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Criminal Defamation and "Insult" Laws: a Summary of Free Speech Developments in Romania
Friday, May 24, 2002

Numerous international documents, including those adopted by the Organization for Security and Cooperation in Europe (OSCE), establish freedom of expression as a fundamental right. The right to free speech, however, is not absolute. Consistent with international law, certain kinds of speech, such as obscenity, may be prohibited or regulated. When governments restrict speech, however, those restrictions must be consistent with their international obligations and commitments; for example, the restrictions must be necessary in a democratic country and proscribed by law.

Criminal defamation and “insult” laws are often defended as necessary to prevent alleged abuses of freedom of expression. They are not, however, consistent with OSCE norms and their use constitutes an infringement on the fundamental right to free speech.

Criminal Defamation Laws

All individuals, including public officials, have a legitimate right to protect their reputations if untruthful statements have been made about them. Untrue statements which damage a person’s reputation constitute defamation. Oral defamation is known as slander; defamation in writing or other permanent forms such as film is libel. In some instances, criminal codes make defamation of public officials, the nation, or government organs a discrete offense, as distinct from defamation of a person.

Truthful statements – as well as unverifiable statements of opinion – are not legally actionable as defamation. Indeed, the European Court of Human Rights has held that public officials must tolerate a greater degree of criticism than private individuals: “The limits of acceptable criticism are accordingly wider as regards a politician as such than as regards a private individual. Unlike the latter, the former inevitably and knowingly lays himself open to close scrutiny of his every word and deed by both journalists and the public at large, and he must consequently display a greater degree of tolerance.” (Lingens v. Austria, Eur. Ct. H.R., 1986.)

Criminal defamation laws are those which establish criminal sanctions for defamation. Those sanctions may include imprisonment, fines, and prohibitions on writing. Individuals convicted of defamation in a criminal proceeding and sentenced to suspended prison terms may be subjected to the threat of immediate imprisonment if, for example, they violate an order not to publish. The existence of a criminal record may also have other social and legal consequences. In a criminal defamation case, state law enforcement agents (police and prosecutors) act, using taxpayer money, to investigate the alleged defamation and to act on behalf of the alleged victim.

It is sometimes argued that criminal defamation laws are necessary to achieve the legitimate goal of providing the victims of defamation with redress. But general laws against libel and slander, embodied in civil codes, provide private persons as well as public officials the opportunity to seek redress, including damages, for alleged defamation. In such cases, the plaintiff and defendant stand in court as equals. Accordingly, specific criminal laws prohibiting defamation are unnecessary.

“Insult” Laws

"Insult" laws make offending the "honor and dignity" of public officials (e.g., the President), government offices (e.g., the Constitutional Court), national institutions, and/or the “state” itself punishable. Unlike defamation laws, truth is not a defense to a charge of insult. Accordingly, insult laws are often used to punish the utterance of truthful statements, as well as opinions, satire, invective, and even humor.

Although insult laws and criminal defamation laws both punish speech, significant differences exist between them. Defamation laws are intended to provide a remedy against false assertions of fact. Truthful statements, as well as opinion, are not actionable. The use of civil laws to punish defamation is permissible under international free speech norms. The use of criminal sanctions to punish defamation, however, chills free speech, is subject to abuse (through the use of state law enforcement agents), and is inconsistent with international norms. In contrast, recourse to any insult law, whether embodied in a civil or a criminal code, is inconsistent with international norms.

Their Use Today

At one time, almost all OSCE countries had criminal defamation and insult laws. Over time, these laws have been repealed, invalidated by courts, or fallen into disuse in many OSCE participating States. Unfortunately, many criminal codes contained multiple articles punishing defamation and insult. Thus, even when parliaments and courts have acted, they have sometimes failed to remove all legal prohibitions against insult or all criminal sanctions for defamation. In communist countries and other anti-democratic regimes, such laws are often used to target political opponents of the government.

Today, when insult and criminal defamation laws are used, they are most often used to punish mere criticism of government policies or public officials, to stifle political discussion, and to squelch news and discussion that governments would rather avoid. It is relatively rare for a private individual (someone who is not a public official, elected representative, or person of means and influence) to persuade law enforcement representatives to use the tax dollars of the public to protect their reputations. In some OSCE countries, such laws are still used to systematically punish political opponents of the regime. Even in countries where these laws have fallen into a long period of disuse, it is not unheard of for an overzealous prosecutor to revive them for seemingly political purposes.

The International Context

Numerous non-governmental organizations have taken strong positions against criminal defamation and insult laws. These include Amnesty International; Article 19; the Committee to Protect Journalists; national Helsinki Committees such as the Bulgarian Helsinki Committee, Croatian Helsinki Committee, Greek Helsinki Committee, Romanian Helsinki Committee and Slovak Helsinki Committee; the International Helsinki Federation; The World Press Freedom Committee; Norwegian Forum for Freedom of Expression; national chapters of PEN; and Reporters Sans Frontières.

Moreover, the UN Special Rapporteur on Freedom of Opinion and Expression, the OSCE Representative on Freedom of the Media, and the Organization of American States Special Rapporteur on Freedom of Expression issued a joint statement in February 2000 which included the following conclusions, based on relevant international norms:

  • “Expression should not be criminalized unless it poses a clear risk of serious harm. . . . Examples of this are laws prohibiting the publication of false news and sedition laws. . . . These laws should be repealed.”
  • “Criminal defamation laws should be abolished.”
  • “Civil defamation laws should respect the following principles: public bodies should not be able to bring defamation actions; truth should always be available as a defense; politicians and public officials should have to tolerate a greater degree of criticism. . . .”

(See: “Statement Regarding Key Issues and Challenges in Freedom of Expression,” agreed by Santiago Canton, OAS Special Rapporteur on Freedom of Expression; Freimut Duve, OSCE Representative on Freedom of the Media; and Abid Hussain, UN Special Rapporteur on Freedom of Opinion and Expression, February 2000, www.article19.org. See also “Insult Laws: An Insult to Press Freedom,” published by the World Press Freedom Committee.)

Finally, the United States Department of State regularly reports, in its annual Country Reports on Human Rights Practices, on cases where criminal defamation or insult laws have been used and, at OSCE meetings, regularly calls for the repeal of such laws.

Free Speech Cases in Romania

Since the end of the Ceausescu era, non-governmental human rights groups, free speech advocates, journalists’ associations and others have called for the repeal of Romania’s criminal defamation and insult laws. These laws have been widely criticized and their use documented, including by Amnesty International (www.amnesty.org), the non-governmental free speech watchdog Article 19 (www.article19.org), Freedom House, the Romanian Helsinki Committee, the Parliamentary Assembly of the Council of Europe (Resolution 1123/1997), and the U.S. State Department (“Country Reports on Human Rights Practices” for calendar year 2001). While similar reports on other countries in Central Europe often detail specific cases of individuals charged with criminal defamation or insult, cases in Romania are so numerous they are often described not by individual names but, collectively, by triple-digit figures. For example, according to a statement by Article 19 and the Center for Independent Journalism, Romania, delivered at the March 2001 OSCE Supplementary Human Dimension Meeting on Freedom of Expression – convened during the Romanian Chairmanship of the OSCE – official statistics indicated that over 225 people were in prison at that moment for speech “offenses” against the authorities. More recently, the Associated Press reported: “Currently some 400 journalists are being sued for libel and insulting authorities” (“Romania pledges to abolish communist-era laws restricting free speech,” May 5, 2002).

When individual cases are reported in detail, they illustrate the conflict between Romania’s criminal defamation/insult laws and basic free speech norms. For example, in December 2001, the General Prosecutor announced that he was investigating whether the singing of the Hungarian national anthem at a private meeting constituted a violation of article 236 (defamation of national symbols). That is, he used scarce taxpayer resources to consider whether people should actually be sent to prison, for up to three years, for singing.

Renewed calls for Romania to repeal articles of the criminal code that restrict free speech have often followed controversies triggered by government actions perceived as hostile to free speech and an independent media. In May 2001, Justice Minister Rodica Stanoiu called for increasing criminal penalties for defamation, exactly contrary to the recommendations of, i.a., the Council of Europe and the OSCE Representative on Freedom of the Media. Although President Ion Iliescu and Prime Minister Adrian Nastase subsequently stated they did not support jail terms for press offenses, they failed to call for the full repeal of the range of articles in the penal code that, at present, still permit journalists and others to face criminal charges for their speech.

In January 2002, another controversy erupted when the General Prosecutor ordered the arrest of Ovidiu Cristian Iane and the search of Mugur Ciuvica’s home. The two men, a journalist and former government official respectively, were suspected of circulating email messages (under the title “Armageddon II”) accusing Prime Minister Nastase of corruption. These actions were portrayed by the General Prosecutor as damaging to national security and Romania’s international relations and a violation of article 168 of the criminal code (disseminating false information, a provision, in other penal codes, generally intended to cover acts that might create a threat to the public, such as making a false bomb threat). Although Prime Minister Nastase later acknowledged that he had overreacted, he failed to call for the full repeal of the range of relevant articles in the penal code.

The latest controversy unfolded after the Wall Street Journal published a report on May 3, 2002, entitled “Among NATO Applicants, Romania Draws Particular Scrutiny.” Romanian journalists then reported on the story, including the assertion that the continued presence of Securitate agents in Romania’s security services is a matter of concern in the context of Romania’s candidacy for NATO. On May 10, Minister of Defense Ion Mircea Pascu issued – in writing – a warning to journalists that “life is too short, and your health has too high a price to be endangered by debating highly emotional subjects.” In addition to heightening concern that old Securitate practices, if not actual agents, are alive and well in Romania’s security services, the written threat triggered yet another row between the government and journalists. On May 16, Minister Pascu issued another statement, saying he regretted that his May 10 statement had been misinterpreted and that it was only intended to be humorous.

The event nearly overshadowed an announcement by Prime Minister Nastase that the government plans to amend the criminal code to bring it into conformity with Romania’s free speech commitments. The government’s proposal, however, which would reduce prison terms for some speech offences but not actually repeal them all from the criminal code, falls short of what is needed to achieve the Prime Minister’s stated goals.

Relevant Romanian Laws

The articles of the Romania criminal code which are not consistent with Romania’s freely undertaken commitments are:

  • article 205 (insult; punishable by up to two years in prison);
  • article 206 (defamation; punishable by up to three years in prison);
  • article 236 (defamation of national symbols; punishable by up to three years in prison);
  • article 236/1 (defamation of the country or nation; punishable by up to three years in prison);
  • article 238 (insult or defamation of public officials; punishable by up to seven years);
  • article 239 (insult or defamation of civil servants; punishable by up to seven years in prison).

The United States Helsinki Commission, an independent federal agency, by law monitors and encourages progress in implementing provisions of the Helsinki Accords. The Commission, created in 1976, is composed of nine Senators, nine Representatives and one official each from the Departments of State, Defense and Commerce.

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Res. 230 Whereas, after a half century marked by two world wars and at a time when Europe was divided and some nations were deprived of freedom, and as the continent faced the urgent need for economic and political recovery, major European statesmen such as Robert Schuman, Jean Monnet, Paul-Henri Spaak, Konrad Adenauer, Alcide de Gasperi, Sir Winston Churchill, and others joined together to lay the foundations of an ever closer union among their peoples; Whereas on March 25, 1957, the Federal Republic of Germany, France, Italy, Belgium, the Netherlands, and Luxembourg signed the Treaty of Rome to establish a customs union, to create a framework to promote the free movement of people, services, and capital among the member states, to support agricultural growth, and to create a common transport policy, which gave new impetus to the pledge of unity in the European Coal and Steel Agreement of 1951; Whereas to fulfill its purpose, the European Union has created a unique set of institutions: the directly-elected European Parliament, the Council consisting of representatives of the Member States, the Commission acting in the general interest of the Community, and the Court of Justice to enforce the rule of law; Whereas on February 7, 1992, the leaders of the then 12 members of the European Community signed the Treaty of Maastricht establishing a common European currency, the Euro, to be overseen by a common financial institution, the European Central Bank, for the purpose of a freer movement of capital and common European economic policies; Whereas the European Union was expanded with the addition of the United Kingdom, Denmark, and Ireland in 1973, Greece in 1981, Spain and Portugal in 1986, a unified Germany in 1990, Austria, Finland, and Sweden in 1995, Cyprus, the Czech Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, Slovakia, and Slovenia in 2004, and Bulgaria and Romania in 2007, making the European Union a body of 27 countries with a population of over 450 million people; Whereas the European Union has developed policies in the economic, security, diplomatic, and political areas: it has established a single market with broad common policies to organize that market and ensure prosperity and cohesion; it has built an economic and monetary union, including the Euro currency; and it has built an area of freedom, security, and justice, extending stability to its neighbors; Whereas following the end of the Cold War and the disintegration of the Soviet Union, the European Union has played a critical role in the former Central European communist states in promoting free markets, democratic institutions and values, respect for human rights, and the resolve to fight against tyranny and for common national security objectives; Whereas for the past 50 years the United States and the European Union have shared a unique partnership, mindful of their common heritage, shared values and mutual interests, have worked together to strengthen transatlantic security, to preserve and promote peace and freedom, to develop free and prosperous economies, and to advance human rights; and Whereas the United States has supported the European integration process and has consistently supported the objective of European unity and the enlargement of the European Union as desirable developments which promote prosperity, peace, and democracy, and which contribute to the strengthening of the vital relationship between the United States and the nations of Europe: Now, therefore, be it  Resolved, That the House of Representatives-- (1) recognizes the historic significance of the Treaty of Rome on the occasion of the 50th anniversary of its signing;  (2) commends the European Union and the member nations of the European Union for the positive role which the institution has played in the growth, development, and prosperity of contemporary Europe;  (3) recognizes the important role played by the European Union in fostering the independence, democracy, and economic development of the former Central European communist states following the end of the Cold War;  (4) acknowledges the vital role of the European Union in the development of the close and mutually beneficial relationship that exists between the United States and Europe;  (5) affirms that in order to strengthen the transatlantic partnership there must be a renewed commitment to regular and intensive consultations between the United States and the European Union; and  (6) joins with the European Parliament in agreeing to strengthen the transatlantic partnership by enhancing the dialogue and collaboration between the United States Congress and the European Parliament.  I first want to thank Chairman Lantos for introducing this resolution with me. If there is anyone in Congress who fully understands the significance of this moment, it is Congressman Lantos, who has been an unwavering supporter of the transatlantic alliance and the creation of the European Union. In addition, I want to thank the ranking member of the Europe Subcommittee, Mr. Gallegly, for his efforts in bringing this resolution to the floor. Mr. Speaker, on March 25, 1957, in an attempt to recover from destruction caused by two devastating world wars, six European nations, France, Italy, Belgium, The Netherlands, the Federal Republic of Germany, and Luxembourg, joined together in common interest to form the foundations of a new economic and political community. The resulting Treaty of Rome laid the framework to promote an ever closer union among the peoples of Europe. At that time, the Treaty of Rome provided for the establishment of a common market, a customs union and common policies, expanding on the unity already established in the European Coal and Steel Community. The founding members, keen on ensuring the past was not to be repeated, were particularly interested in the idea of creating a community of peace and stability through economic ties. The success of the European Economic Community inspired other countries to apply for membership, making it the first concrete step toward the creation of the European Union. The Treaty of Rome established the basic institutions and decision-making mechanisms still in place today. The European Union, now comprised of 27 countries and over 450 million people, is a unique and a historic example of nation-states transcending their former divisions, deciding to come together for the sake of freedom, peace and prosperity, and resolving their differences in the interest of the common good and rule of law. The success of the EU over the past 50 years has also benefited greatly the United States. Today, the United States and Europe enjoy a mutually beneficial relationship that has a long and established history. As the world's most important alliance, the U.S. and the EU are intimately intertwined, cooperating on regional conflicts, collaborating to address global challenges, and sharing strong trade and investment relations. It is clear that the strongest possible relationship between the United States and Europe is a prerequisite for addressing the challenges of the 21st century. The U.S. and EU are working closely to promote reform and peace in the Middle East, rebuild and enhance security in Afghanistan, support the goals of democratization and prosperity in Eastern Europe, the Caucasus, Balkans and Central Asia, prevent genocide in Darfur and end the violence and terrorism in Lebanon. The anniversary of the Rome Treaty is a reminder of the importance of the transatlantic alliance in an increasingly difficult global environment. However, the 50-year EU experiment is an example of the enduring possibilities of democratic transformation and a brighter future for millions. It is my hope that the EU will continue to keep its doors open and remain a beacon of hope to the citizens of Europe who aspire to obtain the peace and prosperity that have blossomed over the past 50 years. When Americans visit Europe today, it is hard to see how very damaged the countries of that continent were when they emerged from the destruction of the Second World War. American assistance played a very important role in rebuilding Western Europe in the 1940s and the 1950s, and American arms played a crucial role in protecting the democracies of Europe from the advance of Soviet communism during the Cold War. Ultimately, however, Europeans needed to do more on their own to build upon a foundation that the United States had first provided. The 1957 Treaty of Rome, signed by France, Germany, Italy, Belgium, The Netherlands, and Luxembourg was one of the first steps that Western Europe took to put the causes and the legacy of the Second World War behind them. The treaty established a free-trade region known as the European Economic Community, the cornerstone of what we today know as the European Union. A post-World War II economically ravaged Europe reasoned that if nations are linked economically, in this case by recalling the role that economic decline and hindered trade among nations had played in the years leading up to World War II, the creators of that free trade zone saw that the freedom of movement of goods, services, capital, and people might well prove to be a great deterrent to conflict between the states of Europe, large and small. Over the subsequent decades through the entry of new members and expansions both geographically across Europe and functionally across issues, the European Community grew beyond the original core membership of the 1950s and assumed responsibilities going well beyond trade. Today, the European Union indeed counts among its member states countries that once were under Soviet domination. It has worked to transfer more powers from its individual member states to the overall organization centered on the road to creating a more unified European foreign and security policy and making the European Union an organization that the United States increasingly looks to for leadership on transatlantic issues, joining the NATO alliances that continue to bind us together in that common cause. While the European Community continues to provide a framework within which to conduct international trade, such as multilateral trade negotiations with the United States, it has also advanced the cause of liberty, free markets, democratic institutions, and respect for human rights throughout the European continent. The Treaty of Rome was an important step in building on the foundation that the United States helped create after World War II for Europe. Today, we look to a strong Europe as seen in the expanded NATO and expanded and strengthened European Union as a foundation on which we can work together to address new and ever growing challenges. Therefore, with enthusiasm, Mr. Speaker, it is that this House should commemorate the 50th anniversary of the signing of this Treaty of Rome. Mr. HASTINGS of Florida. Mr. Speaker, I rise today to join with my colleagues in supporting H. Res. 230, a resolution recognizing the 50th anniversary of the Treaty of Rome, which was signed on March 25, 1957. The Treaty of Rome established a customs union--formally known as the European Economic Community--among six countries: Belgium, France, Italy, Luxemburg, the Netherlands, and the Federal Republic of Germany. Today, that customs union is known as the European Union, and now includes 27 countries spanning the length and breadth of Europe. Most importantly, it has grown into an institution that inspires countries to be their better selves. If one travels to Europe today, it may be hard to remember that, 50 years ago, the continent was still recovering from the second of the two world wars it had unleashed in less than half a century. It may be hard today to recall or imagine the magnitude of devastation that still scarred farmland and cities alike. It may be difficult to conceive of the bitterness, anger and thirst for revenge that bled across the continent like the blood of those fallen in war. The fact that Germany, a country that had unleashed a war of aggression against its neighbors just a few years before, was included in this new ``community'' was really nothing short of a minor miracle. Moreover, fifty years ago, Europe was still riven in two--no longer by a shooting war, but by a cold war. While a small group of nations was beginning the slow process of rebuilding their own countries and forging transnational relations based on cooperation, mutual trust, and mutual benefit, another part of the continent had fallen under the boot of communist dictatorship, where the Soviet Union exploited its neighbors, stripping them of wealth, prosperity, and opportunity for generations. Just one year before the Treaty of Rome was signed, the Soviet Union underscored its opposition to any independent foreign or economic policy on the part of East European countries--a message unequivocally sent by its invasion of Hungary. As the years passed, and the success of the European Economic Communities became ever more apparent, it is no surprise that more countries joined this union. Membership in Council of Europe, the European Union's sister organization and home of the European Court of Human Rights, helped pave the way for membership in the EU. Meanwhile, the NATO alliance created a zone of military security where the post-war citizens of Western Europe could build a zone of financial security. Since the fall of communism, there is no doubt that the aspiration of joining the European Union, much like the goal of joining the NATO alliance, has helped focus the attention of many countries on overcoming their past differences for a larger, common good that also brings substantial benefits to their own citizens. Today, I commemorate the 50th anniversary of the signing of the Treaty of Rome, and the new vision it held for the European continent, one that has helped spread peace and prosperity to nearly 500 million people.

  • Belarus Democracy Reauthorization Act of 2006

    Mr. Speaker, I strongly urge passage of H.R. 5948, the Belarus Democracy Reauthorization Act of 2006, to provide sustained support for the promotion of democracy, human rights and the rule of law in the Republic of Belarus, as well as encourage the consolidation and strengthening of Belarus' sovereignty and independence. Mr. Speaker, I especially thank you for your commitment to bring this legislation before this Congress. Your deep personal interest in the cause of freedom in Belarus, as demonstrated by your recent meetings in Vilnius with the leaders of the democratic opposition, has been particularly appreciated by those struggling for the rule of law and basic human freedoms. This legislation enjoys bipartisan support, and I want to recognize and thank the tremendous collaboration of Rep. Tom Lantos, an original cosponsor of this bill.  As one who has followed developments in Belarus over many years through my work on the Helsinki Commission, I remain deeply concerned that the Belarusian people continue to be subjected to the arbitrary and self-serving whims of a corrupt and anti-democratic regime headed by Aleksandr Lukashenka. Since the blatantly fraudulent March 19 presidential elections, which the OSCE condemned as having failed to meet international democratic standards, the pattern of repression and gross violations of human rights and fundamental freedoms. While those who would dare oppose the regime are especially targeted, the reality is that all in Belarus outside Lukashenka’s inner circle pay a price. Recent news regarding Lukashenka’s regime Last week in Riga, President Bush pledged to help the people of Belarus in the face of the "cruel regime" led by President Lukashenka. "The existence of such oppression in our midst offends the conscience of Europe and the conscience of America," Bush said, adding that "we have a message for the people of Belarus: the vision of a Europe whole, free and at peace includes you, and we stand with you in your struggle for freedom." Mr. Speaker, this legislation would be a concrete expression of Congress’ commitment to the Belarusian people and would show that we stand as one in supporting freedom for Belarus. Just within the last few months, we have witnessed a series of patently political trials designed to further stifle peaceful, democratic opposition. In October, 60-year-old human rights activist Katerina Sadouskaya was sentenced to two years in a penal colony. Her “crime”? “Insulting the honor and dignity of the Belarusian leader.” Mr. Speaker, if this isn’t reminiscent of the Soviet Union, I don’t know what is. And just a few weeks ago, in a closed trial, Belarusian youth activist Zmitser Dashkevich received a one-and-a-half year sentence for “activities on behalf of an unregistered organization.”  A report mandated by the Belarus Democracy Act and finally issued this past March reveals Lukashenka’s links with rogue regimes such as Iran, Sudan and Syria, and his cronies’ corrupt activities. According to an October 9, 2006, International Herald Tribune op-ed: “Alarmingly, over the last six years, Belarus has intensified its illegal arms shipment activities to the point of becoming the leading supplier of lethal military equipment to Islamic state sponsors of terrorism.” I guess we shouldn’t be all that surprised that in July, Lukashenka warmly welcomed to Minsk Venezuela’s Hugo Chavez. In keeping with their bent, both pledged cooperation and denounced the West. More recently, Belarusian Foreign Minister Martynov traveled to Iran where President Ahmadinejad pledged further cooperation in the energy and defense industries. Not long ago, a member of Belarus’ bogus parliament asserted on state-controlled radio that Belarus has the right to develop its own nuclear weapons. Mr. Speaker and Colleagues, Belarus is truly an anomaly in Europe, swimming against the rising tide of greater freedom, democracy and economic prosperity.  The Legislation  Three years ago, I introduced the Belarus Democracy Act which passed the House and Senate with overwhelming bipartisan support and was signed into law by President Bush in October 2004. At that time, the situation in Belarus with respect to democracy and human rights was already abysmal. The need for a sustained U.S. commitment to foster democracy and respect for human rights and to sanction Aleksandr Lukashenka and his cronies is clear from the intensified anti-democratic policies pursued by the current leadership in Minsk. Mr. Speaker, I am pleased that countries throughout Europe have joined in a truly trans-Atlantic effort to bring the promise of freedom to the beleaguered people of Belarus. Prompt passage of the Belarus Democracy Reauthorization Act of 2006 will help maintain this momentum aimed at upholding the democratic aspirations of the Belarusian people. With the continuing decline on the ground in Belarus since the fraudulent March elections, this bill is needed now more than ever.  This reauthorization bill demonstrates the sustained U.S. support for Belarus’ independence. We seek to encourage those struggling for democracy and respect for human rights in the face of the formidable pressures and personal risks from the anti-democratic regime. The bill authorizes such sums as may be necessary in assistance for each of fiscal years 2007 and 2008 for democracy-building activities such as support for non-governmental organizations, including youth groups, independent trade unions and entrepreneurs, human rights defenders, independent media, democratic political parties, and international exchanges.  The bill further authorizes monies for both radio and television broadcasting to the people of Belarus. While I am encouraged by the recent U.S. and EU initiatives with respect to radio broadcasting, much more needs to be done to penetrate Lukashenka’s stifling information blockade. Mr. Speaker, I hope that the Administration will make this a priority.  In addition, H.R. 5948 calls for selective sanctions against the Lukashenka regime, and the denial of entry into the United States for senior officials of the regime – as well as those engaged in human rights and electoral abuses. In this context, I welcome the punitive sanctions imposed by both the Administration and the EU which are targeted against officials – including judges and prosecutors – involved in electoral fraud and other human rights abuses.  The bill expresses the sense of the Congress that strategic exports to the Government of Belarus should be prohibited, except for those intended for democracy building or humanitarian purposes, as well as U.S. Government financing and other foreign assistance. Of course, we would not want the exports to affect humanitarian goods and agricultural or medical products. The U.S. Executive Directors of the international financial institutions are encouraged to vote against financial assistance to the Government of Belarus except for loans and assistance that serve humanitarian needs. Furthermore, we would encourage the blocking of the assets (in the United States) of members of the Belarus Government as well as the senior leadership and their surrogates. To this end, I welcome the Treasury Department’s April 10 advisory to U.S. financial institutions to guard against potential money laundering by Lukashenka and his cronies and strongly applaud President Bush’s June 19 “Executive Order Blocking Property of Certain Persons Undermining Democratic Processes or Institutions in Belarus.”  Mr. Speaker, I want to make it crystal clear that these sanctions are aimed not at the people of Belarus, but at a regime that displays contempt for the dignity and rights of its citizens even as the corrupt leadership moves to further enrich itself at the expense of all Belarusians.  Ongoing Anti-Democratic Behavior To chronicle the full litany of repression over the course of Lukashenka’s 12-year misrule would go well beyond the bounds of time available here. Let me cite several more recent illustrations of anti-democratic behavior which testify to the true nature of the regime.  Belarus’ March 19 presidential elections can only be described as a farce, and were met with condemnation by the United States, the OSCE, the European Union and others. The Lukashenka regime’s wholesale arrests of more than one thousand opposition activists and dozens of Belarusian and foreign journalists, before and after the elections, and violent suppression of peaceful post-election protests underscore the contempt of the Belarusian authorities toward their countrymen.  Illegitimate parliamentary elections in 2004 and the recently held presidential “elections” in Belarus brazenly flaunted democratic standards. As a result of these elections, Belarus has the distinction of lacking legitimate presidential and parliamentary leadership, which contributes to that country's self-imposed isolation. Albeit safely ensconced in power, Lukashenka has not let up on the democratic opposition. Almost daily repressions constitute a profound abuse of power by a regime that has blatantly manipulated the system to remain in power.  In the last few months, the regime continues to show its true colors, punishing those who would dare to challenge the tin-pot dictator. Former presidential candidate Aleksandr Kozulin was sentenced to a politically-motivated five-and-one-half-years’ term of imprisonment for alleged “hooliganism” and disturbing the peace. His health is precarious as he is now well into his second month of a hunger strike.  In early August, authorities sentenced four activists of the non-partisan domestic election monitoring initiative “Partnerstva”. In a patent attempt to discourage domestic observation of the fraudulent March 19 presidential elections, the four had been kept in custody since February 21. Two were released, having served their six month sentences. Two others, Tsimafei Dranchuk and Mikalay Astreyka, received stiffer sentences, although Astreyka has been released from a medium security colony and is now in “correctional labor”. Other political prisoners, including Artur Finkevich, Mikalay Autukhovich, Andrey Klimau, Ivan Kruk, Yury Lyavonau, Mikalay Razumau, Pavel Sevyarynets, Mikalay Statkevich also continue to have their freedom denied, languishing in prison or in so-called correctional labor camps.  Administrative detentions of ten or fifteen days against democratic opposition activists are almost a daily occurrence. Moreover, the Lukashenka regime continued to stifle religious expression. It refuses to register churches, temporarily detains pastors, threatens to expel foreign clergy, and refuses religious groups the use of premises to hold services. Despite the repressions, Protestant and Catholic congregations have increasingly become more active in their pursuit of religious freedom. I am also concerned about the recent explosion at a Holocaust memorial in western Belarus, the sixth act of vandalism against the monument in 14 years. Unfortunately, the local authorities have reportedly refused to open a criminal investigation. Lukashenka’s minions have closed down independent think tanks, further tightened the noose around what remains of the independent media, suspended the activities of a political party, shut down the prominent literary journal Arche, and evicted the Union of Belarusian Writers from its headquarters. Of course, Lukashenka’s pattern of contempt for human rights is nothing new – it has merely intensified with the passage of time.  Moreover, we have seen no progress on the investigation of the disappearances of political opponents – perhaps not surprisingly, as credible evidence points at the involvement of the Lukashenka regime in their murders.  Mr. Speaker, it is my hope that the Belarus Democracy Reauthorization Act of 2006 will help end to the pattern of violations of OSCE human rights and democracy commitments by the Lukashenka regime and loosen its unhealthy monopoly on political and economic power. I hope our efforts here today will facilitate independent Belarus’ integration into democratic Europe in which the principles of democracy, human rights and the rule of law are respected. The beleaguered Belarusian people have suffered so much over the course of the last century and deserve better than to live under a regime frighteningly reminiscent of the Soviet Union. The struggle of the people of Belarus for dignity and freedom deserves our unyielding and consistent support.  This legislation is important and timely because Belarus, which now borders on NATO and the EU, continues to have the worst human rights and democracy record of any European state – bar none.

  • Freedom of the Media Revisited at Vienna Meeting; Ethics Codes Discussed

    By Chadwick R. Gore, Staff Advisor The Supplementary Human Dimension Meeting on Freedom of the Media: Protection of Journalists and Access to Information was held July 13 and 14 in Vienna, Austria. The meeting was sponsored by OSCE Representative on Freedom of the Media Miklós Haraszti and supported by the Director of the OSCE Office for Democratic Institutions and Human Rights, Ambassador Christian Strohal. An estimated 82 delegates from participating States and 102 representatives of civil society participated. The attendees discussed concerns about government restrictions on access to government information, codes of conduct for media professionals, and threats to the safety of journalists. Haraszti and Strohal initially focused on current government-imposed restrictions on access to government information and the effect of such limits on the public. Specific concern was voiced about recent increases in the use of old laws to impose punitive damages on journalists who publish leaked information.  It is worth noting that for years government officials from participating States with such “dormant” speech laws have argued that concerns about provisions remaining on the books were unnecessary since these laws were never used. Now many of these laws are being applied, resulting in numerous cases of administrative harassment of the media in numerous participating States in violation of OSCE commitments. Citing violations of commitments guaranteeing the freedoms of access to information, assembly and association, as well as onerous NGO registration requirements that impair democracy and security, Haraszti cited Belarusian customs officials taking one month to clear a carload of OSCE publications for entry into Belarus. In her keynote, Agnes Callamard, Executive Director of Article XIX, contrasted the two main justifications for restricting access to information usually given by States: national security concerns and blocking hate speech. She argued “restriction of freedom of expression or access to information in the name of national security is an extremely short-sighted view—in fact, denial of information is far more likely to result in social tensions and conflicts.”  In short, she dismissed legitimate national security needs, going so far as to advocate that anyone who disclosed classified information should benefit from a public interest defense even if disclosure of the information would cause harm. Callamard then went on to discuss hate speech, reflecting on the environment surrounding the Danish cartoon controversy. She argued that these concerns reflected “insecurity” across and between societies, describing the background to the cartoon events as one of global insecurity: terrorism and the war on terror, the war in Iraq, the Israel-Palestine conflict, and images of Western soldiers on Iraqi soil, Israeli tanks in Palestinian cities, escalation of intolerance and discrimination, etc. Some attendees were amazed at her failure to recognize the attacks of 9/11, terrorist beheadings on TV, the bombings in Madrid, London and Bali, the kidnapping of Israeli soldiers, and more.  Her presentation was a thinly-veiled anti-United States, anti-Israel commentary. Turning to hate speech more broadly, Callamard argued that hate speech regulations constitute a legitimate and potentially necessary restriction to freedom of expression. Yet, she said, the appropriate answer to hate speech is not more speech, but also policies and action which “tackles the causes of inequality in all its forms.”  She recommended that an effective government response to such expression that “vilifies” others requires a sustained commitment on the part of governments to promote equality of opportunity, to protect and promote linguistic, ethnic, cultural and religious rights, and to implement public education programs about tolerance and pluralism. Many were struck by her conclusion that proscribing speech for national security concerns is not justifiable, while regulation of so-called hate speech is both justifiable and necessary for massive social engineering. While discussing access to government information, the discussion turned to the right of the media to protect news sources. Speakers noted that, while nearly all participating States have such laws, they vary as to the type and extent of protection accorded to journalists. While most agreed that laws providing for strong protection of sources are necessary to ensure freedom of information, many thought journalists should not be allowed to publish whatever they want; they remain liable, legally and ethically, for what they write.  Regarding access to information, the application of laws restricting access to information has proven to be very controversial. Predictably most States praised their own systems. Notably, Russia reflected a very positive review of the situation of the media and journalists in Russia, and offered Russia's “civilized development of the market” as a model for others. This was rather odd given the decline of independent media and the expansion of government control in the Russian Federation. A highlight of the meeting was a session dedicated to the “cartoon crisis.”  Jehad Momani, former Editor-in-Chief of the Jordanian newspaper Shihan, argued the cartoons were “used in several ways in different countries to gain political points” without regard for the possible consequences as he believed publication of the cartoons was a violation of the freedom of expression and an attack on others’ rights.  He argued that others stand up “against any offensive expression in writ[ing] or in [pictures] or in any way against any religion or faith.” For this reason, Momani sharply criticized the terrorists who tortured and killed a journalist from Al Arabia TV, saying that the murder “offended us as human beings more than any illustrations or statements.” Momani’s view was supported by Ambassador Orhun, the Chair-in-Office’s Personal Representative on Discrimination against Muslims. Orhun saw the cartoons as part of a larger problem of “overly selective, one-sided, simplistic and clichéd” reporting on Muslims in the West. He emphasized the need for increased restrictions to freedom of expression, stressing that you cannot have freedom without responsibility.  These restrictions should, however, be self-imposed by the media itself: “self-regulatory ethical systems should be established, or if they exist, should be strengthened.” This view was not shared by the U.S. Delegation and others. However, most other speakers pointed to the impossibility of legislating tolerance. Patrick Chappatte, cartoonist for the International Herald Tribune, observed that, to the contrary, there is no responsibility without freedom. He argued we must first ensure freedom of the press while encouraging responsible use of that freedom. As to voluntary professional standards, Johann Fritz, Director of the International Press Institute, noted that there have been numerous initiatives over the past 50 years by international, governmental and media organizations to regulate press ethics, all of which were unworkable in practice. This is why many media outlets have chosen to elaborate regional or sectoral professional standards.  However, he cautioned that self-regulation must be decided upon by the media itself.  In several countries around the world, media councils are veiled legal bodies limiting the freedom of the press in a way which the state cannot do or does not want to do. Ali Dilem, cartoonist for the Algerian daily Liberté, presented a lengthy animated program that showed what can be published and is controlled.  He also demonstrated a few instances where he voluntarily withheld publication of cartoons which he felt would cause either political unrest or offend the public. This was much more than a set speech and such presentations will hopefully be more frequent in the future. The application of administrative measures such as excessive licensing or registration procedures to control the press was discussed at length. Ioana Avadani, Executive Director of the Centre for Independent Journalism in Bucharest, pointed out that while most countries have adequate media legislation, implementation is lagging or is often applied in a discriminatory manner. She cited the case of Turkey, which uses a law which forbids “insulting the Turkish identity” to silence certain opinions.  Azer Hasret, Director of the Central Asian and Southern Caucasian Freedom of Expression Network, made a presentation on violations of freedom of the media, including administrative measures and physical repression, in the countries covered by his network. There was a lively exchange between a representative of the Kazakh newspaper Respublika and an official from the Kazakh Ministry of Culture and Information.  The individual from Respublika painted a bleak picture of the media situation in Kazakhstan, asserting serious and sustained administrative harassment; the official denied the accusations, claiming that the new media law does not impinge on media freedom in any way. Belgian Ambassador de Crombrugghe commented that media form an important link between civil society and government; therefore it is even more important that they act responsibly.  In the view of the Belgian Chairmanship, voluntary professional standards can promote increased professionalism, accuracy and adherence to ethical standards among journalists, without in any way endangering the freedom of expression and opinion. De Crombrugghe also highlighted the importance of media development initiatives and noted that the Belgians will begin consultations on possible OSCE initiatives in this area.   During the closing session, the United States delegation forewarned the participating States about the potential loss of liberty when rushing to regulate speech in an environment of trying not to offend others, such as the period immediately following the publication of the Danish cartoons.  It was emphasized that such lost liberties are difficult to regain.

  • President Niyazov Intensifies Repression in Turkmenistan

    Mr. Speaker, as Co-Chairman of the U.S. Helsinki Commission, I want to bring to the attention of the Congress a number of alarming arrests recently made by the Government of Turkmenistan.  Last month between June 16-18, three human rights defenders were detained by Turkmen security forces and have been held for over a month. Considering Turkmenistan’s abysmal human rights record, I greatly fear for their safety as they are certainly at risk of torture.  Amankurban Amanklychev, Ogulsapar Muradova, and Sapardurdy Khajiev are affiliated with the Turkmenistan Helsinki Foundation, a non-governmental organization that monitors human rights in Turkmenistan.  In addition, Ms. Muradova has served as a journalist for Radio Liberty, a private communications service funded by the Congress through the Broadcasting Board of Governors.  Apparently Turkmen authorities arrested these three individuals because of their connection to a documentary about President Saparmurat Niyazov’s cult of personality and their use of hidden video equipment in making this film.  The three now face the trumped-up charges of illegal weapons possession and allegations of “espionage.” Given the absence of any media or speech freedoms in Turkmenistan, the government’s allegations are simply not credible, and the detentions are unjustifiable.  Human rights organizations report that the detainees are being abused.  Most troubling are allegations of psychotropic drugs being administered to Amanklychev and Muradova in an effort to force their confession to “subversive activities.”  The reports concerning psychotropic drugs are quite believable, as Turkmenistan is known to use these drugs in psychiatric hospitals to punish individuals.  In April, 54 members of the United States Senate and House of Representatives wrote to President Niyazov, urging the unconditional release of a prisoner of conscience held in a psychiatric hospital.  While that individual was released, soon thereafter Congress learned of an almost identical case: 69-year-old Kakabay Tedzhenov.  He has been held in incommunicado detention in a psychiatric hospital since January 2006 for peacefully protesting government policies. Considering that just three months ago a significant number of Senators and Members of the House wrote President Niyazov about this barbaric practice, I am particularly disappointed that the Turkmen President continues to allow the misuse of psychiatric institutions as prisons for political dissidents and that Mr. Tedzhenov remains jailed. With Ms. Muradova’s ties to Radio Liberty and the Congress, as well as the letter from 54 Members of Congress to Niyazov regarding the use of psychiatric hospitals, the continuation of these inexcusable actions will affect the relations between Turkmenistan and the U.S. Congress. Mr. Speaker, I am urging President Niyazov to ensure the immediate and unconditional release of Amankurban Amanklychev, Ogulsapar Muradova, and Sapardurdy Khajiev, as well as Kakabay Tedzhenov.

  • Uzbekistan: Are There Prospects for Change?

    This briefing evaluated the political status of Uzbekistan, which, under the rule of President Islam Karimov, has been a repressive, authoritarian state that bans opposition and maintains Soviet-style censorship. Since the bloody events in Andijon in May 2005, however, repression has intensified, with a countrywide crackdown on human rights activists, religious groups and members of opposition groups. The void left by NGOs that promote democracy that have been forced to leave the country was especially concerning. Witnesses testifying at this briefing – including Mr. Abdurahim Polat, Chairman of the Birlik Party; Mr. Muhammad Salih, Chairman of the Erk Party; Mr. Gulam Umarov, son of Sanjar Umarov, the imprisoned Chairman of the Sunshine Coalition; and Dr. Martha Brill Olcott, Senior Associate with the Carnegie Endowment for International Peace – addressed prospects for democratization in Uzbekistan, particularly in light of the upcoming presidential election in that country.

  • The Human Rights Situation of Roma: Europe's Largest Ethnic Minority

    This briefing addressed the status of Roma, Europe’s largest minority and also one of its most marginalized. In particular, the causes and implications of the housing crisis facing Roma; the progress of efforts to end segregated education in the region; and the impact on Roma of rising populist and extremist movements were discussed.  Personal testimonies presented by the witnesses addressed the disproportionate levels of poverty, illiteracy, and unemployment that Roma face throughout the region, but also examined the current actions undertaken by Roma to gain control of their political destiny – including winning seats in the European Parliament and winning cases before the European Court on Human Rights.

  • From Promises to Practice: Implementation of National Policies on Roma, Sinti and Travellers

    By Erika Schlager, Counsel for International Law A recent conference on Romani issues provided a positive benchmark on how far the international community has come in addressing discrimination toward Europe’s largest ethnic minority group.  The meeting also served to highlight how much more national governments have to do to address the needs of Roma in their countries.  On May 4 and 5, 2006, the Government of Romania, along with several inter-governmental and non-governmental partners, hosted an “International Conference on the Implementation and Harmonization of National Policies for Roma, Sinti, and Travellers:  Guidelines for a Common Vision.”  The two-day meeting, conducted in Romani, Romanian, and English, was well attended and focused on housing, employment, community policing, and the status of Roma in Kosovo. Although one opening speaker joked that the magnitude of logos on display for the numerous hosts reminded him of medieval European heraldic insignia, the meeting demonstrated that at least in one area – Romani issues – two major players in this field, the Organization for Security and Cooperation in Europe (OSCE) and the Council of Europe, are able to put aside institutional rivalries in favor of cooperation.  The conference hosts included the Austrian Presidency of the Council of the European Union, the Council of Europe, the European Commission, the European Union Monitoring Center, the European Roma and Travellers Forum, the OSCE, the Project on Ethnic Relations, and the Romanian Government in its capacity as Chair of the Council of Europe and as President of the Decade of Roma Inclusion.  The Bucharest conference was convened to follow up on a similar meeting held in October 2005 in Warsaw. The title of the meeting underscored one of the key goals of Romani activists: turning promises into practice.  For national governments, this means developing both the legal framework as well as the political will necessary for the full implementation of national policies and practices that meet the needs of their Romani minorities.   Currently eight countries – Bulgaria, Croatia, the Czech Republic, Hungary, Macedonia, Romania, Serbia and Montenegro, and Slovakia – participate in the “Decade of Roma Inclusion.”  The Decade is a multilateral initiative, supported by the Open Society Institute (OSI) and the World Bank, designed to establish measurable national goals for improving the situation of Roma in four priority areas:  education, employment, health, and housing.  In the context of this initiative, all of the countries involved have adopted national action plans as a basis for addressing these specific areas during the period 2005-2015. Romani leaders look to opportunities like the Bucharest conference to push for improved implementation of the action plans.  Nicolae Gheorghe, a veteran of the Romani civil rights movement who will soon conclude his tenure as the OSCE Senior Advisor remarked that, 16 years ago, he thought the impetus for change would come from international organizations.  Today, he suggested, change must be implemented by national governments. The focus of the conference was by no means exclusively on the eight Decade countries.  While these eight countries collectively are home to roughly half of Europe’s Romani population, the addition of Central Europe’s large Romani minority into an expanded European Union has also served to heighten the attention given to Romani issues in Western Europe.  This heightened awareness was reflected in the inclusion of speakers from countries such as Finland, Spain, Sweden, and the United Kingdom.  Indeed, one Council of Europe speaker drew pointed attention to problems “in some of the oldest members of the European Union.” The situation of Roma in Kosovo as well as Kosovo Romani refugees and internally displaced person was addressed in a plenary session that underscored the widespread concern over the precarious situation of that particular Romani community.  The plight of Kosovo Roma remains a top priority for Romani activists across the region.  Some speakers argued that Romani representatives should be included in the ongoing status talks on Kosovo. The conference also addressed the issues of housing, employment, and police relations as they relate to the Romani communities.  A Council of Europe official suggested that, in the aftermath of Romania’s recent floods, the Romanian Government should take advantage of the opportunities presented in the post-emergency context to regularize the legal status of Romani housing in flood-affected areas.  A Hungarian Romani police officer noted that the inspiration for his transnational Romani Police Officers Association came from a meeting in New York with representatives of the National Black Police Officers Association. Changes Bring New Challenges As a benchmark for progress, the conference clearly showed how far the international community has come in addressing Roma issues.  In 1994, the OSCE held its first seminar on Romani human rights issues.  At that meeting, two interventions illustrated clearly the chasm that separated governments from the experiences and perspectives of their most vulnerable citizens.  On one side stood Florina Zoltan, who described the brutal pogrom in Hadareni, Romania, that one year earlier had left her a young widow.  On the other side, an Italian Government official welcomed the opportunity to attend a meeting where one could finally talk about that pesky “Gypsy crime problem.”  There was little room for dialogue, let alone mutual cooperation. Twelve years later, the landscape has changed dramatically.  Many government delegations to the Bucharest conference included Romani officials, and the improvements made in protecting the basic human rights of Roma now leaves enough political space for the discussion of other factors which contribute to the marginalization of Europe’s largest minority.  (At the same time, this development prompted one Romani NGO to lament the virtual decapitation of the Romani civil rights movement:  as more Roma move into government and inter-governmental positions, there are fewer independent Romani voices to hold those authorities accountable.) As the number of international meetings on Romani issues has increased in recent years, organizers of such meetings face considerable challenges in meeting the ever higher expectations for them, and governments, non-governmental actors, and international organizations must work hard to avoid duplication and create a sense of forward motion and real change.  And, as suggested in concluding remarks by a Council of Europe representative, such conferences must figure out how to reach out to local governments, national parliaments and, above all, the majority populations which are the source of the discrimination Roma face.

  • Advancing the Human Dimension in the OSCE: The Role of the Office for Democratic Institutions and Human Rights

    This hearing, led by the Helsinki Chairman the Hon. the Hon. Sam Brownback, Co-Chairman the Hon. Christopher H. Smith Office, and ranking member the Hon. Alcee L. Hastings, examined the role that Democratic Institutions and Human Rights (ODIHR) has played over the last fifteen years. ODIHR’s role in advancing human rights and the development of democracy in the OSCE participating States was noted and agreed to be particularly important. ODIHR is engaged throughout Western Europe and the former Soviet Union in the fields of democratic development, human rights, tolerance and non-discrimination, and promotion of the rule of law and has set the international standard for election observation. Within the hearing, the challenges that ODIHR faces were examined, specifically those instigated by the Russian Federation, Belarus and a small minority of the OSCE participating states seeking to undermine the organization under the guise of reform.  ODIHR has earned an international reputation for its leadership, professionalism, and excellence in the area of election observation.  That being said, ODIHR’s mission is much broader, encompassing a wide range of human rights activities aimed at closing the gap between commitments on paper and the reality on the ground in signatory countries.    

  • Thirtieth Anniversary of the Founding of the Moscow Helsinki Group

    Mr. President, last Friday, May 12, marked the 30th anniversary of the oldest active Russian human rights organization, the Moscow Helsinki Group. The creation of the Moscow Helsinki Group was announced on May 12, 1976, at a press conference called by Academician Andrei Sakharov, who later won the Nobel Peace Prize for his defense of human rights and his commitment to world peace. Formally named the “Public Group to Assist in the Implementation of the Helsinki Final Act in the USSR,” its members sought to monitor the Soviet Government’s implementation of the historic Helsinki Accords.  At the initiative of Professor Yuri Orlov, a physicist by profession and a veteran human rights activist, the group joined together 11 committed individuals to collect and publicize information on Soviet violations of the human rights provisions enshrined in the Helsinki Accords. The group monitored fundamental rights and freedoms, including freedom of movement and freedom of religion, as well as the basic rights of minorities. The group documented evidence of systemic human rights abuses and provided reports of Helsinki violations to the Presidium of the Supreme Soviet and the embassies of Helsinki signatory countries in Moscow. Additionally, these reports were widely distributed to Western correspondents. All together, the Moscow Helsinki Group published 195 numbered reports, along with numerous other documents, some of the cooperative initiatives with other human rights organizations. These reports played a critical role in documenting the Soviet Union’s failure to adhere to many of its Helsinki commitments. The example set by the Moscow Helsinki Group inspired human rights activists elsewhere in the USSR. Helsinki monitoring groups were founded in Ukraine, Lithuania, Georgia, and Armenia, and affiliated groups were also established to combat psychiatric abuse for political purposes and to defend religious liberty in Lithuania. As time went on, more brave individuals joined the Moscow Helsinki Group in its pursuit of truth and accountability. However, regrettably, the Soviet Government had no intention of tolerating the “assistance” provided by the Moscow Helsinki Group in monitoring the Soviet Union’s adherence to Helsinki commitments. The state-controlled Soviet press launched a campaign of slander against the group. By early 1977, the group’s founders, Dr. Yuri Orlov and Alexander Ginzburg, a longtime activist who had earlier produced the celebrated ‘‘White Book’’ on the trial of writers Andrei Sinyavsky and Yuli Daniel, had been arrested on political charges. Cyberneticist Anatoly “Natan” Sharansky and retired geologist Malva Landa were arrested shortly thereafter. Orlov was sentenced to 7 years in a labor camp and 5 years in internal exile. Ginzburg received 8 years labor camp and 3 years internal exile. Sharansky was sentenced to a total of 13 years in labor camp and prison, and Landa received 2 years internal exile.   Other members followed this path into the “Gulag” or were forced to emigrate. By 1981, KGB pressure had left only three members of the Moscow Helsinki Group at liberty in the Soviet Union, and they were forced to announce the “suspension” of their work. In 1984, one of those three, Dr. Elena Bonner, joined her husband, Dr. Sakharov, in forced internal exile in the closed city of Gorky.  Tragically, in December 1986, just as the Soviet political system was showing the signs of the exhaustion that would eventually lead to its collapse, Moscow Helsinki Group member Anatoly Marchenko died during a hunger strike at Chistopol Prison. Just over 2 months later, hundreds of known political and religious prisoners were freed from the Soviet prison system. With the advent of Glasnost, the Moscow Helsinki Group was formally reestablished in July 1989 by a handful of Helsinki veterans, and several new members joined their cause. Today, the Moscow Helsinki Group continues to work to defend human rights in post-Soviet Russia. And while there have been dramatic changes in Russia since the collapse of the Soviet Union, the lure of authoritarianism still has a strong appeal for some in today’s Russia. Mr. President, on the occasion of its 30th anniversary, I congratulate the members and former members of the Moscow Helsinki Group, many of whom, sadly, are no longer with us, for their courage and fortitude in the struggle against tyranny. I wish the group continued success as they work to advance democracy, defend human rights, and promote a vigorous civil society.

  • Statement on Human Rights in Central Asia at the Carnegie Endowment for International Peace

    First, let me thank the organizers of this conference for inviting me to speak.  I applaud the co-sponsors for putting together this timely and sober gathering to mark the one-year anniversary of the Andijon events. I won’t bother talking to this audience about the human rights situation in Central Asia.  The State Department’s annual Country Reports on Human Rights Practices routinely characterize the human rights observance in each country as “poor.”   Some non-governmental organizations (NGOs) here today probably consider that too lenient, and I agree with them.   It’s not surprising that countries which emerged from 70 years of communism should have difficulties creating rule of law states.  But after 15 years of independence we should be seeing some separation of powers and a strong civil society.  Instead, we see “super-presidents,” who have overwhelmed legislatures and judicial systems.  Several have been in power for about 20 years, after rigged or canceled elections.  “Royal families” control the most lucrative sectors of the economy and the media. Of course, newspapers in Kazakhstan have more leeway than in Uzbekistan or Turkmenistan.  But even in Kazakhstan, reports on presidential misdeeds are taboo.    Only in Kyrgyzstan do we see a freer media and hope of more in the future.  And only in Kyrgyzstan is the president’s relationship with the other branches of power not yet set in a pattern of executive branch dominance.  Yet a Tulip Revolution was necessary last year to bring about change in Kyrgyzstan, which raises serious questions about prospects for evolutionary development toward democracy in Central Asia.   This brings us to Uzbekistan.  No Central Asian country worked harder during the last 15 years to develop good strategic relations with Washington and to counterbalance residual Russian influence. But the country’s terrible human rights record complicated the development of a closer relationship.  President Islam Karimov allows no opposition, torture is pervasive, for years human rights groups were unregistered, and Tashkent has waged war against Muslims who wanted to practice their faith outside state-approved channels.    Now, the Islamic Movement of Uzbekistan is a terrorist group affiliated with al-Qaeda, and Hizb-ut-Tahrir is virulently anti-Western and anti-Semitic.  But Karimov’s exclusive reliance on repression only exacerbates matters and has probably supplied cadres for radical and terrorist organizations.   After September 11, 2001, we needed Uzbekistan’s cooperation and Karimov was delighted to help.  Uzbekistan gave us a military base and the March 2002 agreement on strategic cooperation was signed in Washington.  We agreed to support Uzbekistan, and Uzbekistan pledged to move towards democracy. But Karimov only implemented the democratization commitments just enough for Tashkent and Washington to point to “progress.” Gradually, frustration grew on both sides.  It was just a matter of time before the arrangement collapsed.   People often date the breakdown of U.S.-Uzbek relations to the events that happened in Andijon on May 12 and 13, 2005. We did not condone the violent takeover of government buildings in that city.  But we condemned the indiscriminate shootings in the square that followed and when we called for an independent, international investigation, Karimov balked.    As we all know, he began to move against U.S. NGOs.  Few remain in Uzbekistan today.  Then we were unceremoniously booted out of the K-2 base.  But ties had actually soured long before, because Karimov saw the Stars and Stripes behind the Georgian, Ukrainian and Kyrgyz revolutions. Most alarming for Tashkent was the Tulip Revolution which proved that “people power” was possible in Central Asia.    Like President Putin, Central Asian leaders insist that a sinister hand, based in Washington but using American NGOs working in the region, plotted the downfall of Eduard Shevardnadze, Leonid Kuchma and Askar Akaev -- and is now gunning for them.  So a split has developed in Central Asia.  Kyrgyzstan, though plagued by criminality and sometimes seemingly chaotic, is better off than with the previous corrupt regime and well disposed towards the U.S.    Uzbekistan’s Karimov sees us as his greatest strategic danger; he has cracked down even harder and state-run media accuse us of trying to enslave Uzbekistan. Kazakhstan, Tajikistan and Turkmenistan are suspicious of our allegedly revolutionary goals but still want to maintain good ties – as long as they are not threatened by civil society.  And Kazakhstan and Turkmenistan surely assume that we want their oil and gas too much to stir the pot. What can we do about this?  How can we try to make things better, especially keeping in mind that U.S. influence is limited?   This week I will be re-introducing my Central Asia bill, to help ensure that the United States is doing everything possible to encourage these governments to respect human rights and democratization.  The act will also bring greater consistency to U.S. policy, creating a framework to guide our bilateral relations in Central Asia.   The Central Asia Democracy and Human Rights Promotion Act supports the President’s freedom agenda by providing $118 million in assistance for human rights and democracy training and $15 million for increased Radio Free Europe/Radio Liberty and Voice of America broadcasting.    The new Act will also establish a certification mechanism for the distribution of assistance to each government. The Secretary of State will determine whether each has made “significant improvements in the protection of human rights.”  This system will have a national security waiver and is modeled on the current system in Foreign Ops appropriations for Kazakhstan and expanded for all five countries.   In addition, considering the forced return of Uzbek refugees from Kyrgyzstan and Kazakhstan, the new Act will require the Secretary of State to report on whether any government is “forcibly returning Uzbeks or other refugees who have fled violence and political persecution.” This is modeled on language regarding Kyrgyzstan in Foreign Ops appropriations and expanded for all five countries.    Notably, my new legislation will create a sanctions section for Uzbekistan.  First, the bill concretizes into law the limitations already in place in Foreign Ops appropriations. The limitation prevents funding to the Uzbek Government unless the Secretary of State determines the government is “making substantial and continuing progress” towards respect for human rights and that the Uzbek Government begins a “credible international investigation” of Andijon.   In addition, the new Act mirrors European Union sanctions by establishing a visa ban and an export ban on munitions.  The sanctions section also establishes an asset freeze for Uzbek officials, their family members, and their associates implicated in the Andijon massacre or involved in other gross violations of human rights.   Ladies and gentlemen, it is hard to promote democratization in strategically important countries whose leaders want to keep all real power in their own hands. Our task is especially complicated by the fact that Russia – which has re-emerged as a major international player, thanks to sky-high oil prices – is working hard to undermine our efforts.  But I think the measures which I’ve outlined here in brief offer a good chance of achieving our goals.   Thank you for your attention.  I look forward to hearing the other participants’ views and your comments.   

  • Tools for Combating Anti-Semitism: Police Training and Holocaust Education

    The Helsinki Commission held a briefing on Holocaust education tools and law enforcement training programs undertaken by the Organization for Security and Cooperation in Europe. Co-Chairman Smith cited the vicious murder of Ilan Halimi as a reminder of the need to redouble efforts to combat anti-Semitism and to speak out when manifestations of related hatred occur.  The briefing highlighted specific programs which promote awareness of the Holocaust and provide law enforcement professionals with the tools to investigate and prosecute hate-inspired crimes.   Paul Goldenberg, a Special Advisor to ODIHR who designed the law enforcement training program which assists police to recognize and respond to hate crimes, stressed that law enforcement professionals must be recognized as an integral part of the solution.  Dr. Kathrin Meyer addressed the challenges presented by contemporary forms of anti-Semitism and highlights ways to address the subject in the classroom. Other witnesses – including Rabbi Andrew Baker, Director of International Jewish Affairs for the American Jewish Committee; Stacy Burdett, Associate Director of Government and National Affairs, Anti-Defamation League; and Liebe Geft, Director, Simon Wiesenthal Center’s Museum of Tolerance also presented testimony at this briefing.

  • Remarks on Passage of H.Res.578, Concerning the Government of Romania's Ban on Intercountry Adoptions and on the Welfare of Orphaned and Abandoned Children in Romania

    Mr. Speaker, H. Res. 578 expresses deep disappointment that the Romanian government has instituted a virtual ban on intercountry adoptions with serious implications for the well-being of orphaned and abandoned children in Romania.   Immediately after the December 1989 revolution, Mr. Speaker, which ousted the much-hated dictator Nicholae Ceausescu, the world learned that tens of thousands of underfed, neglected children were living in institutions, called orphanages, throughout Romania. A month after the fall of Ceausescu, Dorothy Taft, who is our deputy chief of staff at the Commission on Security and Cooperation in Europe, and I traveled to Bucharest and visited those orphanages. We also met with government officials and spoke about the hope for democracy in that country. But one of the most lasting impressions that I have from that trip is being in an orphanage in Bucharest, where dozens of children were lined up with no one to turn them, to change their diapers and, in some cases, even to feed them with the frequency that their little bodies required. It left a lasting impression upon me.   Sadly, all these years later, Mr. Speaker, Romania's child abandonment rate that we witnessed firsthand on that trip has not changed significantly over those years. As of December 2005, 76,509 children are currently in the child protection system.   While the Romanian government deserves at least some credit for reducing the number of children living in institutions from 100,000 to 28,000, this is only part of the picture. The government statistics do not include the abandoned infants living for years in maternity and pediatric hospitals, where donations from charities and individuals keep the children alive; and more than 40,000 of the children moved out of the institutions are living in nonpermanent settings or foster care, or with maternal assistance, paid by the government or with a distant relative who do not intend to adopt them, but do accept them for a stipend.   In the context of Romania's ascension to the European Union, unsubstantiated allegations have been made about the qualifications and motives for those who adopt internationally and the fate of those adopted children.   Intercountry adoption, Mr. Speaker, was falsely equated with child trafficking, and Romania faced relentless pressure to prohibit intercountry adoptions. Sadly, rather than focusing on the best interest of the children, Romanian policymakers acquiesced to the European Union's pressure, especially its rapporteur, Lady Emma Nicholson, by enacting a law in 2004 that banned intercountry adoption, except by biological grandparents. By foreclosing foreign adoptions, the laws codified the misguided proposition that a foster family, or even an institution, is preferable to an adoptive family outside of the child's country of birth.   Between 1990 and 2004, I would note, more than 8,000 Romanian children found permanent families in the United States and thousands more joined families in Western Europe and elsewhere. This possibility is now gone. Some Romanians and Europeans argue that this law, this misguided law, is somehow consistent with Hague Convention on the Intercountry Adoptions and the Rights of the Child Convention. They also allege that  “there is little scope, if any, for international adoptions in Romania because there are so few children who are legally adoptable.”   Mr. Speaker, the low numbers declared “legally adoptable” is not something to be proud of. It is a contrivance. Indeed, it is a denunciation of the child welfare system, which now places such an unrealistic priority on unification with blood relatives that it is nearly impossible to determine any child is adoptable, no matter how old and how long they have been in state care without contact with the blood relatives.   If more children were made available for adoption, there would be a great need for intercountry adoption. Barely a thousand children have ever been domestically adopted in Romania in any given year. As a result of the new laws, only 333 children were entrusted for domestic adoption last year.   For thousands of children abandoned annually in Romania, domestic or intercountry adoption offered the hope of a life outside of foster care or an institution. That hope has now been dashed and destroyed.   Last September, Mr. Speaker, I chaired a hearing of the Commission on Security and Cooperation in Europe at which Maura Harty, the Deputy Under Secretary of State, rebutted the argument that the adoption ban is somehow consistent with Romania's intercountry international treaty obligations. Likewise, our witnesses, including Dr. Dana Johnson, Director of the International Adoption Clinic and Neonatology Division at the University of Minnesota's Children's Hospital, testified that Romania's concentration on reunification of an abandoned child with his or her biological family is only superficially consistent with the U.N. Convention on the Rights of the Child.   He also talked about the deleterious effect of such waiting, being held in foster care and especially in institutions, has on a child's mental, as well as their physical health.   When Romania enacted its intercountry adoption ban, there were 211 pending cases in which children have been matched with adoptive parents in the United States. Approximately a thousand more have been matched with parents in Western Europe, Israel and Australia. In the past few weeks there have been unofficial reports that pending applications are being rejected across the board and the dossiers returned to the adoptive parents.   A document from the Romanian Office for Adoption acknowledged that fewer than 300 of these children have been placed in permanent situations, either returned to biological parents or adopted within Romania. The vast majority remain in limbo. This cannot be the last word of what we often call “the pipeline cases.”   The Romanian government repeatedly promised to analyze each pending case thoroughly, but the review that has supposedly been done was not transparent, was not done on a case-by-case basis, and was not conducted according to clear and valid criteria that is in the best interest of each individual child. These cases involve prospective families who have proven their good faith, by waiting for years for these children. Many cases involve children who will not be domestically adopted due to their special needs, medical or societal prejudices.   In at least three cases, Mr. Speaker, children are already living in the United States with their prospective adoptive parents while receiving life-saving medical treatment, including a child with spina bifida. These children were legally adoptable until Romania's new law took effect.   Let me say that when I introduced this resolution in November, I asked the question, who in the European Union will stand with Members of our Congress, to protect these defenseless children?   Today I am happy to say, members of the European Parliament are challenging the anti-adoption monopoly over this issue and that is encouraging. On December 15, the European Parliament urged Romania to act in the pending cases with the goal of allowing intercountry adoptions to take place where justified and appropriate. In March, the European Parliament's rapporteur for Romania's EU accession, Mr. Pierre Moscovici, reported that he notably differs on the issue of international adoption of Romanian children from the previous rapporteur, Baroness Emma Nicholson, whose virulent anti-adoption views that hurt the children of Romania are now very, very well known.   I applaud the European Parliament and I am glad that our parliament, this Congress, is poised to go on record very strongly in trying to resolve these pipeline cases.   In closing, I want again to thank Chairman Hyde and Ranking Member Lantos for their tremendous support for this resolution and the underlying issue of trying to encourage intercountry adoption in a country, Romania that has now, in a misguided fashion, turned their back on those children who could find loving, durable homes with the adoption option.   Let me also thank so many other people who were a part of this, but especially Maureen Walsh, who is our General Counsel for the Commission on Security and Cooperation in Europe, for her extraordinary expertise and work on the issue and this resolution. We have had an ongoing process, contacting the highest levels of the government of Romania, from the President on down. It has been ongoing. It has been frequent.   Our hearing that Ben Cardin and I put on last year I think brought all of these issues to the fore in a way that were very persuasive on the part of the pipeline families, as well as the issue itself. The intercountry adoption is a loving, compassionate option, and certainly is far better than languishing in an orphanage somewhere where the child is warehoused.   Mr. Speaker, so we call upon the Romanian government again to reverse its position, to cease its mucking under Lady Nicholson's pressure, which is now going into reverse. The European Union, as I said before, is showing clear signs that it concludes it has made a profound mistake.   I want to thank Mr. Cardin, who is our ranking member on the Commission on Security and Cooperation in Europe, who has been working on these issues side by side.  

  • Promoting Religious Freedom in the Russian Federation

    Mr. Speaker, I rise as a co-sponsor and in support of H.Con.Res. 190, which urges the Russian Federation to “ensure full protection of freedoms for all religious communities without distinction, whether registered and unregistered, and end the harassment of unregistered religious groups by the security apparatus and other government agencies,” as well as to “ensure that law enforcement officials vigorously investigate acts of violence against unregistered religious communities, as well as make certain that authorities are not complicit in such attacks.”   As the Ranking House Member on the Helsinki Commission, I have seen how religious freedoms for minority religious communities throughout the Russian Federation have come under increasing pressure.  Throughout that vast country, local officials and government authorities continue to harass and limit the ability of these groups to practice their faith freely.  In addition, instances of violence, such as arson attacks, have been alarmingly common in recent years.  The Helsinki Commission heard disturbing testimony to this effect in April of last year. The State Department’s International Religious Freedom Report for 2005 reported that some federal agencies and many local authorities continued to restrict the rights of various religious minorities, and the internationally recognized expert on religious liberty in Russia, Larry Uzzell, has written that even in Moscow some 10 Baptist congregations have ceased to exist because local bureaucrats refused to allow rentals or property transfers for the use of worship services. Mr. Speaker, I am concerned that the religious liberty picture in Russia is deteriorating at a critical time for Russia.  Russia is an OSCE participating State and assumes the leadership of the Council of Europe in May of this year.  Russia also chairs the G-8 this year. A nation holding such positions should not be a country where members of minority religious groups need to constantly battle with bureaucrats in order to have a place to worship, or to get permission from the local clergy of another faith in order to hold a public gathering, or to wonder if their prayer house will be the target of vandalism.   Mr. Speaker, I urge my colleagues support H.Con.Res. 190, and I again thank my Helsinki Commission Chairman, Chris Smith, for introducing this resolution, and for his tireless efforts on behalf of religious freedom and liberty around the world.  I also join Chairman Smith in commending John Finerty of the Helsinki Commission staff for his decades of service to the Commission, and I especially thank him for assisting me in my interactions with members of the Russian Duma through our OSCE Parliamentary Assembly process.

  • Freedom Denied: Belarus on the Eve of the Election

    Presidential elections in Belarus are scheduled to be held March 19, against the backdrop of stepped up repression by the regime of Alexander Lukashenka. The Belarusian strongman's power grab, begun a decade ago, has included liquidation of the democratically elected parliament, a string of fundamentally flawed elections and manipulation of the country's constitution to maintain power. A climate of fear following the disappearance of leading opposition figures in 1999 has continued with the harassment and arrests of opposition activists and the forced closure of independent newspapers. Rights violations in Belarus have intensified in the aftermath of the Orange Revolution in neighboring Ukraine, as the regime seeks to squelch dissent. The repressive environment has made it difficult for opposition candidates to engage in normal campaign activities. Meanwhile, administration of the elections at all levels remains firmly in the hands of Lukashenka loyalists.

  • Debate on "Present World Crisis Regarding Freedom of Expression and Respect for Religious Beliefs"

    In the First Amendment of the Constitution of the United States, the people’s right to freedom of speech, including freedom of the press, and the people’s right to peacefully assemble to protest both, are guaranteed. As political leaders, we have a special responsibility—words have consequences.  When words can lead to anti-Muslim or anti-Semitic or anti-Christian actions—we have a responsibility to speak out against such expression.   The recent political cartoons published in the European press which mock the Prophet Mohammed and equate Islam and practicing Muslims with terrorism are not only offensive but also irresponsible because they foster anti-Muslim sentiment. We should protect the right of the press, but we should condemn such expressions as wrong.   If we do not act, we risk leaving a terrible legacy to our children.    Such a legacy would condone hate speech and racial and religious incitement.  Such a legacy would lead to more tragic and unjustifiable violence, more discrimination against Muslims and more attempts by government to improperly control the media.   We should act effectively and peacefully.    Dr. Martin Luther King, Jr., the most profound civil rights leader in the United States in the 20th Century, cautioned all of us that the legacy of hate and violence must not be hate and violence.  The violent response to the cartoons must be condemned, but our response to the cartoons must be decisive.   The OSCE has acted against anti-Semitism, racism, xenophobia and all forms of religious discrimination.  We have an action plan reinforced by ODIHR and our special representatives.   We need to reinforce our efforts to educate respect and understanding among all religions.  We need to strengthen training on the right and responsibility of a free media.  We need to promote specific and appropriate activities in each of our States to facilitate these goals.    As leaders, let our legacy be for each of our States—freedom of the press and greater understanding and respect for religious diversity.

  • European Court Rules in Critical Czech Desegregation Case; Equal Access to Education for Roma Remains Goal

    By Erika B. Schlager Counsel for International Law Summary In 1999, several Romani students from the Czech Republic brought a suit before the European Court on Human Rights alleging that their assignment to “special schools” for the mentally disabled was tainted by racial prejudice and therefore violated European human rights law.  On February 7, 2006, a seven-member Chamber of the Court held that the applicants failed to prove that their placement in “special schools” was the singular result of intentional racial discrimination.  The plaintiffs have 3 months to appeal to a 17-member Grand Chamber.  Elsewhere in Central and Southern Europe, Roma are also pursuing efforts to achieve equal access to education. Background During the Communist-era, many East European countries developed a practice of channeling Roma into schools for children with mental disabilities, called “special schools.”  Critics have argued that this practice constitutes, de facto, a form of segregating Roma into a separate and inferior school system. The Ostrava Case “Unsatisfactory performance of Gypsy children in Czech and Slovak schools is often “solved” by transferring the children to special schools for the mentally retarded. During the school year of 1970-71 in the Czech lands alone, about 20% of Gypsy children attended these special schools as against only 3% of children from the rest of the population. According to psychological tests the great majority of these children should not be in these schools. This indiscriminate transferring of Gypsy children to these special schools, which is the general practice, reflects unfavorably on the whole Gypsy population. A child who “graduates” from such a school has the same standing as a child who did not finish his basic schooling. Access to better employment opportunities is closed. Even art schools are closed to them, while persons with special musical talent - not uncommon among Gypsies - are shunned. Musical and dance groups are interested in these talented persons, however, they cannot employ them. “The main reason for the unsatisfactory performances of Gypsy children is the fact that there are no schools which teach Gypsy culture and try to develop it. The powers that be are, on the contrary, doing everything to suppress Gypsy culture and the media assists in this destruction by spreading lies, such as that Gypsy culture does not exist. Gypsy children are forced to attend schools where they are taught in the Czech or Slovak language and where, from the pictures in the primer, they get the impression that they are foreign, that they are second class citizens, without their own language, without a past and without a future.”   - Situation of the Gypsies in Czechoslovakia, Charter 77 Document No. 23, issued December 13, 1978 by Vaclav Havel and Dr. Ladislav Hejdanek, Charter 77 Spokesmen In 1999, a group of Roma from Ostrava, the Czech Republic’s third largest city, brought suit against their government, alleging that their assignment to “special schools” for the mentally disabled was tainted by racial prejudice and therefore violated Czech national and constitutional law, as well as European human rights law. At the time the case was brought, a number of Czech newspapers ran editorials indirectly espousing some form of school segregation.  For example, one leading newspaper ran an article arguing that educating a “future plumber” and a “future brain surgeon” together ultimately benefits neither one. On October 20, 1999, the Czech Constitutional Court rejected the plaintiffs’ claim.  In the view of the court, it did not have the jurisdiction to address the broad pattern of discriminatory treatment alleged – allegations supported by compelling statistical evidence but no smoking gun that proved an explicit intent to discriminate against the individual plaintiffs. Notwithstanding the Constitutional Court’s perceived jurisdictional inability to provide a remedy to the plaintiffs, the Court recognized “the persuasiveness of the applicants’ arguments” and “assume[d] that the relevant administrative authorities of the Czech Republic shall intensively and effectively deal with the plaintiffs’ proposals.” Having exhausted their domestic remedies, the students then turned to the European Court of Human Rights in Strasbourg, an organ of the Council of Europe. In connection with that suit, Case of D.H. and Others v. The Czech Republic, the Czech Government acknowledged that, nationwide, 75 percent of Czech Roma were channeled into special schools.  In some special schools, Roma made up 80-90 percent of the student body.  The Czech Government also acknowledged that “Roman[i] children with average or above-average intellect [we]re often placed in such schools” for children with mental disability. In opposing the plaintiffs’ claims, the Czech Ministry of Education attempted to deflect an examination of whether their placement in schools for the mentally disabled was the result of racial bias by claiming (among other things) that Romani parents have a “negative attitude” toward education. This assertion was particularly ironic, given the lengths to which the plaintiffs’ parents were willing to go – all the way to Europe’s highest human rights court – to ensure their children could get a good education. “In countries with substantial Romani communities, it is commonplace for Romani children to attend schools that are largely comprised of Roma or to be relegated to Roma classes within mixed schools. In its most pernicious form, segregation is achieved by routing Romani children into ‘special schools’ – schools for the mentally disabled – or into classes for mentally disabled children within regular schools”. - Report on the Situation of Roma and Sinti in the OSCE Area, issued by the OSCE High Commissioner on National Minorities, 2000 Moreover, this broad sweeping generalization, originally made before the Czech Constitutional Court, was viewed by some as confirmation of racial prejudice in the Czech education system. Remarkably, it was repeated without comment in the European Court’s decision.  Putting aside the bias reflected in the Ministry of Education’s assertion, there is no evidence demonstrating that a parent’s “negative attitude” results in actual mental disability in his or her children. Meanwhile, the Czech Government adopted some changes to the law on special schools which came into effect on January 1, 2005 (Law No. 561/2004) and on February 17, 2005 (Decree No. 73/2005).  To some degree, these changes were reactive to the issues raised by the Ostrava suit, including the criticisms of the procedures by which parental consent was purportedly obtained for the placement of children in special schools.  Nevertheless, non-governmental groups monitoring this situation argue that the changes have not dismantled an education system that remains effectively segregated and that the changes fail to provide redress or damages for the Romani plaintiffs from Ostrava who were denied equal access to mainstream schools. The case in Strasbourg was heard by a seven-member Chamber of European Court and resulted in a 6-1 decision.  Significantly, the President of the Chamber issued a concurring decision, in which he stated that some of the arguments of the dissenting judge were very strong.  He also suggested that in order to hold that there had been a violation of the Convention in this case, the Chamber might have to depart from previous decisions of the Court.  In his view, overturning or deviating from past rulings is a task better undertaken by the Grand Chamber of the Court.  The applicants have three months to decide whether to appeal this decision to a 17-member Grand Chamber. While the underlying issues which led Roma to bring this suit still persist, there are many indications that prejudices against Roma in the Czech Republic have diminished since the Ostrava case was first heard by the Czech Constitutional Court.  For example, when the European Court issued its holding in the case, a leading daily paper wrote that although the Czech Government “won” its case, there were still significant problems for Roma in the Czech educational system that needed to be addressed. Limitations of the European Court Decision Significantly, there were several issues the court did not address. The suit in question was brought under Article 14 of the European Convention on Human Rights, which is the non-discrimination provision of the Convention, in conjunction with Article 2 of Protocol 1 to the Convention, which provides for a right to education.  In essence, discrimination in education based on race, ethnicity or social origin is prohibited. When interpreting this standard, the Court referred to previous cases in which it held that States party to the European Convention “enjoy a certain margin of appreciation in assessing whether and to what extent differences in otherwise similar situations justify a difference in treatment.”  The Court also reiterated “that the setting and planning of the curriculum falls in principle within the competence of the Contracting States.”  In short, while European Convention norms prohibit discrimination in education, States still have considerable discretion in designing their education programs.  But while the Court reiterated this jurisprudence, it failed to indicate what is meaningfully left of Articles 14 and Protocol 1, Article 2?  What threshold must be crossed before the court will actually determine that alleged discrimination takes a case out of the discretion of the States party to the Convention and brings it within the reach of the Court? Two other issues the court did not address do not relate so much to the court’s own jurisprudence, but from parallel developments in European Union norms in the field of non-discrimination. “The European Parliament [ . . . c]alls on Member States in which Roma children are segregated into schools for the mentally disabled or placed in separate classrooms from their peers to move forward with desegregation programmes within a predetermined period of time, thus ensuring free access to quality education for Roma children and preventing the rise of anti-Romani sentiment amongst school-children.” - European Parliament resolution on the situation of the Roma in the European Union, adopted April 25, 2005 In 2000, the European Union adopted “Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin,” more commonly known as the “Race Directive.”  The directive is binding on all current 25 Member States of the European Union and is intended to ensure a minimum level of protection from race discrimination in all EU countries in several areas, including education.  (The fifteen countries that were EU members as of 2000 had until July 19, 2003, to transfer the directive into national law; applicant countries had until the date of their accession.  The Czech Republic joined the EU in 2004 but, in fact, it has not yet adopted comprehensive anti-discrimination legislation.  Legislation was introduced in the parliament in late 2005, but the draft was narrowly rejected by the Senate in January 2006.) The Race Directive requires Member States to adopt comprehensive anti-discrimination legislation that, among other things, requires anti-discrimination legislation to include both direct and indirect discrimination.  Indirect discrimination, which is at issue in the Ostrava case, is defined by the directive as occurring when “an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are proportionate and necessary.”  The legislation should also shift the burden of proof in civil cases from the plaintiffs to the defendants once a prima facie case of discrimination has been made. Thus, the EU Race Directive anticipates exactly the kind of case the plaintiffs in the Ostrava case presented.  Under the provisions of the directive, the overwhelming pattern of disparate treatment of Roma demonstrated by the plaintiffs should shift the burden of proof from them to the Czech Government.  (Notably, the directive was not applicable to the Czech Republic at the time of the Constitutional Court’s decision.) While the European Court of Human Rights does not adjudicate compliance with or implementation of the EU Race Directive, the Court’s overall approach to the Ostrava case appears to lag behind the legal developments in the European Union and, potentially, render the European Court a less effective vehicle for addressing discrimination than other existing or emerging tools in Europe. Regional Issues and Trends On November 27, 2003, the OSCE Permanent Council adopted “Decision No. 566, Action Plan on Improving the Situation of Roma and Sinti within the OSCE Area.”  In particular, that Action Plan calls on the participating States to “[e]nsure that national legislation includes adequate provisions banning racial segregation and discrimination in education and provides effective remedies for violations of such legislation.”  In addition, participating States were urged to: 73.  Develop and implement comprehensive school desegregation programmes aiming at:  (1) discontinuing the practice of systematically routing Roma children to special schools or classes (e.g., schools for mentally disabled persons, schools and classes exclusively designed for Roma and Sinti children); and  (2) transferring Roma children from special schools to mainstream schools. 74. Allocate financial resources for the transfer of the Roma children to mainstream education and for the development of school support programmes to ease the transition to mainstream education. Thus, all OSCE participating States, including the Czech Republic, have agreed, in principle, to the goal of integrating Roma in education and eradicating de facto segregated school where it may exist. In 2004, the European Roma Rights Center issued a report, Stigmata: Segregated Schooling of Roma in Central and Eastern Europe, examining the experiences of five countries (Bulgaria, the Czech Republic, Hungary, Romania, and Slovakia).  The report describes the most common ways of segregating Romani children from non-Roma: channeling Roma into “special schools” for children with developmental disabilities; the de facto segregation that goes hand-in-hand with existence of Romani ghettos; having mixed-population schools where Romani children are segregated into all-Romani classes; and the refusal of some local authorities to enroll Romani children in mainstream schools. The report concludes that, unfortunately, “with the exception of Hungary, concrete government action aimed at desegregating the school system has not been initiated to date.” In addition to the countries examined in Stigmata, the European Roma Rights Center has reported on unequal access to education for Roma in other countries, including Greece and Denmark.  In a 2004 Danish case, Roma were placed into separate classes in one particular locality.  Following complaints from a Romani non-governmental organization, the Danish Ministry of Education intervened to end this practice.  In the case of Greece, the Greek Helsinki Monitor has reported on several localities where Roma are denied equal access to schools.  These cases remain unresolved. In Hungary and Bulgaria, some efforts to litigate this issue have made their way into the courts, with mixed results. “Education is a prerequisite to the participation of Roma and Sinti people in the political, social and economic life of their respective countries on a footing of equality with others. Strong immediate measures in this field, particularly those that foster school attendance and combat illiteracy, should be assigned the highest priority both by decision-makers and by Roma and Sinti communities. Educational policies should aim to integrate Roma and Sinti people into mainstream education by providing full and equal access at all levels, while remaining sensitive to cultural differences.” - OSCE Action Plan on Improving the Situation of Roma and Sinti within the OSCE Area, 2003 In October 2004, the Budapest Metropolitan City Court of Appeals upheld a lower court decision ordering a primary school and the local government of Tiszatarjan to pay damages to nine Romani families whose children were wrongly placed in “special schools” between 1994 and 1999.  In June 2005, a court dismissed a case brought against the Miskolc Municipality alleging city-wide segregation.  A Hungarian non-governmental organization which assisted in filing the suit, Chance for Children Foundation, is appealing.  Other legal disputes continue to surround a self-proclaimed “private school” in Jaszladany (established at least in part with municipal resources).  A study commissioned by the Ministry of Education found the “private school” violated the law and contributed to racial segregation. Notwithstanding some recent government initiatives to address this problem in Hungary, desegregation initiatives have met resistance in significant quarters.  Former Prime Minister Victor Orban (who also heads of Hungary’s largest opposition party, FIDESZ), argued in a speech on January 29, 2006, that integrated schooling should not be mandatory, but left to local officials and parents to “choose” or reject.  In fact, the greatest resistance to integrated schooling often comes at the local level. In Bulgaria – where the government continues to deal with Roma through an office for “demographic issues” – efforts to address the causes of segregation have largely originated with the non-governmental community.  Particularly promising results have been achieved in Viden, where community-based efforts, supported by international non-governmental organizations, have resulted in integrating Roma and ethnic Bulgarian school children.  Efforts to replicate that program elsewhere, however, have not been embraced by the government. In addition, in a landmark holding, the Sofia District Court held on October 25, 2005, that the Bulgarian Ministry of Education, the Sofia Municipality and School Number 103 of Sofia violated the prohibition of racial segregation and unequal treatment provided in Bulgarian and international law.   In welcoming that ruling, the European Roma Rights Center declared, “After a period of 51 years, the soul of Brown v. Board of Education has crossed the Atlantic.”

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