women, a practice the Center asserts contravenes fundamental human rights, has taken place in the Czech Republic. To illustrate its suspicion, the Centre attached a list of people's names with the towns where sterilisation was purported to have happened to a request that the Public Defender of Rights investigate the cases. Because the Center's data did not give detailed identification of those affected, the Public Defender of Rights called on the Center to complete it, and respectively instructed the Centre on the requisites a complaint to the Public Defender of Rights must include to be acted upon. The Center took a long time to react to this. The stances were clarified only at a personal meeting of the Public Defender of Rights and the Center's representatives, where the conditions necessary for the Defender to take an active role in investigating cases the Center had highlighted were repeatedly stressed. These discussions resulted in enlisting the civic association IQ Roma servis, Liga lidských práv (League of Human Rights) and Vzájemné soužití (Living Together) to mediate contact between the sterilised women and the Public Defender of Rights, and the filing of the first complaints. Quite apart from the activities initiated by the European Roma Rights Center, the Public Defender of Rights received a complaint from a man who, on behalf of his wife (also Roma), condemned her sterilisation, which had been performed even though as an illiterate deaf-mute she could not express her consent in a qualified fashion. This man began to co- ordinate the efforts of other women in his area who also objected to the dubious circumstances of their sterilisation. In addition to this, it should be borne in mind that the European Roma Rights Center's complaint, and those of other associations or individuals who became active in gathering details on the affected women (IQ Roma servis together with Vzájemné soužití, and the League of Human Rights), came roughly a year after public discussion on the same topic had climaxed in Slovakia, stirred by publication of "Telo i duša" (Body and Soul) by the Centre for Reproductive Rights and the Counselling Centre for Citizenship, Civil and Human Rights. The Public Defender of Rights was aware of societal processes in coming to terms with similar issues in Sweden and Switzerland. Given these connections and the fact that the potentially problematic sterilisations of Romani women have been pointed out to a greater or lesser extent for more than 15 years, the Public Defender of Rights decided to pay the utmost attention to reports of involuntary sterilisations. This issue is not typical of the agenda of the Public Defender of Rights. It became evident from the outset that a procedure restricted to the mere application of the Act on the Public Defender of Rights would not meet the expectations of complainants or public. It is important to be aware that the Public Defender of Rights is, in compliance with the provisions of Section 1 of Act No. 349/1999 Coll. on the Public Defender of Rights, as later amended, tasked with protecting persons against the conduct of authorities and other institutions specified in the Act on the Public Defender of Rights, if such conduct is in conflict with the law, the principles of a democratic legal state, the principles of good administration, or if authorities or institutions are inactive. Complaints of involuntary sterilisation are not about any authority or institution specified in the Public Defender of Rights Act, but are rather against doctors and healthcare facilities. Strictly speaking the basic condition for execution of the Public Defender of Rights' authority in accordance with the Public Defender of Rights Act was not met. The Public Defender of Rights was conscious of this from the beginning. Therefore the Defender chose to act to some extent outside what the Act stipulates in the matter. He did so particularly because the women addressing him opened an issue they did not have the courage to speak on publicly, each for herself and formally in the presence of authorities, and thus expressed extraordinary trust in the Public Defender of Rights as guarantor of due investigation into the matter. This basic trust between a state institution and a citizen who has chosen to give evidence on the most intimate of concerns could not be trampled on by a formal refusal to act on this sensitive issue due to a lack of authority. Thus the Public Defender of Rights plumped 2 for an approach that enabled him to remain the mediator between the state and the women who had addressed him, and yet consequently to execute his basic mission in line with the Public Defender of Rights Act, i.e. to pay attention to the legality
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