The National Council for Combating Discrimination (NCCD), following the referral by the Center for Legal Resources, has sanctioned the Municipality of Cluj-Napoca for the discriminatory nature of the criteria for granting social housing in the Decision of the Local Council no. 583 of September 2nd, 2021, which is still in force.
The NCCD held that the act of discrimination was committed under Article 2 para. (3), art. 2 para. (6) and art. 10 letter h) of the Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, republished, by Decision no. 298 of June 21st, 2023, respectively found indirect discrimination, multiple discrimination and refusal to grant to a group of persons some rights or facilities, sanctioning with a fine of 5,000 lei the Municipality of Cluj-Napoca, through its legal representative.
Some of the issues raised in the CLR petition concern the eligibility criteria for access to social housing, being discriminated against people who were evicted following the termination of the rental contract and who occupy or have abusively occupied a building owned by the Romanian State/administered by the Local Council of Cluj-Napoca/Cluj-Napoca Municipality, or owned by Cluj-Napoca Municipality.
It is known that the modular housing in Pata Rat is inhabited by the 2nd and 3rd generation of Romani people evicted from Coastei Street[1]. The extremely harsh contractual conditions indicate the intention of the TAU and the Local Council to rather easily terminate these contracts, followed, of course, by the lack of access to social housing. In the lease contract for a modular housing located in Pata Rat, the fourth degree of the commissoria lex operates. With the introduction of the most severe form of the covenant, in the event of non-fulfilment of obligations, the contract is deemed to be automatically terminated, without the need for a default notice or any other prior formality.
The NCCD Decision clearly states that the provisions established by the Local Council Decision discriminate the Romani people in Cluj-Napoca when obtaining social housing and restricting the right to housing, by establishing a permanent exclusion:
”44. Analyzing the factual situation, the Governing Board holds that the difference in the treatment of the Romanies resulting from the application of a neutral criterion (exclusion from obtaining social housing in the municipality of Cluj-Napoca of applicants who have occupied/abusively occupy a building, regardless of the person’s ethnicity), pursues a legitimate aim (protection of the property of the State/municipality), the method of achieving the legitimate aim is necessary and appropriate (to provide for the selection of applicants who comply with the laws of the Romanian State, as it is a support measure granted by the State), but it is not proportionate, being disproportionate because of the failure to specify a time limit on the period of validity of the ‘sanction’ for illegal residence (no form of ‘sanction’ established by a municipality can be imposed ‘for life’ and as a form of collective guilt in relation to minor children of illegal occupiers who lack capacity to act). As a result, the Board of Directors finds that the facts complained of constitute acts of discrimination, the test of objective justification (legitimate aim, appropriate, necessary and proportionate methods of achieving the aim) revealing the disadvantage of Romani people in obtaining social housing and restricting the right to housing, by establishing a permanent exclusion.” (Excerpt from NCCD Decision No 298 of June 21st, 2023)
Although the NCCD found the discrimination, it set a small fine of only 5,000 lei for the contravention, despite the fact that a community is affected and that the municipality of Cluj-Napoca has already been sanctioned by the NCCD for discriminatory criteria in granting social housing. It should be noted that Government Ordinance 137/2000 provides for the possibility of fining a group of persons or a community from 2,000 lei to 100,000 lei for an act of discrimination[2].
Analyzing the NCCD files on discriminatory criteria in the granting of social housing, we note that the fines did not exceed 5,000 lei, some discriminatory acts were even sanctioned with a warning. All the more so when it concerns situations affecting persons/communities with multiple vulnerabilities, as, at least in this case, in Cluj-Napoca the NCCD found multiple discrimination[3], which is an aggravating circumstance in the determination of criminal liability.
For this reason, but also from the aforementioned, namely the type of case and the possible amount provided for in OG 137/2000, we consider that the fine of 5,000 lei is very small.
Here is a series of NCCD decisions in similar cases where local public institutions were sanctioned with small fines:
- NCCD Decision No 511/20.07.2016 – Petitioner: European Centre for the Rights of the Romanies; Defendant: Institution of the Mayor of Reghin Municipality, Reghin Local Council. Sanction: fine of 2,000 lei[4];
- NCCD Decision no. 531/27.09.2017 – Petitioner: Desire Foundation; Defendant: Cluj-Napoca City Hall. Sanction: fine of 3,000 lei[5];
- NCCD Decision no. 156/11.04.2018 – Petitioner: ROMAJUST Romani Lawyers Association; Defendant: Focsani Mayor’s Institution. Sanction: warning[6];
- NCCD Decision no. 96/16.02.2022 – Petitioner: European Centre for the Rights of Romanies; Defendant: Municipality of Cluj-Napoca, represented by the Mayor, Cluj-Napoca Local Council. Sanction: warning[7];
- NCCD Decision No 266/13.04.2022 – Petitioner: Foundation Center for Legal Resources (CLR); Defendants: Administrative Territorial Unit of the Municipality of Alba Iulia, Alba Iulia Local Council. Penalty: fine of 5,000 lei[8];
- NCCD Decision no. 644/26.10.2022 – Petitioner: Foundation Centre for Legal Resources (CRJ); Complainants: TAU Aiud, county Alba, Local Council of Aiud Municipality. Sanction: fine of 5.000 lei[9].
A separate opinion on NCCD Decision no. 298/2023 highlights the importance and necessity of applying increased contravention sanctions (as opposed to warnings or fines with values towards the lower limit provided for in the law) to territorial administrative units in the event of discrimination in the form of discriminatory criteria in the granting of social housing, emphasizing the fact that the fine of 5,000 lei is not proportional to the degree of danger of the act committed:
“As a result, I claim that the correct sanction for the established deed is the contravention fine in the amount of 10,000 lei, considering the following:
- The offence concerns a group of persons, namely the Romani community;
- Romani people are a very vulnerable group in the Romanian society;
- The act of discrimination was carried out by a public institution which must show exigency and concern in order to prevent any possible discriminatory acts or acts because the right not to be subjected to discrimination is one of the fundamental rights in a democratic society;
- The act of discrimination was carried out by means of a legal act, with local application, which will have continuing effects against the discriminated groups until the discriminatory legal act is amended;
- Recidivism of the respondent – the majority opinion omitted to consider the quality of recidivism of the respondent who has already been sanctioned previously for the violation of the right to housing of Roma people (NCCD Decision No. 531/September 27th, 2017, the NCCD Decision No. 96 of February 16th, 2022), therefore, the fine of 5000 lei is not sufficient to send an unequivocal message to the respondent about the seriousness of the consequences of its act and will not deter it from committing similar acts of discrimination in the future. […]”
For more than two years, the CLR has filed a series of 7 petitions with the NCCD against the administrative territorial units whose local council decisions contain discriminatory criteria in granting social housing. In the 3 petitions resolved so far, the NCCD has imposed a fine of 5,000 lei. In the case of the other four, if discrimination is found, it is imperative that sanctions be applied and measures initiated to support or bring about a change of practice at national level. This change should facilitate the access to social housing for people and communities who are entitled to it by law, and the criteria and scores for prioritizing applications for social housing should give priority to groups at risk of social exclusion and discrimination.
You can read the entire NCCD Decision no. 298 of June 21st, 2023, communicated to CLR on August 1st, 2023, this being not yet available on the NCCD website, by clicking here.
See the Decision of the Local Council of Cluj-Napoca no. 583 from September 2nd, 2021 at: https://files.primariaclujnapoca.ro/hotarare_consiliu/2021/09/02/583.pdf
See Government Ordinance no. 137/2000 on the prevention and sanctioning of all forms of discrimination, republished: www.NCCD .ro/wp-content/uploads/2021/02/og-nr.-137-din-2000-republicata-2014.pdf
For more information see also:
The CLR’s opinion from 2 months ago: www.crj.ro/vom-avea-vreodata-criterii-nediscriminatorii-in-acordarea-de-locuinte-sociale/
The study Identification of discriminatory criteria in granting social housing and press release
Four petitions drafted and submitted to the NCCD regarding discriminatory criteria in the granting of social housing The study Access to social housing and non-discrimination
[1] ” Community on the ramp – Pata Rat”, Center for Legal Resources, 2019, available at: https://www.crj.ro/wp-content/uploads/2020/02/Locuire-romi-Pata-R%C3%A2t-final.pdf
[2] Art. 26 (1) The offences referred to in Article 2 para. (2), (4), (5) and (7), Art. 6-9, Art. 10, Art. 11 para. (1), (3) and (6), Art. 12, 13, 14 and 15 shall be punished by a fine from 1,000 lei to 30,000 lei, if the discrimination concerns a natural person, or by a fine from 2,000 lei to 100,000 lei, if the discrimination concerns a group of persons or a community.
[3] Art 2 (6) Any distinction, exclusion, restriction or preference based on two or more of the criteria referred to in para. (1) shall constitute an aggravating circumstance in determining the criminal liability if one or more of its components is not covered by the criminal law.
[4] Judgment available at: https://www.cncd.ro/wp-content/uploads/2020/12/hotarare-511-16.pdf
[5] Judgment available at: https://www.cncd.ro/wp-content/uploads/2020/12/hotarare-531-17.pdf
[6] Judgment available at: https://www.cncd.ro/wp-content/uploads/2020/12/Hotarare-156-18.pdf
[7] Judgment available at: https://www.cncd.ro/wp-content/uploads/2023/06/Hotarare-96-2022.pdf
[8] Judgment available at: https://www.cncd.ro/wp-content/uploads/2022/12/Hotarare-266-2022.pdf
[9] Judgment available at: https://www.cncd.ro/wp-content/uploads/2023/02/Hotarare-644-2022.pdf
