Vezi raport EN

the authority of administrative litigations courts (Appeal Courts as courts of original jurisdiction, and the High Court of Cassation and Justice as recourse court), in line with the provisions of Art. 20, paragraph (9) and (10) of Government Ordi- nance no. 137/2000, as republished, in conjunction with Art. 6 of the Law no. 554/2004 on contentious and administrative matters. The legal deadline of appeal against such administrative and jurisdictional decisions is 15 working days from communication; otherwise they constitute a writ of execution. Activity Report 2017 23 Rate of promotion of the “Judicial Exam” to which the Steering board’ decisions were subject to in 2017 In 2017, the competent legal courts (such as Appeal Courts and the High Court of Cassation and Justice) had 423 pending cases the subject matter of which was the legitimacy and righteousness control of the N.C.C.D. resolutions issued in accordance with the provisions of Art. 20 of Government Ordinance no. 137/2000, as republished. Following the control applied to N.C.C.D. in 2017, the courts ruled in favour of N.C.C.D. in 130 cases, on the main matter on trial and/or appeals and against N.C.C.D. in 35 cases in which the actions against the ruling were admitted. At the end of 2017, 365 cases were still pending in courts (fund/appeal). Thus, according to statistical results, the rate of promotion of the “judicial ex- amination” of N.C.C.D.’s decisions in the course of 2017, the cases judged cir- cumscribed, was still kept at a high level - approx. 80%. Statistical results of judiciary action initiated for the purpose of tort civil liability Introductory note: Pursuant to Article 27 of Government Ordinance no. 137/2000R, any person who considers himself/herself discriminated against can file a request with a court, to request damages and the reinstatement of their situation prior to the alleged discrimination, or the cancellation of the situation created by the said discrimination, as per the common law. The person con- cerned has the obligation to prove the existence of facts which allow the existence of direct or indirect discrimination, and the person against whom such request has been filed has the burden of proving that the facts are not discriminatory. The trial takes place with the man- datory quote of the Council. Therefore, through Government Ordinance no. 137/2000, the national legislature had the duty to establish in the field of non-discrimination, in addition to the administrative-contra- vention liability, the civil liability for tort, outlined by its reparatory function consisting in obliging the “discriminator” to compensate for the damage caused, namely the restoration in the previous situation, the elimination of all the harmful consequences of the discrimina- tory nature of the offense. By regulating the legal procedure of “civil penalty” in the field of non-discrimination, com- petence exclusively belonging to the common court of law, the lawmaker aimed at judging legal actions on “granting remedies over loss caused by actions and facts of discrimination”, using the tort liability, with the involvement of the N.C.C.D. in the court proceedings. 24 The de jure Council’s involvement in such court cases occurs under its particular capacity as “monitor of discrimination cases”, “legal counsel”, “expert” on non-discrimination matters without, therefore being invested with passive capacity in the trial and being protected from the statutory obligations as from court orders in such cases. Such a procedural participation of N.C.C.D. in accordance with the provisions of Art. 27 of Government Ordinance no. 137/2000 in capacity as guarantor for the observance and enforcement of the non-discrimination principle as required by the Romanian legislation in force and the international agreements to which Romania is a party, as well as by the capac- ity as specialized body having (theoretical and practical) fundamental legal knowledge on equal rights and non-discrimination. N.C.C.D. is involved in all trial cases pursuant to Art. 27 of the Government Ordinance no. 137/2000R irrespective of the subject-matter (work conflict, cancellation of administrative documents, contract termination, refusal to settle complaints or various claims, monetary entitlements etc.), related lato sensu to the non-discrimination principle, legal cases pend- ing in courts with material and territorial jurisdiction in Romania. In the context of a trial the advice-giving expert body (N.C.C.D. ) may issue ex officio “frame- work viewpoints-directives” aiming to highlight the national and community anti-discrimi- nation laws, the technical and judicial mechanism for interpreting and enforcing such laws or, as applicable, upon a court request in this sense (and only if it knows all the de facto and de jure aspects, including written evidence and testimonials in the case), it can issue “certi- fied legal expert opinions”, which in essence are case works valued as “legal counselling” in the field of equality of rights and non-discrimination. Reporting Statistical Results In 2017, N.C.C.D. was called by the court in capacity as consultative body - a “specialized expert” to formulate “expert opinions” (case works valued as “legal counselling”) for a total number (related to the cases initiated both in this and before, but whose trial continued in 2017) of approx. 1132 court cases, the object of which was to incur civil liability for tort (pay- ment of damages to the victim) as a result of violation of the non-discrimination principle. Trial cases whose solutions were pronounced in 2017 are classified statistically in relation to their subject, as follows: ► approx. 723 cases having “monetary entitlements” as subject matter; ► approx. 712 cases in the category “other claims” (work-related conflicts, cancellation of administrative documents, refusal to settle the request, claims - other than wage enti- tlements/salaries - etc.). Rulings issued in 2017 by the courts with authority in the law of tort-civil liability in cases involving discrimination (rulings related both to cases from 2017 and older, but which were settled in 2017), in which N.C.C.D. was involved as “specialized expert”, are reported as follows: Activity Report 2017 25  ► approx. 714 cases granted; ► approx. 870 cases dismissed. Legal advisory and contracting activity Within the National Council for Combating Discrimination, the activity of granting the le- gality opinion for both the legal documents of the entity and the other measures to be taken by the management of the institution, or by the other departments, was usually and con- stantly carried out through the Legal Division departmental structures in the exercise of their duties and estimating the involvement of patrimonial liability, as well as for the public procurement contracts, appropriate to the specific procedures. Examples of case trials of N.C.C.D. from 2016 CASE NO. 1 I. The subject-matter of the case: By a petition filed to the National Council for Combating Discrimination, the petitioner F.E.P. considered that it was discriminated against by imposing a 1,70-meter-height con- dition for men in the contest for the occupation of 49 vacant police officers in the public order structures - urban environment, public order - rural environment and dog master, in Suceava County, a specific condition set out in Annex no. 2 of the M.A.I. no. 140/2016 on the human resource management activity in the police units of the Ministry of Internal Affairs. The petitioner also requested that discrimination be found and the consequences of dis- criminatory acts removed by sanctioning the institution that committed it and restoring the previous situation. II. N.C.C.D. solution By Decision no. 168/07.03.2017 issued in the file no. 712/2016, the National Council for Combating Discrimination decided the following: ► Ascertaining the act of discrimination provided by art. 2 par. (3) and Art. 7 let. a) from Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination; ► Recommends the Ministry of Internal Affairs to ensure equality in terms of em- ployment and occupation; ► A copy of this trial will be communicated to the parties. 26  III. Judicial control applied to the N.C.C.D. Solution 168/07.03.2017 is- sued in the case file no. 712/2016. In the action brought before the Bucharest Appeal Court - Section VIII Contentious Ad- ministrative and Fiscal Matters, the complainant the Ministry of Internal Affairs, sued the National Council for Combating Discrimination and the EFF, demanding the court to cancel the decision of the Steering board of the National Council for Combating Discrimination no. 168/07.03.2017 as unlawful and ungrounded. III. 1. Summary of the criticisms by the complainant, the Ministry of Internal Affairs: ► The need to meet specific criteria is justified by the fact that they offer a minimum of guarantees as regards the police’s compliance with the operational missions; ► The establishment of a criterion of height for the recruitment of candidates for ad- mission to the educational institutions on the premises for the initial training of the police officers as well as of the candidates recruited by direct employment intending to acquire the police/military status in the Ministry of Internal Affairs is also necessary in view of the fact that the professional statutes applicable to the two categories of staff allow changing service relationships, for example by moving to any structure of the Ministry of Internal Affairs, the condition for police officers/military staff to meet the employment requirements in the job descriptions; ► The legitimacy and proportionality of establishing conditionality on height is re- flected in the need to create within the Ministry of Internal Affairs a professional body to en- sure the qualifications specific to the competencies and attributions of the ministry, taking into account the basic activity of its structures, respectively missions in the field of ensuring order public and combating crime, characterized by measures to address the negative social phenomena; ► The need to improve citizens’ perception of the image, attitude and appearance of staff of the Ministry of Internal Affairs. III. 2. N.C.C.D. Abstract of Defence: It is clear that the applicant Ministry of Internal Affairs makes the choice/exercise of the profession of policeman conditional upon the imposition of a certain height on admission to educational institutions on the premises for initial training of police officers as well as on candidates who are recruited by direct employment who intend to acquire the status of po- liceman in the Ministry of Internal Affairs. The measure ordered by the complainant Ministry of Internal Affairs in the need to create a professional body to ensure the qualifications specific to the competencies and attributions of the ministry, namely the establishment of the condition of height - 1.65 m for female can- didates and 1.70 m for male candidates has no objective justification and the measures used are not appropriate and necessary since the application of this measure leads to a limitation Activity Report 2017 27 of the access of persons to admission to educational institutions on the premises of initial training of police officers or by direct involvement in the structures of the Ministry of Inter- nal Affairs, he thus violated his right to education and work. It should be left to the discretion of the candidates, regardless of gender and height, to assume the risks involved in the work to be carried out and the access of persons to ad- mission to educational institutions on the premises of initial training of police officers and candidates recruited by direct employment intending to acquire the status of a police officer in the Ministry of Internal Affairs by imposing conditions that may lead to a differentiated treatment of candidates without objective justification and which ultimately would lead to violation of the right to education and the work of the persons concerned. The performance of each candidate can and must be verified according to the work to be carried out, and only as a result of the skill test to make the difference. Such aptitude tests should be the only one able to assess the physical capacity of candidates to carry out the vari- ous missions entrusted to active policemen. The applicant, the Ministry of Internal Affairs, merely invoked his right to apply a difference of treatment by reference to the specific nature of the field in which he acted without any argument as to the proportionality of such a measure. The applicant should have justified in particular the decision to impose the height limit both for male candidates and female can- didates and how the candidates’ height contributes to the specifics of the activities carried out by the police. III. 3. Court Ruling: In its Civil Ruling no. 4312/13.11.2017 issued in the case file no. 4654/2/2017 the Bucharest Appeal Court - Section VIII Contentious Administrative and Fiscal Matters dismissed as un- founded the petition for the appeal filed by the applicant Ministry of Internal Affairs against Civil Ruling no. 168/07.03.2017 issued by the National Council for Combating Discrimina- tion in case file no. 712/2016, maintaining that administrative-judicial act as a justifiable and lawful one. At the time this Report was drawn up, the Civil Sentence no. 4312 / 13.11.2017 pronounced in file no. 4654/2/2017 had not yet been communicated to our institution by the court. CASE NO. 2 I. The subject-matter of the case: Object of petition S.C.L. is the existence of discriminatory provisions in the Order of M.E.N.C.Ş. no. 5080/2016 for the approval of the Methodology regarding the organization and running of the contest for the positions of director and deputy director of the pre-uni- versity education units. Thus, petition S.C.L. - a director with a delegation from the “Alexandru Papiu Ilarian” 28 National College in Târgu Mureş, claimed that she had been violated the right to participate in the contest for the position of director of this educational unit on the basis of kinship (relatives of first grade and husband/wife), given that her husband occupies the position of general school inspector at the County School Inspectorate of Mureș. II. N.C.C.D. solution By Decision no. 607/28.09.2016 issued in file no. 628/2016, the National Council for Com- bating Discrimination decided the following: ► the facts reported constitute discrimination, according to the provisions of art. 2 par. (1) in conjunction with art. 6 from Government Ordinance no. 137/2000 on the preven- tion and sanctioning of all forms of discrimination (unanimity of votes); ► the applicant party is sanctioned with a warning according to art. 7 from Govern- ment Ordinance no. 2/2001 on the legal regime of contraventions; ► it is recommended to the respondent to remedy the situation, namely to modify the methodology by which the contest for the positions of directors and deputy directors is organized in all pre-university education units, eliminating the discriminatory criterion in art. 21 par. (5) of the M.E.N.C.Ş. no. 5080/2016 and recommends that a circular be issued to all school inspectorates in the country, within the meaning of N.C.C.D.’s de- cision; ► the situation will be monitored, the complainant having to prove the fulfilment of the task in the recommendation of N.C.C.D. (unanimity of votes). III. The judicial control applied to the N.C.C.D. Solution no. 607/28.09.2016 issued in the case file no. 628/2016. By the action initiated, the applicant, the Ministry of National Education and Scientific Re- search, sued the National Council for Combating Discrimination, requesting the court to order the admission of the action as it was formulated, the cancelation of the decision of the National Council for Combating Discrimination no. 607 / 28.09.2016 pronounced in file no. 628/2016 and the maintenance of the provisions of Art. 21 par. (5) of the Methodology for organizing and conducting the competition for the positions of director and deputy director of the pre-university education units, approved as an Annex to the Order of the Ministry of Education and Research. no. 5080/2016. III.1. Summary of the complainant’s criticism Ministry of National Education and Scientific Research: ► Throughout the judicial investigation conducted by N.C.C.D. the petitioner’s funda- mental right to defence, as regulated by Art. 24 of the Romanian Constitution; ► Although the joint law expressly states that the judgments delivered have inter partes litigantes effects, the N.C.C.D., by requiring a recommendation to issue a circular Activity Report 2017 29  to all county school inspectorates within the meaning of the decision given, rendered the erga omnes applicability decision, which is an excess of power, which seriously vio- lates the provisions of art. 2 par. (1) and art. 435 par. (1) Code of Civil Procedure; ► There is no legal basis justifying solving the petition in the so-called “emergency procedure”; ► By the judgment, N.C.C.D. censured the legality of the contested administrative-nor- mative act by considering that it adds to th