Thursday, 6 August 2020

The Czech Ombudsman – the public defender of rights of the majority

By Eliska Ludvova | Prague Daily Monitor |
17 April 2020

It all began with the Ministry of Health, issuing a declaration banning a birth support person from being present in the delivery rooms. This blanket ban was aimed at reducing the risk of the virus being spread in hospitals. This came as a shock to many expecting mothers, who planned to have their partner or someone else present while giving birth. The issue naturally became a hot topic for politicians with Olga Richterová, from the opposition Pirate Party calling the government to lift the blanket ban. However, it was not only the career politicians who got involved. The question became one of legal principle and protection of human rights as well. The Czech institutional design contains one institution designed explicitly for overseeing compliance with human rights standards – the office of Ombudsman.  

Although the tradition of this office in the Czech Republic is for obvious reasons not long, it has become a safe harbour for those who feel that their rights have been violated. While the public has criticised the previous Ombudsman, Anna Šabatova, for defending the socially disadvantaged and migrants, her was an exemplary approach. After all, the very role of Ombudsman exists to limit the detrimental effect will or ignorance of the majority may have on minorities. Only a couple of months ago Šabatova’s term in office came to an end, and the Chamber of Deputies elected Stanislav Křeček in her place. 

The day Mr Křecek was appointed to office, it was clear that the rule of law state will suffer devastating damage. His pronouncements about the petitions complaining about the blanket ban on people other than the mother and the medical staff in the delivery rooms only demonstrate this point. Very soon after the Ministerial Declaration has come into force, the Deputy Ombudsman, Monika Šimůnková, wanted to assess proportionality of the measure. She would enquire as to whether the measure was absolutely necessary and whether there are no lesser means than the ban to achieve the aim. In the case at hand, several possibilities unfold. For example, in neighbouring Slovakia, individual hospitals decide whether to allow the presence of non-medical individuals. To make the decision, they give weight to different considerations such as its technical capabilities and the likelihood of the virus spreading in a particular medical facility. Another possible way of looking at the problem would be to allow only those who live in the same household with the mother to be present. After all, if those living with her are infected there is more than a good chance that she is as well. 

Yet, before Ms Šimůnková could send a letter to the Minister of Health asking for an explanation, the Ombudsman took over the case and declared that no investigation was to take place. In his opinion, support of non-medical staff during the delivery is merely a fashion trend, not a human right. On one reading, the right to have a close person present in the delivery room could be classified as a relative right. The right could be qualified only to prevent the virus from spreading in the hospital. This limitation would have to be strictly confined. However, this is not the interpretation Mr Křeček supports. In his interview for Seznam Zprávy, Křeček defines a human right as “a basic human right, which can be limited under no circumstances.” His examples include the right to dignity or liberty. He practically denied the existence of any relative human right, accepting only those absolute in nature. Unlike the former, the latter is non-derogable unqualified right and thus has no external or internal limitation.

Although some academics would agree with Mr Křeček’s interpretation of what qualifies as a human right, how he acts on his opinions is dangerous for the rule of law state in the Czech Republic. After taking over the birth complaints, Mr Křeček did not carry out any investigation and closed the cases as unsubstantiated. The reasons were two. Firstly, in his opinion, no infringement could have taken place as the presence of a person close to the mother is not a human right. Furthermore, he supported these statements with an argument that the majority of the people agrees with him. If one wondered how he ascertained the will of the majority one needs to go far as his Facebook profile. Secondly, according to him exceptional times call for exceptional measures and the Minister of Health had a full right to introduce the blanket ban. This is dangerous because in a legal sense, human rights function as an institutional tool that enables the citizens to claim against the government in case it acts to the former’s detriment. By dismissing cases such as the one at hand, the Ombudsman gave up his primary function – defend the citizens from the state institutions. 

This institutional role of human rights, which warrants the need for investigation is what lawyers in the petition to the Ombudsman mean when they warn that Mr Křeček is breaking “the elementary principles, which no lawyer and state power holder should contest”. The petition, which has been signed by more than 700 people makes clear that all those who have signed it are not unanimous on the question of whether the presence of a support partner qualifies as a human right. They are instead pointing to a perilous precedent the current Ombudsman is making. For these lawyers upholding the elementary principles would not necessarily mean going to the court. It would mean carrying out an enquiry as to whether the rights of women were indeed infringed. The principal mechanism for this task is the abovementioned proportionality principle.

Nevertheless, when asked about it, Mr Křeček only said for Respekt “do not question me on these proportionalities”. These are the words of a 21st-century European lawyer. I only wonder whether this was also his answer in the constitutional law exam (proportionality test is how ECtHR and many constitutional courts in Europe such as the German one address the question of breaching human rights). 

Eliška Ludvová is a law student and a future human rights lawyer. Apart from expressing her opinions about politics, she also enjoys hiking and travelling.