The case of V.S. v. Slovakia. The opinion of the Committee dated December 4, 2015. Message No. 56/2014.
In 2014, the author was assisted in preparing a complaint. Subsequently, the complaint was communicated to Slovakia.
The Committee concluded that the facts presented to it indicated a violation of the applicant's right to work regardless of race, colour, national or ethnic origin, in violation of the State party's obligation to ensure equality in employment relations, as provided for in article 5 of the Convention on the Elimination of All Forms of Racial Discrimination. The Committee also considered that the courts' requirement that the applicant prove discriminatory intentions was contrary to the prohibition of conduct with discriminatory consequences provided for in the Convention, including with regard to the burden-of-proof procedure established by the State party's legislation. Since the State party had introduced such a procedure, the failure to apply it properly constituted a violation of the applicant's right to an effective remedy, including adequate compensation and reparation for the harm caused. Therefore, in the Committee's view, the applicant's rights under articles 2 and 6 of the Convention were violated.
As follows from the text of the Opinion, the applicant claimed that she was a victim of a violation by Slovakia of certain provisions of the Convention. She pointed out that the State party, through its national courts, had failed to provide her with effective protection and effective remedies against racial discrimination to which she had been subjected in the context of the recruitment procedure by the public primary school in R., and that the State party had not taken all appropriate measures to eliminate racial discrimination in access to employment (paragraph 3.1 of the Opinion).
Information about this case is set out in the Review of Judicial Practice of the Supreme Court of the Russian Federation No. 2 (2016), approved by the Presidium of the Supreme Court of the Russian Federation on July 6, 2016.
Legal positions of the Committee: It is not within the competence of the Committee to assess the interpretation of facts and national legislation by national authorities, except in cases where the decisions taken are clearly arbitrary or otherwise amount to a denial of justice (paragraph 7.4 of the Opinion).
The Committee's assessment of the factual circumstances of the case: The main question before the Committee was whether the State party had fulfilled its obligations to take effective measures in response to the applicant's allegations that she had been discriminated against on the basis of belonging to the Roma people while trying to find employment in a public school, and whether the State party had provided through its national courts and other institutions effectively protect and provide her with effective remedies against alleged racial discrimination, including adequate compensation or compensation for the damage caused (paragraph 7.2 of the Opinion).
The Committee took into account the complainant's claim that she had been subjected to racial discrimination in the context of a recruitment process conducted by a public primary school in the city of R. The Committee took note of the information provided by the State party that the arguments in favor of the alleged discrimination of the complainant had not received a credible justification when examined by the relevant internal administrative and judicial authorities. Although the State party acknowledged that the complainant had suffered damage and was at a disadvantage, it argued that no causal link had been established between the different treatment and the resulting disadvantage. The Committee noted the statement of the Ministry of Education dated February 2, 2010, according to which the lack of sufficient funding was not a valid reason for preferring an applicant with a secondary school education over an applicant with a university degree and that the employer should strive to hire qualified applicants, and unqualified candidates should be hired only in exceptional cases. The Committee also took note of the conclusion of the Equality Center that the applicant's case could be equated to a violation of the principle of equal treatment, since an unqualified candidate was hired, as well as the Center's recommendation that the school principal comply with anti-discrimination legislation. The Committee noted that the comparison category taken into account by the State party in order to establish a difference in treatment was other positions that were not selected, rather than the person who received the job, as well as the State party's statement that the selection was based on the fact that the selected person was known to the principal of the school. The Committee considered that the State party had not been able to deny its responsibility, since the director of a public school, who, although a separate legal entity, was responsible for the selection of school staff as part of the provision of public civil service. The Committee noted that the State party had not adequately responded to the applicant's allegations in this regard and had not provided convincing arguments to justify the applicant's distinctive treatment when rejecting her job application. Considering that in the present case preference was given to a candidate who did not have the necessary qualifications (was a sales assistant) for the position of teaching assistant, could not be explained by her professional competence or lack of sufficient funding, the Committee concluded that the facts presented to it indicated a violation of the applicant's right to work without distinction of race, skin color of national or ethnic origin , in violation of the State party's obligation to ensure equality in respect of the right to work, as provided for in article 5 of the Convention (paragraph 7.3 of the Opinion).
The Committee also had to consider whether, as a result of the decisions of the national courts, the applicant had been deprived of her right to an effective defence and an effective remedy against racial discrimination. The Committee noted that between 2009 and 2013, the applicant brought convincing facts of racial discrimination to the attention of the Equality Center, the Ministry of Education, Science, Scientific Research and Sports of Slovakia, as well as the domestic courts. In this context, the applicant requested that, on the basis of the provision on the transfer of the burden of proof, the primary school in R. As a defendant, she justified the fact that the applicant had not been discriminated against on the basis of her belonging to the Roma people. In particular, she asked the primary school to provide reasonable and convincing arguments explaining why the school refused to consider her application for a teaching position and rejected her application for a teaching assistant position, while a person with lower qualifications than the applicant was accepted for the position that appeared later. The Committee took note of the applicant's claim that the courts had misjudged the facts and evidence presented by the primary school, since her situation had not been considered in comparison with that of a non-Roma applicant who had been selected for the position for which she had applied. The Committee also took into account the applicant's claim that, in its decision of 27 November 2012, the regional court ordered her to prove that the school had an intention to discriminate against her, although she should not have been required to do so in accordance with the provision on shifting the burden of proof provided for in the Anti-Discrimination Law. The Committee took note of the State party's contention that the application of anti-discrimination legislation, and in particular the provision on the distribution of the burden of proof, posed a problem for national courts, which should have applied it effectively; and that the courts should have taken a more careful approach to the provision on the transfer of the burden of proof, including in connection with this case. The Committee considered that the courts' requirement that the applicant prove discriminatory intentions was contrary to the prohibition of conduct with discriminatory consequences provided for in the Convention, including with regard to the burden-of-proof procedure established by the State party's legislation. Since the State party had introduced such a procedure, the failure to apply it properly constituted a violation of the applicant's right to an effective remedy, including adequate compensation and reparation for the harm caused. The Committee therefore concluded that the applicant's rights under articles 2, 6 of the Convention had been violated (paragraph 7.4 of the Opinion).
The Committee's conclusions: the facts indicated a violation by the State party of articles 2, 5 and 6 of the Convention (paragraph 8 of the Opinion).