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Anti-Discrimination Legislation

Anti-Discrimination Legislation

At the heart of the Romanian anti-discrimination legislation is the Constitution of the country, which (Article 4) states that “Romania is a common and indivisible homeland of all its citizens, without distinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation, property or social origin”. Article 6 of the Constitution of Romania recognizes the existence of persons belonging to national minorities, and at the same time recognizes and guarantees the right of these persons to their identity (ethnic, cultural, linguistic and religious). “The protection measures taken by the State regarding the preservation, development and expression of identity of persons belonging to national minorities shall conform to the principles of equality and non-discrimination in relation to other Romanian citizens” - the document says. Article 32 guarantees the right of national minorities to learn their mother tongue and the right to be educated in that language.

Article 16 notes that citizens are equal before the law and public authorities, without privileges and without discrimination. Article 29 stresses the need for freedom of conscience.

In accordance with paragraph 2 of Article 59 of the Constitution of Romania organizations of citizens belonging to national minorities that do not collect a sufficient number of election votes for representation in Parliament have the right to one deputy seat each under the conditions stipulated by the electoral law. Citizens of a national minority may be represented by only one organization. But, on the other hand, there is no law on the status of national minorities or a clear definition of this concept in Romania.

In 2000 immediately after the adoption of the anti-discrimination EU Directive 2000/43/EU Croatia adopted the Decree of the Government № 137/2000 on the Prevention and Punishment of All Forms of Discrimination. Discrimination is described as harassment based on race, nationality, ethnic background, language, religion, social status, creed, gender, sexual orientation, belonging to a disadvantaged category, age, disability, refugee status or asylum seeker status. The law prohibits discrimination on the job, while studying, housing, healthcare services, etc.

Article 282 of the Criminal Code foresees criminal liability for government officials for discrimination against certain individuals.

Since 2011, the country has a modernized Law on Education that meets all EU standards and is ratified by Romania’s international agreements. The law states that persons belonging to national minorities have the right to receive education in their native language at all levels of pre-university education. Schools or classes with education in the minority language are created at the request of parents or legal guardians, without any minimum quantity threshold.

Act № 61 of the 21st of March 2013, adopted in accordance with EU requirements, places a burden of proof on the defendant when dealing with cases of discrimination in the National Council for Combating Discrimination. The plaintiff only needs to submit evidence of discrimination.

Article 30 of the Constitution reads: “Prohibited by law are slander of the country and the nation, calling for an aggressive war, national, racial, class-based or religious hatred, incitement to discrimination, territorial separatism or public violence”.

Article 75 (1) (c) of the Criminal Code provides that committing of a crime on the grounds of race, nationality, ethnic origin, language, religion, gender, sexual orientation, opinion, political affiliation, believes, wealth, social origin, age, disability, etc. are treated as an aggravating circumstance. Article 247 of the Criminal Code bans civil servants from limiting the rights of others based on race, nationality, ethnic background, language, religion, gender, sexual orientation, political affiliation, economic status, age, disability, non-communicable chronic diseases or HIV/AIDS. Article 317 is devoted to punishing incitement to hatred and xenophobia. Article 381 to punishing crimes aimed at limiting religious freedom, Article 382 to punishing desecration of religious sites.

However, verbal abuse and defamation towards an individual or a group of people based on race, language, religion, nationality or ethnic origin is not prohibited in Romanian legislation; insults and defamation are not considered a crime.

Anti-racism Act № 107/2006 (preceded by government decree № 31/2002) prohibits the operation of organizations of fascist, racist or xenophobic nature, participation in such organizations, the use of symbols of this kind, as well as the occultism surrounding personalities who were guilty of crimes against peace and humanity. The law also foresees criminal liability for the Holocaust deniers. By the end of monitoring this Article has not been used towards anyone.

On May 16th 2013 a law was passed regarding the measures needed to complete the process of restitution of property unlawfully acquired by the state during the communist regime in Romania.

The situation with migrants is regulated by Act № 194 as of 12th December 2002 and Foreigner Act № 122 “On Asylum”, adopted in May 2006. According to Article 9 of the Act № 122 refugee status is granted in perpetuity, and temporary legal protection for a term not exceeding two years. Also, the resolution of the Government № 102/2005, as amended in 2011, in relation to the free movement on Romanian territory of citizens of the EU Member States, European Economic Area and Swiss nationals.

In 2013, the Law “On Asylum” allowed the movement of single adolescent migrants.

The Romanian Constitution also enshrines gender equality in the labor market. It establishes equal opportunities for women and men in access to public, civil or military positions (Article 16(3)) and equal pay (Article 41(4)). Constitutional law provisions also provide equal access to social security and social assistance, explicitly mentioning the right to paid maternity leave. The right to other leave is implicitly referred to in the right to other forms of social insurance and social assistance provided for by law (Article 47(2)).

In 2002, Parliament passed Law 202/2002 on Equal Opportunities for Women and Men, which emphasized gender equality (Gender Equality Law). Among other measures, the law provides for affirmative actions to promote gender equality as “special actions that are taken on a temporary basis to accelerate the realization in practice of equal opportunities between women and men” (Article 4(e)), but these actions are only allowed if if they are “aimed at protecting certain categories of women or men, and not women as a group compared to men” (Article 6(5)(b)). Thus, the Law on Gender Equality regulates not only equal access to work, but also to services and goods.

August 6, 2018, a new amendment to the Gender Equality Law, passed by Parliament on July 10, 2018 and promulgated by the President on August 2, 2018, entered into force. The new provisions give the police, gendarmerie and local police the power to punish all acts of harassment, sexual harassment and psychological harassment, whether they occur in the public or private sphere.

The Romanian Anti-Discrimination Law (GO 137/2000), was adopted in 2000 as delegated legislation. Significant rounds of amendments were made to the Law in 2013. In 2020, GO 137/2000 was further amended (the Becali case) C-81/12. They dealt with the length of office of board members, and also introduced new concepts into the law, such as "moral harassment" in labor relations. The 2000 discussions on the two European equality directives influenced the wording of the Romanian law, the provisions of which in many respects went beyond the scope of the acquis. A significant number of cases handled by the national equality body, the National Anti-Discrimination Council (NCAC), involve violations of the right to dignity, which is the hallmark of the law.

As of 2020, the Labor Code also prohibits discrimination by association, meaning that persons who do not belong to a minority are also protected from discrimination if they are considered to be associated with that minority.

On December 15, 2020, the House of Deputies passed the Anti-Gypsyphobia (anti-Gypsyism) Act, which passed the Senate in December 2019 and criminalized anti-Roma sentiment. Anti-Gypsy sentiment, as defined in Article 2 of the law, means "the perception of Roma as hatred of them, and verbal or physical displays motivated by hatred against Roma or their property, institutions/NGOs, leaders of Roma communities or their places of worship, traditions and the Roma language." The law makes public propaganda of anti-Romani ideas, concepts, or doctrines by any means an offense punishable by three months to three years' imprisonment and deprivation of certain rights. Dissemination or publication by any means of anti-Roma materials is also an offence punishable by imprisonment of one to five years in accordance with Article 4. In addition, Article 5 provides that the manufacture, sale, distribution or possession with intent to further disseminate anti-Gypsy symbols is punishable by imprisonment for a term of three months to three years. Establishing an anti-Roma organization is also defined as an offense punishable by three to ten years' imprisonment under Article 6.

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