Legal Practice under the Bulgarian Protection against Discrimination Act

11 March 2005

Daniela Mihaylova¹

THE PROTECTION AGAINST Discrimination Act (PADA), adopted by the Bulgarian Parliament in September 2003, entered into force on January 1, 2004. Drafted with the active participation of experts from non-governmental organisations, the Act is among the most advances national instruments in Europe for combating discrimination on various grounds. It was met with appreciation from the European institutions. The Act ensures effective protection for the victims of discrimination and responds to requirements of the relevant EU Directives. Some of the Act's provisions were called "revolutionary" for the Bulgarian legal system – such as for example the provision on the reversal of the burden of proof in cases of discrimination. Another innovative provision allows non-profit public interest organisations to litigate on their own behalf when the rights of many are breached.

Since the entry into force of the PADA, anti-discrimination litigation has become a priority for the legal defense program of the Romani Baht Foundation (RBF). In cooperation with the European Roma Rights Centre (ERRC), the RBF has initiated a number of court cases against schools and other educational institutions which deny equal access to education to Romani children or practice other types of discrimination; against employers who discriminate against Romani applicants for jobs on the basis of their ethnic origin; and against legal entities which deny access to public services to Romani clients or offer lower quality public cervices to them.

The subjects of the claims in the area of education have been the following:

• denial of enrolment to Romani children by municipal schools;
• segregation and inferior education provided for the Romani children in the all-Romani schools ("Gypsy schools");²
• segregation of the Romani students in "all-Romani classes" within the municipal schools following alleged threats by ethnic Bulgarian parents to move their children to other schools;
• classroom racism;³
• overrepresentation of Romani children in the special schools for children with light developmental disabilities – many Romani children are sent to those schools because their parents are misinformed and the schools are advertised as social institutions for poor children. The court cases have been initiated by the ERRC and the RBF on their own behalf because the Romani parents were afraid of possible victimisation of their children.

All cases challenging discrimination in education are currently pending before Bulgarian courts.

In health care, the main subject of the anti-discrimination cases initiated so far involve denial of services and unequal treatment based on the patients' ethnic origin. Already before the passing of the anti-discrimination act, the ERRC in cooperation with local organisations had initiated court cases challenging denial of urgent medical assistance in one case of spontaneous pregnancy termination; segregation of Romani mothers and babies in the so-called "Gypsy rooms" in maternity wards, or their placement in the corridors of the hospitals when there was no space in the "Gypsy rooms".

A number of cases were filed against employers who refused to appoint Romani applicants as well as against owners of public accommodations who denied access to Roma. The following cases with respect to these violations have been successfully solved:

One of the first cases in which the Sofia District Court rendered a positive decision challenged the refusal of Kenar Ltd. to admit a Romani person to a job interview, where the refusal was explicitly based on the candidate's ethnic origin. Mr. Angel Assenov, a Romani man from Sofia, wanted to apply for a job with the company but was not even admitted to the job interview with the explanation that the company does not employ Roma. The refusal was given over the phone by an employee of Kenar. In the course of the conversation, the company's employee described the requirements for the candidates: "Men, under the age of 30, holding secondary school diploma". Mr. Assenov then asked whether his Romani origin would be an obstacle, to which he was answered: "Yes, it is a 100 percent problem, we do not employ Roma, this is the firm's policy". The conversation between the applicant and the Kenar employee was witnessed by two staff members of the RBF's, who testified during the trial. The Sofia District Court ruled that the case involved direct discrimination, based on the plaintiff's ethnic origin⁴. The court also obliged the respondent not to discriminate against the plaintiff in the future and sentenced Kenar Ltd. to pay compensation to Mr. Assenov for non-pecuniary damages. The court stated within the decision that under the Protection Against Discrimination Act the respondent was obliged to create such organisation of its operational activities that will exclude any possibility for a discriminatory treatment – which the respondent failed to do. The court also found that the respondent failed to prove that the plaintiff was not treated less favorably where the plaintiff established facts from which the court was able to presume that there has been discrimination.

The second positive court decision was in the case of Ms. Sevda Nanova v. Vali Ltd. The case challenged the refusal of the firm to sell goods to Ms. Nanova because of her ethnic origin. She has been verbally assaulted by the firm's servant on the basis of her ethnic origin and physically pushed out of the shop. Following the incident, the RBF organised a second visit to the shop, ensuring witnesses. Ms. Nanova was denied access once again, she was verbally assaulted and sent away.

The RBF in cooperation with the ERRC filed a claim on behalf of Ms Nanova for direct discrimination based on ethnic origin⁵. The court found that the respondent had violated the provision of Article 4(1) of the Protection Against Discrimination Act, which prohibits both direct and indirect discrimination based inter alia on ethnic origin. The court also found the respondent in breach of Article 37 stipulating that everyone is entitled to public services and goods of equal quality, in connection with Article 4(1)⁶. The respondent's objection that not the firm but rather the firm's employee should be responsible for discrimination was rejected by the Court which stated that every legal entity shall be responsible for the unlawful acts of its employees. The court ordered the respondent not to discriminate against the plaintiff in the future and sentenced Vali Ltd. to pay compensation to Ms. Nanova for non-pecuniary damages.

In both cases Bulgarian courts issued well-grounded decisions based on the requirements of the Protection Against Discrimination Act. The decisions received broad media attention.

As regards access to public services, one of the most popular cases solved by the first instance court is the case against the Sofia Electricity Company challenging discriminatory treatment of Romani clients. In January 2004, a massive break down of the electricity system in Fakulteta Romani district in Sofia left more than 300 Romani families without electricity. Some of the consumers had debts to the company, while others were regular payers. The Sofia Electricity Company, however, refused to repair the electricity grid until at least 70 percent of the bills from the whole neighborhood were paid. As a result, at least 30 Romani families – who did not have any debts to the Company, were cut out from electricity supply for two and a half months during the winter. RBF's investigations indicate that this type of collective punishment on all customers in a neighbourhood triggered by the failure of some customers to pay their electricity bills has been enforced only with respect to Romani neighbourhoods. As a principle, the Electricity Companies treats their Romani clients less favorably and always as a collective entity rather than as individual clients. In the case at issue, the Romani regular payers were treated less favorably compared to the ethnic Bulgarian regular payers who live in Bulgarian neighborhoods. The RBF and the Bulgarian Helsinki Committee filed a case against the Electricity Company in their own right. The ERRC joined the action as the law allows the plaintiffs to advertise the court action and invite other persons/entities to join as plaintiffs. In this case the court found indirect discrimination against the Romani regular payers from the Fakulteta neighbourhood⁷. The court found that the plaintiffs established facts from which it may be presumed that discrimination has occurred and the respondent failed to prove the opposite.

Another court case against the Sofia Electricity Company initiated in cooperation with the ERRC, challenged the discriminatory practice of the Company to install the electric meters in the Romani neighborhoods at unusually high levels – from 6 to 12 meters. This practice, which effectively prevents the clients from controlling their electricity meters, violates the contractual terms set up by the Electricity Company itself. The court found discrimination based on the client's ethnic origin and ordered the Company to place the electric meters at a level which is accessible for the clients⁸.

The first Bulgarian court decisions under the Protection Against Discrimination Act (PADA) indicate that the new law is an effective tool for victims of discrimination to protect their right to equal treatment and non-discrimination. The court decisions demonstrate substantial knowledge of the philosophy of anti-discrimination law –­ both of the Bulgarian legislation and of the international standards (for example, all decisions refer to the EU Race Equality Directive and the European Convention on Human Rights and Fundamental Freedoms as foundation for the Protection Against Discrimination Act). It is still difficult to draw general conclusions on how Bulgarian courts will interpret the provisions and the principles of the anti-discrimination legislation as we have only a few court decisions issued by first instance courts. Bulgarian experts will have to wait for the higher instances to rule on the appeals of the respondents. Within the Bulgarian legal system it is only the rulings of the Supreme Court of Cassation which constitute compulsory guidelines for the lower instance courts. The Supreme Court of Cassation would possibly issue such ruling when at least a small group of cases reaches cassation stage. It could take at least few years taking into consideration the slowness of the civil procedure in Bulgaria.

However, the decisions under the PADA issued so far provide good examples of elaboration on the principles of the Act. In Assenov v. Kenar Ltd. the court affirmed that the PADA further elaborated the anti-discrimination norm of the Bulgarian Constitution⁹. The motives of the decision provide that, "According to Article 6(1) of the Bulgarian Constitution, all people shall have equal opportunities to participate in social life. This Constitutional principle obliges everyone who makes a public offer to an unlimited number of people to ensure equality of opportunity to those who wish to take advantage of the offer. The special Protection Against Discrimination Act details that right and defines the procedure for the protection of that right"¹⁰.

In the same decision, the court ruled that the PADA should be interpreted as imposing a general obligation on individuals who are legally entitled to manage the activities of a legal entity, to organise the activities of that entity in such a way as to preclude the possibility of any form of discrimination. On this ground the court affirmed that the factual connection between the person who violated the law and the legal entity on which behalf that person acted is a necessary and sufficient condition to incur the responsibility of the respective legal entity. The fact that a legal entity had failed to organise its operations in such a way as to exclude illegal action on the part of its employees breached the equal treatment provision. The court further stated that because the right to labour guarantees equal opportunity for everyone to prove their capabilities, the policy of the Company unlawfully restricted the plaintiff's access to employment.

In Nanova v. Vali Ltd., the court also discussed the issue of the responsibility of the legal entities. It stated that the provisions of the Act should be seen as lex specialis in relation to the Contracts and Obligations Act, which stipulates a general obligation to restrain from causing damages¹¹. The Protection against Discrimination Act is a lex specialis in defining the unlawful action – i.e. direct or indirect discrimination. According to the court, the violation of Article 4 of the Act (i.e. the prohibition of less favourable treatment) could lead to unlawful damages based on a violation of the special anti-discrimination norms. To define the damage, the court should identify the following elements, taken together: the action, the unlawfulness of the action, the damage, and the connection between the action and the damage. The unlawful action could be both active and passive. The uniqueness of the Protection Against Discrimination Act as seen by the court, is that when this Act is violated there is no need for the plaintiff to prove that the respondent has acted deliberately, being aware of the consequences of his/her actions.

In both Assenov v. Kenar Ltd and Nanova v. Vali Ltd. the court elaborated on the issue of the reversal of the burden of proof. Although this particular provision has been met with strong resistance by some legal professionals in Bulgaria, thus far, the courts have systematically applied the provision ruling in favor of the plaintiffs where respondents had failed to prove they had not discriminated against the plaintiffs. In particular, the court found (Assenov v. Kenar Ltd.) that it is not sufficient for the respondent to prove negative facts such as "there is no official policy to discriminate" in order to receive a ruling in their favor.

It is now crucial for rights groups to continue working for the establishment of good court practices under the anti-discrimination law and make sure that the law would not remain a piece of paper. This is a great responsibility because the PADA is a challenge to Bulgarian legal practice. At this stage, individuals and legal entities implicated in discriminatory actions against Roma often do not even try to conceal the fact that they treat Roma less favorably than non-Roma. However, now that the first court decisions found discrimination against Roma, actual and potential violators of the equal treatment principle would be aware of the possibility to become respondents in discrimination cases and would probably resort to more sophisticated discriminatory practices, which would be more difficult to prove. Consistent efforts are needed both on the part of the government and civil society organisations to educate Bulgarian society and Bulgarian courts to respect the norms of the Protection Against Discrimination Act and to recognise the right to equal treatment of the minority groups protected under the law.

Endnotes:

1. Daniela Mihaylova is legal consultant of the Sofia-based Romani non-governmental organization Romani Baht. She represented Romani plaintiffs in a number of cases field under the Protection against Discrimination Act.
2. On May 21, 2003, a lawsuit was filed before the Sofia District Court on behalf of 28 Romani school children against the Ministry of Education, the Municipality of Sofia, and the 75th Todor Kableshkov School. The lawsuit alleges violations of Bulgarian and international law arising from the racial segregation of and discrimination against Romani students forced to attend poor-quality, all-Roma schools in Romani settlements in Sofia. Such actions violate constitutional guarantees of equality and the right to education, as well as international treaties to which Bulgaria is a party. For further details see ERRC press release "ERRC School Desegregation Lawsuit in Bulgaria" dated May 20, 2003.
3. In one case, on June 11, 2003, 38 Romani children from the Professional Secondary School of Electrotechnics in Sofia accompanied by the deputy director of the school were denied access to the building by non-Romani students from the same school who yelled at them: "This is a school for white people. The dirty Gypsies smell like soap". The non-Romani students from the Professional school had swastikas and portraits of Hitler. The Romani students were physically attacked and beaten.
4. Sofia District Court decision dated August 8, 2004, on civil case No 2164/2004. Document on file with the author.
5. The plaintiff has been represented by Ms Margarita Ilieva, ERRC Legal Monitor based in Bulgaria.
6. Sofia District Court decision dated July 9, 2004, civil case No 1969/2004. Document on file with the author.
7. Sofia District Court decision dated August 19, 2004, civil case No 1262/2004. Document on file with the author.
8. Sofia District Court decision of July 12, 2004, civil case No 1184/2004. Document on file with the author. For more details on the case see also "Strategic Litigation Undertaken by the ERRC and Local Partners Prompt Bulgarian Courts to Sanction Racial Discrimination against Roma". In Roma Rights 3-4/2004, at: http://www.errc.org/cikk.php?cikk=2070.
9. Article 6 of the Bulgarian Constitution stipulates: "(1) All persons are born free and equal in dignity and rights. (2) All citizens shall be equal before the law." There shall be no privileges or restriction of rights on the grounds of race, nationality, ethnic self-identity, sex, origin, religion, education, opinion, political affiliation, personal or social status or property status. Unofficial translation by the ERRC.
10. Sofia District Court decision dated August 8, 2004, on civil case No 2164/2004. Document on file with the author.
11. Sofia District Court decision dated July 9, 2004, civil case No 1969/2004. Document on file with the author.