Vezi raport EN

in the General Policy Recommendation no. 2 of ECRI (Chapter 5, Principle 5, point 4) and the UN Assembly Resolution no. 48/134 from 1993 (see in this regard the Resolution to Annex 10, Chapter Composition and guarantees of independence and pluralism, par. 1, first statement and par. 3). 71. The Council has the freedom to hire its own staff, to manage its own resources and its funds are approved by Parliament according to Recommendation no. 2 of ECRI (Chapter 5, Principle 5, point 1, point 2) and UN General Assembly Resolution no. 48/134 of 1993 (see in this regard the Resolution to Annex 10, Chapter Composition and guarantees of independence and pluralism, par. 2, second statement). 72. The Council prepares annual activity reports, independent which are submitted to debate and approval from the Parliament (art. 22 par. 2 of Law no. 324/2006) in accordance with ECRI Recommendation no. 2 (Chapter 5, Principle 5, point 3) and Council Directive no. 43/2000 (art. 13, par. 2, final statement), UN General Assembly Resolution no. 48/134 of 1993 (see in this regard the Resolution to Annex 10, Chapter Prerogatives and responsibilities, point 3, lett. a). 73. The Council offers specialized assistance to the victims of discrimination (art. 19 par. 1 lett. e) in accordance with ECRI Recommendation no. 7 (Chapter 5, point 24) and Council Directive no. 43/2000 (art. 13, par. 2, first statement). 74. The Council investigates, ascertains and monitors discrimination deeds (art. 19 par. 1, lett. c, lett. d of Law no. 16 See art. 18 par. 1 of Law no. 324/2006. . 17 See art. 18 par. 2 of Law no. 324/2006 18 See art. 17 of Law no. 324/2006. 19 See art. 19 par. 1 of Law no. 324/2006. 20 See COMMUNICATION FROM THE COMMISSION, Monitoring report on the state of preparedness for EU membership of Bulgaria and Romania, Brussels, 26/09/2006, COM (2006), 2. OTHER ISSUES WHICH NEEDED FURTHER PROGRESS IN MAY 2006; 2.1 Political criteria, Protection and integration of minorities; pag. 40: “…The law on preventing and sanctioning all forms of discrimination has been amended to meet EU standards related to the independence of the National Council for Combating Discrimination”. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 23 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” 324/2006) in accordance with Council Directive no. 43/2000 (art. 13, par. 2, second statement), ECRI Recommendation no. 7 (Chapter 5, point 24), UN General Assembly Resolution no. 48/134 of 1993 (see in this regard the Resolution to Annex 10, Chapter Principles regarding the status of commissions with quasi-jurisdictional prerogatives). 75. The Council develops and implements public policies and is responsible for the harmonization of provisions of laws or administrative acts in the field of non-discrimination (art. 18 par. 1 and par. 2 of Law no. 324/2006), in accordance with Council Directive no. 43/2000 (art. 13, par. 2, final statement) and ECRI Recommendation no. 7 (Chapter 5, point 24), UN General Assembly Resolution no. 48/134 of 1993 (see in this regard Resolution to Annex 10, Chapter Prerogatives and responsibilities, point 3, lett. a and lett. b). 76. The transposition of the provisions of the Directive of the European Council no. 43/2000 and 78/2000 by the adoption of Law no. 324/2006 ensure the alignment of legislation in the non-discrimination field in Romania to the acquis communautaire in the field of non-discrimination. 77. Thus, as provided in art. 6 par. 1 and par. 2 of Council Directive no. 43/2000, it must be taken into account that Romania has introduced more favourable provisions in order to ensure the protection of the principle of equal treatment than the provisions stipulated in the Directive, as regards the specialized body to combat discrimination, so that, under no circumstance, the implementation of the Directive, by amending the non-discrimination legislation should not constitute a reason to diminish the protection against discrimination already in place in Romania. XII. Sanctions in the racial Directive (ARTICLE 15) and national transposition law A. „SANCTIONS” IN THE RACIAL DIRECTIVE 78. According to art. 15 of the racial Directive: Member States shall lay down the rules on sanctions applicable to infringements of the national provisions adopted pursuant to this Directive and shall take all measures necessary to ensure that they are applied. The sanctions, which may comprise the payment of compensation to the victim, must be effective, proportionate and dissuasive. The Member States shall notify those provisions to the Commission by 19 July 2003 at the latest and shall notify it without delay of any subsequent amendment affecting them. B. SANCTIONS PROVIDED IN NATIONAL LEGISLATION 79. According to art. 26 of G.O. no. 137/2000, republished, the perpetration of contraventions laid down in this law draws, as appropriate, sanctioning by warning or by fine from 400 lei to 4.000 lei when perpetrated against an individual and by fine from 600 lei to 8.000 lei when perpetrated against a group of persons or a community. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 24 „building trust in human rights” www.cncd.org.ro  PART II NCCD'S CASE LAW UNDER THE LAW OF NATIONAL TRANSPOSITION OF DIRECTIVE 2000/43/EC  „protecţie efectivă a drepturilor omului” I. Complaints filed to NCCD under the national anti-discrimination law 80. The number of complaints filed to NCCD since its establishment (August 2002) until the reporting date is 4260. This number includes complains filed under all discrimination criteria prohibited by national law. Figure 1 Complaints filed to NCCD 2002 2003 2004 2005 2006 2007 2008 2009 2010[21] Criterion Non-contagious chronic disease 0 0 6 2 3 2 4 2 0 Sexual orientation 1 5 6 9 6 7 6 6 3 HIV/Aids infection 0 1 15 10 5 3 7 1 2 Language 0 2 1 2 2 7 11 13 8 Convictions 4 12 23 19 8 10 14 13 3 Religion 2 9 9 11 8 12 15 6 3 Disadvantaged category 2 0 10 6 4 26 22 9 2 Age 6 11 14 17 10 10 24 10 8 Gender (Sex) 3 14 13 9 11 22 32 9 13 Nationality 1 12 21 39 20 39 54 28 28 Disability (Invalidity) 3 31 18 21 20 70 55 49 25 Ethnic origin 34 66 45 85 69 82 62 62 23 Others 52 184 108 61 132 32 159 96 42 Race 0 0 1 1 2 0 0 2 1 Social category 26 126 63 90 132 514 372 222 124 Total 134 473 353 382 432 836 837 528 285 As it results from the Table (Figure 1), the complaints filed to NCCD gradually increased annually, the maximum being reached in 2008. In 2009, there was a decrease of the number of complaints, to a great extent explained through the amendment of anti-discrimination legislation (G.O. no. 137/2000 republished), especially G.E.O. no. 75/2008 which defined NCCD's jurisdiction regarding the legislative measures in the field of wages of the personnel in the public sector, by which it was settled that NCCD has no jurisdiction to rule on discrimination which has its direct source in the content of norms. 81. The Constitutional Court has set down that: „ if it was admitted that by way of the jurisdictional control based on art. 20 par. (3) of Government Ordinance no. 137/2000, the National Council for Combating Discrimination could ascertain the existence of discriminatory situations which have their direct source in the content of norms, the Council's decisions would result in terminating the applicability of those provisions and even the application by analogy of other legal texts, which do not refer to the discriminated person or social group. In such a circumstance, it is questioned the legitimacy of this body to interfere with legislative bodies, by suppressing the applicability of certain laws and establishing that of others, but also with the jurisdiction of the Constitutional Court , which acts as a negative legislator when it finds the lack of compliance between the provisions of a law or ordinance and constitutional provisions, under art 16 regarding the principle of non- discrimination". 82. The decreased number of complaints filed to NCCD in 2009 is also reflected in the number of complaints on discrimination on grounds of social category and socio-professional category. If in 2007, from all 836 complaints, 515 21 Complaints filed to NCCD during 1 January 2010 – 1 August 2010 RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 27 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” concerned social categories and socio-professional categories, in 2008 the number of these complaints decreased to 372 and in 2009 to 222. Thus, there was a decrease of about 50% of complaints regarding discrimination on this criterion to 2007 and of about 40% to 2008. The explanation for this decrease, in NCCD's opinion is tightly related to the legislative amendment of NCCD's prerogatives, following the constitutionality control. (Decision no. 997/2008). II. Complaints filed to NCCD under discrimination forbidden by Directive 2000/43/EC 83. From all 4260 complaints filed to NCCD (2002-2010) about 823 complaints (app. 20%) concern discrimination on the criterion of racial or ethnic origin, under Directive 2000/43/EC. About 528 complaints concerned discrimination on the criterion of ethnic origin, 242 on the criterion of national origin22, 46 complaints on the criterion of national minorities language and about 7 complaints on the racial origin criterion. Figure 2 Complaints filed to NCCD under Directive 2000/43/EC 2002 2003 2004 2005 2006 2007 2008 2009 2010 Criterion Racial origin 0 0 1 1 2 0 0 2 1 Ethnical origin 34 66 45 85 69 82 62 62 23 National origin 1 12 21 39 20 39 54 28 28 Language of minorities 0 2 1 2 2 7 11 13 8 Total complaints 35 80 68 127 93 128 127 105 60 84. From the total number of complaints annually filed to NCCD, a significant percentage is held by complaints concerning discrimination on ethnic origin, percentage that holds in average 10-12% of cases. The complaints regarding discrimination based on national origin23, make up a percentage of 4-5%, slightly increased, followed by complaints regarding discrimination based on language of national minorities (towards 2%)24.The complaints regarding discrimination on the racial origin criterion are extremely low in number, reaching a maximum of 2 complaints per year, in some cases. Figure 3 Percentage of complaints filed to NCCD under Directive 2000/43/EC 2002 2003 2004 2005 2006 2007 2008 2009 2010 Criterion Racial origin 0% 0% 0,28% 0,26% 0,46% 0% 0% 0,37% 0,35% Ethnic origin 25,37% 13, 5% 12,74% 22,25% 15,97% 9,80% 7,40% 11,74% 8,07% National origin 0, 74% 2, 53% 5, 94% 10, 20% 4,62% 4,66% 6,45% 5,30% 9,82% Minorities’ language 0% 0,42% 0,28% 0,52% 0,46% 0,83% 1,31% 2,46% 2,80% Total 134 473 353 382 432 836 837 528 285 22 National origin should not be confused with citizenship in the statistical data processed and construed by NCCD. This regards situations in which persons who felt discriminated declared their affiliation to a minority, considering that they are discriminated based on this criterion. For example: Russian-Lipovans, Romanian, Turkish, Tatars, Hungarian, Csango, etc. 23 It shall not be confused with citizenship. See the previous footnote. 24 In general, cases which require knowing a certain language for filling a position, publishing of certain information of public interest in a certain language. RO - Piaţa Valter Mărăcineanu 1-3, sector 1, Bucureşti, Tel / fax 021-312.65.78/79/85 28 „building trust in human rights” www.cncd.org.ro  „protecţie efectivă a drepturilor omului” III. Solutions of admitting complaints under discrimination forbidden by Directive 2000/43/EC 85. In relation to the number of 823 complaints which concerned discrimination on the racial and ethnic origin criterion, under Directive 2000/43/EC, the National Council for Combating Discrimination ascertained discrimination in about 129 cases. In 103 cases it ascertained discrimination on the ethnical origin criterion, in 22 cases discrimination on the national origin criterion and in 2 cases on the ethnic and national origin criterion and in 2 cases on the racial origin criterion. Figure 4 NCCD’s complaints and ascertainments under Directive 2000/43/EC 2002 2003 2004 2005 2006 2007 2008 2009 2010 No. of complaints 35 80 68 127 93 128 127 105 60 No. of ascertainments - [25] 22 9 27 12 8 22 20 9 Percentage 27,5% 13,23% 21,25% 12,90% 6,25% 17,32% 19,04% 15% In relation to the number of complaints regarding racial or ethnic origin, on average, in 16.5% of the cases there was a violation of anti-discrimination law. 2010 9 60 2009 20 105 2008 22 127 2007 8 128 2006 12 93 2005 27 127 2004 9