Strasbourg, 13 December 2002 Restricted
[ecri\ plenary meetings\2002\ecri 29\ecri (2002)41 final] CRI (2002) 41 final
EUROPEAN COMMISSION
AGAINST RACISM AND
INTOLERANCE
(ECRI)
__________
ECRI general policy
recommendation N°7 on national legislation
to combat racism and racial
discrimination
__________
The European Commission against Racism and Intolerance (ECRI):
Recalling the Declaration adopted by the Heads of State and Government
of the member States of the Council of Europe at their first Summit held in
Vienna on 8‑9 October 1993;
Recalling that the Plan of Action on combating racism, xenophobia,
antisemitism and intolerance set out as part of this Declaration invited the
Committee of Ministers to establish the European Commission against Racism and
Intolerance with a mandate, inter alia, to formulate general policy
recommendations to member States;
Recalling also the Final Declaration and Action Plan adopted by the
Heads of State and Government of the member States of the Council of Europe at
their second Summit held in Strasbourg on 10‑11 October 1997;
Recalling that Article 1 of the Universal Declaration of Human Rights
proclaims that all human beings are born free and equal in dignity and rights;
Having regard to the International Convention on the Elimination of All
Forms of Racial Discrimination;
Having regard to Convention No 111 of the International Labour
Organisation concerning Discrimination (Employment and Occupation);
Having regard to Article 14 of the European Convention on Human Rights;
Having regard to Protocol No 12 to the European Convention on Human
Rights which contains a general clause prohibiting discrimination;
Having regard to the case-law of the European Court of Human Rights;
Taking into account the Charter of Fundamental Rights of the European
Union;
Taking into account Directive 2000/43/EC of the Council of the European
Union implementing the principle of equal treatment between persons
irrespective of racial or ethnic origin, and Directive 2000/78/EC of the
Council of the European Union establishing a general framework for equal
treatment in employment and occupation;
Having regard to the Convention on the Prevention and Punishment of the
Crime of Genocide;
Recalling ECRI’s general policy recommendation No 1 on combating
racism, xenophobia, antisemitism and intolerance and ECRI’s general
policy recommendation No 2 on specialised bodies to combat racism, xenophobia,
antisemitism and intolerance at national level;
Stressing that, in its country-by-country reports, ECRI regularly
recommends to member States the adoption of effective legal measures aimed at
combating racism and racial discrimination;
Recalling that, in the Political Declaration adopted on 13 October 2000
at the concluding session of the European Conference against racism, the
governments of member States of the Council of Europe committed themselves to
adopting and implementing, wherever necessary, national legislation and
administrative measures that expressly and specifically counter racism and
prohibit racial discrimination in all spheres of public life;
Recalling also the Declaration and
the Programme of Action adopted by the World Conference against Racism, Racial
Discrimination, Xenophobia and Related Intolerance held in Durban, South
Africa, from 31 August to 8 September 2001;
Aware that laws alone are not sufficient to eradicate racism and racial
discrimination, but convinced that laws are essential in combating racism and
racial discrimination;
Stressing the vital importance of appropriate legal measures in
combating racism and racial discrimination effectively and in a way which both
acts as a deterrent and, as far as possible, is perceived by the victim as
satisfactory;
Convinced that the action of the State legislator against racism and
racial discrimination also plays an educative function within society,
transmitting the powerful message that no attempts to legitimise racism and
racial discrimination will be tolerated in a society ruled by law;
Seeking, alongside the other efforts underway at international and
European level, to assist member States in their fight against racism and
racial discrimination, by setting out in a succinct and precise manner the key
elements to be included in appropriate national legislation;
Recommends to the governments of member States:
a. to
enact legislation against racism and racial discrimination, if such
legislation does not already exist or is incomplete ;
b. to
ensure that the key components set out below are provided in such legislation.
Key elements of national legislation
against racism and racial discrimination
I. Definitions
1.
For the purposes of this Recommendation, the following definitions shall
apply :
a)
«racism» shall mean the belief that a ground such as
race [1], colour, language,
religion, nationality or national or ethnic origin justifies contempt for a
person or a group of persons, or the notion of superiority of a person or a
group of persons.
b)
«direct racial discrimination» shall mean any differential
treatment based on a ground such as race, colour, language, religion,
nationality or national or ethnic origin, which has no objective and reasonable
justification. Differential treatment has no objective and reasonable
justification if it does not pursue a legitimate aim or if there is not a
reasonable relationship of proportionality between the means employed and the
aim sought to be realised.
c)
«indirect racial discrimination» shall mean cases where an
apparently neutral factor such as a provision, criterion or practice cannot be
as easily complied with by, or disadvantages, persons belonging to a group
designated by a ground such as race, colour, language, religion, nationality or
national or ethnic origin, unless this factor has an objective and reasonable
justification. This latter would be the case if it pursues a legitimate aim and
if there is a reasonable relationship of proportionality between the means
employed and the aim sought to be realised.
II. Constitutional
law
2.
The constitution should enshrine the principle of equal treatment, the
commitment of the State to promote equality as well as the right of individuals
to be free from discrimination on grounds such as race, colour, language,
religion, nationality or national or ethnic origin. The constitution may
provide that exceptions to the principle of equal treatment may be established
by law, provided that they do not constitute discrimination.
3.
The constitution should provide that the exercise of freedom of
expression, assembly and association may be restricted with a view to combating
racism. Any such restrictions should be in conformity with the European
Convention on Human Rights.
III. Civil
and administrative law
4.
The law should clearly define and prohibit direct and indirect racial discrimination.
5.
The law should provide that the prohibition of racial discrimination
does not prevent the maintenance or adoption of temporary special measures
designed either to prevent or compensate for disadvantages suffered by persons
designated by the grounds enumerated in paragraph 1 b) (henceforth: enumerated
grounds), or to facilitate their full participation in all fields of life.
These measures should not be continued once the intended objectives have been
achieved.
6.
The law should provide that the following acts, inter alia, are considered as
forms of discrimination: segregation; discrimination by association; announced
intention to discriminate; instructing another to discriminate; inciting
another to discriminate; aiding another to discriminate.
7.
The law should provide that the prohibition of discrimination applies to
all public authorities as well as to all natural or legal persons, both in the
public and in the private sectors, in all areas, notably: employment;
membership of professional organisations; education; training; housing; health;
social protection; goods and services intended for the public and public
places; exercise of economic activity; public services.
8.
The law should place public authorities under a duty to promote equality
and to prevent discrimination in carrying out their functions.
9.
The law should place public authorities under a duty to ensure that
those parties to whom they award contracts, loans, grants or other benefits
respect and promote a policy of non-discrimination. In particular, the law
should provide that public authorities should subject the awarding of
contracts, loans, grants or other benefits to the condition that a policy of
non-discrimination be respected and promoted by the other party. The law should
provide that the violation of such condition may result in the termination of
the contract, grant or other benefits.
10.
The law should ensure that easily accessible judicial and/or
administrative proceedings, including conciliation procedures, are available to all victims of
discrimination. In urgent cases, fast-track procedures, leading to interim
decisions, should be available to victims of discrimination.
11.
The law should provide that, if persons who consider themselves wronged
because of a discriminatory act establish before a court or any other competent
authority facts from which it may be presumed that there has been direct or
indirect discrimination, it shall be for the respondent to prove that there has
been no discrimination.
12.
The law should provide for effective, proportionate and dissuasive
sanctions for discrimination cases. Such sanctions should include the payment
of compensation for both material and moral damages to the victims.
13.
The law should provide the necessary legal tools to review, on an ongoing
basis, the conformity with the prohibition of discrimination of all laws,
regulations and administrative provisions at the national and local levels.
Laws, regulations and administrative provisions found not to be in conformity
with the prohibition of discrimination should be amended or abrogated.
14.
The law should provide that discriminatory provisions which are included
in individual or collective contracts or agreements, internal regulations of
enterprises, rules governing profit-making or non-profit-making associations,
and rules governing the independent professions and workers’ and
employers’ organisations should be amended or declared null and void.
15.
The law should provide that harassment related to one of the enumerated
grounds is prohibited.
16.
The law should provide for an obligation to suppress public financing of
organisations which promote racism. Where a system of public financing of
political parties is in place, such an obligation should include the
suppression of public financing of political parties which promote racism.
17.
The law should provide for the possibility of dissolution of
organisations which promote racism.
IV. Criminal
law
18.
The law should penalise the following acts when committed intentionally:
a)
public incitement to violence, hatred or discrimination,
b)
public insults and defamation or
c)
threats
against a person or a grouping
of persons on the grounds of their race, colour, language, religion,
nationality, or national or ethnic origin;
d)
the public expression, with a racist aim, of an ideology which claims
the superiority of, or which depreciates or denigrates, a grouping of persons
on the grounds of their race, colour, language, religion, nationality, or
national or ethnic origin;
e)
the public denial, trivialisation, justification or condoning, with a
racist aim, of crimes of genocide, crimes against humanity or war crimes;
f)
the public dissemination or public distribution, or the production or
storage aimed at public dissemination or public distribution, with a racist
aim, of written, pictorial or other material containing manifestations covered
by paragraphs 18 a), b), c), d) and e);
g)
the creation or the leadership of a group which promotes racism ;
support for such a group ; and participation in its activities with the
intention of contributing to the offences covered by paragraph 18 a), b), c),
d), e) and f);
h)
racial discrimination in the exercise of one’s public office or
occupation.
19.
The law should penalise genocide.
20.
The law should provide that intentionally instigating, aiding, abetting
or attempting to commit any of the criminal offences covered by paragraphs 18
and 19 is punishable.
21.
The law should provide that, for all criminal offences not specified in
paragraphs 18 and 19, racist motivation constitutes an aggravating circumstance.
22.
The law should provide that legal persons are held responsible under
criminal law for the offences set out in paragraphs 18, 19, 20 and 21.
23.
The law should provide for effective, proportionate and dissuasive
sanctions for the offences set out in paragraphs 18, 19, 20 and 21. The law
should also provide for ancillary or alternative sanctions.
V. Common
provisions
24.
The law should provide for the establishment of an independent
specialised body to combat racism and racial discrimination at national level
(henceforth: national specialised body).
The law should include within the competence of such a body: assistance
to victims; investigation powers; the right to initiate, and participate in,
court proceedings; monitoring legislation and advice to legislative and
executive authorities; awareness-raising of issues of racism and racial
discrimination among society and promotion of policies and practices to ensure
equal treatment.
25.
The law should provide that organisations such as associations, trade
unions and other legal entities which have, according to the criteria laid down
by the national law, a legitimate interest in combating racism and racial
discrimination, are entitled to bring civil cases, intervene in administrative
cases or make criminal complaints, even if a specific victim is not referred
to. If a specific victim is referred to, it should be necessary for that
victim’s consent to be obtained.
26.
The law should guarantee free legal aid and, where necessary, a
court-appointed lawyer, for victims who wish to go before the courts as
applicants or plaintiffs and who do not have the necessary means to do so. If necessary, an interpreter should be
provided free of charge.
27.
The law should provide protection against any retaliatory measures for
persons claiming to be victims of racial offences or racial discrimination,
persons reporting such acts or persons providing evidence.
28.
The law should provide for one or more independent bodies entrusted with the
investigation of alleged acts of discrimination committed by members of the
police, border control officials, members of the army and prison personnel.
Explanatory Memorandum
to ECRI general policy recommendation N°7
on national legislation to combat racism
and racial discrimination
Introduction
1.
This general policy recommendation (hereafter: the Recommendation)
focuses on the key elements of national legislation to combat racism and racial
discrimination. Although ECRI is aware that legal means alone are not
sufficient to this end, it believes that national legislation against racism
and racial discrimination is necessary to combat these phenomena effectively.
2.
In the framework of its country-by-country approach, ECRI regularly
recommends to member States of the Council of Europe the adoption of effective
legal measures aimed at combating racism and racial discrimination. The
Recommendation aims to provide an overview of these measures and to clarify and
complement the recommendations formulated in this respect in ECRI’s
country-by-country reports. The Recommendation also aims to reflect the general
principles contained in the international instruments mentioned in the
Preamble.
3.
ECRI believes that appropriate legislation to combat racism and racial
discrimination should include provisions in all branches of the law, i.e.
constitutional, civil, administrative and criminal law. Only such an integrated
approach will enable member States to address these problems in a manner which
is as exhaustive, effective and satisfactory from the point of view of the victim
as possible. In the field of combating racism and racial discrimination, civil
and administrative law often provides for flexible legal means, which may
facilitate the victims’ recourse to legal action. Criminal law has a
symbolic effect which raises the awareness of society of the seriousness of
racism and racial discrimination and has a strong dissuasive effect, provided
it is implemented effectively. ECRI has taken into account the fact that the
possibilities offered by the different branches of the law are complementary.
As regards in particular the fight against racial discrimination, ECRI
recommends that the member States of the Council of Europe adopt
constitutional, civil and administrative law provisions, and that, in certain
cases, they additionally adopt criminal law provisions.
4.
The legal measures necessary to combat racism and racial discrimination
at national level are presented in the form of key components which should be
contained in the national legislation of member States. ECRI stresses that the
measures it recommends are compatible with different legal systems, be they
common law or civil law or mixed. Furthermore, those components that ECRI
considers to be key to an effective legal framework against racism and racial
discrimination may be adapted to the specific conditions of each country. They
could thus be set out in a single special act or laid out in the different
areas of national legislation (civil law, administrative law and penal law).
These key components might also be included in broader legislation encompassing
the fight against racism and racial discrimination. For example, when adopting
legal measures against discrimination, member States might prohibit, alongside
racial discrimination, other forms of discrimination such as those based on
gender, sexual orientation, disability, political or other opinion, social
origin, property, birth or other status. Finally, in a number of fields, member
States might simply apply general rules, which it is therefore not necessary to
set out in this Recommendation.
This is the position, for example, in civil law, for multiple liability,
vicarious liability, and for the establishment of levels of damages; in
criminal law, for the conditions of liability, and the sentencing structure;
and in procedural matters, for the organisation and jurisdiction of the courts.
5.
In any event, these key components represent only a minimum standard;
this means that they are compatible with legal provisions offering a greater
level of protection adopted or to be adopted by a member State and that under
no circumstances should they constitute grounds for a reduction in the level of
protection against racism and racial discrimination already afforded by a
member State.
I. Definitions
Paragraph 1 of the Recommendation
6.
In the Recommendation, the term «racism» should be
understood in a broad sense, including phenomena such as xenophobia,
antisemitism and intolerance. As regards the grounds set out in the definitions
of racism and direct and indirect racial discrimination (paragraph 1 of the
Recommendation), in addition to those grounds generally covered by the relevant
legal instruments in the field of combating racism and racial discrimination,
such as race, colour and national or ethnic origin, the Recommendation covers
language, religion and nationality[2].
The inclusion of these grounds in the definitions of racism and racial
discrimination is based on ECRI’s mandate, which is to combat racism,
antisemitism, xenophobia and intolerance. ECRI considers that these concepts,
which vary over time, nowadays cover manifestations targeting persons or groups
of persons, on grounds such as race, colour, religion, language, nationality
and national and ethnic origin. As a result, the expressions
«racism» and «racial discrimination» used in the
Recommendation encompass all the phenomena covered by ECRI's mandate. National
origin is sometimes interpreted as including the concept of nationality. However, in order to ensure that this
concept is indeed covered, it is expressly included in the list of grounds, in
addition to national origin. The use of the expression «grounds such
as» in the definitions of racism and direct and indirect racial
discrimination aims at establishing an open-ended list of grounds, thereby allowing
it to evolve with society. However, in criminal law, an exhaustive list of
grounds could be established in order to respect the principle of forseeability
which governs this branch of the law.
7.
Unlike the definition of racial discrimination (paragraphs 1 b) and c)
of the Recommendation), which should be included in the law, the definition of
racism is provided for the purposes of the Recommendation, and member States
may or may not decide to define racism within the law. If they decide to do so, they may, as
regards criminal law, adopt a more precise definition than that set out in
paragraph 1 a), in order to respect the fundamental principles of this branch
of the law. For racism to have
taken place, it is not necessary that one or more of the grounds listed should
constitute the only factor or the determining factor leading to contempt or the
notion of superiority; it suffices that these grounds are among the factors
leading to contempt or the notion of superiority.
8.
The definitions of direct and indirect racial discrimination contained
in paragraph 1 b) and c) of the Recommendation draw inspiration from those
contained in the Directive 2000/43/CE of the Council of the European Union
implementing the principle of equal treatment between persons irrespective of racial
or ethnic origin and in the Directive 2000/78/CE of the Council of the European
Union establishing a general framework for equal treatment in employment and
occupation as well as on the case-law of the European Court of Human Rights. In
accordance with this case-law, differential treatment constitutes
discrimination if it has no objective and reasonable justification. This
principle applies to differential treatment based on any of the grounds
enumerated in the definition of racial discrimination. However, differential
treatment based on race, colour and ethnic origin may have an objective and
reasonable justification only in an extremely limited number of cases. For
instance, in employment, where colour constitutes a genuine and determining
occupational requirement by reason of the nature of the particular occupational
activities concerned or of the context in which they are carried out,
differential treatment based on this ground may have an objective and
reasonable justification. More generally, the notion of objective and
reasonable justification should be interpreted as restrictively as possible
with respect to differential treatment based on any of the enumerated grounds.
II. Constitutional
law
9.
In the Recommendation, the term « constitution »
should be understood in a broad sense, including basic laws and written and
unwritten basic rules. In paragraphs 2 and 3, the Recommendation provides for
certain principles that should be contained in the constitution; such
principles are to be implemented by statutory and regulatory provisions.
Paragraph 2 of the
Recommendation
10.
In paragraph 2, the Recommendation allows for the possibility of
providing in the law for exceptions to the principle of equal treatment,
provided that they do not constitute discrimination. For this condition to be
met, in accordance with the definitions of discrimination proposed in paragraph
1 b) and c) of the Recommendation, the exceptions must have an objective and
reasonable justification. This principle applies to all exceptions, including
those establishing differential treatment on the basis of nationality.
Paragraph 3 of the
Recommendation
11.
According to paragraph 3 of the Recommendation, the constitution should
provide that the exercise of freedom of expression, assembly and association
may be restricted with a view to combating racism. In articles 10 (2)
and 11 (2), the European Convention on Human Rights enumerates the aims which
may justify restrictions to these freedoms. Although the fight against racism
is not mentioned as one of these aims, in its case-law the European Court of
Human Rights has considered that it is included. In accordance with the
articles of the Convention mentioned above, these restrictions should be
prescribed by law and necessary in a democratic society.
III. Civil
and administrative law
Paragraph 4 of the
Recommendation
12.
The Recommendation provides in paragraph 4 that the law should clearly
define and prohibit direct and indirect racial discrimination. It offers a
definition of direct and indirect racial discrimination in paragraph 1 b) and
c). The meaning of the expression «differential treatment» is wide
and includes any distinction, exclusion, restriction, preference or omission,
be it past, present or potential. The term «ground» must
include grounds which are actual or presumed. For instance, if a person
experiences adverse treatment due to the presumption that he or she is a
Muslim, when in reality this is not the case, this treatment would still
constitute discrimination on the basis of religion.
13.
Discriminatory actions are rarely based solely on one or more of the
enumerated grounds, but are rather based on a combination of these grounds with
other factors. For discrimination to occur, it is therefore sufficient that one
of the enumerated grounds constitutes one of the factors leading to the
differential treatment. The use of
restrictive expressions such as «difference of
treatment solely or exclusively based on grounds such as
…» should therefore be avoided.
Paragraph 5 of the
Recommendation
14.
In its paragraph 5, the Recommendation provides for the possibility of
temporary special measures designed either to prevent or compensate for
disadvantages suffered by persons designated by the enumerated grounds, or to
facilitate their full participation in all fields of life. An example of
temporary special measures designed to prevent or compensate for disadvantages
linked to the enumerated grounds: a factory owner who has no black employees
among his managerial staff but many black employees on the assembly line might
organise a training course for black workers seeking promotion. An example of
temporary special measures designed to facilitate the full participation, in
all fields of life, of persons designated by the enumerated grounds: the police
could organise a recruitment campaign designed so as to encourage applications
particularly from members of certain ethnic groups who are under-represented
within the police.
Paragraph 6 of the
Recommendation
15.
The Recommendation specifically mentions in paragraph 6 certain acts
which should be considered by law as forms of discrimination. In theory, the
application of the general legal principles and the definition of
discrimination should enable these acts to be covered. However, practice
demonstrates that these acts often tend to be overlooked or excluded from the
scope of application of the legislation. For reasons of effectiveness, it may
therefore be useful for the law to provide expressly that these acts are
considered as forms of discrimination.
16.
Among the acts which the Recommendation mentions specifically as forms
of discrimination, the following warrant a brief explanation:
-
Segregation is the act by which a (natural or legal) person separates
other persons on the basis of one of the enumerated grounds without an
objective and reasonable justification, in conformity with the proposed
definition of discrimination. As a result, the voluntary act of separating
oneself from other persons on the basis of one of the enumerated grounds does
not constitute segregation.
-
Discrimination by association occurs when a person is discriminated
against on the basis of his or her association or contacts with one or more
persons designated by one of the enumerated grounds. This would be the case,
for example, of the refusal to employ a person because s/he is married to a
person belonging to a certain ethnic group.
-
The announced intention to discriminate should be considered as
discrimination, even in the absence of a specific victim. For instance, an
employment advertisement indicating that Roma/Gypsies need not apply should
fall within the scope of the legislation, even if no Roma/Gypsy has actually
applied.
Paragraph 7 of the
Recommendation
17.
According to paragraph 7 of the Recommendation, the prohibition of discrimination
should apply in all areas. Concerning employment, the prohibition of
discrimination should cover access to employment, occupation and
self-employment as well as work conditions, remunerations, promotions and
dismissals.
18.
As concerns membership of professional organisations, the prohibition of
discrimination should cover: membership of an organisation of workers or
employers, or any organisation whose members carry on a particular
profession ; involvement in such organisations ; and the benefits provided
for by such organisations.
19.
Concerning education, the prohibition of discrimination should cover
pre-school, primary, secondary and higher education, both public and
private. Furthermore, access to
education should not depend on the immigration status of the children or their
parents.
20.
As concerns training, the prohibition of discrimination should cover
initial and on-going vocational training, all types and all levels of
vocational guidance, advanced vocational training and retraining, including the
acquisition of practical work experience.
21.
As concerns housing, discrimination should be prohibited in particular
in access to housing, in housing conditions and in the termination of rental
contracts.
22.
As concerns health, discrimination should be prohibited in particular in
access to care and treatment, and in the way in which care is dispensed and
patients are treated.
23.
Concerning social protection, the prohibition of discrimination should
cover social security, social benefits, social aid (housing benefits, youth
benefits, etc.) and the way in which the beneficiaries of social protection are
treated.
24.
As concerns goods and services intended for the public and public
places, discrimination should be prohibited, for instance, when buying goods in
a shop, when applying for a loan from a bank and in access to discotheques,
cafés or restaurants. The prohibition of discrimination should not only
target those who make goods and services available to others, but also those
who receive goods and services from others, as would be the case of a company
which selects the providers of a given good or service on the basis of one of
the enumerated grounds.
25.
Concerning the exercise of economic activity, this field covers
competition law, relations between enterprises and relations between
enterprises and the State.
26.
The field of public services includes the activities of the police and
other law enforcement officials, border control officials, the army and prison
personnel.
Paragraph 8 of the
Recommendation
27.
According
to paragraph 8 of the Recommendation, the law should place public authorities under a
duty to promote equality and to prevent discrimination in carrying out their
functions. The
obligations incumbent on such authorities should be spelled out as clearly as possible
in the law. To this end, public authorities could be placed under the
obligation to create and implement «equality
programmes» drawn up with the assistance of the national specialised body
referred to in paragraph 24 of the Recommendation. The law should provide for
the regular assessment of the equality programmes, the monitoring of their
effects, as well as for effective implementation mechanisms and the possibility
for legal enforcement of these programmes, notably through the national
specialised body. An equality programme could, for example, include the
nomination of a contact person for dealing with issues of racial discrimination
and harassment or the organisation of staff training courses on discrimination. As regards the obligation to promote
equality and prevent discrimination, the Recommendation covers only public
authorities; however, it would be desirable were the private sector also placed
under a similar obligation.
Paragraph 10 of the
Recommendation
28.
According to paragraph 10 of the Recommendation, in urgent cases,
fast-track procedures, leading to interim decisions, should be available to
victims of discrimination. These
procedures are important in those situations where the immediate consequences
of the alleged discriminatory act are particularly serious or even irreparable.
Thus, for example, the victims of a discriminatory eviction from a flat should
be able to suspend this measure through an interim judicial decision, pending
the final judgement of the case.
Paragraph 11 of the
Recommendation
29.
Given the difficulties complainants face in collecting the necessary
evidence in discrimination cases, the law should facilitate proof of
discrimination. For this reason, according to paragraph 11 of the
Recommendation, the law should provide for a shared burden of proof in such
cases. A shared burden of proof means that the complainant should establish
facts allowing for the presumption of discrimination, whereupon the onus shifts
to the respondent to prove that discrimination did not take place. Thus, in
case of alleged direct racial discrimination, the respondent must prove that
the differential treatment has an objective and reasonable justification. For
example, if access to a swimming pool is denied to Roma/Gypsy children, it
would be sufficient for the complainant to prove that access was denied to
these children and granted to non-Roma/Gypsy children. It should then be for
the respondent to prove that this denial to grant access was based on an
objective and reasonable justification, such as the fact that the children in
question did not have bathing hats, as required to access the swimming
pool. The same principle should
apply to alleged cases of indirect racial discrimination.
30.
As concerns the power to obtain the necessary evidence and information,
courts should enjoy all adequate powers in this respect. Such powers should be
also given to any specialised body competent to adjudicate on an individual
complaint of discrimination (see paragraph 55 of the present Explanatory
Memorandum).
Paragraph 12 of the
Recommendation
31.
Paragraph 12 of the Recommendation states that the law should provide
for effective, proportionate and dissuasive sanctions for discrimination cases.
Apart from the payment of compensation for material and moral damages,
sanctions should include measures such as the restitution of rights which have
been lost. For instance, the law should enable the court to order re-admittance
into a firm or flat, provided that the rights of third parties are respected.
In the case of discriminatory refusal to recruit a person, the law should
provide that, according to the circumstances, the court could order the
employer to offer employment to the discriminated person.
32.
In the case of discrimination by a private school, the law should provide
for the possibility of withdrawing the accreditation awarded to the school or
the non-recognition of the diplomas issued. In the case of discrimination by an
establishment open to the public, the law should provide for the possibility of
withdrawing a licence and of closing the establishment. For example, in the
case of discrimination by a discotheque, it should be possible to withdraw the
licence to sell alcohol.
33.
Non-monetary forms of reparation, such as the publication of all or part
of a court decision, may be important in rendering justice in cases of
discrimination.
34.
The law should provide for the possibility of imposing a programme of
positive measures on the discriminator. This is an important type of remedy in
promoting long-term change in an organisation. For instance, the discriminator
could be obliged to organise for its staff specific training programmes aimed
at countering racism and racial discrimination. The national specialised body
should participate in the development and supervision of such programmes.
Paragraph 15 of the
Recommendation
35.
According to paragraph 15 of the Recommendation the law should provide
that harassment related to one of the enumerated grounds is prohibited.
Harassment consists in conduct related to one of the enumerated grounds which
has the purpose or the effect of violating the dignity of a person and of
creating an intimidating, hostile, degrading, humiliating or offensive
environment. As far as possible, protection against harassment related to one
of the enumerated grounds should not only target the conduct of the author of
the harassment but also that of other persons. For instance, it should be
possible for the employer to be held responsible, where applicable, for
harassment by colleagues, other employees or third parties (such as clients and
suppliers).
Paragraph 16 of the
Recommendation
36.
Paragraph 16 of the Recommendation states that the law should provide
for the obligation to suppress public financing of political parties which
promote racism. For example,
public financing for electoral campaigns should be refused to such political
parties.
Paragraph 17 of the
Recommendation
37.
Paragraph 17 of the Recommendation states that the law should provide
for the possibility of the dissolution of organisations which promote racism.
In all cases, the dissolution of such organisations may result only from a
Court decision. The issue of the dissolution of these organisations is also
dealt with under Section IV - Criminal law (see paragraphs 43 and 49 of the present
Explanatory Memorandum)
IV. Criminal
law
Paragraph 18 of the
Recommendation
38.
The Recommendation limits the scope of certain criminal offences set out
in paragraph 18 to the condition that they are committed in «public».
Current practice shows that, in certain cases, racist conduct escapes
prosecution because it is not considered as being of a public nature. Consequently, member States should
ensure that it should not be too difficult to meet the condition of being
committed in «public». Thus, for instance, this condition
should be met in cases of words pronounced during meetings of neo-Nazi
organisations or words exchanged in a discussion forum on the Internet.
39.
Some of the offences set out in paragraph 18 of the Recommendation
concern conduct aimed at a «grouping of persons». Current practice shows that legal
provisions aimed at sanctioning racist conduct frequently do not cover such
conduct unless it is directed against a specific person or group of
persons. As a result, expressions
aimed at larger groupings of persons, as in the case of references to asylum
seekers or foreigners in general, are often not covered by these
provisions. For this reason,
paragraph 18 a), b), c), and d) of the Recommendation does not speak of «group» but of «grouping» of persons.
40.
The term «defamation» contained in paragraph 18 b)
should be understood in a broad sense, notably including slander and libel.
41.
Paragraph 18 e) of the Recommendation refers to the crimes of genocide,
crimes against humanity and war crimes. The crime of genocide should be understood as defined in
Article II of the Convention for the Prevention and Punishment of the Crime of
Genocide and Article 6 of the Statute of the International Criminal Court (see
paragraph 45 of the present Explanatory Memorandum). Crimes against humanity and war crimes should be understood
as defined in Articles 7 and 8 of the Statute of the International Criminal
Court.
42.
Paragraph 18 f) of the Recommendation refers to the dissemination,
distribution, production or storage of written, pictorial or other material
containing racist manifestations. These notions include the dissemination of
this material through the Internet. Such material includes musical supports
such as records, tapes and compact discs, computer accessories (e.g. floppy
discs, software), video tapes, DVDs and games.
43.
Paragraph 18 g) of the Recommendation provides for the criminalisation
of certain acts related to groups which promote racism. The concept of group
includes in particular de facto groups, organisations, associations and
political parties. The Recommendation provides that the creation of a group
which promotes racism should be prohibited. This prohibition also includes maintaining or reconstituting
a group which has been prohibited. The issue of the dissolution of a group
which promotes racism is also dealt with under Section III - Civil and
administrative law (see paragraph 37 of the present Explanatory Memorandum) and
below (see paragraph 49 of the present Explanatory Memorandum). Moreover, the
notion of «support» includes acts such as providing financing to
the group, providing for other material needs, producing or obtaining
documents.
44.
In its paragraph 18 h) the Recommendation states that the law should
penalise racial discrimination in the exercise of one’s public office or
occupation. On this point, the
definitions contained in paragraphs 1 b) and c) and 5 of the Recommendation
apply mutatis mutandis. Racial discrimination in the exercise of one’s
public office or occupation includes notably the discriminatory refusal of a
service intended for the public, such as discriminatory refusal by a hospital
to care for a person and the discriminatory refusal to sell a product, to grant
a bank loan or to allow access to a discotheque, café or restaurant.
Paragraph 19 of the
Recommendation
45.
Paragraph 19 of the Recommendation provides that the law should penalise
genocide. To this end, the crime
of genocide should be understood as defined in Article II of Convention on the
Prevention and Punishment of the Crime of Genocide and Article 6 of the Statute
of the International Criminal Court, i.e. as «any of the following acts committed with intent to destroy, in whole or
in part, a national, ethnical, racial or religious group, as such: killing
members of the group; causing serious bodily or mental harm to members of the
group; deliberately inflicting on the group conditions of life calculated to
bring about its physical destruction in whole or in part; imposing measures
intended to prevent births within the group; forcibly transferring children of
the group to another group».
The Recommendation refers only to penalisation of genocide and not of
war crimes and crimes against humanity since these are not necessarily of a
racist nature. However, if they do
present such a nature, the aggravating circumstance provided for in paragraph
21 of the Recommendation should apply.
Paragraph 20 of the
Recommendation
46.
Paragraph 20 of the Recommendation provides that instigating, aiding,
abetting or attempting to commit any of the criminal offences covered by
paragraphs 18 and 19 should be punishable. This recommendation applies only to
those offences for which instigating, aiding, abetting or attempting are
possible.
Paragraph 21 of the
Recommendation
47.
According to paragraph 21 of the Recommendation, the racist motivation
of the perpetrator of an offence other than those covered by paragraphs 18 and
19 should constitute an aggravating circumstance. Furthermore, the law may penalise common offences but with a
racist motivation as specific offences.
Paragraph 22 of the
Recommendation
48.
According to paragraph 22 of the Recommendation, the law should provide
for the criminal liability of legal persons. This liability should come into play when the offence has
been committed on behalf of the legal person by any persons, particularly
acting as the organ of the legal person (for example, President or Director) or
as its representative. Criminal liability of a legal person does not exclude
the criminal liability of natural persons. Public authorities may be excluded
from criminal liability as legal persons.
Paragraph 23 of the
Recommendation
49.
According to paragraph 23 of the Recommendation, the law should provide
for ancillary or alternative sanctions.
Examples of these could include community work, participation in
training courses, deprivation of certain civil or political rights (e.g. the
right to exercise certain occupations or functions; voting or eligibility
rights) or publication of all or part of a sentence. As regards legal persons, the list of possible sanctions
could include, besides fines: refusal or cessation of public benefit or aid,
disqualification from the practice of commercial activities, placing under
judicial supervision, closure of the establishment used for committing the
offence, seizure of the material used for committing the offence and the
dissolution of the legal person (see on this last point paragraphs 37 and 43 of
the present Explanatory Memorandum).
V. Common
provisions
Paragraph 24 of the Recommendation
50.
According to paragraph 24 of the Recommendation, the law should provide
for the establishment of an independent specialised body to combat racism and
racial discrimination at national level.
The basic principles concerning the statute of such a body, the forms it
might take, its functions, responsibilities, administration, functioning and
style of operation are set out in ECRI’s general policy recommendation no
2 on specialised bodies to combat racism, xenophobia, antisemitism and intolerance
at national level.
51.
The functions attributed to this body should be provided by law. The
Recommendation enumerates a certain number of such functions. Assistance to
victims covers provision of general advice to victims and legal assistance,
including representation in proceedings before the courts. It also covers
assistance in seeking friendly settlement of complaints.
52.
As concerns investigation powers, in order that a national specialised
body may conduct these effectively, it is essential that the law provides the
latter with the requisite powers, subject to the rules of procedure of the
national legal order. This
includes powers granted in the framework of an investigation, such as
requesting the production for inspection and examination of documents and other
elements; seizure of documents and other elements for the purpose of making
copies or extracts; and questioning persons. The national specialised body
should also be entitled to bring cases before the courts and to intervene in
legal proceedings as an expert.
53.
The functions of the national specialised body should also include
monitoring legislation against racism and racial discrimination and control of
the conformity of legislation with equality principles. In this respect, the
national specialised body should be entitled to formulate recommendations to
the executive and legislative authorities on the way in which relevant
legislation, regulations or practice may be improved.
54.
As concerns awareness-raising of issues of racism and racial
discrimination among society and promotion of policies and practices to ensure
equal treatment, the national specialised body could run campaigns in
collaboration with civil society; train key groups; issue codes of practice;
and support and encourage organisations working in the field of combating
racism and racial discrimination.
55.
In addition to these functions, the national specialised body may be
attributed other responsibilities. Moreover, another body could be entrusted
with the adjudication of complaints through legally-binding decisions, within
the limits prescribed by the law.
Paragraph 25 of the
Recommendation
56.
The Recommendation provides in its paragraph 25 that organisations such
as associations, trade unions and other legal entities with a legitimate interest
should be entitled to bring complaints.
Such a provision is important, for instance, in cases where a victim is
afraid of retaliation.
Furthermore, the possibility for such organisations to bring a case of
racial discrimination without reference to a specific victim is essential for
addressing those cases of discrimination where it is difficult to identify such
a victim or cases which affect an indeterminate number of victims.
Paragraph 27 of the
Recommendation
57.
According to paragraph 27 of the Recommendation, the law should provide
protection against retaliation. Such protection should not only be afforded to
the person who initiates proceedings or brings the complaint, but should also
be extended to those who provide evidence, information or other assistance in
connection with the court proceedings or the complaint. Such protection is vital to encourage
the victims of racist offences and discrimination to put forward their
complaints to the authorities and to encourage witnesses to give evidence. In order to be effective, the legal
provisions protecting against retaliation should provide for an appropriate and
clear sanction. This might include
the possibility of an injunction order to stop the retaliatory acts and/or to
compensate victims of such acts.
[1] Since all human beings belong to
the same species, ECRI rejects theories based on the existence of different
« races ». However, in this Recommendation ECRI uses this
term in order to ensure that those persons who are generally and erroneously
perceived as belonging to « another race » are not
excluded from the protection provided for by the legislation.
[2] ECRI understands the term
"nationality" as defined in Article 2 a. of the European Convention
on Nationality: « "nationality" means the legal bond between a
person and a State and does not indicate the person's ethnic origin ».