Vezi raport EN

refugee or asylum seekers status or on any other criterion that creates an intimidating, hostile, degrading or offensive environment constitutes harassment and shall be contraventionally punished. 4. THE INSTRUCTION TO DISCRIMINATE IN THE FRAMEWORK DIRECTIVE 4.1. According to art. 2 par. 4 of the framework Directive: l (4). An instruction to discriminate against persons on any of the grounds referred to in Article 1 shall be deemed to be discrimination within the meaning of paragraph 1. 4.1. THE INSTRUCTION TO DISCRIMINATE IN NATIONAL LAW 4.1.1. G.O. no. 137/2000 in its initial form, published in the Official Gazette no. 781 of 2 September 2000 stipulated in art. 2 par. 3: “The instructions, or as the case may be regulations of an individual or legal person which generate the effects set forth in par. (2) draw the contraventional liability of that individual or legal person, unless they fall under  „building trust in human rights” criminal law”. Art. 2 par. 3 of G.O. no. 137/2000 was repealed through Law no. 48 of 16 January 2002, approving G.O. no. 137/2000 on the prevention and sanctioning of all forms of discrimination, published in the Official Gazette no. 69 of 31 January 2002. 4.1.2. The concept of order/instruction to discriminate was introduced through Law no. 27 of 5 March 2004 approving G.O. no. 77/2003 amending and supplementing G.O. no. 137/2000, published in the Official Gazette no. 216 of 11 March 2004. 13 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA According to art. 2 par. 2 of G.O. no. 137/2000, republished: l (2) For the purpose of this ordinance, the order to discriminate against persons based on any of the grounds stipulated in par. (1) shall be regarded as discrimination. III. The scope of the framework Directive (ARTICLE 3) and national transposition law 1. SCOPE OF THE FRAMEWORK DIRECTIVE l 3.1.1. According to art. 3, Directive 2000/78/EC „shall apply to all persons, as regards both the public and private sector, including public bodies, in relation to: (a) conditions for access to employment, to self-employment or to occupation, including selection criteria and recruitment conditions, whatever the branch of activity and at all levels of the professional hierarchy, including promotion; (b) access to all types and to all levels of vocational guidance, vocational training, advanced vocational training and retraining, including practical work experience; (c) employment and working conditions, including dismissals and pay; (d) membership of, and involvement in, an organisation of workers or employers, or any organisation whose members carry on a particular profession, including the benefits provided for by such organisations. 2. THE SCOPE OF THE NATIONAL TRANSPOSITION LAW (GENERAL PART) 3.2.1. According to art. 3 of Chapter I (Principles and definitions) of G.O. no. 137/2000 l republished, „The provisions of this ordinance shall apply to all persons, individuals or public or private legal persons, as well as to all public bodies having prerogatives regarding: a) employment conditions, recruitment, selection and promotion criteria and conditions, access to all forms and levels of vocational orientation, training and advanced vocational training; b) social security and protection; c) public services or other services, access to goods and facilities; d) the educational system; e) securing the freedom of movement; f) securing public order; g) other fields of social life”.  „protecţie efectivă a drepturilor omului” 3. THE SCOPE OF THE NATIONAL TRANSPOSITION LAW (SPECIAL PART) 3.3.1. Chapter II (Special provisions) of Ordinance no. 137/2000 republished is structured in 5 sections which refer to Equality in the economic activity and employment, access to goods and services, access to education, freedom of movement and the right to personal dignity. l 3.3.2. Section I, „Equality in the economic activity, in employment and profession” regulates aspects regarding: a. the participation of a person to an economic activity or his/her free choice or exercise of a profession; b. the conclusion, suspension, modification or termination of the labour relations; c. settlement and modification of the work competences, place of work or wage; d. granting of other social rights than the wage; e. training, advanced training, reconversion and promotion; 14 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII f. enforcement of disciplinary measures; g. the right to join a trade union and of access to its facilities; h. any other labour provision conditions, under legislation in force; i. refusal of an individual or legal person to get employed; j. making the occupation of a position through advertisement or contest, launched by the employer or its representative conditional; l k. social entitlements granted. 3.3.3. Section II, Access to legal and administrative public services, to health and other services, goods and facilities” regulates aspects regarding: a. refusal to provide public administrative and legal services; b. denying the access of a person or of a group of persons to public health services – choosing the family doctor, medical assistance, health insurance, emergency or other health services; c. refusal to sell or rent a plot of land or residence with dwelling purposes; d. refusal to grant a bank credit or to conclude any other type of contract; e. denying the access of a person or of a group of persons to services offered by theatres, cinemas, libraries, museums and exhibitions; f. denying the access of a person or a group of persons to the services offered by shops, hotels, restaurants, pubs, discotheques, irrespective if they are under private or public ownership; g. denying the access of a person or a group of persons to services offered by public transportation companies – by plane, ship, train, metro, bus, trolley, tram, taxi or by other means; h. refusal to grant to a person or a group of persons certain rights or facilities. 3.3.4. Section III, “Access to education” regulates aspects regarding: l a. denying the access of a person or a group of persons to the state or private educational system; b. any restrictions in the process of establishment and certification of educational institutions under legislation in force. 3.3.5. Section IV, „Freedom of movement, the right to freely choose a residence and access to public places” regulates aspects regarding:  l „building trust in human rights” a. behaviors aiming to persuade a person to leave his/her residence, to displace or burden living conditions of a person or a group of persons belonging to a certain race, nationality, ethnic group or religion or a community in view of urging them to yield their traditional residence, without their agreement. b. behaviours aiming to displace or expel a person or a group of persons from a neighborhood or residence because of their affiliation with a certain religion, or due to their convictions, age, gender or sexual orientation. 15 RAPORT PRIVIND IMPLEMENTAREA DIRECTIVEI CADRU (2000/78/CE) ÎN ROMÂNIA c. prohibiting the access of a person or a group of persons to public places. 3.3.6. Section V, „Right to personal dignity” regulates aspects regarding: l a. behaviours exhibited in public, having a nationalist-chauvinist nature, of incitement to general or national hatred or that behaviour which pursues or aims to offend dignity or to generate an intimidating, hostile, degrading, humiliating or offensive environment directed against a person, a group of persons or a community. l IV. Specific occupational requirements in the framework Directive (ARTICLE 4) and national transposition law 1. SPECIFIC OCCUPATIONAL REQUIREMENTS IN THE FRAMEWORK DIRECTIVE 4.1.1. Article 4 of the framework Directive regulates the concept of „Occupational requirements”. According to art. 4 of the framework Directive: 1. Notwithstanding Article 2(1) and (2), Member States may provide that a difference of treatment which is based on a characteristic related to any of the grounds referred to in Article 1 shall not constitute discrimination where, by reason of the nature of the particular occupational activities concerned or of the context in which they are carried out, such a characteristic constitutes a genuine and determining occupational requirement, provided that the objective is legitimate and the requirement is proportionate. 2. Member States may maintain in their national legislation in force at the date of adoption of this Directive or provide for future legislation incorporating national practices existing at the date of adoption of this Directive pursuant to which, in the case of occupational activities within churches and other public or private organisations the ethos of which is based on religion or belief, a difference of treatment based on a person’s religion or belief shall not constitute discrimination where, by reason of the nature of these activities or of the context in which they are carried out, a person’s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation’s ethos. This difference of treatment shall be implemented taking account of Member States’ constitutional provisions and principles, as well as the general principles of Community law, and should not justify discrimination on another ground. Provided that its provisions are otherwise complied with, this Directive shall thus not prejudice the right of churches and other public or private organisations, the ethos of which is based on religion or belief, acting in conformity with national constitutions and laws, to require individuals working for them to act in good faith and with loyalty to the organisation’s ethos.  „protecţie efectivă a drepturilor omului” 2. SPECIFIC OCCUPATIONAL REQUIREMENTS IN NATIONAL LAW 4.2.1. Section I of Chapter II of G.O. no. 137/2000 republished regulates the field of equality in the economic activity in the field of employment and profession. The content of articles 5-8 of G.O. 137/2000 regulates contraventions regarding making the participation to an economic activity or the choice or exercise of a profession conditional; discrimination regarding labour relations, salary entitlements and other rights, work competences, vocational training, disciplinary measures, joining a trade union; refusal to employ and employment announcements; social entitlements (for details see the Annex of Ordinance no. 137/2000, republished). 4.2.2. In this context, art. 9 of G.O. no. 137/2000 republished stipulates: 4.2.2. În acest context, Art. 9 din O.G. nr. 137/2000 republicată stipulează că: l The provisions of art. 5-8 cannot be construed to restrict the right of an employer to 16 CONSILIUL NAŢIONAL PENTRU COMBATEREA DISCRIMINĂRII refuse employing a person that does not fit the relevant occupational requirements, as long as the refusal is not a discrimination deed in the meaning of this ordinance and such measures are objectively justified by a legitimate aim and the methods of attaining it are appropriate and necessary. 3. NATIONAL LAW REGARDING RELIGIOUS FREEDOM 4.3.1. The Romanian legislator adopted Law no. 489 of 28 December 2006 regarding religious freedom and the general regime of cults, published in the Official Gazette no. 11 of 8 January 2007. Art. 23 par. 1 of Law no. 489/2006 regulates the employment of personnel of religious cults, as recognized according to the law. 4.3.2. According to art. 8 par. 1 and par. 3 of Law no. 489/2006 „The recognized cults are legal persons of public interest. They are organized and operate pursuant to constitutional provisions and this law, autonomously, according to their own statutes and canonical codes. The cults operate by observing legal provisions and according to their own statutes or canonical codes, which are relevant for their own believer