Vezi raport EN

activity and human resources reorganization and optimization procedures as reported to changing job responsibilities and workplace of the defen- Legal representation of the interests of the R.N.C.C.D 29  dant S.S.I., are not compatible with the situation the defendant was in, as she was just returning from the child care leave. • NCCD justly retained that, after S.S.I. returned from child care leave, the employer was supposed to actively reinsert her into the previous position or an equivalent one, with similar workplace conditions corresponding to the employee’s rights. On the date of this Report, the Civil Ruling no. 2253/28.06.2016 has remained final by the fact of not being challenged by the complainant, S.C. Agora Marketing & Consulting S.R.L. Case no. 2 I. The subject-matter of the case: NCCD was notified by Centrul de Dezvoltare Curriculară şi Studii de Gen – Filia, Fundaţia Parteneriat pentru Egalitate, Fundaţia Centrul de Resurse pentru Participare Publică, Aso- ciaţia Transcena, Asociaţia Romano ButiQ, Asociaţia Societatea de Analize Feministe – Anna, Asociaţia Grado, Asociaţia E-Romnja, Asociaţia Pas Alternativ, Asociaţia pentru Promova- rea Femeii, Asociaţia Romanian Women Lobby, Fundaţia Centrul de Mediere şi Securitate Comunitară, Societatea de Educaţie Contraceptivă şi Sexuală, Centrul Euroregional pentru Iniţiative Publice, Asociaţia Agenţia de Monitorizare a Presei, Asociaţia pentru Libertate şi Egalitate de Gen şi Agenţia de Dezvoltare Comunitară – Împreună on a supposed discrim- ination fact of the National Defence Ministry by differently splitting the number of seats available for admittance in the ministry’s own superior education institutions (Academia Forţelor Terestre Nicolae Bălcescu Sibiu, Academia Forţelor Aeriene Henri Coandă Braşov, Academia Forţelor Navale Constanţa, Şcoala Militară de Maiştri şi Subofiţeri a Forţelor Terestre Basarab I, Şcoala Militară de Maiştri şi Subofiţeri a Forţelor Aeriene Traian Vuia şi Şcoala de Maiştri Militari a Forţelor Navale ”Amiral Ion Murgescu”) in the sense of opening a considerably smaller number of seats to women as compared to men. II. NCCD Solution In its Ruling no. 568/08.10.2014 issued in file no. 203/2014, the Romanian national anti-dis- crimination council ruled that the situation noticed represents discriminatory treatment, pursuant to the provisions of Article 2 par. (1) and (4), Article 11 letter b) of the Government Ordinance no. 137/2000 on the prevention and punishment of all forms of discrimination. The Romanian national anti-discrimination council also sanctioned the accountant Romanian Defence Ministry with a warning, pursuant to the provisions of Art. 5 par. (2) of Government Ordinance no. 2/2001 on the legal regime of offences Furthermore, the Romanian National Council for Combating Discrimination recommended the defendant, the Romanian Defence Ministry, to observe, in the future, the non-discrim- ination principle and the principle of gender equality. III. The judicial control applied to the NCCD Solution no. 568/08.10.2014 issued in the case file no. 203/2014 By the proceedings initiated with the Bucharest Appeal Court - Section VIII Contentious 30 N.C.C.D. | Activity Report | 2016  Administrative and Fiscal Matters, the complainant, the Romanian Ministry of Defence, summoned the Romanian National Council for Combating Discrimination to trial requesting the court to cancel the NCCD Solution no. 568/08.10.2014 issued in the case file no. 203/2014. III. 1. Summary of criticisms by the complainant, the Romanian Ministry of Defence: • Army professions involve extremely stressful and demanding physical missions, such requirements being deemed improper for the anatomical structure of the female body. This category is found in the army ranks as being given “non-combatant”, adminis- trative positions; • Gender segregation of admission seats in the educational institutions is a waiver from the gender equality principle, in this case; • The Romanian Ministry of Defence’s approach is consistent with the existent European Union and national policies in the field, though, at a first glance - as the signatories of the petition proceeded - a false impression is created that there is an apparent discrim- ination, that fades away as we get deeper into the issue. III. 2. NCCD Abstract of Defence: In examining the notification, the documents existing on file and relevant legal provisions, the Romanian National Council for Combating Discrimination found out that the measures taken by the complainant, the Romanian Ministry of Defence, by differently splitting admis- sion seats within its own educational institutions on a gender basis, in the sense that offering a considerably lower number of seats for women is not objectively justified or accompanied by adequate or necessary measures, because such initiative only leads to limiting women’s access, via examination, to its own educational institutions and later on within the Romanian Ministry of Defence’s operational structures. Thus, the Ministry violates women’s right to both education and to work. The candidates, irrespective of gender, should be allowed to judge on their own whether they can take the risks involved in the activities to be performed. Women’s access to specialized structures of the Ministry should not be impaired by imposing conditions prone to creating differences between candidates, without impartial reasons. Such differences would ultimately lead to an infringement of both the education and labour rights and the dignity of the people involved. All candidates, irrespective of gender, have the right to freely choose a profession, no matter how hard or easy this profession might be. Performances of every candidate can, and should, be evaluated based on the activity that is to be carried out and separations should be im- posed only after skills are checked. The admission exams for the operational structures of the Romanian Ministry of Defence involves eliminatory tests allowing to separate candidates who can thus prove they can be part of the Ministry’s operational structures. III. 3. Court Ruling: The civil ruling no. 1090/01.04.2016 of the Bucharest Appeal Court - Section VIII Contentious Administrative and Fiscal Matters - dismissed as groundless the request of the Romanian Legal representation of the interests of the R.N.C.C.D 31  Ministry of Defence to cancel the NCCD Solution no. 568/08.10.2014 issued in the case file no. 203/2014 and fully endorsed the administrative legal document issued by the NCCD as justifiable and legitimate, on the following reasons: • Among the grounds of the challenged decision, the defendant, NCCD, took into account European case laws admitting that, in the field of national defence, differentiating be- tween men and women candidates is a justifiable measure falling within the appreciation margin of which the complainant - the Romanian Ministry of Defence - benefits. What, however, led to the acknowledgement of a fact of discrimination was the lack of proof from the part of the complainant, in the sense of the proportionality of the measure; • In the case, analysing the complainant’s defence, the Court notes that it is limited to invoking a right to apply a difference in treatment based of the specifics of the field in which it operates, without justifying such measure. The only description in the sum- mons is that of Navy specialties, but the difficulties the complainant sees in unfolding such missions can also be noted in what concerns men, the reasons invoked being unconvincing. • The complainant should have justified its decision to open a certain number of seats for men and for women for each branch/military specialty - describe the specifics of every activity, the reason for the need of a certain number of men/women in every one of them and of the number of people already employed within the system and required by international bodies. Putting up a certain number of seats for admission for women in disciplines such as research, communications and IT, intendancy and administration appears from the very beginning as unjustly discriminating, where- as while for all other specialties there are doubts on the legality of the measures of totally excluding women candidates or providing only a very small number of seats as compared to men. On the date of this Report, the case is still pending with the High Court of Cassation and Justice - Contentious Administrative and Fiscal Matters - and it is under a screening proce- dure, following the recourse filed by the Romanian Ministry of Defence. Case no. 3 I. The subject-matter of the case: The Romanian National Council for Combating Discrimination started its own investigation no. 1260/03.03.2016 in the file no. 2A/2016, against the Ministry of Labour, Family, Social Protection and Elderly, National Agency for Payments and Social Inspections, the mayors of Bucharest, Alba Iulia, Alexandria, Arad, Baia Mare, Braşov, Brăila, Buzău, Călăraşi, Cluj Napoca, Constanţa, Craiova, Deva, Drobeta Turnu-Severin, Focşani, Galaţi, Iaşi, Oradea, Piatra Neamţ, Piteşti, Ploieşti, Rîmnicu-Vâlcea, Reşiţa, Satu Mare, Slatina, Slobozia, Suce- ava, Timişoara, Tîrgu-Jiu, Târgu Mureş, Tulcea and Vaslui for not providing adequate local transport conditions for people with disabilities; infringement of the right to personal dig- nities by the way people with walking disabilities are forced to use the public transport in these cities as well as for not taking measures in order to facilitate access of disabled people to local public transportation. 32 N.C.C.D. | Activity Report | 2016  II. NCCD Solution In point 1 of the Resolution no. 357/11.05.2016 issued in the case file no. 2A/2016, the Romanian National Council for Combating Discrimination established that not providing public transportation conditions for disabled people is a fact of discrimination pursuant to the provisions of Art. 2 par. (1) and (4) corroborated with the provisions of Art. 10, letters g) and h) and Art. 15 of Government Ordinance no. 137/2000 on the prevention and punishment of all forms of discrimination, as well as to the provisions of Art. 9, 19, 20 of the Convention on the Rights of Disabled People, ratified by Romania in the Law 221/2010. In point 4 of Resolution 357/11.05.2016 issued in the file no. 2A/2016, NCCD sets a fine of Lei 10000 for the defendants: Mayors of Bucharest, Alba Iulia, Baia Mare, Brăila, Călărași, Cluj-Napoca, Craiova, Deva, Drobeta Turnu Severin, Iași, Piatra Neamț, Ploiești, Râmnicu Vîlcea, Reșița, Timișoara, Tîrgu Mureș and Tulcea, pursuant to the provisions of Art. 26 par. (1) of Government Ordinance no. 137/2000 on the prevention and punishment of all forms of discrimination. In point 5 of Resolution 357/11.05.2016 issued in the file no. 2A/2016, the Romanian NCCD issued a fine of Lei 8000 to the mayors of Arad, Brașov, Oradea, Satu Mare, Slatina, Suceava, Tîrgu Jiu and Vaslui, according to Art. 26 par. (1) of Government Ordinance no. 137/2000 on prevention and punishment of all forms of discrimination. III. The judicial control applied to NCCD Solution no. 357/11.05.2016 issued in the case file no. 2A/2016. In the proceedings initiated with the Craiova Appeal Court - Section VIII Contentious Ad- ministrative and Fiscal Matters, the complainant, Mayor of Craiova, sued the Romanian National Council for Combating Discrimination, requesting the court to cancel the Resolution no. 357/11.05.2015 issued in NCCD file no. 2A/2016 as illegal and groundless. III. 1. Summary of the criticisms by the complainant, Mayor of Craiova: • Underlining the statutes of limitation of the fact is a must, in the sense that, pursuant to the provisions of Government Ordinance no. 137/2000 on the judicial regime of offences, the possibility to enforce any contraventional penalty is limited in time to 6 months since the occurrence of the offence; • The fine was inflicted directly to the Mayor of Craiova, in violation of the provisions of Law no. 215/2001, which establishes the limits of the mayor’s attributions; • The lawmaker itself did not even impose grounds of obligation to provide appropriate conditions in all means of public transportation, therefore one cannot establish exactly the grounds on which NCCD took the said measure; • The Craiova Public Transportation Authority constantly took the proper measures in order to create public transport facilities for disabled people, as follows: out of 148 buses in 2013, 78 were accessible by disabled people; in 2014 95 out of 165 buses and in 2015-2016 102 out of 172 buses. Legal representation of the interests of the R.N.C.C.D 33  III. 2. NCCD Abstract of Defence: Taking into account the European Court of Justice Decision in 3rd Chamber on 25.04.2013 in case C-81/12 on interpreting Article 2 paragraph (2) letter (a), Art. 10 paragraph (1) and Article 17 of the 2000/78/CE Council Directive of November 27, 2000 on an equal treatment framework for job occupation and employment, as well as the provisions of Article 20 of the Romanian Constitution, the penalty on the complainant - Mayor of Craiova – the 10,000 lei contraventional, as per the provisions set in Article 26 of the Government Ordinance no. 137/2000 on the prevention and punishment of all forms of discrimination, is not time barred and is in agreement with the provisions of Art. 17 of the Council Directive 2000/78/CE and it is effective, proportional and dissuasive. Examining the complaint, the documents on file and corresponding legal provisions, the Ro- manian National Council for Combating Discrimination noted that, on 01.03.2016 (the expiry date of the last monitoring), the city of Craiova had only 102 buses with facilities for disabled, out of a total of 180, and no trams out of 29 had proper facilities for people with disabilities. Even if it has been noted that the City of Craiova constantly took measures for creating public transport facilities for the disabled, at least in the case of trams, the people with walking dis- abilities would not be able to use any of the 29 trams as, like it has been showed before, these trams don’t have the necessary facilities, which creates a humiliating situation and causing the case to fall under the provisions of Art. 15 of the Government Ordinance no. 137/2000 on the prevention and punishment of all forms of discrimination. The same situation is to be seen on the transportation lines served by the 102 buses, not adjusted to be accessible to people with disabilities NCCD also noted that the defendant, Mayor of Craiova, showed a passive conduct with re- spect to the measures allowing the accessibility of the public transportation means in the city, which led to unfavourable and unjust consequences for the disabled, pursuant to the provisions of Art. 2 par. (4) of the Government Ordinance no. 137/2000 on the prevention and punishment of all forms of discrimination. III. 3. Court Ruling: The Civil Ruling no. 431/12.10.2016 of the Craiova Appeal Court - Contentious Administrative and Fiscal Matters, dismissed the appeal of the complainant, Mayor of Craiova, filed against the Romanian National Council for Combating Discrimination and endorsed the Resolution no. 357/11.05.2016 issued in the file no. 2A/2016, on the following grounds: • Pursuant to the provisions of Art. 22 of Law 448/2006, the public administration au- thorities have the obligation of taking all appropriate measures in view of providing public transportation for people with disabilities. Therefore, the obligation is not in- cumbent to the public transport operator, as the complainant erroneously objects, but to the public administration authority, in this case the Mayor of Craiova; • The complainant does not deny or object to neither the fact that it owns the number of buses and trams specified in the decision and that it owns the specified number of public transportation means unfit for the transport of disabled people. It erroneously 34 N.C.C.D. | Activity Report | 2016  and groundlessly holds that the fact of not adapting the public transport vehicles to such requirements was similar to a lack of offence, as the provisions of Art. 22 of the law refers to adapting old public transport means produced prior to the enforcement of the law and taking into account the technical possibilities; • The complainant also holds as a reaso