Not Yet Viable: Anti-Discrimination Action in Romania

10 May 2003

Romaniţa Iordache and Andreea Tabacu1

One of the main successes the Romanian Government has reported to the international community has been the adoption of Ordinance 137 on the Prevention and Punishment of All Forms of Discrimination2 in August 2000. At that time, the document was described as a breakthrough as well as a future standard of reference for the countries in process of accession to the European Union (EU). It was also described as complying with EU standards on combating discrimination.

This article does not describe how anti-discrimination litigation, a new and challenging concept, came into the Romanian legal realm. Articles and studies have previously addressed the process of adopting Ordinance 137 and its ratification as law,3 as well as the political background of Law 48/2002 on Prevention and Punishment of All Forms of Discrimination [hereinafter "the Anti-Discrimination Law"], the role of the EU through the Delegation of the EU Commission in Romania and international and national non-governmental organisations. The aim of this article is to assess the effectiveness of the recently established legal institutions.

The questions we choose to answer are whether we can speak of anti-discrimination law in the Romanian context; whether the anti-discrimination legislation is operational as it stands today; and what are the challenges and pitfalls of the Anti-Discrimination Law and its enforcement body - the National Council Against Discrimination [hereinafter "NCCD"].

Whether criticised or commended,4 the first positive aspect of the Anti-Discrimination Law is that it addresses a social need: in the last twelve years, Romanian society has grown more and more intolerant. Public surveys and reports from non-governmental organisations on discrimination against various vulnerable groups such as Roma, the lesbian, gay, bisexual and transsexual community, and people with HIV/AIDS, are worrying.

Difficulties in the Implementation of the Law

  1. Missing concepts: indirect discrimination, structural discrimination, harassment

Contrary to the requirements of the EU Race Equality Directive,5 and unlike other existing Romanian equality legislation,6 Law 48 on Prevention and Punishment of All Forms of Discrimination does not include an explicit prohibition of indirect discrimination or of structural discrimination. The text of the Anti-Discrimination Law can be interpreted as inferring indirect discrimination since the definition is rather broad,7 and corroborating the text with the prohibition of indirect discrimination on grounds of gender is always possible. However, in this context it would be advisable for the NCCD to clarify this issue when adopting its rules of procedure and to include an explicit prohibition of indirect discrimination as well as to spell out its own understanding of this legal concept.

Similarly, Law 48 does not define or sanction harassment, also leaving it to Law 202/20028 which regulates sexual harassment only as "any form of behavior or conduct related to gender [...] that might affect the dignity of the persons, if this conduct is rejected and might constitute the reasoning for a decision which might have an impact on those persons."9 Once again, it is up to the NCCD to note the differences from the definition provided in Article 2(3) of the Race Directive and to provide a definition of harassment as discriminatory conduct covering the unwanted conduct related to racial or ethnic origin, or any other grounds of discrimination as provided by the Anti-Discrimination Law which takes place with the purpose or the effect of violating the dignity of a person and of creating an intimidating, hostile, degrading, humiliating or offensive environment.10 Article 19 of the Anti-Discrimination Law guarantees the protection of personal dignity in similar terms without clearly specifying the difference between harassment and other misdemeanours connected to personal dignity.11

  1. Applicable procedures - difficulties in the reversal of the burden of proof

Neither Ordinance 137/2000 nor Law 48/2002 establish a special procedure applicable to cases of discrimination. Both regulations, as well as Governmental Decision 1194/2001 on the establishment and functioning of the NCCD,12 state that the applicable general procedural rules are those of the law on misdemeanours.13

Although the reversal of the burden of proof is already established as a standard in European anti-discrimination law and jurisprudence, this procedure is not a part of Romanian anti-discrimination law as it presently exists. Further legislative drafting would have to take into consideration this legal institution as well. Romanian law on misdemeanours defines the general regime of misdemeanours and does not provide for any adjustments required by the specificity of anti-discrimination law. More specifically, the misdemeanours regime does not accommodate the need for the reversal of the burden of proof. As a recommendation for further action, it is advisable for the NCCD to develop its own procedural rules, including the reversal of the burden of proof.

  1.  A brief walk through a discrimination case

A Romanian Romani non-governmental organisation, Romani CRISS, attempted anti-discrimination litigation even before the NCCD was established. They based their cases on the provisions of Ordinance 137 and of the Civil Code. In CRISS v. Angely Piteşti, CRISS pursued a case of discrimination in access to public facilities: Following an order from the owner of a pub, Romani clients were not admitted by the pub's security guard. Romani CRISS tested the pub, recording the whole incident on both audio and videotape. At the first hearing, however, the judge asked for a finding/decision from the NCCD, which had at that time not yet been established. The court then found that the criterion for passive legal standing had not been fulfilled, i.e. the owner of the pub was not considered responsible for the conduct of the bodyguard, even though the security guard was acting under the supervision of the pub owner.14 This unfortunate judicial decision issued prior to the NCCD's establishment would probably have been different had the NCCD found a discrimination misdemeanour.

To better understand the domestic legal regime banning discrimination in Romania, let us take a look at a hypothetical scenario, the process, and the outcomes.

An act of discrimination occurred in the field of employment, economy, social protection, education, health, access to goods or services, or a constitutionally guaranteed right. The act constitutes discrimination as defined by Article 2(1) of Law 48: distinction, exclusion, restriction, or preference, and the basis of the deed clearly falls under the grounds listed by the Law: race, nationality, ethnicity, language, religion, social group, belief, gender or sexual orientation, membership in a vulnerable group, or any other criterion. The scope or the effect of the deed also gives rise to issues within the definition of the Law: it impairs or nullifies the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural, or any other field of public life.

Step One: Filing a complaint: Who can do it? How? What are the difficulties?

  1. Let us assume we are dealing with a legally educated victim, aware of her rights and also aware of the existence of the NCCD. In this fortunate case, the victim can contact the NCCD via regular mail, by fax, or by e-mail. Although the NCCD has not yet adopted any rules of procedure by defining the process and the requirements to be observed for a successful complaint, the members of the NCCD suggest that it is enough to provide the complete story with as many details as possible, from which point they would take over.15

The lack of clear rules of procedure, widely publiscised, might also be our scenario's first dead end, given that legal education of the population at large has never been a priority and it is very likely that the victims will have no idea about Law 48 or about the NCCD.

Alternative Scenario 1:"The good old NGOs"
Non-governmental organisations (NGOs) active in the protection of human rights have legal standing in discrimination cases on behalf of communities or groups of persons [Article 22(1)], or in other cases if the individual victim authorises them [Article 22(2)]. They can bring the case before the NCCD in the same way as an individual victim.

The fact that the Anti-Discrimination Law provides for legal standing for NGOs is a positive and salutary step in combating discrimination. However, relying solely on this solution might be dangerous for several reasons. First, there are not very many NGOs in Romania with expertise in anti-discrimination litigation or in litigation in general. The few active NGOs might end up being overwhelmed by the number of cases and unable to deal with other important tasks as advocacy, public education, etc. Besides, in some cases, even if some vulnerable groups are organised, the NGOs working with/for them do not have legal expertise because they may be involved primarily in providing social services and not legal representation (for example, the case of the people infected or affected by HIV/AIDS). Second, NGOs run programmes depending on their funding. Combating discrimination is too important for society to make it contingent on funding that may or may not be secured. Third, representation by NGOs might create subsequent difficulties in relation to court proceedings later on in the process, should the NGO ask for civil damages on the basis of the decision issued by the NCCD; it would be natural to allow NGOs to ask for damages to cover the costs of legal representation and other related expenses. As long as this money would be used for the purposes of combating discrimination, this would probably be the most effective sanction. But will the courts accept NGOs as victims in a tort case in which there is a real individual victim, and where the NGO is only an intermediate body?

Here, we can analyse existing jurisprudence as indicative of the tendencies and of the understanding of anti-discrimination law. In this context, we should mention the experience of Romani CRISS, the only NGO that has tried to sue on the basis of Ordinance 137, even prior to the establishment of the NCCD. In two of their cases (CRISS v. Artenis SRL and CRISS v. Compact Impex SRL), courts denied their legal standing, thus quashing the cases on procedural grounds. In both cases, the courts refused to apply the Law and defined the cases as being inadmissible at a very early stage of proceedings. Basically, the courts had been unable to understand the novelty of the Law on procedural grounds and the whole notion of delegated legal standing and did not perceive the NGO as a representative of the victim. If the courts failed to understand and apply the clear provisions of Ordinance 137, how will they react to a more sensitive issue not clarified by the law - such as that of civil damages for an NGO?

Here, we can analyse existing jurisprudence as indicative of the tendencies and of the understanding of anti-discrimination law. In this context, we should mention the experience of Romani CRISS, the only NGO that has tried to sue on the basis of Ordinance 137, even prior to the establishment of the NCCD. In two of their cases (CRISS v. Artenis SRL and CRISS v. Compact Impex SRL), courts denied their legal standing, thus quashing the cases on procedural grounds. In both cases, the courts refused to apply the Law and defined the cases as being inadmissible at a very early stage of proceedings. Basically, the courts had been unable to understand the novelty of the Law on procedural grounds and the whole notion of delegated legal standing and did not perceive the NGO as a representative of the victim. If the courts failed to understand and apply the clear provisions of Ordinance 137, how will they react to a more sensitive issue not clarified by the law - such as that of civil damages for an NGO?

Alternative Scenario 2:"Is Action Ex Officio Possible?"
The other scenario is that the NCCD will act ex officio. This possibility is provided by Governmental Decision 1194/2001 in Article 2(k), which mandates the NCCD to find and decide on misdemeanours as well as by Ordinance 2/2001 on misdemeanours. Thus, it is legally possible for the NCCD to find out about a case from various sources and decide to intervene without further notice.  

A Romani family in the Ponorâta Romani settlement, northern Romania. Photo: ERRC

The potential victims/beneficiaries of the anti-discrimination law are theoretically all 22 million Romanian citizens, plus the refugee population or those seeking asylum in Romania, not to mention all those living in Romania regardless of their legal status. The NCCD has a board of 7 members and almost 30 employees so far, and it is supposed to hire up to 50 persons in the years to come. This limited number of people has to cover not only litigation but also tasks regarding legislative drafting, legislative analysis, public policy, conducting studies and developing reports and statistics and publishing them and relations with other public authorities, with international organisations and with NGOs. There has been to date, and there will be for the foreseeable future, a severe disparity between the capacities of the NCCD and the dimensions of the problems it should address.


  • The NCCD should adopt and publish its rules of procedure clarifying the legal procedures as well as the process and the conditions of admissibility for complaints.
  • Similarly, the NCCD should publish its decisions on an Internet website and make them widely available to victims, lawyers, activists, and scholars. Publicity would also help to educate the community, provide information to journalists and sanction perpetrators by means of public embarrassment. 
  • Public awareness: The NCCD should make it a priority to initiate a national campaign of education and information. The campaign might inform the public of the NCCD as a protection mechanism, but it might also be a broader anti-discrimination campaign to sensitise the general public towards unlawful discriminatory conduct.
  • Developing a national network of monitoring and intervention against discrimination together with NGOs that already have such a mechanism in place would be useful in maximising the range and efficiency of the NCCD.
  • Sensitising of the legal profession, media and police authorities is also a required measure at this early stage. It is important not only for lawyers, judges and other authorities to understand the core of this new branch of law, but also for those who are explaining it to the population and reporting it (i.e., the media).

Step Two: Procedures before the NCCD
Once a complaint has been filed, the NCCD would deal with it and assess the conditions of admissibility. Since there are no rules of procedure so far to guide us, we can only assume that the NCCD would evaluate the case ratione personae - the legal standing, ratione materie - the substance of the deed and whether it is prohibited under the Anti-Discrimination Law, and ratione temporis - the six month period from the date of the discriminatory act as established by Ordinance 2/2001 for any misdemeanour. These conditions of admissibility being fulfilled, the NCCD could proceed with analysis on the merits of the complaint and the evidence provided by the plaintiff or could gather evidence itself.

Here, besides the absence of a provision for the reversal of the burden of proof, the question is whether the NCCD will understand the specificity of the Anti-Discrimination Law and the difficulties related to proving acts of discrimination, and will introduce standards of evidence different from the strict standards of the Civil Procedure Law or the Criminal Procedure Law. For example, will the NCCD find acceptable recordings (audio or video) made without a court or prosecutor's order? Will "testing" be accepted as evidence in proving discrimination? Even if only at an early stage, there are a number of NGOs (especially Romani NGOs) who already have experience in testing discrimination or in monitoring and intervening in cases of inter-ethnic conflicts. The question is whether the NCCD will choose to make use of the work of such organisations or whether instead it will stick to a rigid understanding of evidentiary rules and strike out important evidence.

Another question relates to the type of assistance provided to victims of discrimination before the NCCD. Both the Race Directive in Article 13 and the European Commission against Racism and Intolerance's General Policy Recommendation No. 2 emphasise the importance of providing independent assistance to victims of discrimination in pursuing their complaints about discrimination.16 It is rather unclear how the NCCD will manage simultaneously to be the agent issuing the finding of discrimination and sanctioning the perpetrator, as well as the advocate of the victim during its own proceedings and, further on, before a court of law.

Although the Race Directive 43/2000 establishes in Article 13 the obligation to provide independent assistance to victims of discrimination in pursuing their complaints as one of the competencies of the bodies for the promotion of equal treatment, Romanian legislation fails to mention if and how the legal assistance of the victims will be pursued. As the agency responsible for finding and sanctioning discrimination misdemeanours, the NCCD must be objective and impartial in relation to both the victim and the perpetrator. As the Race Directive leaves the modality of implementing the requirement of providing independent legal assistance to the member states, various models might be designed by taking into consideration the structures developed by the European Court of Human Rights or suggested by ECRI in its General Recommendation No. 2.


  • Publicity of the internal norms and procedures would facilitate beneficiaries' access, the work of NGOs and of all those interested in the NCCD, and would legitimise the work of this agency.
  • Further improvement of the legal regime of discrimination by harmonising procedures is also required with the specificity of the act sanctioned in mind. A comparative study of the solutions found in the anti-discrimination laws of other countries would also be beneficial.
  • Legal aid should also cover cases involving allegations of discrimination. This might entail providing free legal services for victims or introducing cases based on Law 48 on the list of pro bono cases that generate tax exemptions for lawyers or establishing legal aid offices dealing with this issue only. The last solution would also help to provide independent and effective assistance to victims of discrimination in pursuing their complaints.

Step Three: The NCCD Decision
Assuming that there is already a methodology and internal rules in place, that the NCCD already developed its standards and its sui generis procedural rules (which might be adopted as a law amending Law 48, as a distinct Discrimination Law Procedure Code or as an internal regulation of the NCCD) and that there is a finding of discrimination, an administrative decision will be issued. The sole envisioned sanction is a fine ranging from 1,000,000 Romanian lei (approximately 27 Euro) to 10,000,0000 (approximately 270 Euro) for individual victims, or from 2,000,000 (approximately 54 euro) to 20,000,000 (approximately 540 Euro) if the discriminatory act targets a group.17 If the sanction is not issued within the six-month statutory period starting from the date of the deed or if the NCCD decision is not communicated to the perpetrator within one month, it is no longer valid. Unlike similar agencies, the NCCD cannot issue binding recommendations or establish status quo antes (e.g., order an employer to reinstate a victim of discrimination illegally fired, order the owner of a pub to allow Roma inside, or order a school not to exclude HIV/AIDS children).

The major question is how dissuasive are the current administrative fines that are affordable for almost everybody. Since the principle established by the Race Equality Directive is that the legal remedies should be effective, dissuasive, and proportionate,18 further consideration of the fine amounts and types of punishment is required.


  • Publicity of the decisions is extremely important both for purposes of education and of punishing the discrimination misdemeanour. An informed consumer's reaction of boycotting services or goods of a company publicly known as discriminating against a certain group may be a harsher penalty than the fine itself.
  • Increasing the monetary amount of the administrative fines sanctioning discrimination is required to make the legal remedy effective and dissuasive.
  • The NCCD should also develop a role in mediation or conciliation between parties. In this regard, the NCCD should propose amendments to its bylaws so that mediation becomes a part of its mandate. This would also be possible by separating the action of issuing findings of discrimination from the sanctioning of the act. In this way, in addition to imposing fines on the perpetrators, other sanctions provided for by Ordinance 2/2001 on misdemeanours, (i.e., warning, community service, etc) may also be enforced. The sanctions provided for by Ordinance 2/2001 might be more effective than others both in terms of impact on the attitudes of the perpetrator, as well as of visibility in the community.

Step Four: Appealing the NCCD's Decision
If either the victim or the defendant is not satisfied with the NCCD's decision, Ordinance 2/2001 allows for the possibility of an appeal within 15 days of the date of the communication.19 The appeal should be addressed to the NCCD, which has to register it and send it with the case file to the relevant court of first instance.20 The court has then to decide on a date (not more than 30 days from the communication) and subpoena the perpetrator or the person who appealed (the victim or the NGO), the NCCD, the witnesses mentioned in the documents and any other persons who might help in solving the case.21

After the hearing and after assessing the supplementary evidence, if available, the court would then decide on the sanction established by the NCCD. This judicial decision may be appealed separately within 15 days of the communication at the administrative section of the tribunal.22

A question still open at this point is whether in the case of an appeal of the NCCD's decision, the court of first instance will decide on the existence or non-existence of the discriminatory act or on the amount of the sanction. The practice in Romanian misdemeanour law would suggest that the court will look at all aspects (existence of the deed, mitigating circumstances, amount of the sanction). However, the comparison should also be made with the face value of the decisions of similar bodies, e.g., the Dutch or the Belgian institutional mechanisms combating discrimination whose decisions are quashed by the judiciary only in rare cases and with well founded reasons.23

Step Five: Asking for Civil Remedies
In case the victim gets a positive decision from the NCCD and there is no appeal, or the decision is confirmed on appeal, there is an official recognition of the act of discrimination and the fine is paid to the State, but the victim is still in the situation created by the discriminatory act.

On the grounds of the finding/decision of the NCCD, victims can bring a case before the civil courts and ask for damages and for re-establishing status quo antes, the situation before the discriminatory act occurred.24 More importantly, it is also for the courts of law to decide in the case of legal persons causing major damages to the victim of discrimination or who have repeatedly broken the Anti-Discrimination Law, whether the authorisation or certificate allowing their organisation's functioning would be withdrawn.

The advantage of initiating such a procedure is that the Law exempts actions based on Law 48 from legal taxes.

In addition to Article 21 of the Anti-Discrimination Law, the applicable norms are contained in Articles 998 and 999 of the Civil Code dealing with civil liability. The requirements for a decision of compensation or damages based on civil liability are: a) the existence of an illicit act; b) damage; c) the nexus, the relation of causality between the illicit act and the damage; and d) the culpability of the perpetrator.

The illicit act (action or inaction) is spelled out in Law 48, all misdemeanours sanctioned being prone to be considered illicit acts. The damage can involve both moral and pecuniary damages. The nexus between the discriminatory act and the damages will probably be the most difficult part to prove, a complex of evidence being required. As for the culpability requirement, the finding of the NCCD should be enough to fulfil this condition.

The real challenge for judges as well as for the victims' lawyers will be assessing moral damages. For more than half a century, Romanian law students were taught that the payment of moral damages is not a legal source of income in the socialist society. After studying and applying this legal institution as restrictively as possible for years, it is difficult to believe that the courts will readily accept the importance of recognising the destructive impact of discrimination in the life of an individual as well as in the life of society, and award non-pecuniary damages.


  • Since the core challenge here is the courts' and the general legal profession's outdated attitude, it is important for the NCCD to develop a strategy towards sensitising this profession and informing it on the recent trends and the subsequent developments in Romanian law through continuing legal education and also by improving the curricula of law schools.
  • The NCCD is also mandated to develop studies and reports on different vulnerable groups and on the overall situation of discrimination in Romania. Such documents, if elaborated speedily, might be useful for lawyers in their relation with the courts when asking for civil damages, since they are authoritative enough to be accepted by the courts.

The Relationship Between Discrimination Law and Criminal Law

A further source of confusion that requires clarification by the NCCD is the relation between Law 48 and Romanian criminal law. Law 48 defines in Article 19 all those acts that are not criminal as misdemeanours and deeds against personal dignity. A reference here should made to the Criminal Code and to Emergency Ordinance 31 of 2002 prohibiting fascist, racist, or xenophobic organisations and symbols.25 Article 166 of the Criminal Code provides: "Propaganda in public and by any means aimed to establish a totalitarian state shall be punished by 6 months to 5 years imprisonment and the loss of certain rights [...]". Article 317 prohibits "[...] any nationalist-chauvinistic propaganda or the incitement to racial or national hate [...]" and punishes it with up to 5 years imprisonment. Similarly, the Emergency Ordinance 31/2002 criminalises "[...] the dissemination, selling or manufacturing of fascist, racist, or xenophobic symbols."26 These acts, if not deemed criminal, would fall under the Anti-Discrimination Law.

Here, there are two potential problems to be addressed. First, since in all cases dealt with by Romanian Criminal Law, the investigations start ex officio, the lack of any prosecution under the provisions listed above to date indicates the reluctance of the investigative organs in enforcing them. Although civil society actors have tried to make use of these provisions many times, prosecutors have repeatedly issued non-indictment decisions. If the NCCD, unlike the prosecutors, manages to be independent and pro-active, we will at least have the benefit of this minor correction.

The Relationship Between the NCCD and Other Governmental Agencies
Alternative remedies are sometimes more useful than sanctions brought under the Anti-Discrimination Law itself. Thus, in the period 2000-2002, when there was no agency to enforce the Law despite legal provisions envisioning its creation (the NCCD was established only at the end of August 2002), the courts quashed all cases initiated by the NGOs on the grounds of Ordinance 137/2000 or of Law 48/2002 and denied the justiciability of these cases, insisting on an initial finding of discrimination issued by the (at that time, non-existent) NCCD. Thus, the courts considered the existence of the NCCD's finding as a sine qua non condition of admissibility, a pre-requisite for initiating the judicial proceedings, and refused to hear the complaints which had a legal basis (the Ordinance and afterwards the Law) as long as the procedural grounds had not been clarified.

Frustrated by the continuous rejection of their complaints under the Anti-Discriminationa Law by the courts, Romani CRISS ingeniously used the provisions of other sources of law such as Law 12 from 1990, which prohibits illicit trade activities, and Law 148 from 2000 on advertising.27

Law 12/1990 punishes either as misdemeanours or as criminal offenses trade activities involving "[...] preferential selling, unjustified denial of selling goods or of providing services which lay under the mandate of the trade owner."28 This creative approach had been successful in several cases and the Office for Consumer Protection has sanctioned situations of discriminatory denial of access to services or goods, i.e., the advertisement by a private pub in Cluj stating "it is not allowed to provide services to Roma" ("nu este permisă servirea romilor") in the case CRISS v. Millenium S.R.L.

The Law on advertising specifically sanctions discrimination on grounds of race, sex, language, origin, social origin, ethnic identity, or nationality.29 It is to the NGOs' credit once again that this provision was used effectively. Thus, beginning in 2000, Romani CRISS not only monitored major media advertisements but also filed complaints with the authorities in charge of enforcing the law. Law 148/2000 establishes the local public administrative authorities as responsible for sanctioning discriminatory advertising. Basically, the mayor would be responsible, but there is always the possibility of delegating this obligation to various departments and agencies under the supervision of the mayor. Romani CRISS also filed complaints in cases of advertising on selling goods or services stating "Roma excluded" ("exclus romi") (e.g. CRISS v. România Liberă from 2002). Many times, these cases have been closed by reaching an amicable solution/friendly agreement, with the public apology of the perpetrators being accepted by the NGO as a sign of acknowledgement and repentance (e.g. CRISS v. Oficiul forțelor de muncă, sector 3, from 2000 or CRISS v. HEIDI Chocolats Swisser SA from 2001).

However, the Law on advertising covers solely advertising of commercial activities. It cannot be used where labour advertising is at issue or in cases of discriminatory advertising for housing, for example listings saying "Roma excluded" from applicants eligible for renting a certain advertised flat. Thus, both the mayor of Bucharest and the Ombudsman considered that Law 148/2000 cannot be applied in such cases, as renting or hiring advertisements are in the view of those authorities not commercial or industrial advertisements (e.g. CRISS v. AnunĹŁul de la A la Z from 2001, CRISS v. AnunĹŁul telefonic from 2001).30

The NCCD - Its Mandate and Its Reality

In conclusion, the creation of the NCCD, despite its shortcomings, is a positive development. It is to be hoped that this body, addressing an emergency need in today's Romania, will turn out to be more than a mere sham created for public relations purposes before the European Union and other international bodies. In all fairness, the mandate of the NCCD is so wide that the institution runs the risk of being overburdened. But if the interest in healing Romanian society of discrimination is real, then the NCCD should be granted the full support of the Government (including a proper, accessible office, proper funding for developing programmes31 and the human resources necessary to complete its job) and as well as from civil society.

The key task of the NCCD as declared by its leaders, in the short run, is coming up with a National Plan against Discrimination. This Plan will not work unless the beneficiaries of the Anti-Discrimination Law will be involved in its development. Co-operation with NGOs at this point is not a mere condition of legitimacy or a part of the public relations strategy, it is a condition sine qua non for the effectiveness of the NCCD's undertakings. Without using the experience of human rights NGOs and organisations representing vulnerable groups, the NCCD risks creating a beautiful National Plan of Action with no impact.

Having a National Plan and sectoral strategies to address various relevant actors and target groups is extremely important, but the immediate priority for the NCCD is public awareness which can be realised mainly through publicising its findings and decisions. There is one key impediment to making the NCCD accessible to the public: the lack of a methodology, of clear and publicly available procedural rules. It took more than two years from the issuance of Ordinance 137 in August 2000 to establish the NCCD's establishment in September 2002. Let us hope the NCCD will now swiftly begin to act in sanctioning all illegal discriminatory acts brought to its attention.


  1. Romaniţa Iordache holds a JD degree from the University of Bucharest, Bucharest Law School, and an LLM degree in Comparative Constitutional Law from the Central European University. She teaches International Human Rights Law courses and a course on Democracy, Minorities, and Rights in Post-Communist Countries at the Faculty of Political Sciences in Bucharest and at the Invisible College, and is actively involved in NGO work in Romania. Andreea Tabacu holds a JD degree from the University of Bucharest, Bucharest Law School, and is currently undertaking her doctoral studies at the University of Sibiu Law School. She is a member of the Piteşti Bar and teaches Civil Law at the Piteşti University.
  2. Ordinance 137/2000 on the Prevention and Punishment of All Forms of Discrimination was published in the Official Gazette no. 431/02.09.2000.
  3. Law 48/2002 ratifying and amending Ordinance 137/2000 on the Prevention and Punishment of All Forms of Discrimination was published in the Official Gazette no. 69/31.01.2002.
  4. See the European Commission Regular Reports on Romania's Progress Towards Accession for 2000 and 2001, available at
  5. Art.2 (2) b of the Race Directive, 2000/43/EC, Official Journal L 180 , 19/07/2000, p. 0022-0026.
  6. Law 202/2002 on equal opportunity published in the Official Gazette 301/8.05.2002 specifically mentions indirect discrimination in Article 2(2) and Article 4(b), defining it as the situation "When the use of an apparently neutral provision, criterion or practice, due to its impact, would disadvantage persons of a certain gender, unless that provision, criterion or practice can be objectively justified by factors with no connection with the gender." All translations of laws in this article are unofficial by the authors unless otherwise stated.
  7. Article 2(2) of the Discrimination Law provides for the punishment of "any active or passive behavior which through its impact, is unjustifiably favoring or disfavoring, or generates an unfair and degrading treatment towards a group or a community [?]."
  8. Article 4(c) of Law 202/2002 on equal treatment for men and women.
  9. Ibid.
  10. The definition proposed for harassment is structured as an analogy to the definition of harassment provided by the Race Directive in Article 2(3).
  11. Article 19 of the Law states: "Any public conduct of a nationalistic - chauvinistic character, instigating racial and national hatred, or the conduct aimed at or with the purpose of infringing dignity or creating an intimidating, hostile, degrading, humiliating or offensive environment, targeted against a person, a group of persons or a community and related to this person's race, nationality, ethnicity, religion, social category or vulnerable group, or related to the beliefs, gender or sexual orientation, if not a crime is a misdemeanour, according to this Ordinance."
  12. Governmental Decision 1194/2001 published in the Official Gazette no. 792/12.12.2001.
  13. See Ordinance 2/2002 as ratified and amended by Law 180/2002.
  14. Romani CRISS. Human Rights Developments. Annual Report, 2002.
  15. Discussion with Mr Cristian Jura, the President of the NCCD , November 29, 2002.
  16. Art. 13. (2) Race Directive. See also ECRI General Policy Recommendation N.2.
  17. Art. 20 of Law 48/2002. Specialised Bodies to Combat Racism, Xenophobia, Antisemitsm and Intolerance at National Level. Adopted by ECRI on June 13, 1997. Chapter C, Principle 3(d)
  18. Art. 15, Race Directive.
  19. Article 31(1) of Ordinance 2/2001.
  20. Article 32 of Ordinance 2/2001.
  21. Article 33 of Ordinance 2/2001.
  22. Article 11 of Law 180/2002 amending Ordinance 2/2001.
  23. See Zwamborn, Marcel. "Specialized Bodies on Equal Treatment and Non-Discrimination: The Directive of the European Union, the Recommendation of the Council of Europe's ECRI and the Examples of the Netherlands, Belgium, the United Kingdom and Sweden". PHARE Programme RO 9803.01. Improvement of Rroma Situation in Romania. MEDE European Consultancy B.V., The Netherlands, in partnership with Minority Rights Group International, UK. Re-edited version, May 2001, available at:
  24. Article 21 of Law 48/2002.
  25. Emergency Ordinance 31 from 2002 on Prohibiting Fascist, Racist, Xenophobic Organisations, and Symbols published in the Official Gazette no.214/28.03.2002.
  26. Article 4 of the Emergency Ordinance 31/2002.
  27. Law 148/2000 published in the Official Gazette no. 359/ 02.08.2000.
  28. Article 1(k) of Law 12 from 1990 on prohibiting illicit trade activities.
  29. Article 6(d) of Law 148/2000 on advertising.
  30. All these cases are available on the website of Romani CRISS at
  31. The Government Decision 1194 from November 2001 on the establishment and the functioning of the NCCD provides in Article 2 that the NCCD will have, among others, functions related to: "[ ?] actions or special measures for the protection of vulnerable persons or categories [?]." The text does not explicitly proscribe what kind of programmes the NCCD might initiate, but the range of its programmes will probably be determined by its mandate and will cover information, education, an awareness raising campaign and research in the various fields of discrimination covered by the Law. 



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