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- - 39 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA Instruction to discriminate - - - - Multiple discrimination - - - - Harassment 1 1 - 2 Victimisation - - - Active or passive behaviour which puts at disadvantage 4 7 2 5 VI. Sanctions applied in discrimination cases ascertained by NCCD The National Council for Combating Discrimination did not adopt decisions ascertaining and sanctioning discrimination cases during 2002. NCCD became operational in August 2002. The sanctions applied by NCCD fall under the contraventional domain, including warning and fine. Considering NCCD’s role, the Committee also adopted recommendations. In some cases, due to the elapsing of the limitation period or to other objective causes, no contraventional sanctions were applied. Fig. 15 Sanctions applied in discrimination cases on grounds under Directive 2000/78/EC EMPLOYMENT 2002 2003 2004 2005 2006 2007 2008 2009 2010 RELATIONSHIPS Fine - 2 - 3 1 4 - 1 - Warning - 8 6 12 2 6 7 4 - Recommendation - - 2 6 3 3 3 3 3 Only ascertainment - 3 1 1 - - - 1 - Total Fig. 16 Sanctions applied in discrimination cases based on the criteria of Directive 2000/78/EC (not under the Directive) GOODS AND 2002 2003 2004 2005 2006 2007 2008 2009 2010 SERVICES Fine - - - 3 - - 1 3 1 Warning - 1 1 3 3 3 2 3 4 Recommendation - - - 3 2 4 8 3 5 Only ascertainment - - - 0 - 1 - - - Total 40 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII „protecţie efectivă a drepturilor omului”  „building trust in human rights” CHAPTER III CASE-LAW ASCERTAINING DISCRIMINATION ON GROUNDS UNDER DIRECTIVE 2000/78/EC 41 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA I. Case-law ascertaining discrimination under the scope of the national transposition law of Directive 2000/78/EC Directive 2000/78/EC has the objective of establishing a general framework for combating discrimination on grounds of religious affiliation or convictions, disability, age or sexual orientation with regard to employment and occupation in order to implement the principle of equality of treatment in member states27. National law in the field of non-discrimination concerns conditions of employment, criteria and requirements of employment, selection and promotion, access to all forms and levels of guidance, training and professional re-training and prohibits discrimination based on religion, convictions, sexual orientation, age, disability.28 1. Discrimination in the field of labour on grounds of RELIGION or CONVICTIONS (2003) Employment relationships. Protest action. Adverse treatment. Measures against the employee. Convictions. F.G. complained against company S.N.C. regarding the treatment undergone as a result of his participation to a protest action against the economic measures taken by the company. The respondent took against the petitioner measures of demotion, salary decrease, transfer to another workplace and disciplinary measures. Through decision no. 76 of 11.03.2003, the Committee set down that the notification takes the form required by G.O. no. 137/2000 in order to be qualified as a discriminatory deed, ascertaining the infringement of provisions of art. 6 lett. a and b of G.O. no. 137/2000. Since from the date of deed perpetration over 6 months elapsed, the term for applying the sanction was lost by limitation. (art. 2 par. 1, art. 6 lett. a and b of G.O. no. 137/2000). (2004) Labour relationships. Promotion. Apparently neutral criterion. Differentiated treatment. Political convictions. Mr. B.C.D. complained about the fact that within the company he works for he was treated differently with regard to access to employment and promotion, because of his political beliefs manifested through the participation in local elections. Despite the professional qualifications held and expertise certified he was not promoted, unlike other employees. Through decision no. 149 of 21.05.2004, the Committee found that the notified deeds are indirect discrimination, according to art. 2 par. 3 of G.O. no. 137/2000. amended through G.O. no. 77/2003 and art. 6 lett. d of G.O. no. 137/2000. The contraventional sanction of warning (art. 2 par. 3, art. 6 of G.O. no. 137/2000, subsequently amended and supplemented) was applied against the respondent. (2004) Competition for admission to the profession. Organization. Considering the elements of religious freedom. Ms. R.C. applied to NCCD regarding the impossibility of persons 27 Art. 1 of Directive 2000/78/EC 28 Art. 2 par. 1 and art. 3 of G.O. no. 137/2000, republished  „protecţie efectivă a drepturilor omului” belonging to the Seventh Day Adventist cult of being present to the exam for admission to magistracy, organized on Saturdays. According to the doctrine of the said cult, the days of Saturday are dedicated exclusively to religious worship. The petitioner asked NCCD to take action to modify the days of organizing competitions in order to ensure the exercise of the religion right. Through decision no. 307 of 05.10.2004, the Committee ascertained that NCCD addressed to the Ministry of Justice, which will consider the issues presented by the petitioner within future negotiations for organization of competitions of admission to magistracy. (2005) Employment relationship. Disciplinary inquiry. Defamation. Religious freedom. The non-governmental organization Center of Legal Resources and religious organization „Jehovah’s Witnesses” complained about the treatment applied to Mr. D.V. pedagogue of the School of M. locality. The accusations against the petitioner expressed by the mayor were stated, i.e. that the pedagogues cannot carry out a religious propaganda in school and the pedagogical activity because of his religious affiliation. In the same regard, a complaint was filed at the School Inspectorate. The members of the inquiry commission made it clear to him that he must choose 42 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII between the teacher activity and religion. The petitioner was warned that in case there will be complaints regarding his behaviour outside school, he will be eliminated from the education system. Through decision no. 81 of 26.04.2005, the Committee set down that the accusations expressed by the Mayor were a breach of the provisions of art. 19 of G.O, no. 137/2000 on the right to personal dignity. With regard to the members of the inquiry commission, was set down the breach of the right to private life, freedom of conscience and expression and with regard to the note communicated by the Inspectorate was set down the breach of art. 2 par. 3 of G.O. no. 137/2000. The contraventional sanctioning of warning was applied against the respondents. Also, was applied the sanctioning with contraventional fine amounting to 6.000.000 lei regarding the publishing of discriminatory articles, by which is generated a hostile and offensive environment against the religious minority and the Roma minority (art. 2 par. 1, par. 3, art. 5 and art. 19 of G.O. no. 137/2000, subsequently amended and supplemented). (2005) Ensuring religious assistance. Military priests. Protocol. Penitentiaries. Association APADOR-CH complained about the discriminatory provisions of the law regarding the employment of the military clergy and of the protocol concluded between the Ministry of Justice and Orthodox Romanian Church regarding the provision of religious assistance in penitentiaries. Through decision no. 202 of 02.08.2005, the Committee set down that if religious assistance by the cults recognized by the law is regulated, this must be ensured under equality conditions to persons which are part of various cults or recognized religious organizations. The former European Commission of Human Rights in the case X.c. Great Britain settled that within the limits posed by the status of prisoner, the penitentiary authorities are obliged to ensure the necessary facilities for the exercise of religious obligations, including the right to enter into contact with a missionary of the practicing cult. As a consequence, a protocol concluded with a cult may cover at most the issues of religious assistance for the prisoners belonging to that cult and not the religious assistance of all confessions, since there is a discrimination in relation to those cults. The Committee found that the notified aspects constitute direct discrimination under art. 2 par. 1 and par. 3 and it decided to issue a recommendation to eliminate the discriminatory provisions in the given protocol and Law no. 195/2000 (art. 2 par. 1 and 3, art. 19 of G.O. no. 137/2000, subsequently amended and supplemented). (2005) Professional promotion competition. Magistracy. Organization. Consideration of elements of religious freedom. Ms. judge V.M. enrolled in a promotion competition and afterwards she found that the exam was established on a day of Saturday. Given that she is a member of the Seventh Day Adventist Cult, she addressed a request to the Superior Council of Magistracy to re-schedule the written test for another day, because, according to her religion, Saturday is a day of rest and religious worship. The request was denied. Through decision no. 350  „building trust in human rights” of 19.12.2005, the Committee set down that the freedom of religion includes a wide range of acts and according to ECHR case-law, the practices and rituals concern a religious behaviour exhibited through participation in offices or processions and the acts which are part of practicing a religion or a faith in a generally recognized form are protected by the European Convention. In this regard, respect for the Sabbath is part of the religious practice to which the petitioner belongs. The Committee ascertained that it cannot be retained as reasonable the impossibility of programming the exam on Sundays on grounds of distance run by the petitioners and their impossibility of 43 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA appearing in court on Monday, the fact that through the individual participation of the petitioner the secrecy of work would not be ensured, etc. The Committee found that the notified deeds fall under art. 2 of G.O. no. 137/2000, being a differentiated treatment from the perspective of the non-discrimination principle. Also, it was recommended to SCM to take into account the principle of non-discrimination and of the freedom of thought, conscience and religion when organizing promotion exams. (art. 2 of G.O. no. 137/2000, subsequently amended and supplemented). (2005) Employment relationships. Demotion. Convictions. Mr. I.P. complained about the fact that he was put in reserve following his participation to an unauthorized demonstration organized by the Movement for Spiritual Integration in Absolute. Outside the professional activity, the petitioner attended various yoga courses. Following his participation to a demonstration organized by MSIA, he was contraventionally sanctioned for public nuisance. The sanctioning minutes was cancelled by the court. However, the petitioner was sent before the Council of Justice and he was put in reserve because of his participation to the said demonstration. The Committee set down that although against the petitioner were stated legal provisions related to political, trade unions or religious activities, the MSIA association has no political, trade union or religious nature, does not contravene military order and discipline or public order, being charged to the petitioner the membership of the said association. Through decision no. 365 of 18.11.2005, the Committee set down that the petitioner’s putting in reserve resulted in restricting the labour right recognized by the law, due to his affiliation to the MSIA association. In this case, the termination of labour relationships was due to the petitioner’s convictions, regarding his affiliation. The Committee ascertained that the notified deeds are direct discrimination according to art 2 par. 1 and par. 3, art. 6 lett. a of G.O. no. 137/2000 subsequently amended and supplemented. The respondent was contraventionally sanctioned by warning (art. 2 par. 1 and par. 3, art. 6 lett. a of G.O. no. 137/2000, subsequently amended and supplemented). (2006) Employment relationships. Termination of labour agreement. Political convictions. Mr. P.I. complained about the fact that the employer terminated his labour agreement because of his political convictions. In fact, the documents submitted proved that the petitioner was discharged on grounds of withdrawal of his political support by a political group. Through decision no. 318 of 23.11.2006, the Committee set down that the measure taken against the petitioner violated his right to labour, being directly related to elements regarding political convictions. The Committee found that the notified deeds are