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„protecţie efectivă a drepturilor omului”

VII. ARTICLE 9 OF DIRECTIVE 2000/43/CE

Transposition of the concept of victimization as a form of discrimination. Interpretation of concept. Exercise of the right to file actions in courts

263. In the system of the Romanian Constitution, justice is one of the guarantees of the effective exercise of citizenship rights
and freedoms. This role is justified through the place of judicial authorities in the system of state powers and their functions.
The principle of free access to justice applies irrespective of the position of the protected person and it allows access to justice to
defend any right or any freedom and legitimate interest, irrespective if they result from the Constitution or other laws. Also, no
law can limit the exercise of this right (see Ioan Muraru, Elena Simina Tanasescu, Constitutional law and political institutions, Vol.
I, Edition IX, All Beck Publishing House). The Constitutional Court of Romania settled that free access to justice also supposes
access to the procedural means by which justice is done. (See Decision no. 204/2000, Off. Gaz. nr.46/2001, CDH 2001, p.146). In
the considerations of the same decision, was set down that the significance of art. 21 par. (2) of the Constitution, according to
which access to justice cannot be limited by law is that no category or social group can get excluded from the exercise of
procedural rights it settled (see Decision no. 204/2000, Off. Gazz. no. 46/2001, CDH 2001, page 146).
264.      In conjunction with the issues that are the object of the notification, as formulated, the Steering Committee refers
to the provisions of art. 2 par. 7 of G.O. no. 137/2000, subsequently amended and supplemented, republished. According to

art. 2 par. 7: „According to this ordinance, any adverse treatment as a reaction to a complaint or to any legal proceedings in relation to the infringement of the equal treatment or of the non-discrimination principle constitutes victimization and shall be contraventionally punished”. 265. Victimization is a form of discrimination, introduced by the Romanian legislator in the process of transposition of 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 the 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. 266. In this regard, we set down that in the area of non-discrimination legislation, as the acquis communautaire is transposed, in order to have a victimization deed, the constitutive elements of it must be met. Thus, the victimization deed is carried out through an adverse treatment which may take different forms. The text formulation comprises the phrase „adverse treatment” applied to a person, but the text of art. 2 par. 7 does not define the adverse treatment expresis verbis. The phrase "any treatment” designates

the legislator's intention to include a large area of behaviours and not a restrictive one, which allows setting down different
descriptions in practice and which may vary from case to case, however restrained to the adverse or contrary treatment. In this
regard, several factors must be taken into account, together or separately: the context in which the charged facts took place, the
duration of the „treatment” applied, its effects and consequences over the person that suffered them, etc.
267.      The motive or grounds of the adverse treatment is caused by filing a complaint, a notification or a court action. Thus, the
act that causes the perpetration of the victimization deed is the initiation of an administrative or judicial procedure, by filing a
complaint, namely a court action, which assumes the existence of a causality link, in the absence of which victimization cannot be
set down. With reference to the provisions of art. 2 par. 7 of G.O. no. 137/2000 republished, we set down that the adverse
treatment comes as a reaction to a complaint or court action regarding the breaching of the principle of equal treatment and non-
discrimination. The initiation of the administrative or judicial procedure by filing a complaint and court action respectively is subject
to raising the principle of equal treatment and of non-discrimination. This constitutive element of victimization implies that the
complaint or court action that caused the adverse treatment should have had as object the breaching of the equality principle and of

non-discrimination. The absence of raising the equality principle and of non-discrimination causes impossibility to set down the victimization deed. The display of the contrary or adverse behaviour against the initiating party, which could be carried out either through one subsequent action or several simultaneous actions against him is caused, as far as victimization is concerned by the preliminary raising, within administrative or judicial procedures of the previous breach of the principle of equality and non- discrimination. (Excerpt from Decision no. 436 of 28.11.2007, NCCD36).

36 Committee Decision no. 436 of 28.11.2007, reasoning drawn-up by NCCD Steering Committee member, Dezideriu Gergely

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