A transparent decision-making procedure
At the end of 2023, the National Council for Combating Discrimination (hereinafter referred to as the NCCD) published a draft that makes a number of major changes to its internal regulation.[1]
The new procedure for handling petitions proposed by the NCCD is to be issued by order of the president of the NCCD. As this instrument is procedural in its nature and therefore generally binding, it enjoys the attributes of a “normative act” in the broad sense.
The NCCD’s approach is therefore subject to the obligations imposed by Law No 52/2003 on transparency in decision-making in public administration. However, it should be noted that the aforementioned notice of the draft internal procedure does not comply with the requirements laid down in Art. 7 of the Law No 52/2003 and Art. 30 of the Law No 24/2000. The draft internal procedure is not accompanied by a statement of reasons, an approval report and the deadline, the place and the manner in which interested parties may submit written proposals or suggestions concerning the draft of the normative act.
The above-mentioned statement of reasons is extremely important because it details the need for regulation, i.e. the specific reasons why a particular rule should be amended. Seeing as this is missing, it is difficult to analyse the reasons for adopting the new amendments.
Background
“The National Council for Combating Discrimination, hereinafter referred to as the Council, is the state authority in the field of discrimination, autonomous, with legal personality, subjected to parliamentary control and at the same time guarantor of the respect and application of the principle of non-discrimination, according to the domestic legislation in force and the international acts to which Romania is a party.”[2]
The NCCD is the administrative authority for combating discrimination in Romania, according to the Government’s Emergency Ordinance no. 137/2000. Since its creation, individuals or NGOs (on behalf of the latter) have brought it cases in which their fundamental rights were affected. Through its decisions, the NCCD has an important impact on the way Romanian society perceives certain social problems.
For example, one such decision is the one against George Buhnici’s statements in 2022, whereby the NCCD brought the case in its own name and determined that his sexist statements should be sanctioned with a fine of 20,000 RON (approximately 4,000 euros) because they represented a form of direct discrimination that infringed the right to human dignity.[3] Although the fine was subsequently reduced by the Bucharest Court of Appeal,[4] the Buhnici ruling further shows the role of the NCCD, as a collective body that can bring cases in its own name and as a contributor in the fight against discrimination in the Romanian society.
However, in the light of new changes to NCCD’s internal procedure of submitting petitions, the institution’s ability to fulfil this role is under serious threat.
Issues identified
Minimizing the role of the members of the Governing Board in the settlement of cases
One of the most important change brought about by the proposed procedure is the abolition of the institution of the “member in charge of a file” of the Governing Board. Its role (or in some cases the role of the entire Governing Board) was taken up by the head of the Governing Board’s assisting structure, through the legal counsellors/legal counsellors appointed for this purpose. Thus, the head of the Governing Board’s assisting structure becomes responsible for carrying out the entire procedure up to the hearing, including: carrying out the summons procedure (Art. 15 Draft); examining the petition upon receipt and requesting its completion, if necessary (Art. 22 Draft); redirecting the petition to the competent body, if it is found that the petition was wrongly directed to the NCCD (Art. 23 Draft); invoking the objection of lateness[5] (Art. 25 Draft), the objection of the court’s lack of competence[6] (Art. 29 Draft) and the objection of the lack of a claim (Art. 33 Draft); starting an investigating action through a resolution (Art. 39 Draft) and designating the public servants who will prepare the files for the deliberation meeting of the Governing Board (Art. 37 para. 1 Draft). The procedure currently in force requires members of the Board to “take all necessary steps to obtain data and information additional to those contained in the referral, useful in the files they are examining and for which they are responsible, before the case is debated at the Board meeting” (Article 39(1) Draft).
In the proposed procedure, the members of the Governing Board maintain the prerogative to hear the parties to the case (assisted by public servants designated by the head of the structure assisting the Governing Board), the right to order the obtaining of additional data and information for the resolution of the petition and the obligation to do all that is necessary to resolve the case, but these powers will be performed mainly during the hearing and deliberation sessions (Art. 37(2-3) and Art. 38 Draft).
Infringement of the parties’ rights of defence
The new procedure provides that the proceedings and court statements are no longer recorded in the hearing’s note verbal, but are recorded and noted down in an internal note which is not made available to the parties to the lawsuit or third parties, but only to the courts or prosecuting authorities. This is a derogation from the common law principles laid down in Article 231(2). 5 and Art. 13 para. 1 and para. 3 of the Code of Civil Procedure (CPC),[7] according to which the parties have the right to consult the file and the court shall issue an electronic copy of the record of the court hearing at the request of the parties or the prosecutor. Given the importance of the proceedings before the NCCD, these should be made available to the parties. The current procedure provides only that “the proceedings and statements of the parties shall be recorded in the note verbal of the hearing” (Art. 48(3) Current Procedure) and does not restrict the right of the parties to consult the file.
The legal person may be a victim of discrimination and public institutions may have a legitimate interest in combating discrimination
Another significant change introduced by the new draft is that the legal person can be a victim of discrimination (Art. 7(2) Draft). This addition raises a number of questions. It is true that Article 2 of the OG 137/2000 mentions that persons may be victims of direct or indirect discrimination, without distinguishing between natural and legal persons. However, according to Art. 2 para. 1 of the OG No 137/2000, the criteria on the basis of which discrimination may be based such as “race, nationality, ethnicity, language, religion, social category, beliefs, sex, sexual orientation, age, disability, chronic non-contagious illness, HIV infection, membership of a disadvantaged group (…)” can generally only be attributed to a natural person. Therefore, how could a legal person be discriminated on the basis of these identity criteria and independently of discrimination against a natural person?
Council Directive 2000/43/EC,[8] which is the source behind OG 137/2000,[9] states in the preamble that legal persons can only be afforded protection with regard to discrimination against their members.[10] If this was the intention behind the new regulation, then this amendment would comply with both OG 137/2000 and EU law. However, the NCCD has not published an approval report setting out the reasons for its draft amendment to the procedure, so we cannot draw these conclusions, however we can ask further: could a legal person be discriminated on these grounds without reference to its members? The new provisions of Art. 7 para. 2 of the draft give us a vague answer to this question: “this status shall be assessed on a case-by-case basis by reference to the factual situation involved”. However, the consequences of these legislative changes have not really been considered or explained. Could a legal person use anti-discrimination law against another legal person? If the legal person brings the case of discrimination before the NCCD, then does the natural person drop their claim in that case, if they have filed one previously? It seems that in the name of innovation and possible streamlining of the procedure, we lose sight of the essential point: protecting the individual.
Therefore, in the absence of European or international legislation providing for the possibility that a legal person may be the victim of discrimination unrelated to the natural person, we do not consider that Romanian anti-discrimination legislation should become an experiment.
We conclude by pointing out that it is not possible to add to the law through an internal administrative procedure.
Public institutions will also be able to refer cases to the NCCD on the basis of a legitimate interest in combating discrimination, but only to the extent that they represent “a person, a group of persons or a community against whom an act of discrimination has been committed” (Article 7(1) Draft). In the absence of justification, the question remains as to whether or not the people whom the public institution represents are their employees, and if not, how far can their mandate go? Non-governmental organisations are limited by the scope of their activities set out in their statutes, and even the draft adds that they have to submit a copy of their founding acts each time they submit a petition. (Art. 8 para. 3 Draft). Conversely, if legal persons are limited by their prerogatives, should they not be treated in the same manner provided by Art. 8, within the limits of their mandate?
Tightening of admissibility conditions: bringing a case on its own name based on reasonable grounds and closure for lack of evidence
One of the most important powers of the NCCD, which also gives it an advantage over the courts, is that it can take action when there are grounds to believe that discrimination has taken place. This power is essential to the fulfilment of its role and has been the basis of the NCCD’s work in several cases, including the one involving George Buhnici.[11]
But compared to the old regulation,[12] the draft stipulates that reasonable grounds are required for the NCCD to bring a case in its own name.[13] This phrase was used in the 2014 version of Art. 305 para. 3 of the Code of Criminal Procedure (CCP), regarding in personam prosecution[14]: “When the data and evidence in the case provide reasonable grounds that a certain person has committed the act for which the criminal prosecution was initiated, the prosecutor shall order that the criminal prosecution be continued against him, who shall acquire the status of suspect.”[15] Although the article has since been amended and the phrase “reasonable grounds” has been replaced by “reasonable suspicion”, the new amendments to the draft still refer to these legal provisions.
Therefore, on the basis of a systematic interpretation of the legislative texts, it seems that the test required for the NCCD to bring a case in its own name has been tightened so as to meet the conditions for (the commencement of) the continuation of the criminal proceedings in personam.[16] However, given that the NCCD’s internal procedure is more akin to ordinary civil procedure, and in view of the principle of reversal of the burden of proof laid down in Article 20 para. 6 of the OG 137/2000, we consider that this test is excessive for anti-discrimination legislation and could significantly reduce the number of cases in which the authority brings a case in its own name.
In addition, another condition that makes it difficult to admit petitions is the change in the burden of proof provisions. According to the new internal procedure, petitions must be accompanied by useful, necessary, conclusive and relevant evidence, under the penalty of being closed (Article 71(2) Draft). Although the terminology relating to the conditions of proof is used in both civil and criminal procedural law, the sanction of dismissal for lack of evidence is specific to criminal proceedings. It is provided for in Art. 315 para. 1 lit. b in conjunction with Art. 16 para. 1 lit. c of the CCP. On the other hand, the absence of evidence does not lead to the nullity of the application, according to Art. 196 para. 1 CPC.
Amendment of the time limits for the settlement of cases by adding to the law
According to the proposed procedure, the decision of the Governing Boards to settle complaints will be adopted within a “recommended” period of 90 days (from the referral), and the decision will be communicated to the parties within a recommended period of 30 days from its adoption (Article 80 Draft). Although the 90-day time limit is unrealistic, it is also laid down in Art. 20 para.7 of OG No 137/2000, and the inclusion of the word “recommended” contravenes basic anti-discrimination legislation.
Restricting access for persons belonging to national minorities
According to Article 54 of the Draft, when the party or the witness does not know Romanian, an authorized translator or, in its absence, a trustworthy person shall be used and the presence of the authorized translator must be ensured by the parties. For persons belonging to national minorities, this requirement is more restrictive than those applicable before the courts. According to Art. 128 para. 2 of the Constitution[17] and Art. 18 para. 2 CPC, “Romanian citizens belonging to national minorities have the right to express themselves in their mother tongue before the courts, in accordance with the law”.
Retroactive nature of the proposed procedure
According to Article 86 of the Draft, “at the time of entry into force of this Order, the files under procedure shall be dealt with and completed in accordance with this procedure.” Such a provision is contrary to the constitutional principle of non-retroactivity of the law, whether substantive or procedural, except for more favourable criminal or misdemeanour legislation (Article 15(2) of the Constitution). On the contrary, where procedural law elements are concerned, the old rule is still enacted and, consequently, pending cases must continue under the old procedure.
Useful additions or amendments to the procedure
In addition to these changes, the draft procedure also makes some additions which transpose provisions from other legislation and which we consider useful:
- Clarification of the number of copies of the petition submitted and the procedure applicable in the case of petitions submitted online or in an insufficient number of copies. (Art. 9 para. 2-3 Draft)
- Expressly regulating that persons with visual and locomotive impairments may submit a petition at the institution’s premises or by telephone by having a written note drawn up by a legal adviser/counsellor designated for this purpose, the petition being signed by the person who drew it up. (Article 9(5) Draft)
- Changing the deadline for sending summonses from a minimum of 5 days to a minimum of 10 days before the hearing (Art. 17 Draft).
- Specifying that the hearing will be chaired by a member of the Governing Board as a chairperson (Art. 45 para. 3 Draft).
- Clarification that civil law provisions apply to the assistance and representation of parties, i.e. that they may be assisted or represented at hearings and that “the capacity of the representative must be proven in accordance with civil law provisions”. (Article 46(1) Draft)
- Provisions on recusal and abstention of a member of the Governing Board are added.
(Art. 61 Draft)
- A ne bis in idem provision is added: a person is not sanctioned for committing a misdemeanour when a decision has already been taken by the Governing Board in respect to the same offence, even under a different legal classification (Art. 67 Draft).
- A provision is added on the automatic revocation (Art. 74 Draft) and on the re-examination of the petition at the request of the courts. (Art. 75 Draft).
[1] National Council for Combating Discrimination, Draft internal procedure for the settlement of petitions and referrals of 28.11.2023, Source: https://www.cncd.ro/wp-content/uploads/2023/12/Propunere-de-modificare-a-procedurii-interne-de-solutionare-a-petitiilor-publicata-in-Monitorul-Oficial_2023.pdf (Romanian only) accessed on 12 January 2024.
[2] Emergency Ordinance No 137 of 31 August 2000 on the prevention and punishment of all forms of discrimination*) **) – REPUBLISHED., Art 16, Source: https://legislatie.just.ro/Public/DetaliiDocument/24129 (Romanian only) accessed on 12 January 2024. (“OG 137/2000”)
[3] National Council for Combating Discrimination, Decision No 494/31.08.2022, File No 5A/2022 after being brought in its own name in No 5029/19.07.2022, p 14, Source: https://www.cncd.ro/wp-content/uploads/2023/01/Hotarare-494-2022.pdf (Romanian only) accessed 12 January 2024.
[4] Minutes of the meeting of 08.11.2023, URL: https://portal.just.ro/2/SitePages/Dosar.aspx?id_dosar=200000000417076&id_inst=2 (Romanian only) accessed on 15 January 2024.
[5] The objection of lateness = an objection that can be raised when a mandatory legal time limit was breached. This objection may also be raised by the members of the Governing Board during the processing of the petition, but it follows from the current wording that the head of the Governing Board’s assistance structure is primarily responsible for this task.
[6] The objection of the court’s lack of competence = an objection that can be raised when a party to the lawsuit (or even the court itself) considers that the court does not have competence to solve a case.
[7] Code of Procedure of 1 July 2010-Republication, Art. 231 Par. 5 and Art. 13 Par. 1 and par. 3, Source: https://www.legal-land.ro/cod-procedura-civila/art-231-notele-de-sedinta-inregistrarea-sedintei/ (Romanian only) accessed on 16 January 2024.
[8] Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between persons irrespective of racial or ethnic origin, L 180/22 (19.7.2000), Source: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=CELEX%3A32000L0043 accessed 12 January 2024.
[9] JUST ACCESS Know your rights!, Interdisciplinary handbook on assistance to vulnerable groups – guide
developed to support the citizen and the justice system (2019), Chapter V, p 99, Source: https://www.crj.ro/wp-content/uploads/2020/02/Manual-JUST-UNBR_final.pdf accessed 12 January 2024.
[10] Supra n 8, Preamble 16: “It is important to protect all natural persons against discrimination on grounds of racial or ethnic origin. Member States should also provide, where appropriate and in accordance with their national traditions and practice, protection for legal persons where they suffer discrimination on grounds of the racial or ethnic origin of their members.”
[11] Supra n 3.
[12] ORDER No 144 of 11 April 2008 on the approval of the Internal Procedure for the settlement of petitions and complaints, OFFICIAL MONITOR No 348 of 6 May 2008, Art 13: “Bringing a case in its own name in any situation, announcement or event in respect of which there are grounds of the existence of facts which imply that an act of discrimination has been committed, may be initiated by any member of the Board of Directors, by drawing up a self-investigation note, stating the reasons.”, Source: https://legislatie.just.ro/Public/DetaliiDocument/92178 (Romanian only) accessed on 13 January 2024.
[13] Supra n 1, Art 14: “Art. 14 Self-investigation of any situation, announcement or event in respect of which there are reasonable grounds for believing that facts involving discrimination have occurred may be initiated by any member of the Governing Board by drawing up a reasoned self-investigation note. The letter of formal notice shall be submitted to a majority vote of the members of the Governing Board at the deliberation meeting.”
[14] A prosecution “in personam” = a criminal prosecution against a suspect.
[15] New Code of Criminal Procedure updated 2024 – Law no 135/2010, Art 305 Para 3, Source: https://legeaz.net/noul-cod-procedura-penala-ncpp/art-305 a (Romanian only) ccessed on 13 January 2024.
[16] Bogdan Micu, Radu Slăvoiu, Andrei Zarafiu, Criminal Procedure, Hamangiu Publishing House (2022), p 459.
[17]Romanian Constitution of 21 November 1991, Art. 128 para. 2, Source: https://www.cdep.ro/pls/dic/site2015.page?den=act2_2&par1=3&idl=2 accessed on 16 January 2023.
