3. G OVERNMENT E DUCATIONAL P OLICIES AND
3.8 Discrimination-monitoring mechanisms
the Commission has received no education discrimination complaints by Roma complainants.181 It has only been operational since 1 November 2005, which could in part account for this fact. Another reason for this may be that the equality law is not visible enough within Roma communities, who are not sufficiently aware of the possibilities for legal protection that it provides, including the fact that proceedings are tax-free. Rights groups’ lawyers, on the other hand, while better informed about the law, may not have yet approached the Commission with Roma educational inequality complaints or signals because they feel that it still lacks the necessary professionalism and resolve to deal with this critically important issue. They may consider, for the time being, that the courts are the better-equipped authority to meet this challenge.
The second mechanism is a judicial remedy. Victims of discrimination are entitled to a special anti-discrimination claim to have a civil court find discrimination, order the respondent to terminate it, and to abolish its consequences, as well as to abstain from repeating it in the future, and award the claimant compensation for any pecuniary or non-pecuniary damage sustained.182 No fees or expenses are due.183 The procedure is the general civil procedure, with the exception that the burden of proof shifts onto the respondent once the claimant has established facts from which the court may presume that discrimination is at hand.184 Apart from victims, trade unions and public interest non-profit organisations also have the standing to join proceedings, both as representatives of victims, and in their own right where the equal rights of many parties are infringed.185 In addition, the law provides for the standing for additional victims or public interest groups and trade unions to join pending proceedings initiated by another party.186 Discriminatory acts by public authorities are subject to judicial review under general administrative procedure rules.187
As far as information is available, unofficially and non-exhaustively (as no official record is being kept of discrimination lawsuits), there have been at least 11 cases brought on behalf of Roma complainants before the courts, with at least five rulings being delivered to date, two of which are favourable to the complainants. Some of these allege racial segregation in schools. In 2005 alone three district courts – two in Sofia and one in Ihtiman – ruled on cases alleging that segregation of Roma students in residential schools amounted to discrimination. In one case the court found for the plaintiffs and in two against them. All three were appealed and there is no final decision on any of them at present.
181 Interview with Ms. Zora Guencheva, member of the Commission, 6 April 2006.
182 Protection against Discrimination Act, Art. 71
183 Protection against Discrimination Act, Art. 75.
184 Protection against Discrimination Act, Art. 9.
185 Protection against Discrimination Act, Art. 71.
186 Protection against Discrimination Act, Art. 72.
187 Protection against Discrimination Act, Art. 73.
In addition, at the institutional level, the law provides for an internal complaint mechanism to be established within each educational body.188 However, this is only applicable to harassment complaints. Educational institutions’ directors are under a duty to immediately investigate such complaints, and to take action to terminate the harassment, and to impose disciplinary liability. There is no information as to any complaints brought under this mechanism.
In cases where educators fail to take action when addressed with harassment complaints, there is no express remedy under the law against such failure, although educators would be liable under general tort law for compensation. Alternatively, or in addition, a harassment victim may complain to the Ministry of Education and Science, asking for administrative pressure to be put on the educator to take due action, including sanctions administered by the Ministry on the educator. However, the law does not provide for such a complaint to the Ministry, nor for any express powers of the Minister of Education to act in such a situation, and, accordingly, the Minister’s response would be entirely at his or her discretion. Having no direct authorisation under the law, the Minister would not be likely to impose any sanction. At best, he or she could be expected to make an inquiry, and/or a recommendation to the educator.
As mentioned above, the competent bodies for protection against discrimination are the Protection against Discrimination Commission, the civil courts, the administrative bodies and, as far as complaints of harassment are concerned, directors of schools and universities.
Both the Protection against Discrimination Commission and the civil courts are fairly accessible in terms of cost of the proceedings, with no fees, or expenses due. However, there is not sufficient information publicly available on the existence of these anti-discrimination remedies. The legislation is still relatively new, and the Government has launched no public awareness campaigns to make it known by the general public. The Protection against Discrimination Commission is in the initial stages of preparing such a campaign, national in scope. The impact of this is yet to be gauged. The Commission is still insufficiently accessible in terms of its contact details’ availability to the general public. For a certain period, it lacked offices, and, accordingly, had no postal or email address or telephone numbers.
NGOs have conducted training sessions on the new anti-discrimination legislation, primarily for NGO activists. These have had a limited impact on the general public awareness of the legal remedies for redress. On a more positive note, the media have shown interest in the anti-discrimination practices of both the courts and the Commission, and have been covering these adequately, with some particularly good pieces of information having being published or broadcast. This media coverage has not focused so much on the procedural aspects of using these authorities for obtaining redress, but rather on the substantive aspects of their decisions. The general public, and
188 Protection against Discrimination Act, Art. 31.
especially vulnerable communities, particularly the most isolated Roma communities, are still in want of information as to the means to obtain redress for discrimination from the competent institutions.
In terms of damage awards, the courts have not awarded any to date in cases of educational discrimination. In the two cases with positive outcomes, none was sought, since the claims were brought by NGOs in their own right. In only one of these cases did the proceedings result in a remedy other than a declaration of law, namely disbanding a segregated class as a part of a court-approved agreement between the parties.189
As for assistance offered to complainants of discrimination in education, all lawsuits to date have been sponsored by NGOs, including the provision of legal counsel. No governmental assistance has been provided for complainants to the courts, other than the statutory waiver of fees and expenses.
The Decade Action Plan sets out in action 1.1.7 an additional mechanism for ensuring non-discrimination in education for Roma at the pre-school and school level. These mechanisms were scheduled to take place in 2005–2006, but as no indicators were outlined in the Decade Action Plan, and no official reports have been published, progress is difficult to track.
189 Sofia District Court, Decision No. 666/2005 from 7 November 2005.