Romania, Alba Iulia Court of Appeal, 3 March 2017 48/2017

Identification of the case

• Equality before the law (art. 20 CFREU)
• Non-discrimination (art. 21 CFREU)

• Articles 2(1), 12(1), 13, 15 and 20 of the Constitution of Romania, 1991
• Articles 1,4,6,16 and 25 of the Ordinance no. 137 of August 31, 2000, on the prevention and sanctioning of all forms of discrimination

• Framework Convention for the Protection of National Minorities, ETS No.157

Summary of the case

A Roma community was living in Sibiu, Romania without access to electricity, gas, drinking water and other utilities. A senior member of the local township, together with the National Council for Combating Discrimination (Consiliul Național pentru Combaterea Discriminării, CNCD) asked the mayor to remedy this situation, and the mayor responded by relocating the Roma community to a nearby Turnișor village rural area, in which the living situations were similar. The relocation led to the Roma community feeling disadvantaged and the member of the community requested through a petition registered with the CNCD, finding a deed of discrimination committed by the mayor by harming human dignity on the idea of excluding Roma community from Turnișor neighbourhood by deporting them out of town to living in the rural area. As a result, the CNCD fined the mayor for violating the rights of the Roma people and held that the treatment was discriminatory.

The mayor, together with the local municipality of Sibiu challenged the decision of the CNCD at the Alba Iulia Court of Appeal.

Annulment of the sanction issued by the National Council for Combating discrimination and exemption from paying the fine in the amount 5,000 lei.

The court referred to the national legislation regarding the prevention and sanctioning of discrimination and held inter alia that Article 16 of the Constitution guarantees that all citizens are equal before the law and public authorities, without privileges and discrimination. The court recognised the cumulative meeting of elements regarding the treatment of difference, restriction, exclusion, and preference in Article 15 of the ordinance, in Article 16 of the Constitution, in Article 21 of the CFREU and in Article 14 of the ECHR.

After outlining the national and international legal obligations of Romania concerning non-discrimination and equality, the court ascertained that the members of the Roma community were victims of indirect discrimination because as a result of the relocation, the community was disadvantaged and forced to relocate in a rural area. According to the court, the reasoning given by the municipality that the relocation was due to improving the standard of living by renovating the area, did not constitute as a sufficient legitimate justification for depriving the rights of the citizen.

The claim that the relocation served the community by for example offering cultural integration and social protection was not justified, because the discrimination found by the CNCD referred explicitly to the problems faced by a small and determined group of Roma people who faced differentiated treatment from other citizens. The court held that these Roma people's rights to equality, dignity and right to choose a residence freely were infringed as this exclusion was considered degrading to the victims. The court further concluded that the solution offered by the municipality, that of relocation from an area in which they resided legally to the rural area, lead to the de facto social exclusion of the Roma community, and thus constituted discrimination according to the principles established in Romanian legislation, European Convention on Human Rights and the Charter of Fundamental Right of the European Union.

The court dismissed the action brought by the plaintiff and held that the decision of the CNCD by which the act of discrimination on the part of the plaintiff was found is thorough and legal and that the contravention fine of 5,000 lei was legally applied.

Role of the Charter and role of the general principles on enforcement

The case belongs to the scope of equality guaranteed by the Charter for everybody. Articles 20 and 21 of the Charter referred by the court are in the essence of equality of people and apply to anyone. Thus, the principle of non-discrimination validated by the Charter is also applied in the actions of national officials, and they are expected to ensure, that no violations of the rights conferred by the Charter take place in their action.

Ordinance no. 137 of August 31, 2000, on the prevention and sanctioning of all forms of discrimination

Article 13

(1) It constitutes a contravention, according to this ordinance, any behaviour aimed at moving or evicting a person or a group of persons from a neighbourhood or a building due to his belonging to a certain race, nationality, ethnicity, religion, social category or to a disadvantaged category, respectively due to the beliefs, age, sex or sexual orientation of the persons concerned.

(2) The provision of par. (1) cannot be interpreted in the sense of restricting the right of the authorities to implement the systematisation and spatial planning plans, as long as the move is made in accordance with the law and the measure taken is not determined by the membership of the person or group of persons in the cause of a certain race, nationality, ethnicity, religion, social category or a disadvantaged category, respectively because of their beliefs, age, sex or sexual orientation.

Article 20

(1) The person who considers himself discriminated may notify the Council within one year from the date of the commission of the deed or from the date on which he could become aware of its commission.

(2) The Board resolves the notification by decision of the Board of Directors provided in art. 23 para. (1).

(3) By the application introduced according to par. (1), the person who considers himself discriminated has the right to request the removal of the consequences of the discriminatory acts and the restoration of the situation prior to the discrimination.

(9) The decision of the Board of Directors may be appealed to the contentious administrative court, according to the law.

(10) The decisions issued according to the provisions of par. (2) and which are not challenged within 15 days constitutes an enforceable title.

Article 21 of the Constitution of Romania, 1991

(1)Every person is entitled to bring cases before the courts for the defence of his legitimate rights, liberties and interests.

(2) The exercise of this right shall not be restricted by any law.

(3) All parties shall be entitled to a fair trial and a solution of their cases within a reasonable term.

(4) Administrative special jurisdiction is optional and free of charge.

The principles of equality and non-discrimination provided in Articles 20 and 21 of CFREU require the State to treat citizens equally. This also means that the State has to refrain from certain actions that may constitute violations of these fundamental rights. Article 13 of the ECHR provides a right to an effective remedy before a national authority, notwithstanding that the violation has been committed by persons acting in an official capacity. The court referred to this right also in citing Article 21 of the Constitution conferring the same right. Moreover, the right to freedom of movement and residence in Article 45 of CFREU was relied upon.

• Equivalence
• Proportionality

The principle of equivalence lies at the heart of the case where the court established an infringement of the rights to equality, dignity and to choose a residence freely and stated that these rights should be applicable to all people without distinction. The court stressed the importance of non-discrimination and equality of Roma minority referring to several national laws, EU law, and the statements of the CNCD in justifying the decision. The court held important that the international instruments are respected and applied also at the domestic level.

The court applied the principle of proportionality in analysing the proportionality of the decision and fine imposed by the CNCD to the applicant. The court held that all elements of contraventional liability were met and that the fine imposed was proportional considering the scale of the violation and all of the circumstances of the case.

Elements of judicial dialogue

• Dialogue among same level national courts within the same Member State

• Direct dialogue between CJEU/ECtHR and National court (out of preliminary reference procedure)

• Fredin v Sweden Application No 18928/91
• Hofman v Austria Application No 12874/87
• Spadea and Scalambrino v Italy Application No 12868/87
• Stubbings and Others v The United Kingdom Application No 22083/93, 22095/93

Reaffirming the authority of the CNCD in the case of non-discrimination violations and supporting the finding that rights to equality, dignity and right to choose a residence freely are violated indirectly when relocation of a group results in a disadvantaged situation and social exclusion from other groups.

The outcome of the judgment is unavailable but the expected outcome based on the judgment is that the authorities have to make sure that the relocation does not result in a disadvantaged situation of the minority group relocated by following the non-discrimination legislation and taking into account the fundamental rights of the nationals.

Additional notes on the decision