Message: V.S. v. Slovakia. Message No. 56/2014. The opinion was adopted by the Committee on December 4, 2015.
In 2014, the author of the communication was assisted in preparing a complaint. Subsequently, the complaint was communicated to Slovakia.
Subject matter: discrimination in access to employment.
Substantive issue: discrimination based on national or ethnic origin.
The Committee's legal position: The Committee recalls that it is not within its competence 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 <1> (paragraph 7.4 of the Opinion).
The Committee's assessment of the factual circumstances of the case: [o] The main question before the Committee is whether the State party has fulfilled its obligations to take effective measures in response to the applicant's allegations that she was discriminated against on the basis of belonging to the Roma people in trying to gain access to employment in a public school, and whether the State has provided- The party, through its national courts and other institutions, effectively protects and provides it with effective remedies against alleged racial discrimination, including adequate compensation or compensation for the damage caused (paragraph 7.2 of the Opinion).
Violation of article 5 (e) (i) of the Convention
The Committee takes note of the complainant's claim that she was subjected to racial discrimination in the context of a recruitment process conducted by a public primary school in the city of Revutsa... The Committee takes note of the information provided by the State party that the arguments in favour of the alleged discrimination of the complainant have not received a credible justification when examined by the relevant domestic administrative and judicial authorities. Although the State party acknowledges that the complainant suffered damage and was at a disadvantage, it argues that no causal link has been established between the different treatment and the resulting disadvantage. The Committee... Notes the statement of the Ministry of Education dated February 2, 2010, according to which the lack of funds is not a valid reason for preferring an applicant with a secondary school education in relation to 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 (See the decision of the District Court of the city Revutsa dated March 28, 2011, p. 3, first paragraph.). The Committee also takes note of the conclusion of the Equality Center that the applicant's case can be equated to a violation of the principle of equal treatment, since an unqualified candidate was hired, as well as the recommendation of this Center that the school principal comply with anti-discrimination legislation. The Committee... Notes that the comparison category that was taken into account by the State party in order to establish a difference in treatment is other job seekers who were not selected, and not 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 considers that the State party cannot deny its responsibility, since the director of a public school, who, although a separate legal entity, is responsible for the selection of school staff as part of the provision of public civil service. The Committee notes that the State party has not adequately responded to the complainant's allegations in this regard and has not provided convincing arguments to justify the complainant's distinctive treatment when rejecting her job application. Considering that in the case under consideration, the preference given to the choice of a candidate who was not a qualified sales assistant for the position of teaching assistant cannot be explained by her professional competence (See the decision of the District Court of the city of Revutsa dated March 28, 2011, p. 3, the last paragraph, which indicates that the successful applicant was a sales assistant.) or the lack of funds, the Committee concludes that the facts before it reveal a violation of the applicant's right to work without distinction as to race, colour, 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 (e) (i) of the Convention (paragraph 7.3 Opinions).
Violation of article 6 (in conjunction with article 2) of the Convention
The Committee should consider whether, as a result of the decisions of the national courts, the applicant was deprived of her right to an effective defence and an effective remedy against racial discrimination... The Committee notes that between 2009 and 2013, the complainant brought convincing facts of racial discrimination to the attention of the Equality Center, the Ministry of Education, Science, Scientific Research and Sports, as well as ordinary and extraordinary domestic courts. In this context, the applicant requested that, on the basis of the provision on shifting the burden of proof, the primary school in Revutsa, as a defendant, substantiate the fact that it did not discriminate against the applicant 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 takes note of the applicant's claim that the district and regional courts misjudged the facts and evidence presented by the primary school, since her situation was not considered in comparison with the situation of a non-Roma applicant who was selected for the position for which she applied. The Committee also takes note of 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 (See communication No. 40/2007, Er v. Denmark, Opinion adopted on August 8, 2007, paragraph 7.2, in which the Committee has confirmed its competence to consider the facts and interpretation of national legislation in cases where the decision is arbitrary or otherwise amounts to a denial of justice.). The Committee also takes note of the State party's contention that the application of anti-discrimination legislation, and in particular the provision on the transfer of the burden of proof, poses a certain problem for ordinary national courts, which should apply it effectively; and that courts should take a more thorough approach to the provision on the transfer of the burden of proof, including in connection with the present case. The Committee considers that the requirement of the courts that the applicant prove discriminatory intentions is contrary to the prohibition of conduct with discriminatory consequences provided for in the Convention, including with regard to the procedure for transferring the burden of proof established by the State party. Since the State party has introduced such a procedure, the failure to apply it properly constitutes a violation of the applicant's right to an effective remedy, including adequate compensation and reparation for the harm caused. The Committee therefore considers that the applicant's rights under paragraphs (a) and (c) of paragraph 1 of article 2 and article 6 of the Convention have been violated (paragraph 7.4 of the Opinion) (See paragraph 12 (2) 12 of the Law.).
The Committee's conclusions: facts. They indicate a violation by the State party of subparagraphs (a) and (c) of paragraph 1 of article 2 and subparagraph (i) of paragraph (e) of article 5 and article 6 of the Convention (paragraph 8 of the Opinion).