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„protecţie efectivă a drepturilor omului”

the content of this term, we must refer to the provisions of art. 28 par. 1 and par. 2 of G.O. no. 137/2000, republished, in which the legislator refers to the capacity to stand the proceedings of non-governmental organizations aiming to protect human rights or that have a legitimate interest in combating discrimination. It thus results that in the field of non- discrimination, the capacity to stand the proceedings belongs firstly to the person who deems himself/herself discriminated and secondly, equally to non-governmental organizations, under the conditions stipulated by the legislator. 255. This meaning is fully rendered in the Internal procedure of settling complaints before NCCD which defines the concerned person in art. 8: „either the person who deems himself/herself to be discriminated and notifies the Council regarding the perpetration of a discrimination deed against him/her, or one of the persons stipulated in art. 8 par. (1) and (2) (non-governmental organizations) or other persons that have a legitimate interest in combating discrimination and is a person, a group of persons or a community against whom a discrimination deed was perpetrated”. 256. Art. 8 of the procedure indicates the intention to comprise several categories of persons that may appeal to NCCD, but under certain conditions. Firstly, the person who deems himself/herself discriminated (art. 20 par. 1 of G.O. no. 137/2000), non-

governmental organizations (art. 28 par. 1 and par. 2 of G.O. no. 137/2000) as well as other persons that have a legitimate interest and is a person against whom a discrimination deed was perpetrated. As such, the procedure establishes the possibility of a third category of persons to notify NCCD. These are other persons than the non-governmental organizations but that have a legitimate interest in combating discrimination, persons that represent an individual who was discriminated or a community of discriminated persons. In its case-law, this last category was represented by trade-unions, trade union confederations which applied to the Council on behalf of their members. Equally, in this last category were included the relatives of some persons who were discriminated and who applied to the Council on behalf of that family member (Excerpt of Decision no. 76 of 02.06.2010 33).

VI. ARTICLE 8 OF DIRECTIVE 2000/43/EC

Transposition of the principle of reversal of the burden of proof. Interpretation of concept. Reference points from the case-law of the European Court of Justice.

257.       In relation to the content of art. 20 par. 6 of G.O. no. 137/2000, republished, the Steering Committee sets down the
principle that derives from the provisions of art. 20 par. 6, in discrimination cases, as an exception from the ordinary law provisions
„onus probandi incubit actori”, according to which the burden of proof belongs to the one that makes a proposal (statement) before
trial. In the field of ordinary law, we set down that also the defendant is obliged to prove what he states, in a context in which he
comes out of passivity and defends himself proving the baselessness of the petitioner's claims, the principle „probatio incumbit ei
qui dicit, non ei qui negat” becoming evocative, the burden of proof thus being divided between the defendant and the petitioner
(see in this regard Theoretical and Practical Treaty of Civil Procedure, Volume II, Prof. Univ. Dr. Viorel Mihai Ciobanu, National
Publishing House, page. 155). It has to be mentioned that the principle of the reversal of the burden of proof, as assumed by the
Romanian legislator and transposed in art. 20 par. 6, does not impose sui generis the exclusive obligation on the defendant to prove a
negative deed, in the meaning that this is not discrimination, totally reversing the proof as a task of the defendant.
258. The Steering Committee sets down that the phrase „reversal of the burden of proof” does not accurately reflect its
matter, since the defined procedure is much more nuanced than what the text of the phrase suggests. What the principle

implies in fact is a sharing of the burden of proof and a transfer to the defendant of those elements that concern him,
regarding deeds in the case. It cannot be thus interpreted that there is an absolute exception of the reversal of the burden of
proof from the procedural rules according to the principle „onus probani incubit actori” as long as the procedural rule
established in art. 10 par. 6 itself determines the obligations of the parties as regards substantiation, sharing the burden of
proof between the petitioner and the defendant. Thus, „the concerned person has the obligation to prove the existence of
deeds allowing to assume the existence of direct or indirect discrimination and the person against whom the notification
was filed has the task to prove that the deeds are not discrimination”.
259.       According to this principle, the concerned person, in our case the petitioner must indicate sufficient elements which
allow presuming the existence of discrimination. These elements can be considered means of evidence to support the existence
of a different treatment (exclusion, restriction, preference, distinction) applied to the petitioner directly or indirectly, but it must
be specified that with reference to the provisions of art. 20 par 6 the obligation imposed on the petitioner is to "prove the

33 Committee Decision no. 76 of 02.06.2010, reasoning drawn-up by NCCD Steering Committee member Dezideriu Gergely

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