Vezi raport EN

Report regarding the implementation of racial Directive in Romania 2005-2010  Report regarding the implementation of racial Directive in Romania 2005-2010  „protecţie efectivă a drepturilor omului” This report regarding the implementation of the racial Directive was coordinated by Mr. Asztalos Csaba Ferenc, member of the Steering Committee, NCCD's President. Also, the work was achieved through the contribution of Mr. Dezideriu Gergely, member of NCCD's Steering Committee, Iulia Vaida, Office of Assistants of the Steering Committee, Andreea Banu, Corina Comşa, George Lica, Alina Ungureanu, Silvia Răduţ , Directorate for Programs and International Relations, Dora Mărgărit, President's Office, Denisa Lazăr, Communication and Public Relations Office. The parts of the report were achieved as follows: Coordinator: Asztalos Csaba Ferenc, member of NCCD's Steering Committee, President Working group: Dezideriu Gergely, member of NCCD's Steering Committee - Part I,II,III Iulia Vaida – Part III Andreea Banu – Part IV Corina Comşa – Part IV George Lica – Part IV Alina Ungureanu – Part IV Silvia Raduţ – Part IV Dora Mărgărit – Editing Denisa Lazăr – Editing RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 „building trust in human rights” www.cncd.org.ro CONTENTS PART I - MEASURES OF TRANSPOSITION OF DIRECTIVE 2000/43/EC IN NATIONAL LEGISLATION Chapter I. Context of the adoption of the Directive and of national transposition legislation Paragraphs 1-6………....................................................Page 9 Chapter II. The concept of discrimination in the racial Directive (ARTICLE 2) and national law Paragraphs 7-19………...................................................Pages 10-12 Chapter III. The scope of the racial Directive (ARTICLE 3) and national transposition law Paragraphs 20-27……….................................................Pages 12-14 Chapter IV. Specific occupational requirements in the racial Directive (ARTICLE 4) and national transposition law Paragraphs 28-30……….................................................Pages 14-15 Chapter V. Positive action in the racial Directive (ARTICLE 5) and national transposition law Paragraphs 31-32……….................................................Page 15 Chapter VI. Minimal requirements in the racial Directive (ARTICLE 6) and national transposition law Paragraphs 33-34……………………………………………...........Pages 15-16 Chapter VII. The means of appeal and protection of rights in the racial Directive (ARTICLE 7) and national transposition law Paragraphs 35-41…………………………………………..........…Pages 16-17 Chapter VIII. The burden of proof in the racial Directive (ARTICLE 8) and national transposition law Paragraphs 42-44……………………………………………..........Pages 17-18 Chapter IX. Victimization in the racial Directive (ARTICLE 9) and national transposition law Paragraphs 45-46……………………………………………..........Page 18 Chapter X. Organisations for the promotion of the Equality of Treatment in the racial Directive (ARTICLE 13) and national transposition law Paragraphs 47..……………………………………………….............Pages 18-19 Chapter XI. National Council for Combating Discrimination and fulfilment of the standards of institutional independence Paragraphs 48-77……………………………………….............…Pages 19-24 Chapter XII. „Sanctions” in the Racial Directive (ARTICLE 15) and national transposition law Paragraphs 78-79………………………………………….........….Page 24 3 PART II - NCCD'S CASE LAW UNDER THE NATIONAL TRANSPOSITION LAW OF DIRECTIVE 2000/43/EC Chapter I. Complaints filed to NCCD under the national anti-discrimination law Paragraphs 80-82………………………………………..........……Pages 27-28 Chapter II. Complaints filed to NCCD under discrimination prohibited by Directive 2000/43/EC Paragraphs 83-84………………………………………..........……Page 28 Chapter III. Solutions of admitting complaints under discrimination forbidden by Directive 2000/43/EC Paragraphs 85-86………………………………………..........…..Page 29 Chapter IV. Discrimination criteria in ascertaining cases under Directive 2000/43/EC Paragraph 87…………………………………………….…......…….Page 30 Chapter V. Discrimination forms in cases ascertained by NCCD Paragraph 88………………………………………………..............Page 30 Chapter VI. Fields in which discrimination was displayed in cases ascertained by NCCD Paragraph 89……………………………………………….......…….Page 31 Chapter VII. Sanctions enforced in discrimination cases ascertained by NCCD Paragraph 90……………………………………………........………Pages 31-32 Chapter VIII. Ascertaining solutions issued in 2003 Paragraphs 91-112………………………………………..........…Pages 32-34 Chapter IX. Ascertaining solutions issued in 2004 Paragraphs 113-121……………………………………..............Pages 34-35 Chapter X. Ascertaining solutions issued in 2005 Paragraphs 122-148……………………………………..............Pages 35-40 Chapter XI. Ascertaining solutions issued in 2006 Paragraphs 149-160…………………………………...........……Pages 40-42 Chapter XII. Ascertaining solutions issued in 2007 Paragraphs 161-168……………………………………..............Pages 43-44 Chapter XIII. Ascertaining solutions issued in 2008 Paragraphs 169-190………………………………………...........Pages 45-49 Chapter XIV. Ascertaining solutions issued in 2009 Paragraphs 191-210…………………………………….…..........Pages 49-53 Chapter XV. Ascertaining solutions issued in 2010 Paragraphs 211-219……………………………………..........….Pages 53-56 4 PART III - CONCEPTS CONSTRUED IN NCCD'S CASE-LAW UNDER THE SCOPE OF DIRECTIVE 2000/43/EC Chapter I. Article 2 par.3 of Directive 2000/43/EC Paragraphs 220-225……………………………………........…...Page 59 Chapter II. Article 2 par.4 of Directive 2000/43/EC Paragraphs 226-228………………………………………..........Page 60 Chapter III. Article 4 of Directive 2000/43/EC Paragraphs 229-231………………………………………........…Pages 60-61 Chapter IV. Article 5 of Directive 2000/43/EC Paragraphs 232-250……………………………………..............Pages 61-66 Chapter V. Article 7 of Directive 2000/43/EC Paragraphs 251-256……………………………………........…...Pages 66-67 Chapter VI. Article 8 of Directive 2000/43/EC Paragraphs 257-262………………………………………...........Pages 67-68 Chapter VII. Article 9 of Directive 2000/43/EC Paragraphs 263-267……………………………..…...….........…Page 69 Chapter VIII. Article 13 par.2 of Directive 2000/43/EC Paragraphs 268-274……………………………………..............Page 70 Chapter IX. Racial or ethnic origin Paragraphs 275-282…………………………………..............…Pages 71-72 Chapter X. Ethnic segregation. Education Paragraphs 283-298…………………………………...…...........Pages 73-76 PART IV – ACTIVITY OF PREVENTION OF DISCRIMINATION Chapter I. Prevention of discrimination in the field of sport Paragraphs 299-320………………………………………...…...…Pages 79-82 Chapter II. NCCD'S liaison with non-governmental organizations Paragraphs 321-333………………………………………..…....…Pages 83-84 Chapter III. Comparative analysis of opinion polls requested by NCCD Paragraphs 334-348……………………………………………......Pages 85-89 Chapter IV. Programs executed by NCCD during 2002-2010 under to the provisions of Directive 2000/43/EC Paragraphs 349-398…………………………………………..…....Pages 90-97 5 Chapter V. Media coverage of ethnic, racial discrimination and on the nationality criterion Paragraphs 399-462……………………………………………............Pages 97-104 Chapter VI. institution's budget 2002-2010 Paragraph 463………………………………………………….….....…..Page 105 6  PART I MEASURES OF TRANSPOSITION OF DIRECTIVE 2000/43/EC IN NATIONAL LEGISLATION  „protecţie efectivă a drepturilor omului” I. Context of adoption of the Directive and of national transposition legislation A. Adoption, entry into force, the deadline for transposition and reporting on the implementation of the Directive 1. Directive 2000/43/EC applying the principle of equal treatment between persons, irrespective of racial or ethnical origin was adopted on 29 June 2000. The Directive was published in the Official Journal (JO L 180) of 19 July 2000. 2. According to art. 16 of Directive 2000/43/EC: Member States shall adopt the laws, regulations and administrative provisions necessary to comply with this Directive by 19 July 2003. When the Member States adopt these acts, they contain a reference to this directive or are accompanied by such reference at the date of their official publishing.” 3. According to art. 17 par. 1 of Directive 2000/43/EC: Member States shall communicate to the Commission by 19 July 2005, and every five years thereafter, all the information necessary for the Commission to draw up a report to the European Parliament and the Council on the application of this Directive. B. Adoption, entry into force, amendments and additions to national legislation for transposition of the Directive 4. The Romanian Government adopted Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination on 31 August 2000. The Ordinance was published in the Official Gazette of Romania, Part I, no. 431 of 2 September 2000 and was approved with amendments and additions by Law no. 48/2002, published in the Official Gazette of Romania, Part I, no. 69 of 31 January 2002. 5. Following its adoption and approval by law, G.O. no. 137/2000 was also amended and supplemented through: ® Government Ordinance no. 77/2003 amending and supplementing G.O. no. 137/2000, published in the Official Gazette of Romania, Part I, no. 619 of 30 August 2003, approved with amendments and additions by Law no. 27/2004, published in the Official Gazette of Romania, Part I, no. 216 of 11 March 2004; ® Law no. 324/2006 amending and supplementing G.O. no. 137/2000, published in the Official Gazette of Romania, Part I, no. 626 of 20 July 2006; ® Emergency Ordinance no. 75 of 11 June 2008 establishing measures to resolve financial issues in the system of justice, published in the Official Gazette no. 462 of 20 June 2008, approved by Law no. 76 of 1 April 2009, published in the Official Gazette no. 231 of 8 April 2009. 6. Law no. 324/2006 amending and supplementing G.O. no. 137/2000 stipulates that it „transposes the provisions of Council Directive 2000/43/EC implementing the principle of equal treatment between persons, irrespective of racial or ethnic origin, published in the Official Journal of European Communities (OJ) no. L 180 of 19 July 2000 and the provisions of Council Directive 2000/78/EC establishing a general framework for equal treatment in employment and occupation, published in the Official Journal of the European Communities (OJ) no. L303 of 2 December 2000”. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 9 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” II. The concept of discrimination in the racial Directive (ARTICLE 2) and national law A. DIRECT DISCRIMINATION IN THE RACIAL DIRECTIVE 7. According to art. 2 para. 1 letter a) of the racial Directive: „(1) For the purposes of this Directive, the principle of equal treatment shall mean that there shall be no direct or indirect discrimination based on racial or ethnic origin. (2) For the purposes of paragraph 1: (a) direct discrimination shall be taken to occur when one person is treated less favourably than another is, has been or would be treated in a comparable situation on grounds of racial or ethnic origin”. B. DIRECT DISCRIMINATION IN NATIONAL LAW 8. According to art. 1 par. 2 and par. 3 of G.O. no. 137/2000, republished, the principle of equality among citizens, of exclusion of privileges and discrimination are guaranteed as regards the exercise of the following rights1 and concern persons in comparable situations. 9. The concept of discrimination is defined in art. 2 par. 1 of G.O. no. 137/2000, republished. The definition of discrimination in G.O. no. 137/2000 is a replication of the definition incorporated in art. 1 of the International Convention regarding the elimination of all forms of racial discrimination. The Convention defines racial discrimination as: „...any distinction, exclusion, restriction or preference based on race, colour, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life”. 10. Similarly, art. 2 par. 1 of G.O. no. 137/2000 defines the concept of discrimination: (b) (…) (…) discrimination means any distinction, exclusion, restriction or preference based on race, nationality, ethnic and social origin, language, religion, beliefs, gender, sexual orientation, age, disability, non-infectious chronic disease, HIV contamination, affiliation to a disadvantaged category, as well as on any other criterion aiming or resulting in the restriction or hindering of the recognition, use or exercise, under equality conditions, of the human rights and fundamental freedoms or of the rights recognized by the law in the political, economic, social and cultural field, or in any other fields of public life. 1 Particularly: a) the right to equal treatment before courts and any other jurisdictional body ; b) the right to individual safety and to obtaining state protection against violence or maltreatment performed by any individual, group or institution; c), political rights, namely electoral rights, the right to take part in public life and to access positions and public offices d) civil rights, particularly: (i) the right to the freedom of movement and choice of the residence; ii) the right to leave the country and return to the country; (iii) the right to obtain and waive Romanian citizenship; (iv) the right to marry and choose a partner; (v) the property right; (vi) the inheritance right; (vii) the right to the freedom of thought, conscience and religion; (viii) the right to the freedom of opinion and expression; (ix) the right to the freedom of assembly and association; (x) the petition right; e) economic, social and cultural rights, particularly: : (i) the right to labour, to freely choosing an occupation, to fair and appropriate labour conditions, to protection against unemployment, to equal pay for equal work and to a fair and satisfactory income; (ii) the right to set up and join trade unions; (iii) the right to housing; (iv) the right to health, medical care, social security and social services; (v) the right to education and professional training; (vi) the right to take part, under conditions of equality in cultural and sportive events; f) The right to access to all the places and services intended for public use. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 10 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” C. INDIRECT DISCRIMINATION IN THE RACIAL DIRECTIVE 11. According to art. 2 par. 2 lett. b of the racial Directive: (a) Indirect discrimination shall be taken to occur when an apparently neutral provision, criterion or practice would put persons of a racial or ethnic origin at a particular disadvantage compared with other persons, unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary. D. INDIRECT DISCRIMINATION IN NATIONAL LAW 12. The concept of indirect discrimination was established in anti-discrimination legislation through Government Ordinance no. 77 of 28 August 2003 amending and supplementing G.O. no. 137/2000, published in the Official Gazette no. 619 of 30 August 2003 and is regulated in art. 2 par. 3. 13. According to art. 2 par. 3 of G.O. no. 137/2000, republished: According to this ordinance, the apparently neutral provisions, criteria or practices that put at disadvantage certain persons in relation to others, based on the criteria referred to in par. (1) shall be deemed to be discriminatory, except when such provisions, criteria or practices are objectively just