Anti-discrimination PROBLEMS LAWYER VARNA
On the topic "Anti-discrimination issues" implementation and enforcement of European Convention on Human Rights (ECHR) and many others international legal acts are becoming daily and obviously not a simple task national experts in the field of law: the volume of relevant case law of the European Court of Human Rights (ECHR) is huge, and the number of international legal instruments is also remarkable.
The questions include the following problems:
- Discrimination based on race,
Ethnicity, color,
A national minority,
NATIONALITY OR NATIONAL ORIGIN (EXCLUDING
ROMA)
- Roma discrimination
- Discrimination based on sexual
Orientation and gender identity
- - DISCRIMINATION OF PERSONS WITH DISABILITIES
- The term "discrimination" and the acting regional and international legal instruments of the organizations to which Bulgaria has acceded to, or is in the process of accession, and adopted national legislation and standards to protect against it, contain significant differences on definitions, scope and standard level of protection required.
Overview of European standards relating to the prohibition of discrimination
As of January 2006 Bulgaria is bound by numerous international instruments prohibiting discrimination. The report by Information System "Apis" shows that our country has ratified conventions (including adopted within the UN) in this area are 37. The scope and purpose of this statement do not allow their comprehensive consideration and therefore this report will It is limited to acts adopted by the European institutions that allow to highlight the essence of the established approach in Europe to ban discrimination and to protection from discrimination.
1. The European Convention for the Protection of Human Rights and Fundamental Freedoms / ECHR, "the Convention" / № 12 and Protocol thereto.
ECHR governs the prohibition of discrimination in his art. 14:
"Prohibition of discrimination
The exercise of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority , property, birth or other status. "
The test of Art. 14 does not regulate the right to protection from discrimination as an independent substantive claim such rights and freedoms of art. Art. 2-12 ECHR, and plays an important complementary role in the protective mechanism of the Convention to ensure equal treatment in exercising them. The rule refers to as the obligation of each State Party to the ECHR to refrain from discriminatory actions and effectively to ensure non-discrimination. Another important feature of the provision of Art. 14 is that it does not exhaustively list the grounds on which individuals could be treated unequally. Called. "Open-ended" prohibits discrimination and for other possible signs, not only because of the explicit.
General prohibition of discrimination as self substantive law is governed by art. 1 of Protocol № 12 to the ECHR, opened for signature and ratification by the year 2000:
"General prohibition of discrimination
The exercise of any right provided by law shall be secured without discrimination on any ground such as sex, race, color, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.
No one can be subjected to discrimination by any public authority and any of the grounds specified in item 1. "
This Protocol is not signed by Bulgaria.
2. European Social Charter (revised) / ESC (P) "Charter" /.
In 1996 Charter underwent serious revision, which not only extends the range of protected material social rights but also explicitly introduces the prohibition of discrimination, in the exercise:
Art. E "Antidiscrimination
The exercise of rights under this Charter shall be secured without discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, health, association with a national minority, birth or other status. "
The wording is similar to art. 14 of the ECHR and the already discussed characteristics of art. 14 entirely attributable also to it ..
3. Framework Convention for the Protection of National Minorities / FCNM, "Framework Convention" /.
The Framework Convention is in force for our country from September 1, 1999 Based on its main purpose - the protection of national minorities - FCNM regulates the prohibition of discrimination and protection against discrimination solely in connection with membership of a national minority.
Its framework character formulate the principles of protection of national minorities, and implies an obligation of States Parties under it specify any domestic acts according to these framework:
A) resolved to define the principles that should be observed, and the resulting security obligations in the Member States and in other countries which may become Parties to this document, effective protection of national minorities and the rights and freedoms of persons belonging to such minorities, respecting the rule of law, territorial integrity and national sovereignty of states;
B) Determined to implement the principles enshrined in this framework Convention through national legislation and by appropriate government policies.
The framework character of the convention is perhaps the reason she pass the delicate problem of determining the category of "national minority", leaving the answer to this question of national legislations.
Thereafter however FCNM enough categorically formulated standards of protection of national minorities from discrimination. Prohibition of discrimination because of membership of a national minority is covered in art. 4 pt. 1 of the Framework Convention, according to which the Parties undertake to guarantee to persons belonging to national minorities the right of equality before the law and equal protection of the law. In this respect, it prohibits any discrimination based on belonging to a national minority. With sufficient clarity is displayed and the principle of t. Pomegranate. "Affirmative action", which do not relate to discrimination. According to Art. 4 pt. 2 of the FCNM Parties undertake to adopt, where necessary, appropriate measures to promote, in all areas of economic, social, political and cultural life, full and effective equality between persons belonging to national minorities and those of the majority . In this respect, they should take due account of the specific conditions in which persons belonging to national minorities. And Art. 4 pt. 3 explicitly states that measures adopted in accordance with paragraph. 2, are not considered discriminatory.
"Frame" of the Convention includes the obligation of the parties to develop appropriate safeguards against discrimination. The rule contained in Art. 6 pt. 2, according to which the Parties undertake to adopt appropriate measures to protect persons who may be subject to threats or acts of discrimination, hostility or violence because of their ethnic, cultural, linguistic or religious identity. The end of the text gives the impression of going beyond the scope of "membership of a national minority" in the capacity of major discriminatory sign the Convention. Instead normal measures required to protect against discrimination based on more signs - namely "ethnic, cultural, linguistic or religious identity." However, this can hardly be construed as a contradiction in the text. The explanation should be sought both in the protective function of art. 6 pt. 2, implying clearly defined terms, and the above-mentioned lack of definition of the category of "national minority" among the rules of the FCNM. The need for clear display of issue here protective rule is obviously incompatible with undefined "national minority" and perhaps the authors of the Framework Convention using more undeniable and established concepts of 'ethnic, cultural, linguistic or religious identity, "wanted to suggest what according to them, they are the main components in the content of the more general category of "national minority".
Finally, it is perhaps appropriate to identify two specific provisions of the FCNM, including explicit prohibition of discrimination in the exercise of two rights protected by the Convention, which clearly are considered especially important for national minorities. These are the right of access to the media (art. 9, p. 1) and the right of access to education at all levels (Art. 12 pt. 3).
In priemanetgo anti-discrimination legislation, the Bulgarian Parliament is guided primarily by the directives of the European Council, of which the following report looks in detail. Depending on the jurisdiction and applicable legal instruments mentioned differences in the scope and vaэprietite standards for the level of protection logically reflect on the subject of discussion and demonstration in front of her circumstances on the burden of proof of the facts and respectively - the assessment of the merits of complaints violation of the prohibition of discrimination.
The European Court of Human Rights on complaints of violation of the prohibition of discrimination in cases against Bulgaria
As already mentioned, the wording of Art. 14 ECHR requires' enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination "and therefore the Court's judgments in the application of this provision considered separate offenses and are associated only with the complaints in connection with the exercise of any / and other rights guaranteed by the Convention. The European Court of Human Rights has had a number of cases to consider complaints alleging inter alia, violation of Art. 14 of the Convention. The standard of proof However, the infringement appears to be so high that in 50 years of decisions in which a violation of this text are few.
The European Court of Human Rights in cases against Bulgaria in complaints of discrimination is an illustration of the concept of "living instrument" used to describe changes in the interpretation of the Convention and achieving increasingly higher standards for the protection of human rights .
The first complaint against Bulgaria under Article 14 is done in the case of Assenov and others v Bulgaria (judgment of 28 October 1998, Reports of Judgments and Decisions 1998-VIII). "The applicants maintained that the alleged insults on the Gypsy ethnic origin [Anton Asenov] point of racial discrimination in violation of Article 14 in conjunction with Article 3 of the Convention. Also, they claimed that the investigation conducted on the occasion of their complaints was superficial because of racial prejudice, and this represents a violation of Article 14 in conjunction with Article 13 of the Convention. "The European Commission of Human Rights declared these and all other complaints Asenov case admissible, but in his report to the Court she found that neither Art. 3 or art. 14 have been violated. The conclusion that there was no "violation of Art. 3 taken separately and in conjunction with Art. 14 of the Convention "was based on the findings then interpret the Convention - that the burden of proof of the complaints fall on applicants and their claims" that the police actions were motivated by racist attitude towards Gypsies is based solely on unconfirmed their allegations that police officers had used offensive language. " Mrs Liddy, a member of the European Commission, has voiced particular "view [that] ... the principle [displayed in the case McCann, that in such cases as a procedural guarantee the prompt, thorough and objective investigation] ... is equally applicable ... when ... were caused injuries ... after police detention. This principle is particularly important when the individual is doubly vulnerable because ... its association with one disadvantageous and probably unpopular minority community ... For these reasons, the failure of the procedural aspect of the guarantees of Art. 3 and Art. 14 ... does not seem like an adequate response to the serious allegations ... ". Citing the lack of proper investigation of the applicants' allegations of ill-treatment at the national level, in its judgment, the Court agrees with Mrs Liddy and a violation of procedural safeguards standards for protection against abuse. The Court has not applied the same revolutionary approach to the issue of discrimination and - although the complaints under Article 14 of the Convention were declared admissible in the decision on the merits they were not discussed.
Later in the cases of Velikova against Bulgaria (Application No 41488/98) and Angelova against Bulgaria (Application № 38361/97) were raised and declared admissible complaints about discriminatory motivated abuse and serious violations of the right to life under Article. 2 and 3 of the Convention. By 2000 - when these complaints were declared admissible, various international bodies and organizations have already been published and distributed alarming reports of racial discrimination against the Roma in Bulgaria. It specifically pointed out the lack of a proper investigation, which is capable of leading to punishment of perpetrators. Decisions on the admissibility of the two complaints mentioned European Court of Human Rights considered those reports. The decision on the merits of the case Velikova against Bulgaria, (§94) "The Court notes that the applicant's complaint under Art. 14 is based on a number of serious arguments. He also noted that the respondent had not provided a plausible explanation of the circumstances surrounding the death ... and the reasons why the investigation omitted certain fundamental and indispensable steps which could have shed light on the events ... The Court recalls, however, that required under the Convention standard of proof is "proof beyond reasonable doubt". These materials do not enable the Court to conclude beyond reasonable doubt that the murder ... and the lack of adequate investigation were motivated by racial prejudice, as claimed by the applicant. ". Similarly, in the case Angelova "§ 168. The Court finds that ... the applicant's complaints are also based on such serious arguments. But he is unable to conclude that they have been proven beyond reasonable doubt. Therefore, Article 14 of the Convention has not been violated. "
The remarkable dissenting opinion of Judge Bonello to this decision opened for the first time many of the questions about the differences between the standards of Justice and other international courts and established in severity and degree of proof required in cases of similar complaints:
'2. I find it particularly disturbing that until now - in those over fifty years of consistently critical judicial oversight - the Court in any case found a violation of the right to life (Article 2), or the right not to be subjected to torture or other degrading or inhuman treatment or punishment (Article 3), which was caused by race, color, or the area of the victim. As leafing through the annals of the Court, an uninformed observer would have every reason to conclude that more than fifty years, Europe has been beyond any suspicion of racism, intolerance or xenophobia. Seen through the Court, Europe is an example of ethnic brotherhood pier where people with the most diverse origin merge without hapless, prejudices and recriminations. This case nurtured this deception.
3. The Court frequently and systematically recognize that members of vulnerable minorities are deprived of life or subjected to torture or inhuman treatment in violation of Article 3, but never found that this is somehow related to their ethnic origin. Kurds, coloreds, Muslims, Roma and others are again and again killed, tortured or maimed, but the Court is not persuaded that their race, color, nationality or the area have something to do with it. Misfortunes overtake namely disadvantaged minority groups, but this is only because of some favorable coincidence.
4. The roots of this injurious escape from reality are the rule for the required degree of proof, the Court introduced himself: "The Court recalls that the Convention required standard of proof is" proof beyond reasonable doubt ". [Velikova against Bulgaria, no.
Attorney at law Iuila Danova
#3, Dobrotica Str., Varna, Bulgaria
Mob: +359 895 64 59 40
WWW: advokatvarna.com
Email: iulia.danova@abv.bg