Commentary: Czech Residency Bans will solve nothing

Almost anything at all can be imagined as falling under the concept of democracy, and many of us are somehow prevented from understanding what kind of power we all acquired here in November 1989. Most of us have a basic problem with the very definition of democracy. It is, therefore, easily understandable why today’s functionaries do not have to distance themselves from previous totalitarian practices, which seem democratic and excusable to us today, at least under their definition of democracy. The truth is that the achievement of real democracy is very complex, and navigating it is too complicated. Our society is not prepared for complications – or better said, it is not capable of compromise.

In order for us to come closer to real democratic values, we would have to learn first and foremost not just how to speak up, but also how to make ourselves understood and how to understand one another. Today, after all, it is common for a victorious political party to be pushed into opposition by a coalition of other, smaller parties, and to become a toothless (but nonetheless salaried) part of Parliament. Irrespective of the opinion of the opposition, "laws" are then adopted which are, naturally, amended or overturned once the electoral pendulum swings the other way (or once they are abolished by the Constitutional Court). This cycle continually repeats itself and the citizens continue to be amazed by it.

Our politicians are betting on quantity over quality. They are now reviving dictatorial, totalitarian practices from the communist era – from this point of view, nothing has changed here. It’s all the same which one of the coalition partners proposes these amendments or bills. Fear of the collapse of the coalition agreement and of losing power forces all coalition MPs to vote, even for laws that are absurd and deformed. This is how some of the more ridiculous laws have made it into our legal code. One could conclude that coalition government destroys democracy.

In my opinion, the winning party should govern and, when creating laws, should seek majority support for them across the political spectrum. Only in this way can we speak of laws that represent the interests of all people, laws that won’t be second-guessed or overturned once the coalition collapses.

Back in 2011, Czech MP Ivana Řápková (Civic Democratic Party – ODS) succumbed to pressure from mayors and governors when, in Nový Bydžov, she signed a mayoral declaration according to which the mayors pledged to the taxpayers to guarantee the enforcement of Law No. 2 / 1993 Coll., the Charter of Fundamental Rights and Freedoms – or so they said. The declaration called for the introduction of an old/new instrument which mayors could use to handle misdemeanor recidivists, the "Residency Ban."

The Residency Ban should be familiar to us all from the previous era of the totalitarian order. During the 1950s, at the time of nationalization, a ministerial decree was promulgated which facilitated the displacement of wealthy villagers (kulaks) along with their entire families and the confiscation of their assets. According to this directive, State Security and prosecutors were to ensure that the Residency Ban as a punishment was made more use of in these kulak cases, and that the ban would concern not just the person convicted, but also his entire family.

Residency Bans could be issued by either courts or National Committees. The state authorities completely ignored the fact that this directive completely contravened the 1948 Constitution.

"We don’t have to change the Constitution, but the option is available to us that the peasants themselves may violate it. For example, if they don’t complete their deliveries, we can sanction them," said Július Ďuriš at a meeting of the Central Committee of the Communist Party of Czechoslovakia on 14 October 1948.

Since most of today’s politicians were raised on the milk of communism, they gladly take up such tactics of disseminating fear and introducing repressive measures today. Repression in the interests of "decent people" guarantees our politicians the social position they desire and the warm seats which, just like the communists, they don’t want to give up once they have them. Have any of you ever heard a politician even say the word "prevention"? I haven’t! Even though the Czech Police could issue warnings for less serious offenses and misdemeanors, have you ever seen them do it? I am concerned that if they started to address misdemeanors by issuing warnings, they themselves would get a warning from their superiors, because everything in the Czech Republic must simply be addressed through repression and the dissemination of fear.

Prevention simply isn’t "in". People would never choose that route here. I understand that some people believe repression is the same prevention, but that’s only because they take the view of the Good Soldier Švejk.

What’s my point? The Czech lower house has just overturned a presidential veto by 101 votes and approved a bill on Residency Bans which even President Václav Klaus believes may be unconstitutional.

Let’s look at whom this law targets in more detail:

Alcoholism and drugs: A misdemeanor is committed by a person who

• sells, gives, or otherwise facilitates the use of alcoholic beverages by a person obviously under the influence of an alcoholic beverage or other habit-forming substance; by persons younger than 18 years of age; by persons for whom it is dubious that they meet this age limit; or by persons about whom it is known that they will be performing employment or other activities which could result in risking people’s health or harm to property;
• without authorization, sells, gives, or otherwise facilitates the harmful use of other habit-forming substances in addition to narcotic substances, psychotropic substances, and alcohol;
• does not submit to measuring techniques designed to hold him accountable for the overuse of alcoholic beverages or the use of other habit-forming substances;
• intentionally facilitates the use of alcoholic beverages or the use of other habit-forming substances in addition to narcotic and psychotropic substances by persons younger than 18 years of age, should their physical or moral development be endangered thereby;
• facilitates the unauthorized use of narcotic and psychotropic substances by persons younger than 18 years of age (unless a more strictly defined felony has been committed);
• g) uses alcoholic beverages or other habit-forming substances even though he is aware he will perform employment or other activity during which he could risk people’s health or damage property;
• after using alcoholic beverages or other habit-forming substances, performs the activities listed in letter g);
• in an incompetent state induced by the use of alcoholic beverages or other habit-forming substances, performs the activities listed in letter g);
• receives, without authorization, a small amount of narcotics or psychotropic substances for his own personal use;
• cultivates, without authorization, a small amount of plants or mushrooms containing narcotic or psychotropic substances for his own personal use.

When I read through the various misdemeanors on the basis of which it is possible to issue a Residency Ban, I see that MP Řápková has been appealing primarily to self-employed persons, drivers, employees of all kinds, doctors, and basically to persons who are most probably "taxpayers", or in her terminology, "decent people." According to one part of this law, a misdemeanor offender sells narcotic substances, facilitates their use, refuses to undergo a breath test, or cultivates narcotics. While I can imagine a pensioner cultivating a narcotic substance on his balcony, he is probably also a permanent resident of the municipality where he lives, which means a ban against him cannot be issued by his mayor even if he did commit such a misdemeanor under this law.

Public order and civil co-existence: A misdemeanor is committed by a person who,

• disturbs nighttime quiet between 22:00 and 06:00;
• causes a public nuisance;
• litters a public space, a publicly accessible building, or a facility of benefit to the public, or who neglects his responsibility to clean up a public space;
• intentionally destroys, harms, litters or, without authorization, removes, changes, exchanges, covers up or relocates a hiking path sign or any other directional signage;
• violates the conditions established for the protection of public order while performing public physical education, sports, or cultural enterprises or who, at sites intended for recreation or tourism, damages or, without authorization, occupies a public area, publicly accessible building, or facility for public benefit;
• establishes, without authorization, a dump, or throws away garbage or refuse other than at sites established for such use;
• intentionally disturbs civic coexistence by threatening to harm people’s health, by committing small-scale battery, through making false allegations of misdemeanors, through defiance, or through other rough behavior;
• violates the obligations established through generally binding municipal or regional decrees issued for a particular sector, which violation shall constitute a misdemeanor against public order in matters of territorial administration. 

Anyone who owns a dog should take note of this part of the law. Nighttime quiet lasts from 22:00 to 06:00. The vast majority of relationships between neighbors probably will not be rectified by this law; rather, the problems will be shifted from other localities back to the misdemeanor offender’s home locality – at least according to MP Řápková.

I do not believe this law will be effective. We already have a Criminal Code and, truth be told, how many people has it ever deterred? Under this law, a problem is likely to occur whenever we sit out by the local fountain in the summer. They will probably ban us from hanging around in its vicinity – but maybe there will be another one nearby that we can use?

As of this month, only permanent residents of a municipality will be allowed to threaten their neighbors and cause a public nuisance without fear of a Residency Ban. Competition in these matters is not desired! I also wonder whether the legislators gave any thought to how to protect the children whose parents are evicted from apartments rented in towns other than their town of permanent residence.

Property: A misdemeanor is committed by a person who,

• intentionally causes harm to others’ property through theft, embezzlement, fraud, or through damaging or destroying items that are part of others’ property, or attempting such behavior;

• intentionally and without authorization uses others’ property, or appropriates others’ items which they have found or otherwise obtained without the permission of an authorized person;
• intentionally conceals or transfers an item to himself or to another person which was acquired by means of another person committing a misdemeanor or other act in order to acquire the item. 

Here we are discussing lower-level property damage. I do not want to minimize the extent of such offenses and it would not be appropriate for me to do so. I am merely basing my remarks on the current state of affairs: These offenses are already prosecutable under the misdemeanor code, and I do not believe that chronic kleptomaniacs, homeless people, or socially deprived citizens will be stopped by Residency Bans when the Criminal Code causes them no concern.

Towns cannot monitor whether a misdemeanor offender has crossed the imaginary line in this or that place, short of stringing up barbed wire along the borders of a cadastral area or locality and introducing guards and security services. On the contrary, I am concerned that such moves might even increase the aggressiveness of misdemeanor offenders (those who are aware of what might happen to them) so that they will have more of an interest in making themselves difficult to identify. This might even result in increasing violent crime. Less serious offenses might often turn into more serious ones like battery, instead of just ending in verbal exchanges as they do today. The final result could be that the state’s good intentions to protect "decent citizens" might actually reduce their security. A dispute that starts out as "petty" could turn into a brutal attack caused by exactly the kind of fear MP Řápková wants to generate.

I don’t want to be completely pessimistic here. However, I do wonder why MP Řápková didn’t include the following Section 21a misdemeanor in her Residency Ban bill too: