report i

Deliverable no. 1, point III b from the Project Description

EVENINGWITHOMBUDSMAN

Report IResearch report of the analyses of the most frequent

cases of fundamental rights violations

EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights

Report I Research report of the analyses of the most frequent cases of

fundamental rights violations.

(Deliverable no. 1, point III b from the Project Description)

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Project co-funded by the DG Justice

EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights Summary of the report

The main idea of the report is to present the national context of protection of fundamental rights as the basis for the Evening with Ombudsman (EwO) project. The second aim of the survey is to identify which cases of fundamental rights violations should be addressed in the project as most frequent and problematic in each country involved in the project (Romania, Slovenia, Poland and Estonia). Possible obstacles concerning safeguarding fundamental rights in local communities will be presented. The analysis of most frequent cases of fundamental rights violations have been based on statistical data provided by the national Ombudsman Office (including data on the area of fundamental rights which is addressed in the complaints the most frequently) as well as other institutions gathering data about human rights violations.

Numerous statistics show that fundamental rights violations are quite numerous, especially in the case of some rights in all surveyed countries: Romania, Slovenia, Poland, Estonia and Czech Republic. Each of the following reports presents a short overview of fundamental rights violations in the country in question – official data obtained from the European Court of Human Rights and the National Ombudsman.

According to the data of the ECHR Romania is near the top of the list as far as convictions for the violation of fundamental rights are concerned. Poland, of all the countries participating in the EwO project, occupies the subsequent place. In the Romanian report on the fundamental rights violations three cases were presented. The violations concerned such areas of fundamental rights as: prohibition of inhumane and degrading treatment, right to liberty and security, right to a fair trial, freedom of expression, right to respect for family life freedom of movement

In the Slovenian report the following three central areas or sets of fundamental rights that are the most frequently violated have been identified namely social rights, anti-discrimination rights and environmental rights. All three cases, which have been carefully chosen, demonstrate the complexity of actual violations of rights in the sense that in all three cases various rights stated in the Charter were violated

The Polish report identifies as highly problematic these three areas of fundamental rights: rights of the patient, personal data protection and access to public information. The specific cases presented in the report were chosen so as to demonstrate possible problems occurring during actions undertaken by citizens whose rights had been broken and who therefore seek justice. These issues are related to aspects such as law, official proceedings and the attitude of the local community.

In the Estonian report the cases of violation concerned the following areas: rights of the disabled children, discrimination based on family responsibilities and gender stereotypes and freedom of expression.

In the report from the Czech Republic is indicated the difference in reception of complaints of fundamental civil rights violations between the offices of Ombudsman and local citizens’ advice bureauxs. The Report analyzes the 5 areas in which statistically usually fall complaints: Social security; Constructions and regional development; Police, prisons, army;

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights Administration in the health care sector; State administration of courts and problems associated with the indebtedness of people.

Analyses of the most frequent cases of fundamental rights violation in Romania

Romania joined the Council of Europe in 1993 and by 1994 it ratified the European Convention on Human Rights. This paved the way for individual petitions to the European Court of Human Rights (ECHR) for legal and natural persons from Romania.

Of the 27 EU countries Romania is at the head of the ECHR statistics. 20% of convictions for the violation of fundamental rights are issued against Romania. Most of the ECHR judgments which find a violation concern Romania, much more often than Poland and Bulgaria –highlights the the report of the European Agency for Fundamental Rights (FRA) in 2010. Thus, of the 657 judgments of the ECHR concerning the violation of fundamental rights, 135 are on Romania, placing it long before Poland (87) and Bulgaria (69).

Of the 135 sentences dictated by the ECHR against Romania in 2010, 30 regarded violating the right to a fair trial (-26) and 16 – the excessive length of the process, the same in the previous year (2009). As for the violation of the right to a fair trial, the successive places according to the number of convictions are occupied by Poland (20, –1), France (10, +5) and Greece (8, –8). Table 1. Statistics of judgments by the ECHR against Romania (Source: website of ECHR- statistics and reports) Table 2. Statistics of the results of the judgments against Romania by the ECHR (Source: website of ECHR- statistics and reports)

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Romania is ranked the 7th in the EU in terms of convictions for excessive prolongation of the process, after Italy (44) Poland (37), Greece (33), Bulgaria (31), Germany and Slovakia (by 29).Furthermore, Romania has an unwanted first place for the number of convictions for degrading or inhuman treatment – 22 – almost half of those found in all EU countries (48 in total).

As shown in the table below (data from 31.12.2011), the most frequent cases of convictions against Romania by the ECHR concern the violation of the right to protection of property, the right to a fair trial, the reasonable length of proceedings, inhuman and degrading treatment and the right to liberty and security.

Table 3. Overview of judgments by the ECHR against Romania on each of the fundamental rights (Source: website of ECHR- statistics and reports)

Based on the 2011 annual report of the Romanian Ombudsman some data was collected regarding the violation of the fundamental rights in Romania.

Through the petitions pertaining to this field in 2011 individuals notified about the violations of the following fundamental rights and freedoms: equality of people and of rights (art. 4 and 16); the rights of foreign and stateless citizens (art. 18); the right to intimate, family and private life (art. 26); freedom of expression (art. 30); the right to information (art. 31); the right to health security (art. 34); the right to a healthy environment (art. 35); the right to a living standard (art. 47); the right to petition (art. 51); the rights of persons prejudiced by a public authority (art. 52).

Among the petitions assigned to this field, notifying about the violations of the fundamental rights and freedoms, there is a particularly large number of those related to the right

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights to petition, in number of 365 and those related to the violation of the right to information, in number of 281, representing the overall percentage of more than 92% of the petitions examined by the personnel in the field.

In the second place, with a number of 26, representing 4% of the examined petitions, we find the petitions notifying of the violations of rights by public authorities and institutions – they are related to the rights of persons injured by a public authority, provided by article 52 of Constitution.

Cases of the violations of fundamental rights brought against Romania which were solved by the European Court of Human Rights

In this report we present three cases of violations of fundamental rights brought against Romania which were solved by the European Court of Human Rights. They exemplify the most frequent cases of fundamental rights violations. Case: Pantea vs. Romania

• Violations of Article 3 (prohibition of inhuman or degrading treatment)

• Violations of Article 5 (right to liberty and security)

• Violation of Article 6 (right to a fair trial) Alexandru Pantea, a former prosecutor, was remanded in custody following an altercation

with a person who sustained serious injuries. He complained about the treatment he had been subjected to while in prison and about the unlawfulness of his detention.

The prosecutor in charge of the case ordered the arrest in the absence of the plaintiff, since he was evading the criminal prosecution and indictment issued on 13 July 1994. On July 211994, based on an arrest warrant issued in the absence of the plaintiff, he was found, arrested and during the same day brought before the judge and subjected to further proceedings and hearing.

During the trial several hearings were held, however the legality and validity of the plaintiff’s preventive arrest was not analysed.

In November 1994 (after 4 months) the judge adjudicated that the prosecution is incomplete and returned the case to the prosecutor, a judgment establishing custody and motivating the need for such measures was given in regard to the plaintiff.

The plaintiff complained that had not been brought before a judge promptly after his arrest.

It is worth mentioning that in the year 1994, according to the legislation, the Criminal Procedure Code did not require the judge to verify the legality and validity of custody, and therefore the Romanian judge did not have to motivate the upholding of such a decision – he returned the case to the prosecutor when that legislation at that time in force imposed it.

It is also worth mentioning that the rulings issued by the Court concern the compliance of national legislation with the European Convention on Human Rights, and do not cover legal errors or mistakes, the latter being uniquely in competence of national courts.

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In this case, the European Court convicted Romania for violating articles 3, 5, 6. In the light of the sentence issued by the ECHR in the case of Romania, the national legislation was amended in 2003 in order to allow, from a legislative point of view, the judge to make verifications regarding the arrest (for the negligence of which Romania was convicted). Case Cumpana and Mazare vs. Romania

• Violation of Article 10 (freedom of expression) Constantin Cumpănă and Radu Mazăre, both journalists, were convicted for insult and

defamation after publishing an article in which they questioned the legality of a contract signed by Constanţa City Council.

After the publication of the article, Ms. R.M. sued the plaintiffs for insult and defamation, crimes provided by art. 205 and 206 of the Criminal Code.

The second plaintiff said that he took full responsibility for what had been published in the newspaper which he led as editor in chief.

The national court held that the plaintiffs were guilty of insult and defamation, offences specified in Art. 205 and, respectively, 206 of the Criminal Code and sentenced them to three months in prison for insult and seven months imprisonment for defamation. It ordered the execution of the more severe punishment – seven months in prison.

The national court also prohibited them from working as journalists for one year after completing the period of detention provided by art. 115, paragraph 1 of the Criminal Code. Finally, the national court ordered them to pay Ms. R .M. damages for non-pecuniary damage in the amount of 25 million RON, the equivalent of 2,033 euro at the date of events.

After examining all the evidence it had available, the European court held that the plaintiffs’ allegations regarding the person concerned presented a distorted view of reality and had not been based on actual facts.

The European Court held that a prison sentence applied to publishing a press article is not compatible with the freedom of expression in journalism guaranteed by Article 10 except for extraordinary circumstances, such as for example, if the article incites hatred or violence.

Therefore, the Court found that in this case the national courts have exceeded the "necessary" limitations of the freedom of expression of the plaintiffs, thus violating of the article 10.

During the trial of this case, the national criminal legislation was amended, which entailed the decriminalisation of the insult and the elimination of prison sentences for defamation. Currently they do not fall under criminal law – persons that sue other persons can only go through civil proceedings. Case: Pini and Others vs. Romania

• Violation of Article 6 § 1 (right to a fair trial)

• No violation of Article 8 (right to respect for family life)

• No violation of Article 2 of Protocol No. 4 (freedom of movement) 6



The applicants, four Italian nationals, adopted two Romanian children in 2000. The children’s home in which the girls had been placed refused to hand them over and the applicants never secured the enforcement of the adoption decisions.

The applicants alleged, in particular, relying on Article 8 of the Convention, the violation of their right to respect for family life, based on the fact that Braşov County Court judgments regarding the adoption of two Romanian minors would have deprived them of contact with their children. The adoption of Florentina

The two parents of Florentina adopted her through an association empowered by the Romanian Committee of Adoptions. They met the child in August 2000 at the child’s home. Based on the adoption, the Braşov County Court asked the Civil Service to change her birth certificate.

On 14 February 2001 the Commission for international adoptions allowed entry and permanent residence of the child in Italy, and ordered the further communication of the decision to, amongst others, the Italian Embassy in Bucharest.

On an unspecified date, the Romanian General Prosecutor appealed the annulment of the judgment by the Braşov County Court and by the Court of Appeal Braşov. On 5 June 2001 the Supreme Court dismissed the appeal as inadmissible.

The applicants sought enforcement by bailiffs at the Braşov Court. The latter summoned CEPSB (the home of Florentina) required to submit her birth certificate and to transfer parental rights to adoptive parents. The CEPSB did not go through with the requirements of the Court even when they forced to do so. The adoption of Mariana

On September 28, 2000, following a similar procedure to the one described above, Braşov County Court granted the application made by the second couple for the adoption of Mariana. On 25th March 2002, the bailiffs summoned CEPSB again to submit her birth certificate and to transfer parental rights to adoptive parents. Again CEPSB did not allow this to happen.

Both Mariana and Florentina requested the court to dissolute the adoption showing that they have not seen their adoptive parents, either before or after the judgment of adoption. Furthermore, they did not want to leave the country and preferred to stay at the CEPSB.

In the case of Florentina, the court found that the adoption met the legal requirements, and pointed out that the Commission for Child Protection Braşov, pursuant to art. 8 of O.U.G. no. 25/1997, had custody of the child from the moment the court was informed about the declaration of adoption, establishing that it would be in the interest of the child and endorsing the adoption.

In the case of Mariana, noting the lack of emotional ties which ought to be established between adopters and the adopted, after the delivery of the final decision of 28 September 2000 (adoption), the court closed the adoption of Mariana by the second couple restoring the name she wore before September 28, 2000.

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights In a series of articles in the local Braşov newspaper "M" , following her visit to CEPSB on 9 January 2001, Ms. Baroness Nicholson of Winterbourne, rapporteur of the European Parliament, asserted that juveniles in the care of the CEPSB should not go abroad to join adoptive families, since the the CEPSB created a real family and the children were well brought up and educated. The European Court affirmed that the national courts which had upheld the adoption of minors by the applicants had not requested the children’s consent for adoption. As shown by the registered evidences, the applicants have always considered themselves as the minors parents’ and behaved as such, in the only way that was available, that is, sending them letters written in Romanian. The most important thing in this case is whether the national authorities took the necessary measures to allow the applicants, recognised as adoptive parents of minors Florentina and Mariana who also obtained a decision that forced CEPSB child custody via Presidential Ordinance, to establish family relationships with each of the adopted minors. Although the desire of applicants to create a family is legitimate, according to the Court it can enjoy protection under Article 8 only to the extent to which it is not in conflict with the minors’ refusal to be adopted by a foreign family. In conclusion – article 8 was not violated. The court disapproved of the way the adoption proceedings were conducted, especially regarding the lack of direct contact between the persons before the actual adoption which was caused by gaps in domestic law at that time. It deplored in particular that the minors have not received any psychological support, which would help them prepare for their imminent departure from the institution in which they had lived for many years and where they have established social and emotional relationships. The lack of such measures has led to a divergence of the interests of applicants with the ones of the adopted children and, in this case, their resistance. In conclusion – article 6 was violated.

References The Romanian Ombudsman- http://www.avp.ro/ Statistics and reports of the European Court of Human rights http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Statistics/Statistical+data/ European Union webportal - http://europa.eu/pol/rights/index_ro.htm Cases at ECHR against Romania - http://www.europainfo.ro/tag/cauze-cedo-contra-romaniei http://www.romanialibera.ro/actualitate/justitie/raport-romania-pe-primul-loc-la-condamnari-la-cedo-din-statele-ue-228505.html http://www.scj.ro/decizii_strasbourg.asp

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http://www.avp.ro/

http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Statistics/Statistical+data/

http://europa.eu/pol/rights/index_ro.htm

http://www.europainfo.ro/tag/cauze-cedo-contra-romaniei

http://www.romanialibera.ro/actualitate/justitie/raport-romania-pe-primul-loc-la-condamnari-la-cedo-din-statele-ue-228505.html

http://www.romanialibera.ro/actualitate/justitie/raport-romania-pe-primul-loc-la-condamnari-la-cedo-din-statele-ue-228505.html

http://www.scj.ro/decizii_strasbourg.asp

EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights Analysis of the most frequent cases of fundamental rights violations in Slovenia The analysis of the most frequent cases of violations of fundamental rights proceed in the following logically interlinked phases. In the first phases various existing analyses and reports of institutions and organisations active or responsible for the field of human rights in Slovenia were collected. Specific focus was given to the annual and specialized reports of institutions that have been in previous analysis identified as central in the field. In this context, the focus was given to the annual and specialized report of the Human Rights Ombudsman, the Advocate of the Principle Equality and Information commissioner. Additionally, various local and regional NGOs that are active in the field of human rights that have a concrete insight and information regarding the most frequent violations of fundamental rights in specific local community were contacted. Finally, reports and analyses of national and transnational NGO (e.g. Amnesty International) that are present and report on the situation in Slovenia were obtained. Based on collected information and analysis of selected annual and specialized reports , the identification of the rights or sets of rights that are the most frequently violated in Slovenia was carried out. In the context of identification, some methodological problems were encountered and resolved. One of the problems that was encountered and addressed was the issue of categorisation of specific rights or sets of rights and their violations in various reports and analyses due to the different categorisations present in reports and other data. As our central frame of reference was the categorisation and definition of right present in the EU Charter of Fundamental rights, the collected data and information had to be “translated” in the framework of the EU Charter of Fundamental rights. The second crucial problem that was encountered was how to define the most frequent cases of violations. Due to the prevalent underreporting of specific violations of fundamental rights, considering specific trends of rising violations of certain rights and the importance of violations of certain right for upholding and enjoying other fundamental rights, the statistical/quantitative data was deemed too limited for a comprehensive identifying of the rights or sets of rights that are the most frequently violated. Consequently, not only statistical data was used but also qualitative insights that were present in the obtained reports and obtained information regarding the most frequently underreported violations, regarding trends of violations of specific fundamental rights and regarding the violation of specific sets of rights that are inextricably connected with the possibility of enjoying other sets of fundamental rights. Based on these methodological reflections and in order to ensure methodological relevance three central sets of right where violations are the most frequent were identified. Each set of rights that was identified was in the next phase of the analysis comprehensively reflected upon. The comprehensive reflection of identified sets of rights was carried out on the basis of existing theoretical reflections on the importance of upholding, securing and ensuring of these rights for the proper functioning of democratic political systems. Furthermore, the identified sets of right were reflected in regard to their presence and importance in the context of

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights the Charter of Fundamental rights of the European Union and their importance and presence in the national and EU law. The comprehensive reflection of the sets of rights that have been identified as the rights that have been the most frequently violated, was followed by the final phase of the analysis. In this phase concreted cases of violations of all three identified sets of rights were identified, presented and reflected upon. These cases were selected on the basis of their generality and multidimensionality and in intensive collaboration with experts from the office of the Human Rights Ombudsman, the Advocate of the Principle of Equality and Information Commissioner and communication with local and nonlocal organisations in the field of human rights. In the selection process the editors and journalist of the two central Slovenian TV programmes that deal with cases of human rights violations (Tednik and Preverjeno) were contacted. The first identified set of rights was identified on the basis of available statistical data gathered from the annual and specialized reports of the national institutions active in the field of human right. Based on above elaborated methodological criterion the set of social rights was identified as being the most frequently violated in Slovenia. Social rights represent an important part of the Charter and are organised under the chapter IV Solidarity. According to the statistical (quantitative) data gained form annual reports (2008, 2009, 2010 in 2011) of the Human Rights Ombudsman that were accorded the central importance in the process of identification as well as considering the data and insight of annual reports of other institutions and organisations (the Advocate of the Principle Equality, Information commissioner, Amnesty International Slovenija, local NGOs) the broader set of social rights was the set of rights where the most frequent cases of violations are present. The violations of social rights represented the largest share of all violations of human rights in Slovenia in last 4 years. These violations represented 29,4% (2008), 27,7% (2009), 25,7% (2010) and 27,1% (2011) of all reported cases of violations, which was the largest share of violations of the specific set of rights. For comparison, the next largest share of reported violations of human rights in Slovenia are represented by violation regarding the rights of due process in the court procedures and police procedures namely (23,9% (2008), 23,8 % (2009), 24,6% (2010), 22,8 % (2011) of all reported cases of violations. Due to the ongoing economic crisis, all the reports and insights consulted predict that the violations of these rights will increase in the future. The second identified set of rights was identified on the basis of qualitative insights present in reports and gained from the communication with organisations working in the field of human rights in Slovenia regarding violations of the set of rights that are the most underreported. In this context, the set of anti-discrimination rights was identified as the set of rights whose violation is substantially underreported in Slovenia. The anti-discrimination rights represent an important part of the EU Charter. The Articles 21. Non-discrimination and 23. Equality between men and women define anti-discrimination rights as fundamental rights directly refer to anti-discrimination rights.

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights According to the qualitative insights present in annual reports (2008, 2009, 2010 in 2011) of the Human Rights Ombudsman and the annual reports (2010, 2011) of the Advocate of the Principle Equality the violations of the set of anti-discrimination rights represent violations that are the most underreported due to the fact that Slovenian institutional mechanisms and laws are not in line with the requirements of the EU law. In 2011 discrimination cases represented 2% of all reported cases of violations. In Slovenia the required independent institution that would address the violations of anti-discrimination rights does not exist, consequently the according to the reports of the Human Rights Ombudsman and the Advocate of the Principle Equality citizens report only a fraction of violations. The third identified set of rights was identified on the basis of qualitative insights present in reports and gained from the communication with organisations and institutions regarding violations of which set of rights represent the central present and future threat for ensuring and enjoying all other sets of fundamental rights. In this context, the set of ecological rights was identified as the set of rights whose violations has and will in the future have a major impact on the possibility of ensuring and enjoying all other fundamental rights. The Charter explicitly refers to ecological rights in the Article 37. Environmental protection and implicitly in the Article 42. (the right of access to information, which also covers environmental information). According to qualitative insights of annual reports of (2008, 2009, 2010 in 2011) and the specialized report on ecological rights of the of the Human Rights Ombudsman the violations of the set of ecological rights present crucial violations that prevent or severely limit the possibility of securing and enjoying other fundamental rights. Healthy environment namely represents the central condition of possibility of the fundamental right of human dignity and other central human rights.

Cases of violation (and limitation) of social rights: The following case of violation and limitation of social rights falls into the area of working relations. In this area Slovenian Ombudsman of human rights had to interfere most frequently in cases considering non-payment of wages, non-payment of social transfers, maltreatment, harassment, and victimization at workplace. As explained below, this case regards to violation of social rights (non-payment of social transfers, unfair payment) in connection to victimization, harassment and violence at workplace. Violence at workplace is, as states report of Ombudsman for year 2012, evermore occurring in comparison to previous years, as the violators are aware that victims, because of their weak social status with accompanying fear of losing employment, rarely decide to file an official complaint to the authorities (in this case to the Inspectorate of Republic of Slovenia for work). The exposed case originates from anonymous complaint of a petitioner, whom was employed in a sphere of hospitality and was inspected and reviewed in year 2012 (Annual report of Ombudsman 2012, p. 220). Petitioner stated she was employed in a bar, which is opened 365 days a year, 16 hours daily. There were 5 workers employed at the time of complaint, 4 regularly

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights and 1 illegally. Employer paid her minimum wage which was transferred to her bank account, another 100 Euros in cash and additional for overtime. She never received salary slip for these transactions therefore she complained to employer that he should be transferring all these payments to her bank account and also pay her social contributions and taxes. After her complaint the employer publicly humiliated her in front of bar guests, and was since then transferring all of the payments to her bank account, but was displaying overtime hours them as travel expenses and paid lunchtime. Her overtime was therefore presented as travel expenses, but her boss nevertheless never missed an opportunity to humiliate and threaten her. Because of her social situation she could not afford to lose the job, which was the reason she turned to Ombudsman. The petition was sent from an anonymous e-mail account, as she feared to reveal her identity because of possible retributions from the bar owner, even though all of the petitions Ombudsman reviews are dealt with anonymously. Even though the EU authorities are limited in the sphere of social rights as they mainly fall under national jurisdiction, this case refers to the Charter of Fundamental rights of the European Union and its title IV – Solidarity. In article 31 are defined fair and just working conditions, where it is stated that every worker has a right to working conditions which respects his or her health, safety and dignity. In aforementioned case this right was violated on the grounds of violation of dignity, as the owner of the bar was publicly humiliating her and threatening her when she mentioned the irregularities in payment procedures. Article 31 of the Charter of Fundamental rights of the European Union under title Solidarity also refers to article 26 of European social charter. This states all of the signatory governments of the European social charter have to protect workers from continuing negative and humiliating actions that are directed against individual workers at the workplace or in connection to their work, and therefore implement all appropriate measures for protection of workers from such treatment. Payment of wages and overtime in cash and later displaying them as payment of travel expenses and lunchtime, non-payment of lunchtime and travel expenses, non-payment of part of social transfers and concealing the fact these transfers and taxes were not paid presents at the very least indirect violation of article 34 of the Charter of Fundamental rights of the EU, which relates to social security and social benefit. Its first paragraph states that EU recognizes and respects the entitlement to social security benefits and social services providing protection in cases such as maternity, illness, industrial accidents, dependency or old age, and in the case of loss of employment, in accordance with the rules laid down by Union law and national laws and practices. In this specific case the non-payment of wage, cash payments and non-payment of social transfers transforms into inability to receive benefits of social security in cases of termination of employment, illness or at least inability to receive benefits of social security she should be entitled to if she becomes unemployed.

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights Cases of violation in the area of anti-discrimination and equal rights We received the case in the area of anti-discrimination and equal rights through Advocate of the equality principle, who forwarded us the claim of employment seeker, whom was subjected to intersection discrimination in procedure of choosing job applicants for employment in one of Slovenian hospitals. The Advocate stressed that discrimination in employment is very persistent, where the problematic is evident, also from Advocate reports, of so called underreporting, which, according to Advocate, is a result of people’s distrust of the system or a feeling they will not be properly protected if they find themselves in a lawsuit. The following case of 2013 was of a job applicant, who applied to more than 60 calls for employment meant for maintainers of medical equipment and for maintainer technician, but was invited only to one interview for a job even though she fitted all of the criteria listed in a call and had even higher education than required. Potential employer therefore did not even try to determine through the job interview if she is adequate candidate for employment, where job applicant stressed that employers did not regard her appropriate for the job and they did not even tried to deny the fact they have not invited her for an interview. She decided to file a lawsuit where she will try to prove the majority of applicants, whom was invited for an interview, has been younger male applicants (she herself is 43 years of age), and of Slovenian ethnicity and with an education received in Slovenia, which was in fact lower than hers. She is trying to prove employers commonly decided for someone else, all of whom have distinctive profile, which shows continuing discriminatory practice against the petitioner. Plaintiff emphasizes it is in fact a multiple discrimination on grounds of sex, age, ethnicity and education, which implies the reasons for discrimination are various personal circumstances. Advocate concurs it is suspected there was intersection discrimination on basis of sex, age, ethnicity and education, where the reason for unfair treatment is concurrent effect of all personal circumstances. The latter implies plaintiff was not treated unfavourable only because she is a woman, born in Ukraine (where she also obtained her education), because she has an accent when speaking Slovenian, not even only because she is 43 years old and has an education equal to faculty degree, but it is all of these reasons combined with all of their characteristics and personal aspects. The circumstances are establishing a clear indication the employers have not treated her as a potential employer for the lack of interest in her, whereas they have not taken under consideration the compelling reasons why she should or should not be employed or that she should at least be invited to the interview. Another argument is that with all public calls the matter of job interview and not of job applications is of utmost importance which is deciding in the end. Plaintiff is trying to define if she was really unfit for the position or does the reason lie somewhere else. In her opinion there is no compelling argument which would imply the chosen candidates are more qualified for the position than her and that their performance would be more convincing. Even if they fit all of the criteria in the call, which they did not, we cannot find a rational reason or motive for the decision of the selection board, which directly violates numerous legal norms. Advocate emphasizes there are indications some employers overlook shortcomings of some candidates (i.e. inexperience), and are very cautious about the others, as they assume candidates do not speak fluent Slovenian language, etc.

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights Protection against discrimination is also one of the fundamental principles of EU law, where Article 2 of the Treaty on the European Union states the EU is based on the values of respect for human dignity, freedom, democracy, equality, rule of law, and respect for human rights, including the rights for the members of minorities. These values are common to all of member states in a society known for its plurality, indiscrimination, tolerance, fairness, solidarity and equality of men and women. Protection against discrimination in connection with employing and work is undoubtedly guaranteed wit primary law of the EU. In the Charter of Fundamental rights of the European Union, under section III Equality, Article 21, is stated prohibition of discrimination – therefore any discrimination based on any ground such as sex, race, colour, ethnic or social origin, genetic features, language, religion or belief, political or any other opinion, membership of a national minority, property, birth, disability, age or sexual orientation shall be prohibited. Article 23 defines equality of men and women, where it is noted that equality should be ensured in all areas, including employment, work and pay. Under section II, Freedom, it is stated in Article 15, paragraph 3, citizens of third countries, who are allowed to work in the member states, have the right to equal working conditions as citizens of the EU. With the plaintiff multiple continuous discriminations based on sex, age, ethnicity and education are evident, whereby the Charter of Fundamental rights of the EU clearly states all of mentioned discriminations or intersection discrimination is strongly prohibited.

Case of violation of environmental rights: Present case of violation of environmental rights is related to withdrawal of environmental permit for the incineration of waste in the factory of cement Lafarge, situated in the municipality of Trbovlje, which was acquired with a lawsuit of a Mr. Uroš Macerl at the administrative court. Mr. Macerl is a farmer who lives and works in close proximity to Lafarge factory. The case is complex for its set of fundamental rights violations – as Mr. Macerl directly and also of broader area of people living in municipalities of Trbovlje, Zagorje and near villages being affected by incineration of waste by Lafarge cement factory. Case of obtaining and waiving of environmental permit for incineration of waste began in 2007, when Lafarge cement filed (seventeen times updated) application for acquisition of environmental permit for functioning of a device/machine which can cause pollution of higher volume of IPPC . In the beginning of the procedure area of affection by Lafarge cement was problematically defined, which limited the affected area to 500 meters from the factory. Studies in fact shoved the impact is higher. The most problematic thing was that the evaluation of area of effect of Lafarge cement was made considering only unproblematic/ordinary waste. Such determination of affected area strongly limited participation of public in a process in which all by-participants were almost not considered. As the non-governmental organization Eko Krog has stated, this case is consequently violating the provisions of Aarhus convention on public participation in environmental affairs. Similarly problematic was also classification of the device/machine by the administrative authority for which the client in the procedure requested environmental permit as if it was already existing device and not a new one. With the classification of the existing machine the environmental requirements are milder than they would be if the device would have been classified as a new one, where affected public would have

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights bigger influence. It was this issue that made Mr. Macerl turn to European Commission (EC) for a review of the permit, who determined it was in fact a new device. Difficulty of process of obtaining an environmental permit illustrates more detailed portrayal of the process. Lafarge was allowed in a year and a half from applying for a permit to add features to it seventeen times, which shows that first application was not properly prepared and researched which shows doubt about the original full acceptance of the application for a permit from ARSO (Agency of the Republic of Slovenia for Environment). Basic application, considering its various additions, could not fulfil legal requirements defined in the Law on General Administrative Procedure (ZUP – Zakon o upravnem postopku) on the principle of legality (Article 6) and on the rights of clients and protection of the public interest (Article 7), as Mr. Macerl as a by-participant could not, for original incoherence and incompleteness of the application, secure and exercise his rights. Consequently, the whole procedure was nontransparent for Mr. Macerl, which was worsening his already subordinate position as he had to review every addendum and file complaint against them, and not against the original appeal. Nevertheless, Mr. Macerl filed 66 substantiated comments, where ten of these were about violation of the procedure and fifty-six about the content of the application. ARSO and Ministry of the Environment rejected all of the comments and complaints, which is problematic from the ZUP point of view, as all of the rejections but for one were not explained. For together with his complaints Mr. Macerl also attached a study on the health of the inhabitants in this area, and negative effects of air pollution in Zasavje on local residents. Even though the issue of environmental permit, considering the definition in Article 68 of the Environmental Protection Act, potentially resulted in pollution of a wider range, neither ARSO nor Ministry of the Environment have not commented on the study results or various other remarks and observations. In addition to this, Mr. Macerl’s request for inclusion of hydro-meteorological and health court experts was also denied, as well as request for an observation of a farm of by-participant and the effect Lafarge cement factory have on it. With rejection of Mr. Macerls comments he was deprived of possibilities to prove his complaints against the issue of environmental permit. Therefore on April 8th ARSO granted Lafarge cement with the permit for incineration of waste, which was opposed by Mr. Macerl as a by-participant in a process. This appeal was followed by elimination of the permit issued by Ministry of the Environment on 9th of July 2009, with case returning to ARSO for a review. ARSO again issued a permit on 23rd of July 2009, which was again followed by a complaint from Mr. Macerl. Latter also turned to Ombudsman of human rights in Slovenia for unenforceability of an environmental document. He determined appeal is well substantiated, meaning the environmental permit is neither final nor enforceable as the document in the disposition did not have provision of non-suspensory (appeal does not defy the execution). Nonetheless, ARSO and Inspectorate of RS for environment deemed the permit enforceable, resulting in discontinued incineration of waste in Lafarge cement factory.

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights On 9th of October 2009, based on appeal of Mr. Macerl, Ministry of environment concluded the device for incineration was improperly classified, which was followed by reclassification to a new device. However, on 27th of November 2009 Ministry of environment again changed its position on the device’s status and rejected the appeal. As Mr. Macerl could not succeed with regular appeal resources against the authority of second degree (Ministry of environment), he filed a lawsuit as by-participant at Administrative Court of RS on 30th of December 2009. On 17th of February 2011 the Administrative Court removed the environmental permit and returned the matter to the authority of first instance (ARSO) into a new proceeding, with which it was determined that device was new and therefore rejected the Lafarge cement’s request for a new environmental permit, which would also apply with incineration of dangerous waste. Lafarge filed a complaint against this decision with Ministry for environment, which was rejected on 17th of November 2011 and returned the case to the authority of first instance. Removal of environmental permit was mainly achieved with Mr. Macerl’s extended and active efforts as a by-participant in this process. During this difficult process full of limitations and obstacles, he unwaveringly sought implementation of his and his fellow citizens’ basic rights. In described case we can also identify various violations of rights set out in the Charter of Fundamental rights of the European Union. Firstly, we can establish that behaviour and management of state authorities such as Arso and Ministry of Environment was inconsistent or even opposed to the Preamble of the Charter, which gives sustainable development the main emphasis and focus. Considering damaging consequences on the environment caused by incorrectly issued environmental permit, the conduct of state authorities can be identified as violation of article 37 of the Charter on environmental protection. In this article the need to include high level of protection and improvement of quality of the environment into the politics of EU is recognized, which would transfer into politics and management of state bodies of the member states. Relating to damaging consequences on the environment we can similarly determine that this behaviour of state authorities violates the right to health care, specified in article 35 of the Charter. It is stated that with implementation and constitution of all EU policies, and thus all state authorities of member states, the highest level of protection of people’s health has to be maintained. On the basis of actions of state bodies in the procedure of obtaining environmental permit demonstrated above we can also identify violation of the right to good administration, declared in article 41. It states everyone has a right that authorities, bodies, offices, and agencies of the EU and its member states address his or hers matters unprejudiced, just and in a reasonable time. Likewise, we can ascertain the right to security (from pollution as of consequence of improperly issued environmental permit), defined in article 6 of the Charter was violated, formally addressed as a right to freedom and safety.

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Analysis of the most frequent cases of fundamental rights violations in Poland The monitoring of the observance of fundamental rights in Poland is not conducted systematically and is usually limited to putting on record individual cases of human rights violations (of citizens who reported the violation of their rights) or to monitoring the law and administrative procedures that are thought to violate fundamental rights or lead to their violation. As for the monitoring of legislation and procedures, an important document of reference is constituted by the recommendations of the UN Human Rights Council prepared in the framework of the Universal Periodic Review of the UN Human Rights Council (Universal Periodic Review, UPR) which monitors the human rights situation in particular countries. Each UN member state is subject to review every four years. Poland passed a general survey for the first time in 2008. The UN Human Rights Council presented recommendations for Poland on May 2012. The document contains 124 recommendations of changes related to the protection of fundamental human rights of which the Polish government has approved 105. It also indicated that many of the recommendations are currently being implemented. On the occasion of the publication of the report non-governmental organisations were also able to submit their opinion on the Polish survey. The ones which expressed their view were: Helsinki Committee for Human Rights, the Federation for Women and Family Planning, Campaign Against Homophobia, Amnesty International and the International Commission of Jurists. The Helsinki Committee for Human Rights pointed to the problem of overcrowded prisons, the arbitrary use of detention and delays in court proceedings. The Federation expressed regret that the existing law on preventing domestic violence does not work in practice, among other reasons – because courts and the police do not take advantage of their right to isolate the offender. The procedure of making complaints to the European Court of Human Rights in the framework of the European system of human rights protection is the second indicator which shows the fundamental human rights violation in Poland. Such complaints may be filed in the case of the violation of the rights and freedoms contained in the Convention for the Protection of Human Rights and Fundamental Freedoms. According to the statistics of the European Court of Human Rights in Strasbourg Poland ranks fifth among the 47 countries of the Council of Europe in terms of the highest number of cases of human rights violations. In 2012, the ECHR examined 3105 cases1.

The most frequent cases of fundamental rights violations – statistics European Court of Human Rights

According to the European Court of Human Rights in the years 1959-20112 most judgments in cases against Poland concerned:

1 http://www.echr.coe.int/ECHR/EN/Header/Reports+and+Statistics/Statistics/Statistical+data/OldStats.htm

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• the excessive length of proceedings (412 cases)

• the right to liberty and security (267 cases)

• the right to a fair trial (92 cases)

• the right to private and family life (91 cases) The Polish public institution responsible for monitoring cases of violations of

fundamental rights is the Ombudsman. According to data for 2012 obtained from the Ombudsman most complaints from citizens were related to the following areas of jurisdiction: access to health care services, data protection, access to public information.

In 2012, the Ombudsman looked into 28 884 cases. The most frequently reported problems concerned2:

access to health services and the terms of providing it

156 cases

protection of personal data 106 cases

right of access to public information 45 cases

freedom of expression and opinion as well as obtaining and distributing information

18 cases

freedom of belief 6 cases

rights of persons applying for refugee status 3 cases

The right to access to health care and the terms of providing it According to a study commissioned in 2008 by the Institute for Patients' Rights and Health Education 42% of the 1004 surveyed persons were unaware of the existence of patients' rights. Only 38% of those who have heard about the patients' rights – that is, only 19% of all respondents – can quote any of them. 76% of respondents would like to learn more about their rights3. In the same survey respondents were asked about their opinion on the observance of patients' rights in Poland. 39% of the respondents answered that patients' rights in Poland are never respected or thy are respected rarely4.

2 Dane informacyjno-statystyczne z zakresu wybranych problematyk za 2012 r., Wydział Informacji Statystycznych, Biuro Rzecznika Praw Obywatelskich, Warszawa 2013 r.

3 http://www.prawapacjenta.eu/var/media/File/Raport%20z%20badania_swiadomosc%20praw%20pacjenta%20i%20wiedza%20w%20Polsce.pdf 4 http://www.prawapacjenta.eu/?pId=2186

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights From the report on the activities of the Ombudsman it is obvious that the observance of the patients' rights is a major problem in Poland. In 2012 the Ombudsman looked into 156 cases concerning access to health care and terms of providing it, of these he took on 59% (including three of them which were taken on under general proceedings). These figures can be compared with the number of letters obtained in 2012 by the Patients' Rights Commissioner – 10 161, of which 4 157 have produced new proceedings, which were initiated in conformity with the law (770 of these cases gave rise to the initiation of proceedings by the Patients' Rights Commissioner). Protection of personal data The Ombudsman looked into 106 cases which regarded the protection of personal data, of which he took on 31% (including one case which has been taken on and mentioned in an intervention of general character). The Ombudsman's intervention was directed to the President of the Supreme Chamber of Control and it concerned the authorisation of the Chamber to process sensitive data. The Ombudsman addressed the Minister of Administration and Digitisation on the topic of the incompleteness of the regulation of circulation of public data containing personal information on the websites of the public offices and in the Public Information Bulletin. The Ombudsman also addressed the Head of the Chancellery of the Prime Minister on the issue of announcements published in the Public Contracts Bulletin, which contained personal data (including addresses) of natural persons. Accordingly, in 2012 the Inspector General for Personal Data Protection received 1 593 complaints regarding violations of the right to protection of personal data. Right of access to public information

52 cases concerning the right of access to public information have been examined, 51% of these have been taken on. The Ombudsman addressed the Minister of Administration and Digitisation on the issue of the constitutionality of Art. 15 of the Law on Access to Public Information which prescribes fees for access to public information.

Three examples of real cases of fundamental rights violations will be the basis for the case study of the most frequently occurring problems – a case study of the causes, contexts and procedures.

Cases of the violations of fundamental rights Case 1: Violation of patients' rights

A mother of four-year-old complained to the Patients' Rights Commissioner. The woman came to an orthopaedic clinic on the recommendation of her family doctor. Her daughter broke a leg in kindergarten. The doctor examined the leg and sent the girl to get an X-ray. Later he informed the mother that the leg needed setting and it had to be placed in a heavy plaster cast for 5-6 weeks. When asked if it could be replaced by a lighter one, he replied, showing impatience, that it was "after all a big bone!" and without further explanation sent the injured to get the plaster fixed. The child was left in the study with her grandmother. Her mom was asked to leave, but later on requested to come in again to hear some important information. The doctor began to shout: "I do not have the duty to receive the child and help her, I can send her off to the hospital, and there they will set the leg under anaesthesia – we won't see your daughter for weeks because she will be kept under observation."

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights In the letter sent to the injured patient the Patients' Rights Commissioner wrote, "The bureau found that the patients right to respect of her privacy and dignity has been violated. ( ) When health care is being provided a relative may be present. While providing health care the person practicing a medical professional may refuse to accept the presence of a kin if there is the likelihood of epidemics or due to the patients safety. Such refusal should be put down in medical records. In the description of the Commissioner it was also stated that the doctor did have the right to ask the mother and grandmother to leave. "The doctor had the patient's good in mind and found that the presence of the mother and grandmother threatened the safety of the child." The Commissioner found that the only mistake which enables qualifying the doctors behaviour as lack of respect for patients' rights is that after asking the mother and grandmother to leave the study where the child was staying, he did not put a notice about this facts in the medical records.

The Commissioner's decision is based solely on medical explanations. No further explanation was requested from the complainant, no hearing was granted to the child's grandmother, who was a witness of the events. In this case, the injured party is entitled to request re-examination5. Case 2. Processing of personal data during the enrolment of children into kindergartens. The Ombudsman addressed the Inspector General for Personal Data Protection.

The Ombudsman pointed to the lack of uniform regulations for all municipalities which would clearly set out the principles of obtaining personal data by nurseries, kindergartens and schools in the process of enrolling children to these institutions. The lack of adequate legislation, in the opinion of the Ombudsman, often led to collecting the data of the parents while recruiting their children, including storing sensitive data at the absence of a statutory basis. Case 3. The Information System for Education.

The Ombudsman addressed the Minister of Education and informed the Inspector General for Personal Data Protection on issues regarding the Information System for Education. The Ombudsman noticed that the Information System for Education collects sets of data on schools and educational institutions, students, listeners, pupils and graduates, as well as teachers, tutors and other employees in the field of education. The Law on the Information System for Education of April 15 2011 introduced a reform which established that instead of storing sets of data the system should be based on individual data of students and teachers, which constitutes personal data according to the Personal Data Protection Law. The full functionality of the new system should be reached by April 2013. The new law on the Information System for Education has raised much controversy. In accordance with the provisions introduced by the amendments to the Law, the database of the Information System for Education will not include data connected to the name and Social Security number (PESEL) of the student nor information on psychological and pedagogical assistance he has obtained. The database will only include data on the number of pupils who have benefited from such assistance. According to the Commissioner the constitutionality of the Law on the Information System for Education still raises serious concerns

5 Prawo do godności pacjenta naruszone... ale połowicznie, Agnieszka Domanowska, 2012-01-07, ostatnia aktualizacja 2012-01-06 19:47

�http://miasta.gazeta.pl/miasto/1,96987,10923946,Prawo_do_godnosci_pacjenta_naruszone____ale_polowicznie.html

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights which regard, above all, the very vast set of collected data. The Ombudsman asked the addressees of his inquiry to present their position and to state whether the Minister of Education shall consider a re-evaluation of the solutions introduced so far. Case 4: The use of video surveillance.

The Ombudsman addressed the Minister of Home Affairs and informed the Inspector General for Personal Data Protection about the absence of relevant rules governing the use of video surveillance. The Ombudsman has repeatedly indicated to particular ministers the problems associated with the lack of proper regulation of video surveillance. Due to the fact that the issue of monitoring affects different fields of the States activity, the Ombudsman finds that an efficient coordination of the actions of various departments operating within this field is necessary. There are still many areas where monitoring is installed without a statutory basis. According to the Ombudsman this situation is unacceptable, particularly in the case of public spaces. The Ombudsman considered it vital for the problem to conduct public consultations during the legislative process and to ensure openness and transparency in the functioning of the monitoring. Local communities should be involved in assessing the need for installing such systems. Finding the right balance between security and privacy of citizens in the era of modern technology is one of the biggest challenges that public authorities must currently face. The Ombudsman asked for a overview of the current state of work on the Law on monitoring and for a calendar of planned activities in this field. Case 5. Placing personal data on court dockets

The Ombudsman addressed the Minister of Justice asking about the data posted on the dockets. The Office of the Ombudsman is analysing the issue of the preparation of court dockets. The obligation to prepare a docket and place it in front of the courtroom applies to all cases, regardless of whether the court has decided to close it to public. As a result, even though the court excluded the openness of the sitting, the information about the subject matter and the persons participating in it will be available to other people. Placing the data of parties, witnesses or defendants on the dockets constitutes processing of personal data within the meaning of the Act of 29 August 1997 on the protection of personal data. In some court cases there are compelling reasons to limit the disclosure of the dockets due to the need to protect the privacy of individuals. In civil cases, such a need arises in the case of matters concerning family law and mental health. In criminal cases it is reasonable to consider introducing anonymous dockets in the case of offences against sexual freedom and decency in order to protect the victims of crimes against secondary victimisation. The content and terms of use of the dockets are governed by a regulation of the Minister of Justice of December 12th 2003 on the organisation and the scope of activities of courts and other departments of the administration of justice. The Ombudsman considers that the provision, not having the rank of generally applicable law, can not be considered as enabling the processing of personal data in accordance with the provisions of the Law on Personal Data Protection. This matter should be regulated by a Law or by an executive act. The Ombudsman has asked the Minister of Justice to state his position on the issue and to take action leading to the implementation of appropriate changes to the regulations.

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights Case 6. Intervention with the Prime Minister on ACTA

In his intervention the Ombudsman stated his position on the announcement of the signing of the Anti-Counterfeiting Trade Agreement (ACTA). The Ombudsman noted that none of the public authorities was able to give a clear and precise answer in the context of doubts concerning the legal consequences of signing and ratifying ACTA. This is all the more important since signals of discontent about the possible impact of this agreement on the rights of individuals were regularly raised over the last two years by social partners in dialogue with the Council of Ministers – hence the adequate members of the Council of Ministers had the time and tools to comment on them. Despite the declaration of the Council of Ministers that proper consultations have been carried out, one can have reasonable doubts as to their scope and execution. Therefore doubts concerning the effects that the ratification of ACTA will have on the citizens' right to privacy, and in particular the protection of their personal data, presented by the social partners are hardly surprising. Also the concerns related to the possible restrictions of freedom of speech, the right to information and access to culture may be regarded as justified. The Ombudsman requested clarification on the matter, and particularly a clear position of the Council of Ministers on the impact of the signing and ratifying of ACTA might have on the rights and freedoms of citizens. The Ombudsman also asked for an overview of the procedure for public consultations on ACTA, along with information on what basis have the entities taking part in them been selected. Case 7. Example of a violation of the right of access to public information

In January 2009 a resident of Rabka-Zdroj requested public information on the decisions regarding land development conditions and plans taken in this spa town over the years 2005-2008. From the very beginning the resident, at that time also member of the City Council remaining in opposition to the mayor, did not conceal that the requested public information would be used to single out the decisions on land development which constituted an obvious violation of the law allowing the development of green spa areas which are protected because of the unique qualities of the landscape and nature as well as other areas in principle excluded from development plans. The resident then intended to take measures aimed at eliminating these land development decisions from legal circulation. The applicant was granted access to most of the information on the decisions regarding land development however without the ones which could help identify the location of the property regarding which the decision was issued, i.e. with the exception of land registration numbers and addresses of the property. Access to this data, crucial for the applicant, was refused through a decision which made reference to the alleged need to protect the personal data of individuals owning the property in question. The Mayor of Rabka–Zdrój claimed that on the basis of real estate registration numbers the applicant could obtain the land registry identification mortgage book, and on the basis of a particular number of mortgage book he could obtain information about the owner of the property for which the decision on land development was made, which on turn would compromise the privacy of the individual who was the owner of the property.

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The Mayor of Rabka–Zdrój was not convinced by the argument that the organ does not process personal data of the owners of the land for which the request for land development decisions was made but the personal data of the applicants who make such a request. This means that it is the data of the applicants that is subject to the law on protection of personal data and not the data of the owners of property. These are not processed nor even possessed by the mayor of Rabka-Zdrój. In the light of the law in force the applicants requesting access to decisions on development plans do not have to be property owners – information on such a decision is accessible to everyone after making an adequate request. Entitlement to the administration of the property in question is not requested, as it is in the case of a building permit.

Finally, the Mayor of Rabka–Zdrój refused to acknowledge that the information on the register number of each property in Poland, and, by extension, also on the owner of the property, is public information by law. In the adequate office (operat gruntowy) anyone, even without proving a legal interest, may request the register number and the identification number of each mortgage book, and using this data he may obtain information about the owner of the property free of charge via the Portal of the Subsystem of Access to the Central Database of Land Registry http:// ekw.ms.gov.pl

From the outset of criminal proceedings the vast knowledge of the problems of access to public information disclosed by the Court was in clear contrast to the absurd arguments of the solicitor of the municipality of Rabka–Zdrój who strived to justify the refusal of access to the requested public information.

The Local Council of Appeals in Nowy Sącz to which the applicant requesting access, to information appealed against the decision to refuse to provide the information, fully shared the aforementioned points and overruled the original decision to refuse to provide the information claiming that it was an unfounded one.

Issues related to illegal refusal of access to public information are commonly underestimated by criminal courts which only reinforces the common belief in the impunity of unlawful acts6.

6 http://informacjapubliczna.org.pl/43,696,rabka_zdroj__mieszkaniec_wygral_w_sadzie_sprawe_karna_o_nieudostepnienie_informacji.html

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights Analysis of the most frequent cases of fundamental rights violations in Estonia

Estonia joined the Council of Europe in May 1993 and ratified the European Convention of Human Rights in April 1996. Over the years 1996 – 2011 the ECHR made 26 judgements on Estonian cases (2% of all applications came from Estonia). There have been 22 cases (83%) of violation and 3 cases (13%) of non-violation. The first judgement was given in 2000.

The public awareness of fundamental rights is relatively low in Estonia. Although there is no massive violation of basic freedoms the national authorities (Parliament, government and its’ agencies, courts etc.) should pay much more attention to guaranteeing the implementation of fundamental rights – the right to liberty and security, the prohibition of inhuman or degrading treatment, the right to a fair trial, the reasonable length of proceedings.

According to the data provided by the ECHR the distribution of judgements on Estonian cases of violations of fundamental rights is as follows:

- Right to liberty and security (Article 5) – 9 cases - Right to a fair trial (Article 6) – 5 cases - Length of proceedings (Article 6) – 4 cases - No punishment without law (Article 7) – 4 cases - Right to an effective remedy (Article 13) – 4 cases - Inhuman or degrading treatment (Article 3) – 2 cases.

Unfortunately there are no exhaustive statistics on fundamental rights violations available in Estonia

Nevertheless it’s possible to get an overview of the situation using information and data provided in several reports prepared by major institutions which monitor the fundamental rights. These institutions are:

• Chancellor of Justice (acting also as Ombudsman for Children)

• Gender Equality and Equal Treatment Commissioner

• Human Rights Centre

• Patient Advocacy Association. The Chancellor of Justice- statistics

The Chancellor submits an overview of his/her activities every year (annual report) to the Parliament. It includes an outline of the Chancellor's activities for the prevention of torture and other cruel, inhuman or degrading treatment or punishment.

According to the latest report, in 2011 the Chancellor of Justice received 2122 petitions and carried out 53 inspection visits, incl. 33 inspection visits of closed institutions (institutions where individuals are staying involuntarily and where their freedom may be restricted).

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In 2011, the Chancellor declined to open substantive proceedings in 1344 cases (77.3% of the total number of cases). The distribution of the petitions and cases according to the area of law was as follows:

• criminal enforcement procedure and imprisonment law – 295 cases

• enforcement and court procedures and pre-trial criminal procedure – 259 cases

• social welfare, social insurance and health law – 203 cases. Ombudsman for Children - statistics

The Chancellor of Justice also acts as the Ombudsman for Children to ensure that all state and private institutions and people who make decisions having an impact on children and adolescents will respect children's rights and will have only the best interests of children and adolescents in mind when making these decisions.

The tasks of the Ombudsman for Children include:

• resolving complaints related to children's' rights in their relations with the individuals and authorities who perform public functions;

• verifying whether the legal acts related to children's' rights are in conformity with the constitution and laws;

• conducting inspection visits to the children's' institutions etc. On the initiative of the Ombudsman for Children and the Ministry of Social Affairs in

2012 the first monitoring of the rights of the child and parenting was carried out in order to map the society’s awareness of issues related to the rights of the child and to analyse attitudes and problems concerning the issues of raising children and parenting.

The results of the Monitoring of the Rights of the Child and Parenting indicate that 23% of adults and 16% of children have not heard about the rights of the child. Children and adults both associate the phrase ‘rights of the child’ primarily with education and school.

The awareness of the existence of institutions engaged in guaranteeing the rights of the child is relatively low among adults and slightly higher among children.

The school environment is not always a friendly one for all children and relations between teachers and children may cause stress and unpleasant feelings in children. Almost half of children (46%) have experienced bullying at school at least once and 7% of children are victims of constant bullying. 4% of children say that other children hit them constantly. 62% of children have felt that teachers treat them unfairly at school. Only half of the adult population strongly agrees that every person should notify the police, a social worker or another body providing assistance about a child in need. 36% tend to agree, while 8% disagree strongly or tend to disagree. 13% of children said that they have witnessed violence at home at least once, although they were not hurt themselves. Gender Equality and Equal Treatment Commissioner - statistics

According to the report on the activities of the Gender Equality and Equal Treatment Commissioner presented to the Parliament in September 2012 there were 90 complaints on

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights discrimination submitted to the Commissioner in 2011. 50% of all complaints concerned unequal treatment based on gender, 9% of complaints focused on problems of ethnic minorities, 6% on sexual orientation and 2% on disabled people.

The majority of cases concerned employment opportunities (mostly recruitment). In this particular field there was a number of cases of multi-discrimination based on, for example, gender and age or disability or family responsibilities etc. Estonian Human Rights Centre- statistics

The NGO is an independent public interest foundation dedicated to the advancement of protection of human rights in Estonia and abroad. Since 2007 the Centre publishes an annual report „Human Rights in Estonia”. The latest available report covering 2011 was published in April 2012.

According to the report most of the existing problems are linked to the following areas:

• torture, inhuman or degrading treatment

• slavery and forced labour

• right to a fair trial

• discrimination, incl. gender pay gap In 2010 four criminal groups involved with illegally transporting persons across borders

or with organising prostitution were put on trial. The same year four persons were convicted of enslaving and were given a prison sentence of 1–3,5 years. All of these enslavement cases involved organising prostitution by means of violence and coercion. The victims were women, some of them underage.

The human trafficking cases do not involve only sexual exploitation of women. There is an abundance of cases where the victims of employers’ exploitation are men who have gone to work in a foreign country.

Right to a fair trial: the Supreme Court found that state fees’ having the possible purpose of making extra revenue for the state and financing other expenses of the state cannot be considered legitimate if the fee is greater than needed to cover the costs of the proceeding. The court proceedings are too long in Estonia.

Discrimination: two court judgments related to equal treatment and discrimination came into force in 2011.

The EU Report on Progress on Equality between Women and Men, published in 2011, indicates that the pay gap between men and women in Estonia is the greatest among the EU Member States – 31%, while the EU average is 17.5%. Nevertheless no complaints/appeals were submitted to the courts or Labour Dispute Committees. Estonian Patient Advocacy Association

The mission of the Estonian Patient Advocacy Association is to start changes in the social and health care system which would help people feel safe and enable them to maintain spiritual, mental and physical balance.

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EPAA provides legal aid services to clients on the issues of health, social security and human rights. EPAA offers counselling and advocacy services in individual cases helping the clients make advantage of their human and civil rights. EPAA gives advice, represents clients in relations with third parties (in courts and review bodies), speaks for the client rights and helps in making judicial documents. All the services provided by EPAA are free of charge and approximately 2000 clients ask EPAA for help every year.

In 2011 the Estonian Patient Advocacy Association gathered most common complaints into a summary report which demonstrates the following general problems with welfare services:

• Patients or their relatives are not given information about the treatment, care or the prognosis. The requests for this information are ignored and the patient and his or her relatives are left uninformed.

• Patients and their relatives are treated without respect, in a demeaning manner, at times crudely. The service providers cause the patients intense suffering with the following activities: the patients are not given the required care (causing bedsores), the bedridden patients are not fed, given to drink or offered help in order to go to the toilet, the patients are neglected and treated in a demeaning manner, the so-called 'problem' patients are restrained illegally, patients are left without care for a long time.

• The relatives of patients are pressured into paying bribes for the continuation of the service or for better service.

• The patients’ possessions are not attended to, personal belongings are being stolen.

• Complaints of patients and their relatives about the services provided are not taken seriously. Sometimes the nursing hospitals admit that the quality of the service is poor and claim that this is the way it should be.

Cases of the violations of fundamental rights Below presented are three cases of possible violations of fundamental rights in Estonia

solved by different institutions – the Chancellor of Justice, Gender Equality, the Equal Treatment Commissioner and the European Court of Human Rights. Case 1: Violation of rights of a disabled child

According to the law local authorities are required to guarantee a place in a pre-school education institution for all children aged 1,5 – 7 years who live in the town or parish and whose parents apply for a place. In kindergarten special conditions must be provided for disabled children.

The parents of a child with a severe disability applied for place for their child to Narva city government. The official of the local authority advised them to turn to the principal of the kindergarten. The parents contacted the kindergarten and informed the principal that in a few months their child with a severe disability will need a place in the kindergarden. The principal promised the parents that a place meeting special requirements for their child is guaranteed and it does not matter when the child starts to attend the kindergarten.

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Nevertheless 2 months later when the parents came with the child to the kindergarten the principal refused to enrol the child claiming that the place has already been taken by another child – though his/her parents applied for the place later.

The parents filed a complaint to the Chancellor of Justice who concluded that Narva city government violated the law by not providing a place in a kindergarten for a child with a severe disability. oiguskantsler.ee

Case 2: Discrimination based on family responsibilities and gender stereotypes

A local government announced a vacant position of the principal manager of a cultural institution. 6 applications were submitted. 2 applicants – female and male – were invited for the final job interview. The selection committee interviewed both applicants and decided to sign an employment contract with the male applicant.

The female applicant asked the local authority for the reasons of such a decision – she had a higher level of education (MA) compared to him (BA); she was more experienced (19 years work tenure including 5 years in managerial position) compared to 15 years work without managerial experience. It should be noted that both applicants met all other requirements for the vacant position.

In its’ answer to the applicant and to the Gender Equality and Equal Treatment Commissioner the local authority did not provide any reasons for giving priority to the male applicant for the vacant position. On the other hand, it mentioned that „the selection committee believed that it would be complicated for her to work as a manager since she had a quite young child” – despite her declaration that she is ready and will be able to work in the evenings and weekends (the male applicant did not have children).

The female applicant filed a complaint to the Gender Equality and Equal Treatment Commissioner who concluded that it was a case of direct discrimination based on family responsibilities and gender stereotypes. http://www.svv.ee/ Case 3: Tammer vs Estonia in the European Court of Human Rights

The applicant E. Tammer, a journalist and editor of a daily newspaper, was convicted by the Estonian courts of insulting Ms Laanaru, wife of former Prime Minister E. Savisaar, in an in-terview he conducted with another journalist, Mr Russak, which was published in April 1996.

Mr Russak had helped Ms Laanaru to write her memoirs but published them without her consent. In her memoirs, said Mr Russak, Ms Laanaru not only recalled her experiences in poli-tics and government but also reflected on her relationship with Mr Savisaar, a married man, asking herself whether she had broken up his family. She admitted that she had not been as good a mother as she had wished to be and wondered whether she had paid too high a price when sacrificing her child to her career.

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http://www.svv.ee/


In the mentioned newspaper interview the applicant questioned Mr Russak on the issue of the publication of the memoirs and asked him the following question: “Don't you feel that you have made a hero out of the wrong person? A person breaking up another's marriage, an unfit and careless mother deserting her child. It does not seem to be the best example for young girls.”

Following the publication of the interview, Ms Laanaru instituted private prosecution proceedings against the applicant for allegedly having insulted her. The applicant denied in the court the intent to offend Ms Laanaru and considered the expressions used as neutral. He further claimed that Ms Laanaru's actions had justified his asking the question.

City Court convicted Mr Tammer of insulting Ms Laanaru and fined him 220 kroons, the equivalent of ten times the “daily income” rate. According to the court, based on an expert's opinion, the words used in the interview constituted value judgments which expressed a strongly negative and disapproving attitude towards the behaviour to which they referred.

The applicant lodged an appeal arguing that the judgment of the first-instance court constituted a violation of his freedom of speech. The Court of Appeal dismissed the applicant's appeal and upheld the City Court's judgment.

The Court of Appeal considered the expressions used in the interview to be grossly degrading to human dignity and their use by the applicant in the circumstances of the case to be abusive. Had he expressed his negative opinion about Ms Laanaru by stating that she did not raise her child and that she had destroyed Mr Savisaar's marriage, it would not have constituted an insult.

The Supreme Court also rejected the applicant's appeal and upheld the Court of Appeal's judgment.

In the appeal to the European Court of Human Rights (ECHR) Mr Tammer submitted that the decisions of the Estonian courts in which he was found guilty of insult constituted an unjustified interference with his right to freedom of expression under Article 10 of the Convention.

The ECHR noted that the applicant was convicted on the basis of the remarks he had made in his capacity as a journalist in a newspaper interview with another journalist.

The ECHR noted that the impugned remarks related to the aspects of Ms Laanaru's pri-vate life which she described in her memoirs written in her private capacity.

The ECHR noted the differences in the parties' position concerning the public-figure status of Ms Laanaru. It observed that Ms Laanaru resigned from her governmental position in October 1995. Despite her continued involvement in the political party, the Court did not find it established that the use of the impugned terms in relation to Ms Laanaru's private life was justified by considerations of public concern or that they bore on a matter of general importance. The applicant's remarks could therefore scarcely be regarded as serving the public interest.

The ECHR observed that the Estonian courts fully recognised that the case involved a conflict between the right to impart ideas and the reputation and rights of other persons. It did not find that they failed to balance properly the various interests involved in the case.

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The ECHR considered that the applicant's conviction and sentence were not disproportio-nate to the legitimate aim pursued and that the reasons advanced by the domestic courts were sufficient and relevant to justify such interference. The interference with the applicant's right to freedom of expression could thus reasonably be considered necessary in a democratic society for the protection of the reputation or rights of others within the meaning of Article 10 § 2 of the Convention. ECHR unanimously concluded that there has been no violation of Article 10 of the Convention.

Analysis of the most frequent cases of fundamental rights violations in the Czech Republic

The aim of this part of the analysis is to determine the most common violations of fundamental rights in the Czech Republic, based on statistical data and reports provided by the Office of the Public Defender of Rights. Three main topics will then be selected from these areas. Subsequently, an example will be created in each of them to serve as a model within the educational project.

The first part of the analysis focuses on the analysis of statistical data, with respect to the development of the total number of complaints received, percentage of complaints filed within or outside the competence of the Ombudsman, and, in particular, the determination of problems that citizens address to the Public Defender of Rights most frequently.

The second part compares the activity of the Office of the Public Defender of Rights and citizens’ advice bureaux in terms of thematic focus of the problems that citizens address to both institutions.

CHART No. 1

Development of the total number of complaints received by the Office of the Public Defender of Rights

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The chart shows the development of the total number of complaints filed at the Office of the Public Defender of Rights from 2001, when it started its activity, until 2012. The colour division of each column indicates the number of complaints that were filed within the competence of the Ombudsman or outside the Ombudsman’s competence.

The total number of complaints:

In 2012, the Office of the Public Defender of Rights received more than 8,000 complaints and inquiries, in writing, electronically, as well as orally on record. This number is the highest since the Office was established. In comparison with 2003 and 2004, the increase in the number of complaints almost doubled. The large number of complaints also places increasingly higher demands on the Office of the Public Defender of Rights, causing an overload. This is intensified by a high percentage of cases in which citizens turn to the Ombudsman with complaints that do not fall within its competence.

The number of complaints outside the Ombudsman’s competence:

In 2001, when the Office of the Public Defender of Rights was established, half of the complaints did not fall within the Ombudsman’s competence. Since then, the number of complaints not falling within the Ombudsman’s competence has been steadily decreasing every

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights year (with minimum variations). However, it is still a relatively high number. In 2012, the Office of the Public Defender of Rights received more than 8,000 complaints, with over 40% not falling within its competence. Even after more than ten years from the establishment of the Office, a significant number of complainants turn to the Ombudsman with cases that do not fall within its competence, which logically slows down the operation of the Office, and this also shows a lack of public awareness about the competence of the Office of the Public Defender of Rights. This situation cannot be regarded as satisfactory. In addition, every year about 1,000 people turn to the Office of the Ombudsman, asking about its scope of competence by telephone.

Moreover, most cases in which citizens turn to the Office of the Public Defender of Rights with inquiries falling within its competence are requests for simple legal advice. Usually only 12% of the total number of complaints filed require investigation.

The content structure of complaints filed:

The scope of competence of the Ombudsman is defined in Section 1 of Act No. 349/1999 Coll., on the Public Defender of Rights. According to this provision, the Public Defender of Rights shall work to defend persons against the conduct of authorities and other institutions set forth in this Act, where such conduct is at variance with the law, or does not comply with the principles of a democratic legal state and good administration, as well as against their inaction, thereby contributing to the defence of fundamental rights and freedoms. The mandate of the Defender shall apply to ministries and other administrative authorities having competence over the entire territory of the Czech Republic, administrative authorities subject to them, the Czech National Bank when acting as an administrative authority, the Council for Radio and Television Broadcasting, bodies of the territorial self-governing units in the exercise of state administration, and unless hereafter stipulated otherwise, the Police of the Czech Republic, Army of the Czech Republic, Castle Guard, Prison Service of the Czech Republic, to facilities performing custody, imprisonment, protective or institutional education, protective treatment, preventive detention, as well as to public health insurance organisations. The Defender shall systematically visit places where persons restricted in their freedom by public authority, or as a result of their dependence on care provided, are or may be confined, with the objective of strengthening the protection of these persons against torture, or cruel, inhuman and degrading treatment, or punishment and other maltreatment.

Everyone, whether a natural person or legal entity, is entitled to turn to the Ombudsman with its complaint. Inquiries and complaints addressed by citizens to the Ombudsman are, for instance, related to internal administration of individual institutions, administration of courts, prosecutors’ offices and individual territorial self-governing units, foreign citizens’

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EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights issues, environmental protection or protection of the rights of children and youth, as well as social security, unemployment, tax and customs issues, regional development, etc.

Based on a statistical analysis of the data collected, it has been found that since the first year of existence of the Office, citizens have most often turned to the Public Defender of Rights with complaints falling within the following areas:

1. Social security 2. Constructions and regional development 3. Police, prisons, army 4. Administration in the health care sector 5. State administration of courts

The order, based on the number of complaints filed, has not changed since 2008, and these areas have been the same, with slight variations in the order, since 2001, when the Office of the Public Defender of Rights was established. Between 2001 and 2004, a large number of complaints were also related to land and restitution law.

Individual items in detail:

The Office of the Public Defender of Rights gives examples of the most common complaints for each of the most frequent areas:

1. Social security

• Substantive and institutional changes in non-insurance social benefits (transfer of payment under the Labour Office of the Czech Republic, and the problems arising from this measure) – e.g. late payment of benefits

• Parental allowance – verification of residence of persons whose family members are foreigners

• Insufficient amount of housing benefit (increase in housing costs due to deregulation) • Care allowance – delays, reduction in the degree of dependence • Change in benefits to persons with disabilities – tightening of conditions for granting the

TP card (physically handicapped persons), ZTP card (especially physically handicapped persons), or ZTP/P card (especially physically handicapped persons with guides); tightening of some one-off benefits – “car allowance”

• Pensions Delays in processing applications for pensions

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Distraints (deductions from pension) – not sending to distrainor, failure to stop making deductions; no response to requests

Requirement to return overpaid pension that the Czech Social Security Administration paid, even though the recipient pointed out the change in the facts decisive for benefits payment

Invalidity – three degrees of disability (since 1 January 2010); wrong determination of the date of invalidity commencement, or reduction in the degree of invalidity

2. Constructions and regional development

• Zoning (zoning plan preparation, opposition to zoning plan, change in zoning plan, building closure, etc.)

• Building, landscaping and equipment permits (planning procedure, building registration, building permit process)

• Use of buildings (building approval, early use of building, test operation, use of building without or contrary to the certificate of occupancy / final building approval, change of building use)

• Building removal proceedings and additional building permit proceedings • Preservation • Other competencies in the construction sector and the competency of the Ministry for

Regional Development (expropriation proceedings, grants, funeral services, design activity in construction, etc.)

3. Police, prisons, army • Police (this issue has been repeatedly mentioned in previous reports)

Handling of complaints (lack of justification for the conclusion of the police authority)

• Prisons Transfer of convicted persons Health care – the most common complaint; unavailability of professional care; too

few doctors Material conditions Disciplinary punishments – a frequent complaint – now the possibility of judicial

review of the decision to impose a disciplinary punishment – since 1 July 2011, based on the finding of the Constitutional Court, file No. Pl. ÚS 32/08

Bullying Internal security of prisons (penetration of drugs into prisons)

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4. Health care • Health insurance

(assessment and recovery of health insurance debt in terms of time limits, claims of policyholders concerning health services payments from public health insurance, e.g. extra payment from health insurance, spa care)

• Activities of regional health authorities (particularly noise issues) • Handling of complaints about health services by regional authorities (the aspect of proper

handling of complaints – sufficiency of documents, justification and convincing findings of the investigation, taking into account the complainant’s objections, clarity of the message)

• Conditions of the performance of protective treatment in psychiatric hospitals

5. State administration of courts • Dealing with complaints about delays in judicial proceedings – special cases (deciding on

a motion to set a time limit, court custody of minors, precautions, etc.) and, for example, delays caused by experts, notaries and trustees

• Dealing with complaints about inappropriate conduct of court personnel • Administration of expert and interpreter activities, work schedules, management of

judicial offices • Competence of the Ministry of Justice – compensation, supervision (e.g. state supervision

of distraint activity), etc.

COMPARISON OF ACTIVITIES PERFORMED BY THE OFFICE OF THE PUBLIC

DEFENDER OF RIGHTS AND THOSE CARRIED OUT BY CITIZENS’ ADVICE

BUREAUX

The analysis also contains the comparison of the activities performed by the Office of the

Public Defender of Rights and Citizens’ Advice Bureaux or, more precisely, the comparison of

the structure of the most common inquiries addressed by citizens to both institutions. In order to

conduct the comparison, we contacted citizens’ advice bureaux in different parts of the Czech

Republic by email, requesting data on the number of clients and the structure of the most

common problems that make clients seek their assistance. Of more than 50 citizens’ advice

bureaux contacted, 17 started to co-operate with us. Some of them expressed their interest in the

completed analysis. 35


EVENING WITH OMBUDSMAN - Empowering rural communities through knowledge on fundamental rights Most frequent problems, according to the Association of Citizens Advice Bureaux:

• Debt counselling (this includes financial and budgetary issues; distraint proceedings)

• Family and interpersonal relationships

• Property rights issues

• Labour disputes

• Housing

• Consumer issues

The most frequent assistance type requested by citizens from citizens’ advice bureaux falls in

the category of debt counselling; this is unequivocally confirmed by all citizens’ advice

bureaux. More specifically, it involves insolvency and debt remission permit, distraint or

settlement of liabilities, postponement or modification of payments, etc. In the vast majority of

citizens’ advice bureaux, most inquiries are related to debt issues, in some even more than 60%

(Citizens’ Advice Bureau for the Ostrava–Přívoz and Ostrava–Poruba area – 63%; Nový Jičín

Citizens’ Advice Bureau – 65%). In addition, the number clients contacting citizens’ advice

bureaux because of debt issues increases every year. This is evidenced, for example, by the

statistics of the Brno Citizens’ Advice Bureau, and practical experience of individual citizens’

advice bureaux staff. While in 2007 only 5% of all inquiries answered by the Brno

Citizens’Advice Bureau were related to debt issues, in 2011 it was 24%. The report of the

Association of Citizens’ Advice Bureaux also states that the number of inquiries relating to debt

issues has increased approximately threefold since 2007. This increase is explained by the

economic crisis. However, according to the analysis of the Czech Statistical Office, the growth

of Czech household debt has also been caused by efforts to increase the standard of living, strong

orientation towards consumption, and increases in real wages, which leads to the belief that

increasing wages make it easier to repay loans. Other causes include the easy availability of

loans, primarily from non-bank financial companies, and intensive marketing.7

7 Thematic analysis of the Czech Statistical Office: “Czech Households Owe a Trillion”, available from WWW (in Czech): http://www.czso.cz/csu/csu.nsf/informace/ckta120310.doc; “Savings and Debt: Have Czech Households

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http://www.czso.cz/csu/csu.nsf/informace/ckta120310.doc


Apart from debt counselling, citizens turn to citizens’ advice bureaux for help with family

relationships (divorce, modification of nutrition, and the education of children). Other frequent

issues include labour disputes (rights and obligations of employees, termination of employment,

entitlement to compensation, work-related injuries, or occupational diseases) or property disputes

(settlement of marital property, co-ownership, easements, donations, heritage proceedings, etc.)

With respect to housing, Prague clients’ inquiries are primarily related to the rights and

obligations of tenants and landlords, wordings of lease agreements, and rent deregulation issues.

Citizens’ advice bureaux also address the issues of neighbour relations, housing co-operatives,

and unit owners associations. Citizens’ advice bureaux (e.g. Nové Město Citizens’ Advice

Bureau) also point out problems relating to the Czech Social Security Administration – these are

less common, but more serious.

We also asked the citizens’ advice bureaux whether they had noticed differences in

problems between the inhabitants of large towns and the inhabitants of small towns and villages.

The citizens’ advice bureaux were not able to answer this question, because in the vast majority

of cases they provide advice anonymously or, for other reasons, do not keep records of their

clients’ addresses. This situation is complicated by the fact that citizens’ advice bureaux are

usually only established in large towns or, as the case may be, they create detached centres in

small towns within the region in which they operate. The Brno Citizens’ Advice Bureau stated

that it had registered a larger number of inhabitants residing outside Brno, which can be

explained by the above-mentioned fact that there is no free counselling in the municipality, and if

there is, people can be prevented from contacting the Bureau based in a small municipality by

embarrassment or concern about the potential disclosure of their problems. This is also pointed

out by the Nymburk Citizens’ Advice Bureau, especially if the cases involve distraint or family

problems. The Bureau adds that it also occasionally encounters “differences in the level of state

administration, e.g. worse interpersonal relationships of the municipality representatives with

some citizens, which may result, in extreme cases, in various inappropriate actions. On the other

hand, we have repeatedly encountered situations where the mayor or the municipality

representative helped citizens in issues beyond their duties, which does not happen in towns.”

Found Themselves in a Debt Trap?”, available from WWW (in Czech): http://www.czso.cz/csu/2008edicniplan.nsf/t/95003FB814/$File/115108s.pdf

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http://www.czso.cz/csu/2008edicniplan.nsf/t/95003FB814/$File/115108s.pdf


Interesting insights were also provided by the staff of the Pelhřimov Citizens’ Advice

Bureau. They believe that finding employment is harder for people living in small towns,

townships and villages. This is also caused by the complication of commuting, which quite often

results in low family incomes. In the area of housing, they are primarily contacted by clients

residing in the town, regarding the rights and obligations of the tenant and landlord. However,

they have noticed a higher proportion of people from villages requesting assistance regarding

care allowance.

However, representatives of citizens’ advice bureaux confirm that they have not noticed

a significant thematic difference from the issues received from clients residing in differently

sized municipalities. The difference is not shown by data from small towns (e.g. Čáslav – 11,000

inhabitants, Nymburk, Šumperk, Rychnov na Kněžnou) either.

The Citizens’ Advice Bureau for the Ostrava–Přívoz and Ostrava–Poruba area, however,

noticed differences in target groups. Senior citizens very often turn to the Bureau with

consumer issues (demonstrations, etc.). Unfair selling practices associated with product

demonstrations and similar events have been pointed out by the media several times. Therefore,

what appears reasonable is the creation of an educational project focused primarily on this client

group.

In conclusion, it is necessary to consider the possible points of contact between the

activity of the Office of the Public Defender of Rights and the citizens’ advice bureaux.

Although both institutions were created with a similar purpose, namely to help citizens solve

difficult situations, both operate in different areas.

The competence of the Office of the Public Defender of Rights does not allow the

Ombudsman to enter into private disputes, interfere in the courts’ activity, or substitute for the

state administration authorities and change or repeal their decisions. However, it may carry out

independent investigations and seek redress in case of misconduct of authorities falling within its

competence.

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Most frequent problems dealt with by citizens’ advice bureaux involve debt and the

related insolvency or distraint. This area does not fall within the Ombudsman’s competence.

However, the Public Defender of Rights may intervene in a situation where the authority

conducting the recovery of the amount due (distraint office, tax office – recovery of tax arrears,

or municipal authority recovering fines as administrative sanctions) makes an error. Such

situations include incorrect deductions from wages, salaries, and pensions; unacceptable methods

of a distraint officer, arrogant, immoral or otherwise improper conduct of persons charged with

the recovery of the amount due; lack of communication by authorities, etc.

Another point of contact can be seen in labour disputes. These typically involve non-

payment of severance pay or wages to which an employee is entitled, reservation upon

termination of employment, failure to recognize an accident at work, etc. In such situations,

citizens should first contact the labour inspection office competent to deal with such disputes. In

the event of disputes concerning the payment of unemployment benefits, the Labour Office

should be contacted. The Ombudsman may not intervene in a private law relationship between

the employee and the employer. However, in the event of inactivity, insufficient investigation of

the matter in question, improper procedure, or incorrect legal assessment, the Office of the

Public Defender of Rights may appeal to the Labour Office and the State Labour Inspection

Office and seek redress.

In this area, the Office of the Public Defender of Rights requested the legislature to

amend the legislation governing the unemployed persons attendance system (DONEZ –

attendance of unemployed persons).

Elderly people, usually pensioners, are not the most numerous, but are a very important

group of clients who turn to citizens’ advice bureaux with consumer problems related especially

to the practices of sellers at product demonstrations. This problem should be primarily addressed

to the Czech Trade Inspection Authority or to the Consumer Arbitrator. The Public Defender of

Rights may be contacted if they are not satisfied with how the competent authority handled the

complaint, or if complainants believe that the matter has been inadequately investigated, or the

matter has not been considered at all, even though the authority should have done so.

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However, even in cases where complainants turned to the Ombudsman with problems not

falling within its competence, the Office of the Public Defender of Rights provides such citizens

with advice on how to proceed in the difficult situation or, if necessary, which authority should

be contacted. Complainants’ problems also stimulate the Public Defender of Rights to seek a

change in legislation.

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report i

Documents

areas of fundamental

fundamental rights summary

area of fundamental

environmental rights

social rights

human rights violations

cases various rights

antidiscrimination rights