Romanian National Council for Combating Discrimination Ineffective

25 November 2005

European Roma Rights Centre Provides Detailed Recommendations for Reform of Romania's National Anti-Discrimination Body

On 25 November 2005, the European Roma Rights Centre sent a letter to Romanian Prime Minister Calin Popescu-Tariceanu, urging him to consider a series of recommendations related to the reform of the national anti-discrimination body, the National Council for Combating Discrimination.

The ERRC is aware of ongoing public debate in Romania around proposed changes Romania's antidiscrimination legislation, aiming in particular to improve the institutional capacity of the Council. The ERRC letter -- and in particular the recommendations included in it -- are based on ERRC expertise in EU and international anti-discrimination law matters, as well as on direct experience with the Council, as a result of supporting a number of Romani victims of discrimination in filing complaints with the Council in recent years. The letter provides details of the fate of one such complaint, decided upon recently by the Council, which illustrates a number of the shortcomings of the Council's present mode of operations.

The full text of the ERRC letter, including detailed recommendations for improving the effectiveness of the National Council for Combating Discrimination, follows:

Honourable Prime Minister Popescu-Tariceanu,

The European Roma Rights Centre (ERRC) is a public interest law organisation engaging in a range of activities aimed at combating anti-Romani racism and human rights abuse of Roma, in particular strategic litigation, international advocacy, research and policy development, and training of Romani activists.

The European Roma Rights Centre has extensive experience in providing advice to governments in Central and Eastern Europe concerning the adoption and thorough implementation of comprehensive anti-discrimination laws in conformity with EU and Council of Europe standards. Our campaigns have played a decisive role in the adoption in recent years of new legal instruments making justice for victims of the serious harm of racial discrimination in countries such as Bulgaria, Slovakia or Hungary.

We hereby address you with a series of recommendations for reform of the National Council for Combating Discrimination (hereafter the 'NCCD') the Romanian administrative body charged with implementing anti-discrimination law in Romania. These recommendations are based on our extensive expertise in matters related to the adoption and implementation of comprehensive anti-discrimination laws and are brought (i) in light of ongoing discussions in Romania concerning efforts to amend Romania's anti-discrimination law; and (ii) in light of our direct experience in attempting to secure justice for Romani victims of racial and other discrimination in Romania.

In the matter at hand, the NCCD recently delivered a final judgment in relation to a complaint filed more than two years ago on behalf of a Romani family by their lawyer, Ms. Roxana Prisacariu with the support of the European Roma Rights Centre.

The complainants were the Pandele family, a Romani family of four (a married couple and their two sons) living in Targu Frumos, a small town situated in northeastern Romania. Before the incident took place, the Pandeles held a lease for over ten years for a fruit and vegetable stand in the central market place of Targu Frumos. Immediately after agreeing to extend the lease for twenty-five years, the local town council arbitrarily decided to cancel the lease. The reason given was that the Pandeles had allegedly failed to meet the requirement of erecting a kiosk on the space in the marketplace within the time limit provided to them according to the renewed lease contract. As a result, the town council ordered that the Pandeles' stand be removed from the marketplace. Faced with the refusal of the Pandeles to leave, the town council enlisted the help of the local police and a private security firm in order to forcefully expel the Pandeles. On 19 August 2003, police officials and the security agents physically and verbally assaulted the four members of the Pandele family. The beating took place in broad daylight in the marketplace of Targu Frumos and continued at the police station, where the Pandeles were also fined, and eventually released on the same day. A complaint in the matter was filed with the NCCD on 10 September 2003.

The complaint had originally been filed twenty-two days after the incident. After undertaking a minimal investigation and without following the most elementary procedural rules, on 7 May 2004 the NCCD rejected the Pandeles' complaint. An appeal was filed with the Iasi Court of Appeal. The Court granted the appeal and ordered the NCCD to undertake a new investigation.

After carrying out another investigation, the NCCD finally rendered a decision on 14 June 2005. On the basis of the complaint, after noting that the beating was the object of a separate investigation, the NCCD investigated whether the actions of the town council were discriminatory. The NCCD noted that although other non-Roma individuals failed to abide by the requirements of the town council, they had not been expelled from the marketplace and their contracts had not been terminated. The NCCD concluded that the eviction of the Pandeles took place because of their ethnicity.

Another four months passed before the final judgment was drafted and delivered to the Pandeles' representative on 20 October 2005, or more than twenty-five months after the initial complaint had been lodged. As a result, the town council was found in breach of the Romanian anti-discrimination law and given an administrative warning. By this time, the NCCD was barred by the applicable time limits from imposing a more significant sanction on the Targu Frumos town council. Thus, the judgment has done very little to repair the harm suffered by the Pandeles, who in order to obtain significant redress, would now have to take their complaint to the domestic courts, which would mean an excessively lengthy road to justice, indeed longer than it would take to resolve the cause absent the NCCD.

The way in which the NCCD handled the complaint filed by the Pandele family highlights a number of weaknesses related to the Council's current mandate, status and practice, such as:

• The excessive length of the investigation,
• The inability of the NCCD staff to recognize clear instances of discrimination,
• The lack of transparency of the investigations undertaken by the NCCD,
• The inability to provide meaningful redress to victims of discrimination. These issues are in turn related to more fundamental deficiencies that undermine the activity of the NCCD, such as the lack of independence from the executive arm of the government and the lack of sufficient resources and staff.

Although the issues detailed above provide a particularly graphic example of an ineffective mechanism, we understand, on the basis of consultations with partner organisations, that far from being exceptional, this case is in fact exemplary of problems currently burdening the NCCD. A number of other cases now being considered by the NCCD or which have already been decided provide similar examples of shortcomings in the way the NCCD is currently organised. For instance, on 7 June 2004, the European Roma Rights Centre, together with partner organisations Romani CRISS and Hochin Humanitarian Foundation, filed a complaint regarding the segregation along racial lines in a school in a town in northeastern Romania. To this date, a year and a half after the initial complaint has been lodged, we are still to receive any notice from the NCCD in relation to the investigation undertaken in the case, if any at all.

The European Roma Rights Centre is aware of and supports the efforts to revise the Governmental Ordinance no. 137 of 31 August 2000 regarding the prevention and sanctioning of all forms of discrimination that, among others sets the framework for the functioning of the National Council for Combating Discrimination. The ERRC urges the Romanian authorities to expedite the process of adopting the draft law revising Ordinance no. 137 pending consideration by the Romanian Government before being sent to the Parliament. In this context, the ERRC urges that the recommendations elaborated below be incorporated in that process. These recommendations are derived from existing international documents regarding national equality bodies, respectively the European Council Directive 2000/43 ("Race Equality Directive"), the European Commission against Racism and Intolerance General Policy Recommendation No. 2 on Specialised Bodies to Combat Racism, Xenophobia, Anti-Semitism and Intolerance at National Level, and the UN Principles relating to the Status of National Institutions ("the Paris Principles").

1. The NCCD should be granted real independence from other state bodies, especially from the executive arm of the government, to which it is presently subordinated. In this context, the ERRC supports the proposal put forward by members of civil society that the Council be placed under parliamentary supervision. The NCCD's mandate, powers, composition, and appointment procedures should be carefully anchored in an Act of Parliament (and not in a Governmental ordinance/decision as it is done presently) in order to ensure the overall independence of the Council. Supervision of the NCCD by the Parliament might include scrutiny of its annual report, and overseeing the body's budget and planning.

2. Appointment of members of the board should reflect the independent mandate of the NCCD. The selection process should involve representatives of NGOs, trade unions, social workers and journalists. The ERRC endorses the solution included in the current version of the draft law available to us, according to which the Parliament appoints members of the Council following recommendations made by the Senate, the Chamber of Deputies and respectively by the civil society.

3. The NCCD should be given the power to apply a wider range of sanctions aimed at achieving, to the largest extent possible, ‘restitutio in integrum' for victims of discrimination. Sanctions may include ordering the perpetrator to reinstate the complainant in his or her rights, compensation, exclusion from public contracts etc. The NCCD should also be given the power of withdrawing the licence of a company. Presently the courts may apply this sanction upon request; however, they have made little use of it so far. These measures would ensure that sanctions available to the NCCD would be "effective, proportionate and dissuasive" as specified in Article 15 of the Race Equality Directive.

4. Legal aid should be provided to victims of discrimination, in conformity with Article 13(2) of the Race Equality Directive and Article 6 of the European Convention on Human Rights. The practical modality in which this is achieved should not, however, endanger the neutrality and/or impartiality of the NCCD.

5. The six months time that the NCCD has at its disposal for investigating and sanctioning the complaints brought to its attention should be extended. According to the general legal framework on administrative offences (contraventions) also applicable to the actions of the NCCD, a sanction for an administrative offence shall be issued within a period no greater than six months from the moment the deed was committed. However, as was the situation in the Pandeles' case, this time limit often proves to be too short for the sometimes complex allegations that the NCCD is called upon to investigate. On the other hand, in the segregation case, more than a year has passed with no word whatsoever.

6. Sufficient staffing and adequate resources should be allocated to the NCCD under parliamentary supervision so that it is able to fulfil its mandate. Regionally based branches of the NCCD should be established, to ensure greater efficacy in undertaking its work.

Thank you for your consideration and I look forward to working constructively with you.

Sincerely,

Dimitrina Petrova
Executive Director

Persons wishing to express similar concerns are urged to contact:

Mr. Calin Popescu-Tariceanu
Prime Minister of Romania
Piata Victoriei, nr. 1, sector 1
Bucuresti, Romania
Fax: +(40)-21-318 11 45

The ERRC letter was also copied to:

Mr. Gheorghe Barbu
Minister of Labor, Social Solidarity and Family
str. Dem I. Dobrescu nr. 2-4 sector 1,
Bucuresti, Romania

Ms. Anca Daniela Boagiu
Minister of European Integration
Str. Apolodor 17, latura Nord, sector 5,
Bucuresti, Romania
Fax: +(40) 21 336 85 09

Ms. Monica Macovei
Minister of Justice
Str. Apolodor, nr. 16, sector 5,
Bucuresti, Romania
Fax: +(40)-21-310 16 64

Mr. Vasile Blaga
Minister of Administration and Interior
Adresa str. Mihai Voda nr. 6-8, sect, 5,
Bucuresti, Romania
Fax: +(40)-21-310.30.72

Mr. Csaba Ferenc Astalos
President of the National Council for Combating Discrimnation
Piata Valter Maracineanu nr. 1-3, sector 1 (intrare prin strada Victor Eftimiu)
Bucuresti, cod 010155
Fax: +40 21 312.65.78/+40 21 312.65.79

Mr. Vladimír Spidla
Commissioner for Employment, Social Affairs and Equal Opportunities
200 Rue de la Loi
B-1049 Brussels
Belgium
Fax: +32 2 2988 642

Mr. Jonathan Scheele
Head of the Delegation of the European Commission in Romania
18 Jules Michelet Street, 1st District,
010463 Bucharest, Romania
Fax: +40-21-230.24 53 / +40-21-212.88.08

The letter in Romanian