Interview first published in Leaders Magazine 3/2014 (e-Magazine)
“I still consider it essential for people to know their rights and disallow their infringement.”
Anna Šabatová, the Public Defender of Rights, was already active prior to 1989, having been involved with the dissent and one of the first signatories of Charter 77. She was also a member of the Committee for the Defense of the Unjustly Prosecuted, which she co-founded. After the revolution, she headed the Czech Helsinki Committee. Šabatová holds a number of awards, including the Medal of Merit and the United Nations Human Rights Prize, as well as the Alice Garrigue Masaryk Prize.
Mrs. Šabatová, the office of the Public Defender of Rights is now headed by a woman for the first time in the Czech Republic. What’s actually the correct name of the function? And is it what you personally prefer?
Correctly it’s ‘veřejná ochránkyně práv,’ which is usually shortened to ‘ochránkyně’ [feminine variation of the word ‘defender’]. That’s also what I prefer. But I got used to the fact that people learned to use the more international expression ‘ombudsman’ for which the Czech language promptly created a feminine gender ‘ombudsmanka.’
This Brno-based office wasn’t unknown to you prior to you receiving the function. Between 2001 and 2007 you worked as the Deputy Public Defender of Rights. Still – was there something that surprised you in the beginning of your work here?
There certainly wasn’t an actual surprise, because I had been in contact with the institution during the previous years and monitored its activity from a distance. The scope of effect of the public defender is much wider these days than it was back in the years when I worked there. I was surprised by the amount of complaints the defender deals with, particularly the dramatic increase in the number of motions from the area of social care that occurred during the past two years.
Our readers aren’t necessarily lawyers, so perhaps they aren’t familiar with the exact agenda of the office. In your opinion, what are the main and contact points of the Public Defender of Rights in this country?
There are three basic areas. The oldest and most numerous area is the processing of complaints against the work of the state administrative bodies. We get over 8,000 complaints concerning various offices on an annual basis. The second area is the oversight of places where people whose freedom has been restricted may be located. These are preventive systematic visits to facilities with the goal of overseeing the respect for human rights and prevention of ill treatment of these people. The third area is then promoting just treatment and protection against discrimination. We process complaints from people who feel they are victims of discrimination. We conduct research and formulate recommendations for various areas of life.
When it comes to your scope of rights, meaning the possibility to change or push through something, would you favor widening this scope, at least when it comes to the option of proposing the cancellation of a law to the Constitutional Court?
I think that this right would fit the Defender well. Occasionally we get into a situation when the ombudsman points out a possible unconstitutional law or its part. Unless there is a sufficient number of Senators or Deputies who would submit a complaint, there is only a minimal chance for the Constitutional Court to review whether the given law may be in conflict with the Constitution. In these exceptional cases the Defender could initiate such a proceeding with the Constitutional Court.
In this regard, the Chairman of the Constitutional Court mentioned that you already have this right when it comes to regulations arising from the law. According to him, you are not using it sufficiently.
That’s not true. The Defender is entitled to submit petitions for cancelling a sub-law regulation and uses this option anytime it’s necessary, meaning when we learn about the possible unconstitutionality of the regulation or another rule and aren’t able to arrange a change by negotiation with the respective office. I find it positive that we are usually able to achieve a change of a regulation without necessarily involving the Constitutional Court. As of last year, the Defender is also entitled to enter proceedings at the Constitutional Court as an external participant in the matter of laws and their parts.
It works like this, when the Constitutional Court receives a petition for cancellation of a law or its part, they address the Defender, who can decide whether they will participate in the proceeding or not. Should the proceeding regard a subject the Defender dealt with, that is in their scope of responsibilities and that they have sufficient knowledge of, then in all such cases the Defender participated in the proceedings of the Constitutional Court. I think that’s also sufficient proof that the possible widening of the Defender rights wouldn’t be used excessively.
Recently you presented a report for the past year, on behalf of your predecessor, to the Deputies. In it you recommend a change of ten laws. What do these changes regard?
Three of the recommendations relate to equal treatment and prevention of discrimination. These are, for example, the transfer of burden of proof in all cases regarding discrimination. This only happens in some cases so, for example, victims of discrimination due to age, health condition or minority sexual orientation have a more difficult situation defending themselves in the courts. I would like to extend the rights of the Defender by the ability to initiate a public prosecution in cases that regard problems of structure or the entire society. I’m also seeking, for example, the removal of certain flaws within the legal regulation concerning the dispensation of seizure, or the rights of court-appointed caretakers of children, to view their records, as maintained by the authorities of the social and legal protection of children and other issues.
And do you think you will be able to push through these changes? Is there the political will?
I believe I will, although perhaps not immediately. Some of the recommendations are in accordance with the program statements of the government as well as political parties, so the political will to make them happen should be there. But the legislative process has its rules and the government has its priorities, so we have to be patient. According to an analysis I did, it takes three years on average to achieve a change in a law. However, my current communications with ministers spark some hope in me that some of our recommendations may be applied much quicker this time.
Over forty years ago, you were arrested and sentenced to three years in prison for ‚Subverting the republic and organizing a flyer campaign against the elections and a contribution to dissemination of samizdat.‘ The Czech Republic had made truly a notable step in this regard and these days, such accusations are unthinkable... Am I right?
Of course and thank God this is already in the past. But that doesn’t mean that rights aren’t being infringed. Only it doesn’t have the form of such a clearly evil state-power. Therefore I still consider it essential for people to know their rights and disallow their infringement.
What are your feelings as you see the events, for example, in Belarus? In your opinion, is there a way that Czechs could stand more firmly against restrictions of freedom in countries that are a part of our continent?
This is not mine to comment upon. As a Public Defender of Rights I must remain unbiased, I have to stay away from politics. Therefore I cannot evaluate how our foreign policy should look.
Thanks to your intervention, a plaintiff from the former Soviet Union received an exceptional back-payment of her retirement – it was a million CZK. Such cases are exceptional. But numbers in the hundreds of thousands appear considerably more often. Why is that? Do people let the problems ‘ripen’ for too long? Or have they really have had the opportunity to defend their rights?
Each case is different. But I don’t think that people would ‘grow’ their problems. If their request for social security was rejected and their appeal as well, that used to be an end point. They thought it was hard, but they considered it a penalty for having found a home in a different country. They couldn’t but continue working or depend on the support of their family. Usually it takes a few years, when the whole family is in financial problems and the situation is unbearable, that they try to apply again or turn to the Defender, to see whether there is some possible help for them.
How do you see the private-law ombudsmen, for example in large companies? Do they make sense?
A company ombudsman is a mediator between the company and a client. I know from experience that a number of problems occur from insufficient communication and misunderstanding. And often it’s difficult for clients to get oriented in the organizational structure of the company, to find out whom to address with their problem. I see the company ombudsmen mainly as a friendly step toward the clients. Of course, in that case such an ombudsman is resolving the client’s problems, but you should remember that they too are employees of the company.
What are the advantages and disadvantages of a Czech ombudsman compared to their European colleagues?
This cannot be answered simply. There are differences in the scope of authority and rights, as well as the position between the individual national ombudsmen, but at the same tim, there are differences between the societies of the individual states. What is an advantage in one place may not be of interest in another. For example, we can be proud of the fact that approximately 60% of the complaints we receive are within the authority of the Defender, which is not common in European countries. We can therefore focus more on the actual solution to problems, rather than just consulting.
Author: Jaroslav Kramer
Translation: Michaela Freeman
Out now: Leaders Magazine 3/2014 (e-Magazine)
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An Interview with Anna Šabatová
Interview first published in Leaders Magazine 3/2014 (e-Magazine)