Observation (CEACR) - adoptée 2007, publiée 97ème session CIT (2008)

1.  Discrimination based on political opinion – inherent requirements of the job. In its previous observation, the Committee drew the Government’s attention to section 50 of Act No. 188/1999 on civil servants, as amended and reissued in 2004, which provides that “to hold public office a person shall meet the following conditions: … (j) [shall] not have been carrying out an activity in the political police as defined by the law”. The Committee noted that this restriction regarding entry into the civil service may go beyond what would be a justifiable exclusion in respect of a particular job based on its inherent requirements as provided for under Article 1(2) of the Convention. The Committee notes that the Government’s report contains no information in reply to this matter. The Committee, therefore, requests the Government once again to supply information on what constitutes an "activity in the political police" under section 50(j) of Act No. 188/1999, as amended, including relevant laws and judicial decisions, and to provide detailed information on the rationale and practical application of this provision, including the number of persons that are excluded from the civil service on this basis.

2. Legislative developments. The Committee notes that the legislative framework to combat discrimination has been further strengthened by Act No. 324 of 4 July 2006, which modifies and complements Government Order No. 137/2000. The amendments introduced new prohibited grounds of discrimination (age, disability, non-infectious chronic disease, and HIV/AIDS infection), as well as provisions on multiple discrimination, victimization, harassment, incitement, aggravating circumstances, and the burden of proof. In addition, the minimum and maximum fines have been increased. With regard to the introduction of new prohibited grounds of discrimination, the Committee requests the Government to confirm that the Convention’s coverage has been extended in accordance with Article 1(1)(b).

3. The Committee notes that Act No. 324 also provides for a number of changes regarding the organization and procedure of the National Council for Combating Discrimination (NCCD). The Council is now established as an independent body under the control of Parliament. Other changes concern the composition, nomination, status and competence of the members of the Council’s Steering Board. The new legislation also provides for the establishment of regional offices of the NCCD. As regards procedures, deadlines for the submission of complaints and for their conclusion have been introduced. Further, the NCCD will now be able to mediate.

4. The Committee further notes that Act No. 202/2002 on equal opportunities between women and men has been amended by Act No. 340/2006 of 17 July 2006 and, again, by Emergency Ordinance No. 56/2006 of 30 August 2006. The amendments, inter alia, strengthen the Act’s provisions concerning discrimination based on pregnancy or maternity and improve the institutional set-up of the National Agency for Equal Opportunities between Women and Men (ANES).

5. Enforcement. The Committee recalls that monitoring and analysing discrimination complaints is an important means of assessing the effectiveness of the legislation and its enforcement mechanisms. It notes from the Government’s report that 110 discrimination complaints related to employment and occupation were received by the NCCD in 2005 (out of a total of 382), 130 in 2006 (out of 432) and 215 in the first half of 2007 (out of 427). Between 2004 and mid-2007, violations of the anti-discrimination legislation were found in 41 cases, in eight of which fines were imposed, while in 33 warnings were issued.

6. As regards the grounds of discrimination, the Government’s report indicates that from the beginning of 2006 to September 2007, the NCCD received 30 complaints regarding gender discrimination at work. In respect of 11 of these cases sanctions were imposed. According to the Government most of the gender discrimination cases before the NCCD related to discrimination in employment, e.g. refusal to offer employment based on age or pregnancy; retrograding because of pregnancy, dismissal in connection with pregnancy or sexual harassment (CEDAW/C/ROM/Q/6/Add.1, 28 March 2006, page 5). In the same 2005–06 period, 12 complaints were brought before the labour inspection services, some of them by the ANES. However, in only one of these cases was it found that discrimination had occurred. As regards judicial decisions regarding gender equality, the Government indicated that the Ministry of Justice had no data regarding cases at its disposal (ibid., page 2). No information has been provided regarding cases of discrimination involving other prohibited grounds.

7. The Committee notes that the number of cases of employment discrimination dealt with by the NCCD and the labour inspection services remains low. The Committee also notes that no information has been provided by the Government on the number, nature and outcome of complaints involving prohibited grounds other than sex and that no information concerning court cases appears to be available. The Committee emphasizes the importance of collecting and publishing information concerning discrimination cases brought before the competent bodies, including the courts, that is comparable over time and that indicates the grounds of discrimination concerned. The Committee requests the Government:

(a)      to step up its efforts to promote public awareness of the existing laws, procedures and mechanisms that can be invoked when discriminatory treatment occurs in employment and occupation, and to indicate the specific action taken in this regard. Please also indicate any measures taken to assist victims of discrimination, including members of the Roma community, to bring discrimination cases;

(b)      to indicate whether and how information concerning discrimination cases brought before the NCCD, the labour inspection services and the courts relating to employment and occupation are currently being collected and made available to the public, and to provide information concerning such cases in its next report, indicating the grounds of discrimination concerned as well as the outcomes of these cases.

8. Equality of opportunity and treatment in employment and occupation of the Roma. The Committee notes the detailed information provided by the Government on the measures taken to promote equality of opportunity and treatment in employment and occupation of the Roma. The National Employment Agency continued to develop partnerships with the National Roma Agency, the prefectures, and non-governmental organizations in order to strengthen collaboration at the local level to draw up and adapt vocational training plans, taking into account actual and perspective labour market needs. The involvement of non-governmental organizations of the Roma in delivering employment services and active labour market measures is expected to improve further the outcomes of action taken to promote access of the Roma to employment.

9. In its previous observation, the Committee noted two targets set by the Government: (1) to provide vocational training to at least 1,500 Roma per year; and (2) to achieve the employment of at least 10,000 Roma per year. According to the Government’s report, the number of Roma participating in vocational training increased considerably from 202 in 2003 to 1,601 in 2005, thus reaching the target set, followed by a decrease to 1,204 in 2006. The Committee also notes that the second target is currently being met. In 2005 and 2006, a total of 10,366 and 13,810 persons of Roma origin have been employed, respectively. The information provided by the Government indicates that positive results were achieved mainly due to special programmes and initiatives targeting unemployed Roma, such as employment fairs and mobile campaigns reaching out to Roma communities.

10. The Committee welcomes the fact that the measures taken by the Government have continued to show positive results, as well as the involvement of Roma representatives and organizations in the design and implementation of the programmes carried out to promote access of the Roma community to employment and occupation. The Committee encourages the Government to continue to consolidate the progress made with a view to achieving sustained equality of opportunity and treatment of the Roma in respect of access to employment and occupation. The Committee requests the Government:

(a)      to continue to provide detailed information on the measures taken in this regard and the results achieved, including statistical data, disaggregated by sex;

(b)      to provide information not only on the number of Roma employed after having benefited from training or employment services, but also information on the actual retention and duration of the employment relationship; and

(c)       to provide information on the measures taken to promote respect and tolerance between the Roma and members of other groups of the population, with a view to eliminating stereotypes and the discrimination that results from stereotypical attitudes.

11. Follow-up to the 1991 Commission of Inquiry. The Committee recalls that it has been following up on Recommendation No. 6 (requests for medical examinations due to treatment received while in custody, made by persons who went on strike in 1987 and who have been subsequently rehabilitated by the courts) and Recommendation No. 18 (rebuilding of the houses destroyed as part of the systematization policy against certain minorities) of the report of the Commission of Inquiry (Official Bulletin, Volume LXXIV, 1991, Series B, Supplement 3).

12. With respect to Recommendation No. 18, the Committee notes that the Advisory Committee on the Framework Convention for the Protection of National Minorities of the Council of Europe, in its Second Opinion on Romania adopted on 24 November 2005, noted efforts by the Government to improve the speed of restitution of religious property confiscated during the Communist regime and to improve the legal framework relating to the restitution of properties confiscated during that period which had belonged to certain ethnic communities (ACFC/OP/II(2005)007, paragraphs 75–82). The Committee also notes that the Committee of Ministers of the Council of Europe recommended to the Government that they should accelerate the implementation of the restitution of religious and community property of minorities and to evaluate the effects of this process on the situation of vulnerable minority groups (resolution CM/ResCMN(2007)8 of 23 May 2007, paragraph 2). The Committee will continue to follow further developments regarding this matter. With regard to Recommendation No. 6, the Committee decided to close its follow-up due to lapse of time.

The Committee is raising other points in a request addressed directly to the Government.