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„protecţie efectivă a drepturilor omului”

representation or in the field of education (...).
237.     Not lastly, it must not be ignored that a positive measure or positive action is by its nature „temporary”. According to
the UN Committee for Human Rights "the principle of equality sometimes requires that the State Parties adopt affirmative
measures in order to lessen or eliminate conditions that determine or facilitate the perpetuation of discrimination
prohibited by the Pact (...). as long as such actions are necessary to correct discrimination, actually being a differentiation
situation legitimized by the Pact” (General Comment no. 18 of the Committee for Human Rights on the right to non-
discrimination, art. 26 of the International Pact regarding civil and political rights). The International Convention on the
elimination of all forms of racial discrimination, ratified by Romania stipulates that "The special measures adopted with a
view to ensuring the proper development of certain racial or ethnic group of individuals that require such a protection, in
order to ensure full exercise of human rights and fundamental freedoms are not considered racial discrimination, providing
that such measures should not consequently lead to maintaining separate rights for various racial groups and these shall not
be continued after reaching the objectives for which they were adopted (art. 1 par. 4 of the Convention). Also, the

Framework-Convention for the protection of national minorities ratified by Romania establishes in article 4 the obligation of state parties to adopt "proper measures" to promote full and effective equality in all spheres of economic, social, political and cultural life and it declares that the measures such adopted shall not be considered discrimination deeds. The Explanatory Report to the Framework Convention emphasizes that the promotion of full and effective equality between persons belonging to a national minority and persons belonging to the majority could require that signatory states adopt special measures that take into account the specific conditions of those persons. Such measures should be „proper”, therefore in accordance with the proportionality principle, in order to avoid breaching the rights of some and discriminating others. This principle requires, among others, that such measures should not be extended, in terms of duration or purpose beyond what is necessary to reach the objective of full and effective equality. Their purpose if to ensure that persons belonging to national minorities enjoy full and effective equality with the persons belonging to the majority (see the Explanatory Report to the Framework-Convention for the protection of national minorities, art. 4, par. 2) (Excerpt from Decision no. 578 of 27.08.2008, Dissenting opinion 29).

                                                               B. Affirmative measures. Special places for Roma.
                                                                 Regulation of education for national minorities.
                                                                                Principle of substantial equality.
238. The Steering Committee ascertains that in Romania enrollment of pupils belonging to the Roma ethnic group, as
well as the study of Romani maternal language is conducted both in the context of general legislation of Romanian education
and specialized legislation regarding education for national minorities. In the Committee's opinion, the specialized
regulation of education for national minorities, in this context for persons belonging to the Roma ethnic group is based on
the principle of substantial equality, which refers to categories of persons in different situations for which there must be a
different treatment. This decision is also held by the European Court of Human Rights, as well as the European Court of
Justice which underline that the equality principle excludes the different treatment of comparable situations and the similar
treatment of different situations, except when the treatment is objectively justified.
239.      The Steering Committee considers that the substantial equality falls under the notion of equality of results and

equality of opportunities, the first assuming that the result of the given treatment should be equal and the second that the
law shall provide that all persons benefit of the same opportunities, given that people have different starting positions, thus
providing equal chances but not equal results. Thus, the equality of results recognizes that the identical treatment may
apparently lead to an inequality in practice due to past or continuous discriminations or differences in the access to
resources, which presumes that within this notion the effects, as well as purpose of a measure should prevail with regard to
result which must be equal for persons who are the object of the given measure and which are in different situations.
240.      In this regard, the measures adopted by the Romanian legislator and particularly by the Ministry of Education and
Research regarding Roma pupils aimed to ensure an equality of opportunities, carried out by implementing some
affirmative measures. These affirmative measures, by their nature pursued the progressive equalization of the situation of
Roma children, in terms of their equality of opportunities in education, to reach their positioning in a similar or analogous
situation with the pupils and children in the educational system. To facilitate the implementation of these measures, the

29 NCCD Decision no. 578 of 27.08.2008, dissenting opinion of the NCCD Steering Committee member, Dezideriu Gergely

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