On April 22, 2021, the case was won in the UN Committee on the Elimination of Racial Discrimination

Заголовок: On April 22, 2021, the case was won in the UN Committee on the Elimination of Racial Discrimination Сведения: 2024-06-07 04:56:41

The case of Grigor Zapescu v. the Republic of Moldova. Opinions of the Committee on the Elimination of Racial Discrimination dated April 22, 2021. Communication No. 60/2016.

In 2016, the authors of the communication were assisted in preparing a complaint. Subsequently, the complaint was communicated to the Republic of Moldova.

As could be seen from the text of the Opinions, the applicant claimed to be a victim of violations by the Republic of Moldova of articles 1 (paragraph 1), 5 (paragraphs "e", "i"), 6 and 7, considered in conjunction with article 2 (paragraph 1 "d") Conventions. Referring to article 1 (paragraph 1) of the Convention, he claimed to be a victim of racial discrimination. In this regard, he noted that he and B.V. applied for the same position and were interviewed on the same day. Since they have similar looks, speak the same language and have the same work experience, the only visible difference between them that could explain the rejection of his job application is his ethnic origin (paragraph 3.1 of the Opinions).

The Committee noted that the first issue to be considered was whether the State party had violated its obligation to protect the applicant from discrimination on the basis of ethnic origin in accordance with paragraphs "e", "i" of article 5 of the Convention on the Elimination of All Forms of Racial Discrimination in connection with the rejection of his application for employment. The second issue that needed to be considered was whether the judicial review of the case violated article 6 of the Convention.

The Committee's legal position: In accordance with paragraphs "e", "i" of article 5 of the Convention, States parties undertake to prohibit and eliminate racial discrimination in all its forms and guarantee everyone the opportunity to exercise their right to work without any distinction based on race, skin color, national or ethnic origin. The Committee recalls its General Recommendation No. 27 (2000) and draws attention to the need for effective legislation prohibiting discrimination in employment and all types of discriminatory labour market practices suffered by members of Roma communities, including in the recruitment process, and at the same time to ensure effective protection of potential victims from such practices. The Committee explains that the obligations provided for in paragraphs "e", "i" of article 5 are fulfilled not only by creating a legislative and regulatory framework prohibiting racial discrimination in access to employment, but also include the obligation to ensure effective monitoring of the implementation of non-discriminatory employment policies in practice (paragraph 8.3 of the Opinions).

According to article 6 of the Convention: "[d] The participating States shall ensure to every person subject to their jurisdiction effective protection and remedies through competent national courts and other State institutions in the event of any acts of racial discrimination infringing, in violation of this Convention, on his human rights and fundamental freedoms." Although, on a literal reading of this provision, it may seem that an act of racial discrimination must be established before the applicant is entitled to a defense and remedy, however, the Committee notes that the State party should provide a guarantee for the establishment of this right through national courts and other institutions (which would be negligible if it were not available in circumstances where the violation has not yet been established). However, it is unreasonable to require a State party to ensure that rights under the Convention are established, no matter how unfounded these claims may seem, but article 6 protects alleged victims when their claims under the Convention are disputed (paragraph 8.4 of the Opinions).

In assessing whether the domestic courts have provided the applicant with effective remedies, as required by article 6 of the Convention, the Committee primarily refers to its jurisprudence, according to which alleged victims of racial discrimination are not required to prove the existence of discriminatory intentions against them (paragraph 8.6 of the Opinion) (See, for example: the case of V.S. v. Slovakia" (CERD/C/88/D/56/2014), paragraph 7.4; the case of Er v. Denmark (CERD/C/71/D/40/2007), paragraph 7.4; and the case of Laurent Gabre Gabrum v. France (CERD/C/89/D/52/2012), paragraph 7.2.).

The identification of persons as members of an ethnic or racial group should be based on the self-identification of the person, unless there are grounds to the contrary (paragraph 8.6 of the Opinion).

The choice of a specific remedy cannot negatively affect the consideration of a discrimination complaint, even if the alleged victim of discrimination does not want to work for the relevant company (paragraph 8.7 of the Opinion).

The Committee's assessment of the factual circumstances of the case: The Committee took into account the indisputable information provided to it by the applicant, who is a representative of the Roma, that his application for the position of waiter was rejected by the restaurant chain in 2012. The Committee noted, in particular, the applicant's claim that, in connection with this incident, he drew the attention of the national courts to the prima facie fact of racial discrimination and that it was the respondent company that should therefore have presented reasonable and convincing arguments to justify the unequal treatment of the author.

The Committee noted with concern the State party's observation that the selection process was governed by a regulation (approved at the company level, which established clear and non-discriminatory recruitment criteria) and, consequently, the results of this selection process should be considered legitimate (paragraph 8.3 of the Opinions).

The Committee is mindful of the State party's national legislation providing for the transfer of the burden of proof in matters of discrimination (See: article 19 of Law No. 121 "On Ensuring Equality"), it recalls the applicant's claim that the national courts did not apply these national laws in accordance with the Convention. In this regard, the Committee took into account the applicant's argument that the Centru District Court in Chisinau held him responsible for not providing evidence of his ethnic origin other than his own statement (paragraph 8.6 of the Opinion).

The Committee took note of the applicant's claim that the domestic courts had attached too much importance to the fact that, instead of employment, he had asked for compensation during the proceedings before the courts. The Committee noted that, based on the applicant's choice, the courts presumed that he had never intended to work for the company, and this presumption seemed to weaken his position in the discrimination case in the eyes of the national courts (paragraph 8.7 of the Opinions).

The Committee noted with concern that the applicant's decision not to file a complaint with the Council for the Prevention and Elimination of Discrimination and Equality, in the opinion of the national courts, confirmed the absence of a "real situation of discrimination". In this regard, the Committee noted that the applicant had chosen a judicial procedure that, in addition to confirming his rights, could provide him with compensation, could not put him at a disadvantage (paragraph 8.8 of the Opinion).

The Committee stressed that the court documents indicated - instead of requiring the respondent company to justify a differentiated attitude towards the plaintiff, indicating the exact reasons for refusing to hire him, despite the advisory opinion of the Council for the Prevention and Elimination of Discrimination and Equality, drawing the attention of the courts to the need to shift the burden of proof in discrimination cases and providing certain guidance on the interpretation of the term "basic professional requirements," however, the courts relied heavily on the testimony of other employees, confirming the non-discriminatory environment in which they performed their daily duties. The Committee was concerned that the information received from persons who differed in age, gender and ethnicity from the applicant and worked in other positions did not guarantee that these persons were in an identical situation with the applicant. At the same time, the possibility of intertwining the motives of discrimination and the existence of "ethnic hierarchies" in the labor market is also ignored (as demonstrated by comparative experiments conducted in Europe). In addition, cases of discriminatory attitudes arising in "isolated" and specific circumstances or even in the presence of mixed motives are underestimated, and not only within the framework of a systematic policy or attitude (especially in the absence of any specific explanations from the respondent company in connection with the refusal to hire the applicant). The Committee recalled that this approach does not correspond to an understanding of the problems and prejudices that the Roma community continues to face in the State party and which are indicated in the concluding observations of the Committee on the Republic of Moldova published in 2011 and 2017, as well as in numerous reports of other international and regional human rights bodies (paragraph 8.9 of the Opinions).

The Committee considered that although the applicant's claims in this case were controversial, he nevertheless had a disproportionately heavy burden of proving the discriminatory intentions of the respondent company. In the Committee's view, despite the fact that national legislation provides for a procedure for shifting the burden of proof, however, the State party has reacted so ineffectively to allegations of racial discrimination that it has not provided adequate protection and has not provided the necessary legal instruments, including adequate satisfaction and compensation for harm caused, in accordance with its own legislation and article 6 The Convention (paragraph 8.10 of the Opinions).

The Committee's conclusions: The information provided indicated a violation by the State party of article 6 of the Convention.



© 2011-2018 Юридическая помощь в составлении жалоб в Европейский суд по правам человека. Юрист (представитель) ЕСПЧ.