The case of Grigore Zapescu v. the Republic of Moldova. The opinion of the Committee dated April 22, 2021. Communication No. 60/2016.
In 2016, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to the Republic of Moldova.
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", the courts relied heavily on the testimony of other employees, confirming the non-discriminatory environment in which they performed their daily duties. In the Committee's view, despite the fact that national legislation provided for a procedure for sharing the burden of proof, however, the State party reacted so ineffectively to allegations of racial discrimination that it did not provide adequate protection and did not provide the necessary legal instruments, including adequate satisfaction and compensation for harm caused, in accordance with its own legislation and article 6 Conventions.
As could be seen from the text of the Opinions, the applicant claimed to be a victim of a violation by the Republic of Moldova of articles 1, 5, 6 and 7, considered in conjunction with article 2 of the Convention. Referring to article 1 of the Convention, he indicated that he was a victim of racial discrimination. In this regard, it was 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 information provided indicated a violation by the State party of article 6 of the Convention on the Elimination of All Forms of Racial Discrimination.
The Committee's legal position: In accordance with paragraphs "e", subparagraph "i" of paragraph "d" 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, color, national or ethnic origin. of 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", subparagraph "i" of paragraph "d" 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 Opinions).
According to article 6 of the Convention: "States Parties 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, the Committee notes, however, 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 was 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 Opinion).
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).
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: it took into account the information provided 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, that it was the respondent company that should therefore have presented reasonable and convincing arguments to justify the unequal treatment of the author (paragraph 8.5 of the Opinion).
The Committee drew attention to 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 therefore the results of this selection process had legitimate grounds (paragraph 8.3 of the Opinion).
The Committee recalled the State party's national legislation, which provides for the sharing of the burden of proof in matters of discrimination. The Committee pointed to the applicant's claim that the national courts had not applied these national laws in accordance with the Convention. In this regard, the Committee took into account the applicant's argument: the District Court of Ch. in Chisinau held him responsible for the fact that he did not provide evidence of his ethnic origin, except for his own statement (paragraph 8.6 of the Opinion).
The Committee took note of the applicant's claim that the national 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 Opinion).
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, and such a choice 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", the courts relied heavily on the testimony of other employees, who confirmed the non-discriminatory environment in which they performed their daily duties. The Committee was concerned that 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 was also ignored. In addition, cases of discriminatory attitudes arising in "isolated" and specific circumstances or even in the presence of mixed motives, and not only within the framework of a systematic policy or attitude, were underestimated (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 Opinion).
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 provided for a procedure for sharing the burden of proof, however, the State party responded to allegations of racial discrimination so ineffectively that it did not provide adequate protection and did not provide the necessary legal instruments, including satisfaction and compensation for harm caused, in accordance with its own legislation and article 6 of the Convention (paragraph 8.10 of the Opinion).
The Committee's conclusions: The information provided indicated a violation by the State party of article 6 of the Convention.