Strategic Litigation Undertaken by the ERRC and Local Partners Prompt Bulgarian Courts to Sanction Racial Discrimination against Roma
15 December 2004
Since the new anti-discrimination legislation came into force in Bulgaria on 1 January 2004, the European Roma Rights Center (ERRC), acting alone or together with Romani Baht Foundation (RBF) and/or the Bulgarian Helsinki Committee (BHC), has filed a number of civil actions alleging discrimination against Roma. To date, not yet a year since the entry into force of the law, the ERRC and local partners have obtained five landmark judgements from Bulgarian courts.
In the first judgement, on 9 July 2004, the Sofia District Court ruled against a company called VALI Ltd. and awarded compensation to the plaintiff Ms. Sevda Nanova. Ms. Nanova is a Romani women and was found by the Court to have suffered discrimination in access to services, solely on the basis of her race. VALI Ltd. operates a clothing shop in a Sofia marketplace. Acting through its employees, the shop refused to provide services to Ms. Nanova and banned her from its premises. In addition, the company’s staff threatened Ms. Nanova with violence and repeatedly resorted to verbal abuse with respect to her Romani origin. The Court found that such conduct amounts to discrimination based on ethnic origin and is therefore in violation of Bulgarian law.
In another case, on 12 July 2004, the Sofia District Court adopted a decision in the matter of Mr. Rumen Grigorov v. the Sofia state-owned electric company. The case concerned a Romani plaintiff who had not been allowed to connect his house to the electricity network as he refused to sign an additional agreement which would permit the company to put his electrical metre on a pole 9 metres high. The company’s reasoning for the application of such measures was that this was the only way to make sure that “Roma do not illegally connect to the power supply”. The fact that the plaintiff was a regular payer, had no history of trying to illegally connect to the power grid, and was unable to check his electricity consumption as result of the unorthodox placement of the electricity metre, was simply not taken into account by the service provider. Having considered the facts of the case, and in particular the fact that a practice of this sort was arbitrary and employed by the respondent in Romani neighbourhoods only, the Sofia District Court ruled that the plaintiff had suffered discrimination, and ordered the respondent company to provide the plaintiff adequate access to and control of the electricity metre as well as to cease with such practices in the future.
On 6 August 2004, in a separate case concerning an almost identical situation, the Sofia District Court ruled in favor of Mr. Kocho Kochev and five other Romani plaintiffs, all residents of “Filipovtsi”, a segregated Romani settlement in Sofia, and in so doing found that the respondent state-owned electric company had committed an act of discrimination. Importantly, despite the fact that the new anti-discrimination law was enacted after this case had been filed, the court applied the new provision on the shifting of the burden of proof to the respondent and explained that being of a procedural character it was applicable to already pending cases as well as to those which have been filed following the entry into force of the new law. The court considered the plaintiffs’ claim of discrimination as sufficiently substantiated to shift the burden of proof onto the respondent. The respondent ultimately failed to establish that other – non-Romani – consumers had been treated similarly or indeed that its actions had served any legitimate purpose. Accordingly, the Court found that the six Romani individuals had suffered discrimination, and ordered the company to remove the electrical metres and to re-locate them at a height where they would be accessible, as well as to pay the plaintiffs compensation.
A fourth case won by Romani plaintiffs under the new law relates to employment discrimination. On 13 August 2004, the Sofia District Court adopted a decision in the case of Mr. Anguel Assenov v. Kenar Ltd. The lawsuit was filed in order to challenge the refusal of the company to allow Mr. Assenov to attend a job interview, solely due to his ethnic origin. Acting to test reports that the company in question pursued discriminatory hiring policies, Mr. Assenov, a young Romani man, placed a phone call to the office of the respondent company, a food producer and distributor, to inquire about a job announcement publicised by the respondent. One of the persons employed in the company answered the plaintiff’s call and informed him about the requirements for the job. The employee of the company also asked Mr. Assenov to come for an interview. The plaintiff then inquired whether his Romani identity would be a problem for his application. In response, the employee stated that this was indeed a problem. Moreover, the plaintiff was told that there was consequently no need for an interview, since the company has a strict policy of not hiring Roma. The phone conversation took place through a loudspeaker, and was therefore heard by two other witnesses who later testified in court. In the lawsuit, the plaintiff requested a finding of discrimination, the award of compensation, as well as an order from the court obliging the respondent to refrain from similar hiring practices in the future. Ultimately, the Sofia District Court decided in favour of the plaintiff and in doing so granted all of the above-requested remedies.
Finally, on 19 August 2004, the Sofia District Court rendered a decision in a case against the Sofia state-owned electric company concerning a discriminatory denial of electricity to bill-paying Romani consumers. The ERRC joined the proceedings as an “interested party”, i.e. an intervener in the public interest. On 9 January 2004, a breakdown in the power grid in the segregated Romani neighbourhood of “Fakulteta”, Sofia, discontinued the power supply to more than 100 Romani families. The provider refused to repair the network for more than two months, contending that many of the affected consumers had unpaid debts to the company. Along with the debtors, however, more than 30 Romani households with no outstanding debts had also been denied restoration of their power supply. In court, the plaintiffs argued that such actions amount to a collective sanction imposed on debtors as well as non-debtors, that they were discriminatory because they were imposed on residents of a Romani neighbourhood, and that the power supply in non-Romani neighbourhoods is never denied to bill-paying consumers on account of their neighbours’ unpaid debts. Having considered the case, the Sofia District Court agreed and held that the Romani plaintiffs had indeed suffered discrimination.
Racial discrimination, as described in these five cases is in breach of numerous international standards such as those contained in the United Nations Convention on the Elimination of All Forms of Racial Discrimination and the International Covenant on Civil and Political Rights. It is also in violation of the Bulgarian anti-discrimination act which, though it does not relate to instances of racially-motivated violence, prohibits discrimination by public as well as private parties in all fields of public life, including the provision of services and employment. It provides for a special legal remedy against discrimination and also grants human rights groups standing to file lawsuits on their own behalf, in the absence of individual plaintiffs, in situations where “the rights of many parties are breached”. This provision was utilized by the ERRC and its partners in the last case described above. Perhaps most importantly, the new Bulgarian law provides for the shift in the burden of proof onto the alleged discriminator, once a complainant has established a plausible case of discrimination, relieving victims of a major evidentiary obstacle in obtaining justice. In most of its recent discrimination cases in Bulgaria, including the ones described above, the ERRC has filed amicus briefs for the court’s convenience explaining in detail the concept of “the shifting of the burden of proof”. The Bulgarian anti-discrimination act was enacted pursuant to the requirements of the European Union Race Equality Directive.
