Observation (CEACR) - adoptée 1998, publiée 87ème session CIT (1999)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Tchéquie (Ratification: 1993)

1. Discrimination on the basis of political opinion. The Committee notes the information contained in the Government's report concerning the application of Act No. 451 of 1991 (the Screening Act, laying down certain prerequisites for holding a range of jobs and occupations mainly in public institutions but also in the private sector). It recalls that this Act was the subject of representations under article 24 of the ILO Constitution on two separate occasions. Thus, both in November 1991 (as concerned the Czech and Slovak Republic) and June 1994 (as concerned the Czech Republic), the Governing Body set up committees to examine the respective representations, the conclusions and recommendations of which were approved by the Governing Body at its 252nd Session (February 1992) and 264th Session (November 1995), respectively.

2. The Committee recalls that the Governing Body committee established in 1994 found that the Constitutional Court had not taken into consideration in its decision the concerns expressed by the earlier committee, including whether the exclusions in the Act were based on the inherent requirements of a particular job (Article 1, paragraph 2, of the Convention), the measures which may be taken under Article 4 (activities prejudicial to the security of the State), and to a certain extent the appeal procedures, although it was recognized that the 1992 decision had improved the Act in this regard. Therefore, the Governing Body committee of 1994 felt obliged to repeat the considerations of the earlier committee (see paragraphs 57 and 59 of document GB.264/16/2) and invited the Government to repeal or modify the provisions in the Screening Act that were incompatible with Convention No. 111.

3. In its report, the Government provides information on the continued application of the Screening Act in the state bodies, institutions and enterprises, in the Czech Academy of Sciences and universities, in the sphere of justice, and in licensed businesses. It stresses that the Act proceeds from the perceived need and assumption that during the transition from the totalitarian State to a democratic society, it is necessary to ensure full credibility of persons called on to perform leading functions. The Government further states that an important aspect of the implementation of the Act is that in the assessment of the individual's suitability to be appointed to positions in governmental bodies and state authorities or to carry out licensed businesses, the decisive criterion of the Act is not only the present political opinion of the individuals, but also the assessment of their credibility as regards past activities such as engaging in the suppression of human rights.

4. The Committee points out that the reports of the Governing Body committees do not address the question of whether the persons in question violated human rights, but rather state that exclusions imposed on persons should be proportional to the inherent requirements of a particular job, indicating for each separate category of functions included in Act No. 451 particular considerations with regard to the scope of any possible exclusion. The Government reports that Act No. 451 is applied only to the highest management levels in state bodies and enterprises. The Committee draws the Government's attention to its concern that the level of a certain post within a public or private organization may not be determinative and that what is required is a careful and objective consideration of the inherent requirements of a job on a case-by-case-basis. The Committee must again request the Government to repeal or modify any legal provisions, or means of applying them, which are incompatible with the Convention, taking into account the considerations contained in paragraphs 57 and 59 of the report of the 1994 Governing Body Committee. It continues to express its regret over the extension of the Screening Act until 31 December 2000, but it notes from the Government's report that it does not envisage extending the Act beyond this date. Noting that new legislation is being developed concerning the status of employees in the state administration, the Committee requests the Government to keep it informed of developments in this respect. The Government is requested also to supply statistics in its next report on the application of Act No. 451.

5. Discrimination on the basis of other grounds. The Committee notes from the Government's report that an amendment to the Employment Act is under preparation with the aim of moving the prohibition of discrimination from the preamble to section 1 of the Act, thus making it a binding standard that can be enforced by labour inspectors, and for the violation of which penalties can be imposed. Noting that the amendment was expected to take effect as of July 1998, the Committee requests the Government to provide it with a copy of the amendment and to indicate measures taken to ensure its application. Similarly, the Committee notes that legislation is being developed to replace the 1965 Labour Code which, according to the Government, would respect the spirit of Convention No. 111 and contain an explicit prohibition of discrimination in employment and occupation. The Committee requests the Government to keep it informed on progress made in this regard and to supply a copy upon its adoption.

6. The Committee notes from the Government's report that certain measures have been implemented for the Romanies in an effort to reduce their high levels of unemployment and social and economic exclusion from the society, but that these measures have produced at best mixed results. In its report, the Government explains the disadvantaged position of the Romanies as being due, inter alia, to their negative approaches to traditional European values, work attitudes, low educational and skill levels, lack of motivation or interest in long-term training, and reliance on social benefits. Noting the Government's indication that it intends to continue its efforts to ensure the realization of its long-term goal of integration of the Romanies into society, the Committee points out that the elimination of distinctions in employment and education depends on a general context of equality of opportunity and treatment without which the full application of Convention No. 111 would be illusory. As has been stated in a report of a Commission of Inquiry, this general context will depend on the fulfilment of two conditions: respect for the rule of law and development of a climate of tolerance. The first condition will depend on the role reserved for law and the channels of appeal open to persons who are victims of discriminatory practices. The second condition depends not only on the enactment of legislation but also on the promotion of education, as referred to in Article 3(b) of the Convention. It should embrace the entire field of employment and education, but should not be limited to these fields alone. The aim of such an education programme is to promote the development of a climate of tolerance, without which coexistence between minorities and the majority, or even among the various minorities themselves, can only be fraught with conflict (report of the Commission on Inquiry appointed under article 26 of the Constitution of the ILO to examine observance by Romania of ILO Convention No. 111, Official Bulletin, Supplement 3, Vol. LXXIV, 1991, Series B, paragraphs 604, 605 and 608). The Committee requests the Government to provide, in its next report, information on the measures taken to improve the status of Romanies in regard to access to training, education, employment and occupation, including all steps taken to raise public awareness of the issue of racism and intolerance in order to improve tolerance and understanding between the Romanies and others in the society.

7. With reference to its previous comments concerning amendment of Act No. 216 of 10 July 1993, the Committee notes that the Government's report is silent on this issue and must therefore repeat a part of its previous observation which read as follows:

The Committee notes that the Government's first report also refers to Act No. 216 of 10 July 1993 which amended the 1990 Higher Education Act by transforming the employment contracts of teachers and researchers into fixed-term contracts expiring on 30 September 1994, and thus required the holding of competitions for all jobs of higher education teachers, scientific workers and managers of educational and scientific higher education establishments. This legislation was also examined in the above-mentioned representation, but the Governing Body committee considered that it did not have sufficient information to evaluate it in relation to the requirements of the Convention. The present Committee notes the Government's statement that the measure was aimed at opening chances for all teachers and citizens who had suffered discrimination on political grounds in the period prior to 1989 and at ensuring high integrity education for the new generations of students. It also notes that, at the date of the report (November 1995), 1,021 managers' jobs (5.1 per cent being filled by external candidates) and 6,236 other jobs in universities had been filled by competitions under the amendment. The Committee observes that, from the information available, Act No. 216 contains provisions linked to political opinion and it notes that the Government's report itself recognizes the internal criticism of the new recruitment procedure. The Committee thus refers the Government to the recommendations of the Governing Body committee set out above. Noting, however, that, according to the report, a change in the present system is envisaged in the draft of a new law on higher education, due to be discussed in Parliament in 1996, the Committee requests the Government to include, in its next report, information on the parliamentary discussions. In particular, it would like to receive information on whether the debates result in the removal of the discriminatory elements from Act No. 216 and ensure that new recruitments proceed irrespective of the political opinions of candidates.

The Committee is raising other points in a request addressed directly to the Government.