BBG Watch Commentary EXCLUSIVE
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BBG Watch has tracked down copies of two recent legal complaints against the Broadcasting Board of Governors (BBG).
Today we post the Complaint submitted by two former Radio Free Europe / Radio Liberty (RFE/RL) employees to the Office of the United Nations High Commissioner for Human Rights. According to United States International Broadcasting Act of 1994, BBG acts as exclusive Board of Directors for RFE/RL and makes “all major policy determinations governing the operations of RFE/RL,” the Complaint dated June 15, 2015, states.
Last week, we posted the $400 million Class Action Complaint which was filed on December 21, 2015 in the United States Court of Federal Claims against the U.S. Government over personnel and contracting practices overseen by top officials of the Broadcasting Board of Governors.
SEE: BBG Contract Employees $400M Class Action Complaint EXCLUSIVE, BBG Watch, January 8, 2016
Both complaints allege that BBG officials have denied equal rights, mistreated and exploited contract employee-journalists whom they nevertheless expect to advance the agency’s journalistic mission of expanding and protecting human and labor rights in other countries. As the Complaint to the United Nations Human Rights Council points out, these BBG and RFE/RL practices have been soundly condemned by foreign politicians in countries friendly to the United States and by human rights organizations.
Actions and the management culture which generated these complaints and record low employee morale ratings for many years, as measured by the Office of Personnel Management (OPM) at the federal part of the agency, are attributed to a small number of longtime senior Broadcasting Board of Governors executives. Since last September, BBG has new CEO John Lansing. He apparently learned about some of these issues first hand and perhaps for the first time several weeks ago while he and one of BBG’s top executives Jeff Trimble, who had been previously also an RFE/RL executive and Acting President, were at the Prague airport waiting for a flight home after Mr. Lansing’s first visit to the RFE/RL headquarters in the Czech Republic.
Anna Karapetian, one of the two women who sent the complaint to the U.N. Human Rights Council, was by chance at the airport at the same time. She reportedly recognized Mr. Lansing and approached him while he was momentarily alone. According to our sources in Prague, she was able to tell him how she and her colleague, Snjezana Pelivan, had been arbitrarily fired (Anna Karapetian was fired in 2006) after years of exemplary service and denied any formal process to challenge their dismissal. According to Anna Karapetian’s account, she wrote to the then Acting President of Radio Free Europe / Radio Liberty, asking to meet to discuss her dismissal. She said that he didn’t meet her despite knowing her personally for 12 years and as a professional broadcaster with experience in war coverage for UPI, but told her that the then HR chief would meet with her instead.
According to our sources who spoke with Ms. Karapetian, Mr. Lansing appeared to listen intently and reportedly acknowledged in general that the BBG has an employee morale problem. But being very new to his job at that time, he did not make any concrete promises, our sources said.
Mr. Lansing has said on other occasions that respectful treatment of all employees is one of his highest priorities.
SEE: $400M class action suit may signal more trouble ahead for new BBG CEO, BBG Watch, December 28, 2015
C O M P L A I N T
(sections are titled and numbered according to suggested Complaint Procedure Form)
National Discrimination of Hundreds Foreign Employees of American Radio Free Europe/Radio Liberty (RFE/RL) in Prague Practiced by U.S. Federal Government Agency Broadcasting Board of Governors Serving as RFE/RL’s Board of Directors
June 15, 2015
I. To:
Office of the United Nations High Commissioner for Human Rights
Human Rights Council Branch
Complaint Procedure Unit
OHCHR - Palais Wilson
United Nations Office at Geneva
CH-1211 Geneva 10,
Switzerland
II. Submitted:
on our own behalf, in accordance with United Nations Human Rights Council resolution 5/1 of 18 June 2007, “Institution-Building of United Nations Human Rights Council,” by
— Karapetian Anna, Armenian citizen, Tibetska 2/806, 160 00 Prague 6, Czech Republic, Tel (+420) 775 581 100, Email: annaka@volny.cz
— Pelivan Snjezana, Croatian citizen, Trojska 181-B, 171 00 Prague 7, Czech Republic, Tel (+420) 724 938 783, Email: pelivans@gmail.com
Supported by protests to Broadcasting Board of Governors by international NGOs:
Information Centre CAUCASUS – EASTERN EUROPE (Prague, Czech Republic)
Czech Helsinki Committee (Prague, Czech Republic)
American Platform for Human Rights, Democracy and Development (Quito, Ecuador)
Association of Human Rights in Central Asia (Le Mans, France)
Moscow Helsinki Group (Moscow, Russia)
Foundation Open Dialog Poland-Ukraine (Warsaw, Poland)
Helsinki Committee for Human Rights in Bosnia and Herzegovina (Sarajevo, BiH)
Human Rights Society of Uzbekistan (Dublin, Ireland)
Institute for Peace and Democracy (Baku, Azerbaijan)
International Society “Memorial” (Moscow, Russia)
International Association of Democrats against Authoritarian Regimes (Toronto, Canada) International Labor Rights Forum (Washington, USA)
III. State concerned:
United States of America
IV. Public authority responsible for human rights violations:
Broadcasting Board of Governors (BBG), 330 Independence Ave., SW Washington, DC, 20237, USA.
BBG is the independent Federal government agency that oversees all U.S. civilian international media including Voice of America, Office of Cuba Broadcasting, Radio Free Asia, Middle East Broadcasting Networks, and the headquartered in Prague since 1995 Radio Free Europe/Radio Liberty (RFE/RL). Eight members of BBG are appointed by the President of the United States and confirmed by the Senate. The ninth, the Secretary of State, serves ex officio.
According to “United States International Broadcasting Act of 1994, ”BBG acts as exclusive Board of Directors for RFE/RL and makes “all major policy determinations governing the operations of RFE/RL.”
Anna Sabatova, former Head of Czech Helsinki Committee, presently the Parliament-elected Human Rights Defender (ombudsman) of the Czech Republic, defined RFE/RL labor policies and actions toward its foreign employees as “immoral,” being “an act of fraud.” Former Czech Senator Jaromir Stetina, now the deputy of European Parliament, branded RFE/RL labor policies of national discrimination as “patiently indecent, unfair, cynical and hypocritical.”
V. Facts of the complaint and nature of violations
RFE/RL is the largest overseas institution of American public diplomacy financed by U.S. Congress via Broadcasting Board of Governors. Since 1995 when RFE/RL moved from Munich, Germany, to Prague, it received well over 1,5 billion dollars for its operations. From Prague, RFE/RL broadcasts in 28 languages to 21 countries – of the former Soviet Union and Yugoslavia, to Iran, Iraq, Afghanistan, and Pakistan. It employs hundreds of non-Czechs and non-Americans. Foreigners deprived by BBG-RFE/RL labor policies of both American and Czech legal protections, form the bulk of RFE/RL’s editorial staff.
Unlike their Czech colleagues protected by Czech legislation and employment contracts negotiated with Czech trade unions, third-country nationals working for RFE/RL in Prague can be — and often are – fired without any provided reason, without previous warning, without any preliminary corrective measures if deserved, without severance compensations earned during years of service, unless they sign the obligation not to question unmotivated terminations (ENCLOSURE 1).
We, the undersigned Anna Karapetian and Snjezana Pelivan, were fired precisely in such a mode — without any provided reason or cause, after years of impeccable service with “very good” and/or “excellent” regular performance reviews. However, we did not accept the (earned earlier!) severance compensations offered as “shut up” money for abrogation of inalienable in any civilized society human right of court appeal, and turned to Czech courts.
U.S. Broadcasting Board of Governors knowingly violates American laws abroad
RFE/RL declares itself an “equal opportunity employer.” However, unlike their American colleagues covered by American laws, foreigners could not use the free of charge services of U.S. Equal Employment Opportunity Commission, EEOC (ENCLOSURE 2, rejection Letter by EEOC to Snjezana Pelivan as a foreigner). American courts were also off limits to us, foreign nationals working for RFE/RL in Prague — American employer abroad (ENCLOSURE 3, sworn Affidavit by qualified American lawyer Talin V. Yacoubian).
At that, the uniform employment agreements provided by RFE/RL-BBG to foreign employees in Prague misleadingly state:
“The parties understand that the laws of the United States govern this agreement. Furthermore, all conditions of employment are governed by the applicable laws of the United States, laws of the District of Columbia or the policies of the Company.”
In fact, as Talin V. Yacoubian notes in in her Affidavit presented to Czech courts, not a single U.S. and the District of Columbia labor or human rights law is applicable to foreigners employed outside the United States by American companies – by expressed will of American Congress dictated by respect to legal sovereignty of foreign countries.
By the reference to “applicable” American laws in employment contracts with legally uninformed foreign personnel, the RFE/RL’s Board of Directors, i.e. Broadcasting Board of Governors, knowingly and intentionally commits “an act of fraud” (Anna Sabatova) and violates the will of U.S. Congress. The only applicable to foreign employees regulations used by RFE/RL, instead of American and/or Czech labor laws, are “the policies of the Company” (ENCLOSURE 4), “lex BBG,” stipulating that
“either party may terminate an agreement at any time for any reason” .
U.S. Broadcasting Board of Governors intentionally disregards international laws
In RFE/RL-BBG practice it means also without any provided reason, as was in our cases. It is a flagrant violation of the International Labor Organization Recommendation R166, “Termination of Employment at the Initiative of the Employer”, Paragraph 13(1):
“A worker who has been notified of termination of employment or whose employment has been terminated should be entitled to receive, on request, a written statement from his employer of the reasons for termination”.
The reasons for our arbitrary terminations were not disclosed by RFE/RL even to inquiring Czech courts.
At the time of hiring foreign employees, RFE/RL never acquaints them with the arbitrary “employment at will” regulation hidden in Company’s Policy Manual. Protesting the BBG’s labor policies and actions, the legendary Russian human rights defender Sergey Kovalev wrote on July 7, 2014, to BBG Chairman Jeffrey Shell:
“It is not appropriate when hiring someone to provide this person with the labour agreement for signing, which contains the indubitable discrimination on the basis of one’s citizenship.”
We were neither the first nor the last foreign employees of RFE/RL to be terminated without any provided motivation. But Snjezana Pelivan was the first to bring her case to Czech courts. After four hearings, her appeal was rejected on the ground that she voluntarily accepted the choice of American laws — to her inapplicable and unknown. On the same ground — after protracted, pro and contra, seven back and forth hearings across the national court system — Czech courts rejected the anti-discrimination claim by Anna Karapetian, mother of three minors. Czech Constitutional Court agreed that RFE/RL’s foreign employees have unequal status but ruled that it is not for Czech courts to judge if American RFE/RL acts against American laws, for the discussion of American laws, i.e. the will of U.S. Congress, is outside the “optic” of Czech courts.
However, outside the “optic” of Czech Constitutional Court remained the fact that personnel policies maintained in Czech Republic by RFE/RL’s Board of Directors, U.S. Federal agency Broadcasting Board of Governors, violate also international human rights norms, particularly Article 14 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, which prohibits discrimination on such grounds as language, national origin, birth, “or other status.” It is a classic discriminative violation of human rights to assign different levels of legal and subsequent court protection to different groups of employees – who perform in the same workplace the same duties — exclusively on the basis of employees’ citizenship, without any formulated objective, reasonable, professional, or business justification.
Similarly, the International Covenant on Civil and Political Rights ratified by the United States and Czech Republic, formulates the general principle of equality that underlies international human rights law as it relates to non-citizens. According to its Article 2 (1), each State party:
“undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion,national or social origin, property, birth or other status.”
Article 26 of the Covenant states:
“All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, … national or social origin… or other status.”
Equally, Article 2 (2) of the binding for Czech Republic International Covenant on Economic, Social and Cultural Rights declares that States parties guarantee the rights enunciated in that Covenant
“without discrimination of any kind as to …national or social origin… or other status.”
Moreover, there is nothing in the Constitution of Czech Republic and in its Charter of Fundamental Rights and Basic Freedoms that would permit the inferior treatment of non- citizens in labor relations at the Czech territory. Quite the opposite is true. The same Czech Constitutional Court which provided the U.S. governmental agency BBG with singularly exclusive right to discriminate its foreign employees (no other foreign enterprise has such a privilege in this country), stated in its Finding of 14.4.2008 concerning Czech Labor Code:
“Fundamental constitutional principle of equality stipulates that differentiation in access to the rights cannot be arbitrary, and first of all, different persons in the same or comparable situation cannot be differently treated unless there are objective and reasonable grounds for it”.
Clearly, no such grounds exist also for different standards of legal protection established by Broadcasting Board of Governors for employees of American RFE/RL with different citizenship.
The bottom line of Czech court decisions in our cases: Hundreds of RFE/RL foreign employees are cemented in total legal vacuum without any potential protection either by American or Czech courts against arbitrary actions of RFE/RL’s Board of Directors – the BBG. There is little wonder that RFE/RL’s foreign staffers call their workplace “our little Guantanamo” (ENCLOSURE 5, in Russian), thus echoing the title of an article published by respectable Czech newspaper Lidove noviny, “Radio Free Europe – Guantanamo in Prague.”
The inevitable question is: Are the discriminative and deceptive employment policies and actions by RFE/RL’s American management dictated by some hidden political expediency? That question was raised in the Pelivan’s “Petition to Call the Witness” addressed to Czech Constitutional Court on March 10, 2009. Her main claim was submitted to that Court five days earlier, on March 5. While RFE/RL, according to the “United States International Broadcasting Act of 1994,” is part of the “United States international broadcasting”, which “shall be consistent with the broad foreign policies objectives of the United States,” the witness suggested to Constitutional Court by Snjezana Pelivan was U.S. Secretary of State Hillary Clinton as an
ex officio member of BBG and of RFE/RL Board of Directors. Hillary Clinton who was expected to visit Prague in the beginning of April 2009 (she did), should clarify whether
“discriminative employment policies of RFE/RL, which violate labor (employment protection) and human rights (national equality) of RFE/RL foreign workers in the Czech Republic and, thus, contradict the Czech labor laws, are dictated by the ‘broad foreign policies objectives of the United States.’ ”
On March 11, 2009, the leading Czech news agency CTK and major Czech newspapers reported the Pelivan’s request to call Hillary Clinton as a witness. As soon as March 16, Czech Constitutional Court rejected the Pelivan’s main claim without even mentioning her request to invite Hillary Clinton as a witness.
In newspaper article titled “Free Europe with Its Own Laws in Colonial Czech Republic?” (Halo noviny, 14.4. 2009), the then Chairman of the Czech Parliamentary Subcommittee on foreign relations Vaclav Exner wrote :
“In this matter, the Constitutional Court indeed reached a record known to me speed of entering decision – the unheard of 11 days: the claim was submitted on March 5th,and decision to reject it , with detailed five- page long justification, has the date March 16th.”
Anna Karapetian’s claim was submitted to Czech Constitutional Court by David Uhlir, our mutual lawyer, on May 30, 2013. This time, the decision was not reached with a lightning speed, it came July 9, 2014. Evidently, the Court had a very difficult task of formulating negative to Anna Karapetian ruling, even having the precedent of Pelivan’s case solved with political urgency. Astonishing is that our lawyer, who formally “lost” our cases (finally, in the Czech Constitutional Court), was recommended to Czech President Milos Zeman by the Head of that Court, Pavel Rychetsky, for nomination to Constitutional Court. He was nominated October 7, 2014, and on December 3rd approved by the Senate of Czech Parliament. In all probability, his legal argumentation on our behalf was sufficiently impressive to become a judge of Czech Constitutional Court but not for that Court to rule against policies of national discrimination practiced by the Federal government agency of the United States running RFE/RL in Prague…
VI. Domestic remedies exhausted. Precondition for Complaint to UN HRC fulfilled
Snjezana Pelivan was hired by RFE/RL on February 5, 2001, as marketing manager. On June 2, 2004, her employment was terminated with immediate effect as of that date. On March 25, 2005, she appealed against her termination to District Court for Prague-1; the claim was rejected July 12, 2006. The Decision of District Court was supported by Prague City Court (November 22, 2006); by Czech Supreme Court (December 8, 2008); finally, by Czech Constitutional Court (March 16, 2009).
Anna Karapetian, a journalist, started her work at RFE/RL in February 1995, still in Munich. Her employment was terminated as of 31 December 2006. Her claim against termination submitted to District Court for Prague-1 on 26 February 2007, was rejected June 6, 2008. On November 16, 2008, Prague City Court rejected her appeal against decision of District Court. On 22 June, 2010, Czech Supreme Court cancelled the decisions of lower courts and sent the case for new consideration to District Court for Prague-1. On November 30, 2010, District Court ruled in favor of Anna Karapetian and reinstated her at RFE/RL. On May 11, 2011, Prague City Court cancelled the decision of District Court and ruled in favor of RFE/RL. Decision of City Court was left in force by Czech Supreme Court on May 19, 2013. Finally, Czech Constitutional Court on June 7, 2014, rejected Karapetian’s claim against RFE/RL.
U.S. Broadcasting Board of Governors is deaf to international protests
Already three times – on June 11, 2009, February 4, 2010, June 7, 2012 – Czech Parliament discussed the deputies’ interpellations concerning RFE/RL’s discriminative labor policies. The parliamentarians inquired why Czech government(s) would not raise the RFE/RL matter with American administration in Washington. The evasive reaction of consecutive Czech prime ministers to deputies’ inquiries (regardless of PM’s different political affiliations) was invariably offensive to common sense: RFE/RL is not governmental but a private organization, let the courts decide private disputes.
Czech and foreign media – in Russia, Armenia, Croatia, Azerbaijan, Slovakia, Pakistan, Kazakhstan, Arab countries, USA, etc. — extremely negative, often sarcastically react to national discrimination at American RFE/RL, which solemnly proclaims as its Mission
“to promote democratic values and institutions,.. strengthen civil societies by projecting democratic values,.. provide a model for local media…”
The negative publicity was triggered due, in particular, to our cases:
”Give Human Face to Janus-faced Radio Free Europe/Radio Liberty in Prague,” “Not Liberty but Free Fall in Legal Vacuum at Radio Free Europe/Radio Liberty,” “Radio Free Europe/Liberty: ‘Immoral,’ Indecent,’ ‘Unfair,’ ‘Cynical,’ ‘Hypocritical,’“ “Stripped of Rights Journalists Herald about Human Rights on Liberty Airwaves,” “At BBG and RFE/RL– Public Diplomacy is Public Scandal at Public Expense,” “Free Europe With Its Own Laws in Colonial Czech Republic?” ”News Flashes from Radio Free Europe/Radio Liberty. The Face of America Abroad,” “BBG-RFE: Lies Should Have Short Legs. But They Have Airwaves, Internet and Bureaucrats …”
The list of similar headlines is virtually endless (ENCLOSURE 6).
It is a striking moral hypocrisy that the Broadcasting Board of Governors representing the RFE/RL’s Board of Directors, pretends
“to inform, engage, and connect people around the world in support of freedom and democracy.”
Reacting to the avalanche of fact-based condemning letters by international NGO’s, BBG sent them a uniform misleading answer signed by the BBG Chairman Geffrey Shell in his capacity of the Chairman of RFE/RL Board of Directors. To illustrate: the International Labor Rights Forum received the letter dated June 26, 2014, stating, in particular (ENCLOSURE 7):
“Employment at RFE/RL is terminated only for valid reasons such as corporate restructurings, poor performance, violations of company policy, or budget cuts.” That statement made by the head of U.S. governmental institution financed by American Congress is patently untruthful.
At the open BBG meeting held August 13, 2014, in Washington, BBG Chairman publicly called the international protests a “noise” :
“There’s been noise about us not treating people the same ways, you know, whether they are US citizens or not US citizens.”
Responding to Jeffrey Shell’s remarks, the Association of Human Rights in Central Asia listed some of the “noisemakers” (in addition to already mentioned to above Anna Sabatova and Jaromir Stetina), who dared to question BBG-RFE/RL labor policies:
“– Lyudmila Alexeeva, Head and founding member of the first in the world Helsinki organization, the Moscow Helsinki Group;
– Dr. Leyla Yunus, politically persecuted Director of the Institute for Peace and Democracy in Baku, Azerbaijan – laureate of the International Theodor-Haecker-Prize;
– Lyudmyla Kozlovska, President of the Open Dialog Foundation, Warsaw, that devotes special attention to protection of human rights in three RFE/RL’s target countries – Ukraine, Russia and Kazakhstan;
– Russian human rights defender Sergei Kovalev — Chairman of Andrei Sakharov Foundation, president of NGO Institute of Human Rights in Moscow, the first Human Rights Ombudsman of the Russian Federation (1994 – 1995), twice, in 1995 and 1996, nominated for the Nobel Peace Prize;
– Czech filmmaker Martin Mahdal, Chevalier of the French Legion of Honour, who specializes in social, moral, labor-related, human rights, and political topics.”
VII. Submission of communication to other human rights bodies
The matter of this Complaint was not previously submitted to any special procedure, a treaty body or other United Nations or similar regional complaint procedures in the field of human rights.
VIII. Confidentiality is not requested
We intend to provide the facts presented in this Complaint to American congressmen; American and Czech government officials; American, Czech and foreign media; users of social networks; international NGOs, in addition to the listed to above, inviting them to join the Complaint.
In accordance with the UN Human Rights Council resolution 5/1, we kindly ask the appropriate structural body of the Council to initiate special investigative procedure and to obtain the views of American government (Department of State) and relevant Congressional committees (the Committee on Foreign Relations of the Senate and the Committee on Foreign Affairs of the House of Representatives, the Committees on Appropriations of the House and Senate) concerning human rights violations by the Broadcasting Board of Governors – U.S. Federal government agency that oversees all U.S. civilian international media and serves as exclusive Board of Directors for Radio Free Europe/Radio Liberty .
In our opinion, the question why American Congress tolerates manifested disregard of its legislative will by the Broadcasting Board of Governors, is of especial importance.
Sincerely,
Anna Karapetian
Snjezana Pelivan
Enclosures 1 — 7 (to UN HRC): as stated
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