Vezi raport EN

abstract of solutions 8 cases of monitoring 18 N.C.C.D. | Activity Report | 2016  Criterion / Total Ruling acknowledge- Fine Recommendation Warning Monitoring summary ments 2016 publication Non-contagious chronic Disease Sexual orientation 1 Language 3 11 20 1 2 Beliefs Age 1 Disadvantaged category Religion 1 1 2 1 Gender 5 1 3 1 Nationality 6 2 7 4 Disability 42 13 10 5 35 Ethnic origins 15 5 4 5 Others 5 3 3 1 3 Social category 24 7 1 1 11 HIV contamination 2 1 1 Race 7 1 1 Total 111 44 53 8 63 Statistics on the total number of petitions received by NCCD in 2016 19  Criterion / Total ac- Ruling knowledgements Fine Recommendation Warning Monitoring summary 2016 publication Access to employment and 25 13 10 2 11 profession Access to education 10 5 5 1 4 Access to housing 1 1 1 1 1 Access to public 4 2 premises Access to public 47 18 24 3 37 services (TOTAL) administrative 11 11 22 1 3 banking 2 1 1 health 7 6 2 1 1 transport 27 1 32 legal hotel Other 1 2 2 1 1 Personal dignity 23 5 11 7 Total 111 44 53 8 63 20 N.C.C.D. | Activity Report | 2016  The number and amounts of fines in 2016 Statistics on the total number of petitions received by NCCD in 2016 21  Legal representation of the interests of the Romanian National Council for Combating Discrimination  The Legal, Administrative and Contract Department of the Legal Directorate is the one that provides the conventional assistance and represents the interests of the Romanian Council for Combating Discrimination, both with respect to procedural litigations on matters falling within the scope of the lawfulness and judicial control applied to the Steering board solutions and in genere. Exceptionally (optionally and on a case-by-case basis) and following a specific request of the NCCD President, the Council representation in courts can be provided, when it comes to matters of discrimination, by the members of the Steering board with formal legal education and background. As ruled by the provisions of Article 20 of the Government Ordinance no. 137/2000R, in conjunction with the provisions of the “Internal resolution procedure for petitions and refer- rals” published in the Official Gazette, Part I no. 348 of 06.05./2008, adopted on the basis of Article III, par. 1 - Chapter IV of the Government Ordinance no. 137/2000R, petitions claiming discrimination facts are settled by the Romanian National Council for Combating Discrim- ination which issues “rulings” – administrative and jurisdictional documents. The legal matters of the above-mentioned petitions are settled within an administrative and jurisdictional framework and following a specific procedure which incorporates the core features of the special administrative jurisdiction: the replaceable and free nature of the jurisdiction, the functional independence of the jurisdictional authority, the observance of the principle of providing defence and guarantee the principle of contradiction. The examination of NCCD Steering board’s solutions in terms of legitimacy and righteous- ness falls within the authority of administrative courts (appeal courts as courts of original Legal representation of the interests of the R.N.C.C.D 25  jurisdiction, and the High Court of Cassation and Justice as recourse court), in line with the provisions of Art. 20, paragraphs (9) and (10) of the Government Ordinance no. 137/2000, as republished, in conjunction with Art. 6 of the Law no. 554/2004 on contentious and ad- ministrative matters. The legal deadline of appeal against such administrative and jurisdictional decisions is 15 working days from communication; otherwise, the decisions become writs of execution. Council solutions which passed the “judicial control” assessment in 2016 In 2016, the competent legal courts (such as appeal courts and the High Court of Cassation and Justice) had 351 pending cases the subject matter of which was the legitimacy and righteousness control of the NCCD resolutions issued in accordance with the provisions of Art. 20 of the Government Ordinance no. 137/2000, as republished. After this control was conducted for NCCD 2016 resolutions, in 236 cases the courts ruled in favour of NCCD, on the main matter on trial and/or appeals, and against NCCD in 41 cases in which the actions against the rulings were admitted. At the end of 2016, 281 cases were still pending in courts (main matter on trial/appeals). Hence, according to statistical results, the share of NCCD resolutions having passed the “judicial control” examination in 2016 remained high, at approx. 86%. Statistical results of judiciary action initiated with a view to introducing the tort liability Introductory note: Pursuant to Article 27 of the Government Ordinance no. 137/2000R, any person who consid- ers himself/herself discriminated 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. Any interested person must prove the existence of facts allowing the existence of direct or indirect discrimination, whereas while any person against whom any such request has been filed has to prove that facts are not discriminatory. The trial takes place with NCCD mandatorily summoned. In addition to the contraventional liability, the lawmakers introduced in the field of non-dis- crimination, in GO no. 137/2000, the tort liability defined by its remedial function requiring the “author of the discrimination deed” to repair the damage caused and ensure the rein- statement of the previous situation by doing away with all damaging consequences of the and discriminatory situation. 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 26 N.C.C.D. | Activity Report | 2016  legal actions on “granting remedies over loss caused by actions and facts of discrimination”, using the tort liability, with the involvement of the NCCD in the court proceedings. The de jure Council’s involvement occurs under its particular capacity as “monitor of dis- crimination cases”, “legal counsel”, “expert” on non-discrimination matters and, as such, without being invested with passive capacity in the trial and protected from the ruling-related obligations as from court orders in such cases. NCCD is involved in the trial, as described above, in accordance with the provisions of Art. 27 of the Government Ordinance no. 137/2000, in capacity as guarantor for the observance and enforcement of the non-discrimination principle, as required by the Romanian legisla- tion in force and the international agreements to which Romania is a party, as well as by the capacity as specialised body having (theoretical and practical) fundamental legal knowledge on equal rights and non-discrimination. The NCCD is involved in all trial cases, pursuant to Art. 27 of GO no. 137/2000R, irrespective of the subject-matter (work conflict, cancellation of administrative documents, contract ter- mination, refusal to settle complaints or various claims, monetary entitlements etc.), related lato sensu to the non-discrimination principle, legal cases pending in courts with material and territorial jurisdiction in Romania. In the context of a trial, the advice-giving expert body (NCCD) may issue ex officio “framework viewpoints-directives”, aiming at demonstrating the national and community non-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 aspects de facto and de jure, including written evidence and testimonials in the case), it can issue “certified legal expert opinions”, which in essence are case works valued as “legal counselling” in the field of equality of rights and non-discrimination. Reporting of Statistical Results In 2016, NCCD was called by the court in capacity as consultative body - a “dedicated expert” to formulate “expert opinions” (case works valued as “legal counselling”) for a total of ap- proximately 750 trial cases (started in the current year and before, but ruled upon in 2016), out of which 365 were new cases, initiated in 2016, on tort liability (payment of damages to the victim) as a result of violation of the non-discrimination principle. Trial cases brought to the courts in 2016 (365 cases) are statistically classified according to their subject-matter, as follows: • approx. 160 cases having “monetary entitlements” as subject-matter; • approx. 205 cases on “other remedies” (work-related conflicts, cancellation of administrative documents, refusal to settle the request, claims - other than wage entitlements/salaries - etc.). The 2016 rulings issued in 2016 by the courts with authority in the law of tort in cases in- volving discrimination (rulings related to cases from 2016 and older, but which were settled in 2016), in which NCCD was involved as “specialized expert”, are reported as follows: Legal representation of the interests of the R.N.C.C.D 27  • approx. 183 cases granted; • approx. 316 cases dismissed; Judicial endorsement and contracting On a permanent and customary basis, the Legal Direction of the National Coun- cil for Combating Discrimination endorsed the judicial documents issued by the entity, or other measures that were to be taken by the management of the institution or by other departments, as part of their activities, involving as- set-related liability as well, and the public procurement contracts, consistently with the specific procedures. Examples of case trials from the Council’s 2016 administrative court activity Case no. 1 I. The subject-matter of the case: By a petition filed with the Romanian national anti-discrimination council, the complainant S.S.I. claimed she was subject to harassment and discrimination at work, after coming back from a child care leave - the complainant at that time was receiving the insertion benefit. The complainant S.S.I. also referred to the fact that she was moved from her office to a meeting room, with all previous responsibilities cancelled, with no tasks assigned and no equipment to do her job, all this with the purpose of prompting her to resign. II. NCCD Solution In its Resolution no. 349/12.08.2015 issued in the case file no. 163/2015, the Romanian National Council for Combating Discrimination ascertained a differentiated and discrimi- natory treatment, pursuant to the provisions of Article 2 par. (1) and (5), Article 7 letter b) of the Government Ordinance no. 137/2000 on the prevention and punishment of all forms of discrimination, and fined the defendant S.C. Agora Marketing & Consulting S.R.L. with a contraventional fine of 5,000 Lei, in accordance with the provisions of Art. 26 par. (1) of the Government Ordinance no. 137/2000 on the prevention and punishment of all forms of discrimination. III. Judicial control applied to the NCCD Solution 349/12.08.2015 issued in the case file no. 163/2015 In the action brought before the Bucharest Appeal Court - Section VIII Contentious Admin- istrative and Fiscal Matters, the complainant S.C. Agora Marketing & Consulting S.R.L. sued the Romanian NCCD requesting the court to cancel the NCCD Solution no. 349/12.08.2015 issued in NCCD file no. 163/2015, as illegal and groundless. 28 N.C.C.D. | Activity Report | 2016  III. 1. Summary of the criticisms by the complainant, SC Agora Marketing & Consulting S.R.L.: • The NCCD Steering board acknowledged a situation which was not real, being based only on the assumptions of the complainant, even if unproved, and ignored counter- arguments and proofs brought in by Agora; • NCCD did not specifically show which are the specific elements that cumulatively led to a fact of discrimination. • In the case, the requirements are therefore not met in order to acknowledge the existence of a fact of discrimination as the NCCD Steering board wrongfully ruled. III. 2. NCCD Abstract of Defence: As related to the subject-matter, the action admitted as discrimination essentially consists in a unfavourable treatment of a woman who was protected by the legal principle of post- child care leave, and in the discriminating effect of changing job responsibilities and moral harassment following the return from leave (during the period in which she was paid the reinsertion benefit). The particular and extraordinary employment protection according to the specific legal framework involves a favourable treatment for women during and after the child care leave – requiring interdiction to fire women while during child-care leave and 6 months after they return to work, and they have right to return to their last workplace or to an equivalent one, with a similar job description, and to benefit from any improvement in the workplace that they should have enjoyed if they were not on a child-care leave. The refusal of the S.C. Agora Marketing & Consulting S.R.L. to observe the provisions of Law no. 202/2002 on the equal treatment of men and women, according to GEO no. 96/2003 on maternity protection , of GEO no. 111/2010 on leave and monthly payment for child care and of Law no. 53/2003 on Work Code led to the complainant S.S.I. being unfairly treated as an employee in a special category – a women on post-child care leave, and discriminately being modified her work tasks and being morally harassed after returning to work, facts falling un- doubtedly under the provisions of Article 2 par. (1), corroborated with Art. 7 b) of the Government Ordinance no. 137/2000 on the prevention and punishment of any forms of discrimination. III. 3. Court Ruling: The Bucharest Appeal Court - Section VIII Contentious Administrative and Fiscal Matters, in its Ruling no. 2253/28.06.2016, dismissed as groundless the complaint filed by the complainant S.C. Agora Marketing & Consulting S.R.L. against the NCCD resolution no. 349/12.08.2015 issued in the case file no. 163/2015 and integrally endorsed the administrative-jurisdictional resolution of NCCD as justified, on the following basis: • NCCD justly noted that the complainant is legally protected within the post-child care period in which she is entitled to the reinsertion benefit. The reasons invoked by the complainant, of starting