The Bulgarian Draft Anti-Discrimination Law: An Opportunity to Make Good on the Constitutional Promise of Equality in a Post-Communist Society

10 May 2003

Margarita Ilieva¹

Background to the Existing Anti-Discrimination Legislation

In Bulgaria, the Constitution broadly declares discrimination inadmissible but no statutory provisions implement this constitutional principle. No comprehensive anti-discrimination law exists. Existing anti-discrimination law is limited to a number of abstract bans on discrimination reiterating the constitutional declaration. These general clauses prohibiting discrimination on various grounds are scattered under a number of laws, their terminology, protected grounds and scope non-harmonised, and the level of protection for the various grounds, including race/ethnicity, religion/belief, age, disability and sexual orientation, non-uniform. Existing definitions of discrimination are fragmentary and non-harmonised. No concrete prohibitions on specific discriminatory actions are provided. No justifiability tests are elaborated under legislation, or in case law.

Existing Bulgarian anti-discrimination law does not correspond to European law, including in terms of scope and definitions. While incitement to racial discrimination is prohibited under Bulgarian criminal law, harassment and victimisation are neither prohibited, nor defined. There is no right to reasonable accommodation for the physically disabled. Nor are there any provisions on justifiable exemptions from the ban on discrimination. Constitutional Court jurisprudence has explicitly declared unconstitutional any positive measure on any of the grounds expressly guaranteed by the constitution, which include race/ethnicity or religion/belief.² There is no reversal of the burden of proof, nor effective sanctions, nor any specialised independent body for the promotion and protection of equal treatment. No special anti-discrimination procedures or remedies exist. Legal entities with legitimate interest have no standing to pursue redress for discrimination suffered.³

The existing law, inadequate as it is, is not applied. Prohibitions of discrimination are declaratory, lacking enforcement. While redress has been sought in strategic and test litigation sponsored by rights protection groups, courts and other law enforcement bodies have denied discrimination victims the right to a fair trial by ignoring allegations of discrimination, preferring to deal with any other issue brought up, or denying such allegations without discussion or argument. As of April 20, 2003, there had been just three court rulings on grounds of discrimination, and not a single administrative or other decision. The reasons for this state of affairs are twofold. On the one hand, existing anti-discrimination law is inapplicable because of its vagueness - arguably it would not stand the forseeability and clarity test of the European Court of Human Rights.⁴ It is further inapplicable because there is no effective remedy against discrimination, absent any special procedure or body. The law's lack of clarity is due to the ultimately broad and abstract language of the various provisions, and the lack of working definitions, or concrete prohibitions of specific discriminatory conduct. Theoretically available general remedies are inadequate to provide anti-discrimination redress. On the other hand, neither the public, nor the courts, nor any other enforcement agencies, are aware of the implications of the principle of equal treatment, or have any experience dealing with them. Given the existing law's vagueness and the social background of deficient development of equality policies, anti-discrimination law enforcement is effectively impossible or next-to-impossible at present.

As a result of inadequate enforcement, anti-discrimination protection is unavailable. The effect has been unremedied exclusion and inequality affecting ethnic minorities in Bulgaria - in particular Roma - as well as women, non-traditional believers, people with disabilities (especially the mentally handicapped) and older workers, of whom the general public has been unaware and uncaring. No public attention has been given to anti-discrimination protection. The issue has been associated with minority interests, mostly those of sexual minorities, and dealt with as a marginal one. Any meaningful understanding of the implications for society has been lacking. Public debate on draft anti-discrimination law has been meager, fragmentary and superficial, negatively focusing on perceived benefits to some unpopular groups.

The Government's Anti-Discrimination Bill

A promising comprehensive anti-discrimination bill was drafted by the government with significant involvement of experts from non-governmental organisations in April-June 2002. As of this writing, the bill was pending before Parliament. The bill provides for extensive uniform protection against discrimination on a large number of grounds, including gender, race/ethnicity, religion/belief, disability, age and sexual orientation. The bill, transposing into domestic law European Union anti-discrimination Directives,⁵ goes beyond their minimum standards. Its scope is broad, covering, similarly to Protocol No. 12 to the European Convention on Human Rights, the exercise of any right or freedom, including all the key fields covered by European Council Directive 2000/43/EC (Race Equality Directive). Having expressly stated its aim - to guarantee equal treatment, equal opportunities and effective protection against discrimination - the bill proceeds to prohibit and define, in accordance with the Directives, direct and indirect discrimination, harassment - sexual as well as on any other protected ground - incitement to discrimination and victimisation. Going beyond the Directives, it also prohibits racial segregation. The concepts of discrimination, incitement, victimisation and harassment as defined under the bill are broader than the ones under Council Directives 2000/43/EC (Race Equality Directive) and 2000/78/EC (establishing a general framework for equal treatment in employment and occupation). The bill prohibits discrimination and victimisation by association and by assumption, and victimisation for refusal to discriminate when incited. Incitement under the bill encompasses any exercise of influence aimed at making the subject discriminate. Harassment under the bill occurs where personal dignity is violated or, alternatively (as opposed to "and" cumulatively, under the Directives), a hostile environment is created. In addition, building or maintaining an architectural environment hindering disabled people's access to public places is deemed to be a form of discrimination. A duty is stipulated to provide reasonable accommodation for disabled people in education and training, as well as in employment.

The bill accords non-discrimination rights to any individual or entity or informal association of individuals under Bulgarian jurisdiction and binds all parties, private, as well as public. It provides for reversal of the burden of proof in both administrative and judicial anti-discrimination proceedings and authorises positive measures, placing framework duties on public authorities to take such measures, with a priority on measures to counter multiple discrimination. Detailed concrete prohibitions on specific types of discriminatory action in key fields, such as employment, education and service provision, are provided for, including in fields beyond the Directives' scope, such as access to commercial partnerships' shares, publicly funded activities and public interest activities, access to and use of public places and facilities, advertising and compulsory military recruitment (for religion/belief and sexual orientation only).

In compliance with the Directives, the bill exempts substantive and determining occupational requirements where the aim is lawful and the requirement does not exceed the necessary, including in the context of occupations carried out within religious institutions. Differences based on religion/belief are exempt in religious education or training, including training or education for purposes of carrying out an occupation within a religious organisation. Further, exempt are differences based on disability in training or education designed to meet a disabled person's specific educational needs and equalise her opportunities.

Without requiring justification, contrary to the Directives, the bill exempts differences based on age, as well as statutory benefits for pregnant women and mothers, children without parents, minors, single parents and disabled persons, including existing positive measures on grounds of disability and age under the Promotion of Employment Act.

The bill exempts positive measures on all protected grounds benefiting persons or groups in an unequal position and aimed at equalising their opportunities, insofar as and as long as necessary. It also permits measures to ensure participation by persons belonging to ethnic minorities in education and training insofar as and as long as necessary.

The bill places a general duty on all public authorities to take all possible and necessary measures to guarantee equal treatment and equal opportunities for all. Where necessary to further this goal, public authorities are under a duty to take positive measures.

In terms of positive action on grounds of gender, where necessary to guarantee equal treatment and equal opportunities, the bill requires public authorities to take measures in education or training, for as long as necessary, to ensure balanced participation by women and men. Authorities are under a duty to encourage and facilitate balanced participation by women and men in governance and decision-making. Central and local executive authorities are required, where all other conditions are equal, to appoint prospective employees belonging to the underrepresented gender until 40% representation of this gender is achieved in a particular unit, also applicable to appointments to councils, expert working groups, managing, consultative and other bodies, except where members are elected. Employers are under a duty, where needed, to guarantee equal treatment and equal opportunities, to encourage applications from prospective employees belonging to the underrepresented gender, and, where all other conditions are equal, to encourage career and participation for employees belonging to the underrepresented gender.

In terms of positive action on grounds of race or ethnicity, authorities under the bill have a duty to encourage and facilitate sufficiently representative participation, in governance and decision-making by persons belonging to ethnic, religious, and linguistic minorities. Employers have a duty, where needed, to guarantee equal treatment and equal opportunities, to encourage applications from prospective employees belonging to underrepresented ethnic groups and, where all other conditions are equal, to encourage career-building and participation for employees belonging to underrepresented ethnic groups.

The bill provides for special anti-discrimination remedies, including a specialised independent body with broad powers to enforce anti-discrimination law, and promote equality of opportunity on all protected grounds. The body, regulated in detail both institutionally and procedurally, is a 15-member commission, jointly appointed by Parliament (9 members) and the President (6 members). Balanced participation by women and men, and participation by persons belonging to ethnic minorities is explicitly stipulated. The Commission appoints from among its members a racial and ethnic equality sub-commission, a gender equality sub-commission and a sub-commission for all other grounds. It is funded from the budget through the government and is serviced by a staff in numbers to be fixed under regulations, which it adopts itself.

The Commission receives and investigates complaints, mediates between parties for purposes of conciliation; finds breaches and imposes sanctions; gives binding instructions; proposes and reviews legislation and policy; makes recommendations to public authorities, including recommendations to take positive measures; challenges discriminatory administrative acts in court; gives advice on non-discrimination rights, duties and remedies; issues codes of practice; and collects and disseminates information on equality, including scientific research, trainings, and periodic public reports on the state of equal treatment. The Commission has a right to access any information or site held by any individual, entity, or authority. A refusal to provide access is a ground for liability. It also has powers to oversee compliance with the binding instructions it gives.

The procedure before the Commission is initiated by an alleged victim, upon signal by any party or ex officio. A conciliation agreement approved by the Commission is binding and subject to enforced execution and ex lege includes a duty on the discriminator to take effective measures to prevent future discrimination. The financial sanctions enforceable by the Commission are dissuasive, averaging for individuals between 100 Bulgarian levs (approximately 50 Euro) and 25,000 Bulgarian levs (approximately 12,500 Euro), and for legal entities between 500 Bulgarian levs (approximately 250 Euro) and 150,000 Bulgarian levs (approximately 75,000 Euro). The Commission has amicus curiae standing in judicial proceedings.

Further, victims of discrimination are entitled to a special judicial action to enforce non-discrimination rights seeking and compensation, court ordered termination of discrimination and redress, including restitutio in integrum for damages, both pecuniary and non-pecuniary. Liberalising standing rules, the bill accords public interest non-governmental organisations (NGOs) standing to seek judicial protection where non-discrimination rights of numerous parties are affected. Any other individual complainants or NGOs may join anti-discrimination judicial proceedings, in a sui generis collective action with a potential for generalised impact on the law and practice. Trade unions and NGOs are further entitled to represent victims of discrimination in judicial proceedings.

Any individual, entity or non-incorporated association of individuals, has victim status before both the Commission and courts, even after the relationship in which discrimination allegedly occurred has ended. Allegations can be made against any individual or legal entity, either public or private, who has committed an act of discrimination, or who has intentionally aided an act of discrimination. Respondents also include employers who failed to take effective measures to prevent discrimination at work, for any discrimination committed at work by an employee and managers of educational or training institutions who have failed to take effective measures to prevent discrimination on the premises of the institution, for any discrimination committed on the premises by a member of the teaching or administrative staff or by a student. Proceedings before both the Commission and the courts are exempt from state fees.

In terms of additional remedies under the bill, employers and managers of education or training institutions are required to investigate immediately any complaint of harassment at the work place by a member of the teaching or other staff, or by a student, and to take measures to terminate the harassment, and to enforce disciplinary liability. Employers and managers of educational or training institutions are required to provide any employee or student alleging discrimination with the relevant information, including the grounds for any decision affecting her/him.
 

The Anti-Discrimination Bill's Opponents

The bill was proposed by government to Parliament in September 2002, and although successful in all specialised parliamentary committees which reviewed it, it has met with opposition from the Chair of Parliament, who, in deviation from customary practice, subjected it, prior to plenary hearing, to review by the Consultative Council on Legislation. This body is comprised of law professors and has a mandate to advise the Chair of Parliament, a law professor himself, on draft legislation from the points of view of legal technique, constitutionality and consistency with other basic laws.⁶

The Consultative Council criticised the bill extensively, on points of principle, as well as on technicalities. Contrary to their strictly expert mandate, the law professors rendered policy opinions, criticising the bill's concept, scope and substantive provisions, including, significantly, the reversal of the burden of proof. The Council opposed in particular the broadness of the bill's scope, the provision of concrete prohibitions on specific discriminatory actions in key fields, which they alleged were redundant in view of the existing anti-discrimination provisions, and the detailed regulation of the specialised body and the procedure before it, including the guarantees for its independence. Substantiating its views with few arguments, the Council recommended instead a "framework law" providing minimal regulation, with a few broad abstract rules, no concrete prohibitions on specific discriminatory conduct and no detailed regulation of the independent body and its proceedings. The Council suggested that existing anti-discrimination provisions be allowed to remain in parallel to the new law, relating to it as lex specialis to lex generalis.

A framework law, lacking the guarantees and the clarity and forseeability of the bill, would be inadequate to provide effective anti-discrimination protection in a society unfamiliar and inexperienced with equal treatment. Leaving in place the inadequate and ineffective existing provisions, which do not comply with the applicable European Council Directives, and allowing them to derogate from the law that transposes those Directives, would seriously erode its scope - material as well as personal - and the level of protection it provides, in terms of concepts and remedies.

The opposition faced by the bill appears to have little to do with expert considerations, or even with political expediency, demonstrated by the absence of expert or political arguments to support it. It is more a matter of legal ideology. Reactionary attitudes are deeply rooted in the domestic legal community in Bulgaria, especially among its older generation, on whose moulding and for the control of whom the former communist system expended significant energies. Reform has had little, if any, impact on this community's mentality. Liberal values, rights-based concepts and true rule of law all strongly conflict with a legal consciousness dominated by state (collective) interest and political expediency. To such a legal mindset, a law dedicated to the implementation of individual rights, aiming at social justice and based on values of human dignity and opportunity is foreign, suspicious, extravagant and unjustified. Such a law is unacceptable for the fact that its concept stems from convergence of legal systems, civil and common law, national and community law, and separate national jurisdictions. And when such law seeks to truly rule by establishing meaningful control over events and realities by regulating painstakingly and in detail, allowing little room for law enforcement discretion, and bent on guaranteeing, procedurally and substantively, its provisions' enforcement in practice, the opposition to it becomes absolute. Hence, the wish to limit the scope and substance of the bill, to eliminate its detailed provisions on obligations, remedies and the specialised body's institution and reduce it to an abstract framework of minimal regulation.

Since the Consultative Council rendered its negative opinion on the bill, it has been blocked, in breach of the parliamentary procedure, from being heard by the plenary in Parliament. As of this writing, the Parliament's Chair has given no public explanation for this situation or of any plans for the bill's future. To date, the bill has gained little public visibility and no meaningful public debate about it has taken place.

Meanwhile, the time of individual lives lived in exclusion and injustice is ticking away, society is plagued by division and society's access to vast amounts of potential is barred. Much now depends on Parliament, who has the opportunity to make the right to equality real and social justice practical.

Endnotes:

1. Margarita Ilieva is a practising attorney, specialising in anti-discrimination litigation. She is legal consultant on strategic anti-discrimination litigation for the ERRC and the Bulgarian Helsinki Committee. She is also a member of the drafting committee for the Bulgarian anti-discrimination bill.
2. Constitutional Court Ruling No 14 of November 1992.
3. For a detailed description of existing Bulgarian anti-discrimination legislation, see Margarita Ilieva. Legal analysis of national and European anti-discrimination legislation. A comparison of the EU Racial Equality Directive & Protocol N° 12 with anti-discrimination legislation in Bulgaria. In ERRC, Interights, MRG, Implementing European Anti-Discrimination Law available on the Internet at: http://www.migpolgroup.com/uploadstore/Bulgaria%20electronic.pdf.
4. In a number of decisions, the European Court of Human Rights has expounded its views as regards the requirements for domestic legislation flowing from the European Convention on Human Rights. For example, in Sunday Times v. UK, the ECHR stated: "[..] a norm cannot be regarded as a "law" unless it is formulated with sufficient precision to enable the citizen to regulate his conduct: he must be able - if need be with appropriate advice - to foresee, to a degree that is reasonable in the circumstances, the consequences which a given action may entail." See ECHR, Decision on the case Sunday Times v. UK, March 29, 1979, at: http://hudoc.echr.coe.int/Hudoc1doc/HEJUD/sift/169.txt.
5. The bill transposes the following Directives: 2000/43/EC "implementing the principle of equal treatment between persons irrespective of racial or ethnic origin"; 2000/78/EC "establishing a general framework for equal treatment in employment and occupation"; 2002/73/EC amending Directive 76/207/EEC "on the implementation of the principle of equal treatment for men and women as regards access to employment, vocational training and promotion, and working conditions"; Directive 92/85/EEC on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers and workers who have recently given birth or are breastfeeding; Directive 86/613/EEC on the application of the principle of equal treatment between men and women engaged in an activity, including agriculture, in a self-employed capacity and in the protection of self-employed women during pregnancy and motherhood; and the Burden of Proof Directive 97/80/EEC.
6. Indeed, the Consultative Council, a newly created body, which did not exist under previous parliaments, was specifically sponsored by the Chair of Parliament as a vehicle for imprinting the views of the academic legal elite on lawmaking.