Statutory limits of the anti-discrimination protection before Czech courts

Eva Kočí Svobodová, Lawyer, Public Defender of Rights (Czech Republic)

The Public Defender of Rights (hereinafter the Defender) has been the Czech Equality Body pursuant to the law and applicable directives of the European Union since 2009. The Defender was originally established in 2000 and their mandate is broader than being an Equality Body. With respect to anti-discrimination, the Defender contributes to the enforcement of the right to equal treatment of all persons regardless of their race or ethnicity, nationality, sex and gender, sexual orientation, age, disability, religion, belief or worldview and EU citizenship.

For that purpose, the Defender provides assistance to victims of discrimination, carries out researches, publishes reports and issues recommendations with respect to matters of discrimination, and ensures exchange of available information with the relevant European bodies. However, the main role in protection from discrimination in the Czech Republic is played by independent courts, which are the only authorities with the power to issue binding decisions. Courts authoritatively decide whether a particular individual was discriminated against and rule on the claims raised by the plaintiff. As the Defender is statutorily obliged to provide assistance to victims of discrimination, including preliminarily assessing their claims and recommending whether or not to lodge an anti-discrimination action in court, the knowledge of case law is essential to their mission.

What have we learned from our analysis of anti-discrimination cases?

The research was conducted it two phases. As there is no functional database for publishing all court decisions, the Defender firstly had to collect anonymised copies of decisions from various sources. These included all district courts in the Czech Republic, Ministry of Justice, the Constitutional Court’s public database and Defender’s own database related to their activities. The research methodology itself relied on content analysis of case law.

The current research follows on from research which was devoted to the anti-discrimination case law in the period from 2010 to 2014, which was followed by  a report in 2015 by the Defender,  mapping the obstacles faced by victims of discrimination in accessing justice. The objective of the Defender’s current research was to provide a complete picture of the courts’ decision-making in lawsuits in civil proceedings concerning claims of unequal treatment. The Defender collected all decisions and analysed 204 court decisions rendered in proceedings concerning the total of 90 actions. The data analysed included a wide range of decisions, encompassing decisions of district courts to judgements of the Constitutional Court.

From our analysis, we have learned that approximately one-half of the plaintiffs claiming unequal treatment were unsuccessful (52 %). Most lawsuits were initiated in the area of work and employment (ca. 60 %). Disability was the most frequently invoked discrimination ground (ca. 23 %). Plaintiffs most often asserted direct discrimination (ca. 55 %). Plaintiffs most often sought financial compensation for intangible damage (ca. 57 %), although courts very rarely awarded the amount of compensation claimed. Courts awarded the compensation for intangible damage in the full amount requested by the plaintiffs only in two cases. The highest compensation for intangible damage claimed was CZK 10 million (EUR 388,531). The highest amount actually awarded was CZK 400,000 (EUR 15,546).

The survey not only provided data but also the complex idea of the functioning of anti-discrimination protection in practice. Moreover, the Defender found out that the existing legislation poses some obstacles in its implementation. While these are too many to name, it found that there are two main problem areas regarding the legal protection of victims of discrimination. Firstly, the courts face obstacles when confronted with claims seeking financial satisfaction. Secondly, given the current legislation does not always provide for the sharing of the burden of proof, not all of the victims of discrimination are provided with the same legal protection.

Compensation for intangible damage

As regards to the intangible damage, although plaintiffs requested financial compensation for intangible damage in ca. 66 % of cases, the requested compensation was awarded or confirmed by courts only in about 13 % of cases.

From those cases in which intangible damages were awarded, only two cases had the full amount requested by the plaintiffs granted, while in the rest of the cases, the compensation was lower. There are also decisions where the court did not award the requested compensation for intangible damage. The reason for rejecting such compensation was because the court believed other kinds of redress were sufficient or that the defendants took enough action to sufficiently mitigate the violation of the plaintiffs’ dignity.

This is mainly caused by the gaps existing in the current legislative framework. At present, the Anti-Discrimination Act grants pecuniary satisfaction to victims of discrimination only if other solutions (refraining from further discrimination, remedying its impacts, apology, etc.) are not sufficient to remedy the discriminatory conduct. The literal interpretation of the provision may suggest that a claim for compensation for intangible damage is subsidiary. However, this interpretation differs from both EU directives. Under these, sanctions for discrimination have to be effective, proportionate and dissuasive. In addition to that, the case law of the Court of Justice of the European Union states that compensation must in any event be adequate in relation to the damage sustained. This in conjunction indicates that, as a rule, financial satisfaction should be awarded to discrimination victims in each case.

Sharing of burden of proof

The research study also revealed that some victims of discrimination, in the area of healthcare, housing and education, have a very limited possibility to prove discrimination, as the Civil Procedural Code does not permit the sharing of the burden of proof. In such cases, courts most often decline the lawsuit, because plaintiffs fail to prove the defendants’ discriminatory motives in the individual cases Courts do not consider such conduct suspicious prima facie, defendants are not required to provide reasons for their decisions and plaintiffs usually lack direct evidence to demonstrate the defendant’s discriminatory intent. It is even clear from the analysed cases that courts have difficulties dealing with such cases, as they are not always sure about correct application of the principle of the burden of proof.

The cause for this also lies with the legal framework. While in the case of intangible damages, it is clear that the literal interpretation of the statute is at variance with the EU directives, when relating to the burden of proof, the problem is slightly different in nature. Even if the reason behind it is related to the EU context.

In comparison to the EU directives, the Anti-Discrimination Act provides broader protection from discrimination as it applies to all persons regardless of their race or ethnicity, nationality, sex and gender, sexual orientation, age, disability, religion, belief or worldview and citizenship (as regards EU nationality), within the areas of employment, occupation and service relationship, access to employment and self-employment, education, social security, healthcare, membership in professional associations and unions, goods and services, including housing.

Under the Civil Procedural Code, in compliance with EU directives, the burden of proof is always shared in cases of discrimination on grounds of race and ethnicity, but with respect to other protected characteristics, it applies only in the area of labour law (with the exception of “sex and gender”, where the burden of proof is also shared in the area of access to goods and services). The current legal regulation of the sharing of burden of proof does not cover all discriminatory situations prohibited under the Anti-Discrimination Act. Victims of discrimination thus lack equal protection in court. There is no logical reason to apply different rules depending on the ground and field at stake, as burden of proof should be shared in all areas and with respect to all the protected characteristics.

Where does the problem of burden of proof lie?

Recommendations

Based on the findings mentioned above, the Defender has formulated the following recommendations (given that the Defender lacks legislative power):

• Concerning the compensation for intangible damage, it is recommended to amend relevant provision of the Anti-Discrimination Act so that there is no more doubt that financial satisfaction should be awarded to discrimination victims in every case. The only attempt to change the law in the past has not been successful.
• Regarding the sharing of burden of proof, it is recommended to amend the relevant provision of the Civil Procedural Code, consolidating the rules for sharing the burden of proof. Unfortunately, the deputies’ proposal for an amendment to the Civil Procedural Code from 2019 was not discussed by the end of the election period of the Chamber of Deputies of the Parliament of the Czech Republics.

Nevertheless, the Defender’s research study provides a comprehensive overview on the case law of Czech courts regarding discrimination. Both the relevant data and its evaluation are available. The report not only addresses crosscutting topics, some of them were mentioned above, but also focuses in detail on some key fields (e.g. employment, healthcare, education, goods and services and housing). As the anti-discrimination protection is still one of the newer legal areas in the Czech legal culture, this report should stimulate and at the same time contribute to the professional discussion.

The views on this blog are always the authors’ and they do not necessarily reflect Equinet’s position.