A very important case (file no. II. ÚS 3212/18), which was going for several years, was concluded about freedom of speech in business. During an investigation on 17.4. 2014, the Czech trade inspection found out that the complainant -Tomáš Krčmář, owner of Brioni Boutique Hotel – posted an announcement on his hotel doors and on the web page of his hotel. The announcement was in Czech and English language and contained the following information: “From 24.3. 2014 we do not accommodate Russian federation citizen. The reason is the annexation of Crimea.” Russian citizens would be accommodated only if they wrote a short memo condemning the occupation of Crimea stating: “I declare that I do not agree with the Crimea occupation, which violates all law in force in the 21. Century. Name, address, signature.”.
The Inspection qualified this act as a violation of the ban of discrimination as in §6 of Act n°634/1992 Coll. about consumer protection and imposed him affine of 50,000CZK. After years of court proceedings with the Regional Court of Ostrava and the Supreme Administrative Court, the fine has been reduced to 5,000CZK. The complainant still did not agree with that decision and decided to file a constitutional complaint. The Constitutional Court decided that the constitutional complaint is reasonable and has decided in favour of the complainant, as the Supreme Administrative Court’s decision violated the freedom of speech of the complainant guaranteed in Article 17 paragraph 1 and 2 and Article 26 of The Charter of Fundamental Rights and Freedoms.
The reason why this case is essential is the reasoning of the Constitutional Court’s decision. The Court justified its decision as follows.
The Constitutional Court proceeds from the fact, that the whole human life is based on different preferences, taste and mutual differentiation. This difference is a typical characteristic of human essence and nature. Unification and uniformity are an alternative to this variety and diversity of life; however, it defies human nature. It is only with difficulty we can imagine everyone is wearing the same clothes, going to the same theatre plays, supporting the same club, listening to the same music or voting for the same political party and finding. State regulation should be, therefore, occasional and should only concern cases, where it is necessary.
The complainant is a business entity. The fundamental law to run a business is not only a way to obtain means to satisfy vital needs, but also a room for self-fulfilment. It is possible (and let’s hope), that entrepreneurs like to run their businesses, that they contribute at least a little to create common good, have the ambition to make a positive impact and express themselves. It is also necessary to respect plurality: someone runs a business in real estate and wants to have a good feeling, that he helps people with their need for a living, someone employs 10 employees and is happy that they are satisfied in his firm and another runs a small tea shop where his customers become friends. Therefore, it is natural that also entrepreneurs in restaurant services and accommodation services try to be different from one another. A pension or a hotel tries to attract by low prices, good food, pet’s accommodation, parking, pool and sauna, quiet emplacement or by being children friendly. The Constitutional Court emphasises on the priority of individual above the state and his/her autonomy, that is why the Constitutional Court supposes that the regulation of those activities should be moderate.
The Constitutional Court considers most of the conclusions of the Supreme Administrative Court correct and the argumentation as outstanding. The Constitutional Court especially fully identifies with the fact that the ban of discrimination of consumers when providing services is a legitimate and constitutionally conform way of limiting the freedom of running a business. The discrimination of consumers could have for objective to violate their dignity or the enforcement of degrading stereotypes and therefore, any discrimination is forbidden in cases of suspicious reasons, which are for example race, sex or nationality. The Charter of Fundamental Rights and Freedoms, the Anti-discrimination law neither the European Anti-discrimination Directive don’t conclude citizenship as a banned reason of discrimination (except for different treatment with EU countries citizen). The complainant did not commit discrimination that would have a character of banned discrimination and it is not a case of absence of rational justification of different treatment.
The complainant did not treat foreigners differently (for example Russian federation citizens) compared to Czech citizens or citizens of other countries so that he would refuse to provide accommodation services for them (it was not a statement such as “we do not serve beer to Americans”). He only refused to provide those services to Russian federation citizens who would refuse to sign the above-mentioned statement condemning the annexation of Crimea. The complainant wanted to express his opinion of the illegal annexation of Crimea and wanted to influence the people who contribute (or could be contributing) on political events in a country which he considers an aggressor.
The Constitutional Court did not take into account the form of his actions but only the content. Even if the Constitutional Court doesn’t have to regard the form as the optimal way of expressing his opinion and effort to make an impact on the given event, the Constitutional Court thinks that even if it was expressed differently, the essence of his action would be the same. An entrepreneur does not have to be politically neutral and can express his political opinions if they are expressed in a correct way. Politics is a public matter and not only state institutions and political parties are meant to execute it. Citizens and society, as well as business entities, should also show interest and take part in politics.
The Constitutional Court considers the following circumstances as relevant. First of all, it would be a case of discrimination only if the reason of refusing to provide accommodation services was hateful, clearly wilful and violating the dignity of consumers and discriminating because of one of the suspicious reasons. The reasons why an entrepreneur would limit himself the potential clientele can be different from rational to strange. Some of the restaurants can be for sports fans or designed as a certain theme, like time (the 30s), region (Irish pub), gender (gentleman club), food (vegan restaurant) … It these cases, it seems logical that the entrepreneur targets a specific part of the market. The essential is, that when considering specific cases, it is necessary to ask if the reason of setting limits is logical and economically justified and is not primarily motivated by hate. If an operator of accommodation facilities refuses to accommodate someone only for their religion, ethnics, handicap or race it is nothing less than an expression of hate that cannot be tolerated by the state or society.
At the same time, it is also possible to imagine cases, when the operator refuses to provide services to someone just because they do not want to be associated with a certain political party, group or club. If a political party which is considered extremist wants to be accommodated in a hotel and the owner doesn’t want his hotel to be associated with that party or is has a suspicion that the party’s event has a criminal connotation, the state cannot force the owner to accommodate them.
It is also important that the complainant acted predictably, as he announced in advance the restriction (putting it on the hotel’s web page and the hotel’s door). Therefore, every client could consider going to the hotel or not.
This is closely connected to the fact that this service is easily replaceable by another supplier. In this case, the hotel is placed in the centre of Ostrava where there are tens of other hotels. So, if a hotel owner wants to set restrictions, it is not difficult for clients to find an alternative. It would be different in a small village where there is only one hotel or a chalet were refusing a client could lead to a danger of health issues or even put the client’s life in danger.
In general, restrictions of supply have a different nature when it comes to a service that is vital (selling bread, health care) or monopolistic (there is only one provider). If in this case, there are any conditions to providing the service that are unacceptable for the customer or at least unpleasant or disadvantageous – then it is considered indirect pressure. In this case, none of the above threatened the clients.
It is also essential that the condition for providing services was not random or irrational. In this respect, the Supreme Administrative Court insufficiently took into consideration the circumstances of the fact that the annexation of Crimea was made in clear violation of international law and that the Czech Republic’s official foreign policy and the EU condemned the act. For the Czech Republic, this act is in evident historical parallel with the occupation of Czechoslovakia in August 1968, made by the legal predecessor of the current Russian Federation. The apparent temporal link between the annexation of Crimea (the first half of 2014) and the complainant’s statement (since 24 March 2014) shows that this was an immediate and probably very emotional reaction to this event, to which the complainant wanted to express his political opinion.
The Constitutional Court understands the Supreme Administrative Court’s concern about imposing limits to accelerate hostility and hatred in society. At the same time, it is true that by concealing the differences and the possibility to express them also through business activity, this potential hostility and hatred won’t be eliminated but instead intensified. In a free democratic society, it is necessary to publicly discuss political views and opinions and to face opponents, instead of regulating them and possibly sanctioning them. That is why the state should approach such actions very carefully and with restraint and should concentrate on those cases that really deserve the attention. By sanctioning similar manifestations of private individuals, other limits may be imposed, limiting the autonomous behaviour of free individuals and thus also leading to non-freedom. A road that will smooth out natural differences and values of people and will mute down their interests and preferences.
The Constitutional Court concluded that the attacked decision interfered with the complainant’s freedom of political expression, as in the given case 1) the reason for restricting the provision of accommodation services was rational given the specific circumstances and was not guided by any deplorable motives. 2) The complainant did not use any of the constitutionally defined suspicious discriminatory reasons. 3) Regarding the nature of the provided service, it wasn’t difficult for the potential consumer to find an alternative. 4) The interests of the potential consumer that were at play were not vital so that by not providing them, the complainant could not endanger anyone in any significant way.
This case is very important, because it created a deeper definition of the notion of freedom of speech in business. The Constitutional Court also provided a wide and colourful range of examples to support its arguments. Considering the Constitutional Court’s justification, it is no surprise that the Constitutional Court complied with the constitutional complaint and annulled the contested judgment of the Supreme Administrative Court.
See more on Constitutional Court website: https://www.usoud.cz/aktualne/i-pri-podnikani-je-zarucena-svoboda-projevu/
translation: Alice Lepesantová, paralegal at attorney at law office ONDŘEJOVÁ