Protection of Roma Rights at the Domestic Level European Roma Rights Centre

An Overview Background EU Directives The concept of direct and indirect discrimination, harassment, and instruction to discriminate The scope of the directive and the exceptions Remedies, burden of proof, victimisation and sanctions The role of activists in the implementation of the of the Directive

Directives Directive 2000/43/EC on equal treatment irrespective of racial or ethnic origin (Race Equality Directive) Directive 2000/78/EC on equal treatment in employment and training on grounds of religion or belief, age, disability or sexual orientation

What is the EU Race Equality Directive? The purpose of the Directive (Article 1)- to lay down a framework for combating discrimination on the grounds of racial or ethnic origin, with a view to putting into effect in the Member States the principle of equal treatment. Directive contains certain standards, defined as minimum requirements, which must be incorporated into the domestic anti-discrimination laws Directives are binding in terms of the objectives to be achieved but not in terms of the means employed

Protected characteristics Directive 2000/43/EC, Race Equality Directive on equal treatment irrespective of racial or ethnic origin Directive 2000/78/EC on equal treatment in employment and training on grounds of religion or belief, age, disability or sexual orientation

Concept of discrimination Article Direct discrimination Indirect discrimination Harassment Instructions to discriminate

Direct Discrimination Article 2 (2a) 3 elements: One person treated less favourably than another In a comparable situation On the grounds of racial or ethnic origin

Indirect Discrimination Article 2 (2b) An apparently neutral provision, criterion or practice Would put persons of a certain racial or ethnic origin at a particular disadvantage compared to other persons Unless can be objectively justified by a legitimate aim and the means employed are appropriate and necessary Intent is not relevant

Harassment Article 2 (3) Unwanted conduct relating to race and/or ethnicity which takes place with the purpose or effect of intimidating or offending someone Harassment deemed to be discrimination because it singles out certain groups or individuals on the basis of their racial or ethnic origin Examples include offensive remarks, racist jokes, bullying, etc.

Instruction to Discriminate Article 2 (4) Also constitutes an act of discrimination Example (employer instructing a recruitment agency not to send Roma candidates for interviews)

The Scope of the Directive Article 3 Material Scope: The Directive covers employment, recruitment, hiring, promotion, vocational training, education, membership in professional organisations, social protection, social security and health care, social advantages, access to goods and services, and housing It does NOT prohibit differential treatment on the bases of positive action, genuine occupational requirements, and nationality (citizenship) within the context of immigration

The Scope of the Directive Article 3 Personal scope The Directive applies to all persons In the EU – regardless of nationality Public and private sector

Remedies Article 7 Victims of discrimination must have access to judicial, administrative, and conciliation procedures. (most differentiated in national ADLs and Equality bodies) Conciliation procedures are not a substitute for judicial procedures but can be an important additional avenue of redress Judicial procedures can be civil and criminal Standing to sue or intervene on behalf of the victims granted to organisations with a legitimate interest

Burden of Proof I Article 8 Victims of discrimination need to establish facts from which it may be presumed that there has been direct or indirect discrimination Then the burden of proof shifts and the respondent has to prove that his actions/practices/policies had an objective and reasonable justification If he fails to do so, the court will find in favour of the applicant

Burden of Proof II What kind of evidence may be sufficient to establish facts from which it may be presumed that a plaintiff was indeed a victim of discrimination (statistics, situational testing, scientific studies, etc.) In any case, the burden of proof does not shift in criminal proceedings nor in proceedings where it is up to the court or another competent body to comprehensively investigate the violations alleged (ex officio).

Victimisation Article 9 Concerns adverse treatment suffered by an individual as a reaction to his prior complaint alleging discrimination. Examples include being fired from a job or getting bad grades in response to a complaint of discrimination. The Directive provides for no specific remedies in cases of victimisation and remains silent as regards intimidation of witnesses or family members, though it may be construed so as to cover those groups as well.

Sanctions Article 15 Sanctions for the violation of the right to equal treatment must be effective, proportionate and dissuasive, and may include payment of compensation to the victim This provides insufficient guidance to national governments and needs to be taken together with other, more detailed, international standards A significant role for the European Court of Justice with respect to the interpretation of this provision

Bodies for the Promotion of Equal Treatment Member States shall designate a body or bodies for the promotion of equal treatment of all persons without discrimination on the grounds of racial or ethnic origin. These bodies may form part of agencies charged at national level with the defence of human rights or the safeguard of individuals' rights.

Bodies for the Promotion of Equal Treatment II. Member States shall ensure that the competences of these bodies include: independent assistance to victims of discrimination in pursuing their complaints about discrimination, conducting independent surveys concerning discrimination, publishing independent reports and making recommendations on any issue relating to such discrimination.

Transposition EU 15; 1 January 2004 All Member States had to make changes to legislation Transposition process: 19 July 2003 for for EU 10 1 January 2007 for RO and BU 2011 transposition in all countries but still some gaps (incorrect/insufficient transposition) Candidate countries: Croatia, Montenegro, Macedonia, Turkey, Iceland

Transposition II EC’s role as “Guardian of the Treaties” to ensure Member States implement correctly the Directive Infringement procedure against Member State if non – compliance

Transposition III Direct effect Once the Directive is transposed, victims must bring their cases under national law before national courts. If the Directive has not been transposed: -principle of direct effect -interpretation in accordance with the Directive -State liability for non-transposition Article 267 Lisbon Treaty (Article 234) -The Court of Justice has jurisdiction to give preliminary rulings concerning the interpretation of the Treaty;

The Role of Activists Be open minded and accept that discrimination does occur Remember the direct effect – refer back to the Race Equality Directive NB reversal of burden of proof; but importance of activists’ role in collecting good evidence Possibilities to lobby for better Equality Bodies