1

EDITOR:ASSOCIATE PROFESSOR PhD.

MĂDĂLINA TOMESCU

COORDINATORS:

C.N.C.D. PRESIDENT PhD. DIRECTOR PhD.CSABA FERENC ASZTALOS MĂDĂLINA ROŞU

THE EXERCISE OF THE RIGHT TO NON-DISCRIMINATION ANDEQUAL OPPORTUNITIES IN THE CONTEMPORARY SOCIETY

7th Edition Proceedings of Non Discrimination and Equal OpportunitiesInternational Conference – NEDES 2013

MINISTERUL EDUCAŢIEI NAȚIONALEUNIVERSITATEA CREŞTINĂ „DIMITRIE

CANTEMIR”BUCUREŞTI SPLAIUL UNIRII NR.176 SECTOR 4

TEL. 021.330.79.00; 021.330.84.90; FAX 021.330.87.74Nr.de înregistrare din Registrul de evidenţă a prelucrărilor

de date cu caracter personal 1919

2

THE SCIENTIFIC COMMITTEE OF THE CONFERENCE

Prof.univ.dr. MOMCILO LUBURICI – President of ”Dimitrie Cantemir” ChristianUniversity; Prof.univ.dr. CORINA ADRIANA DUMITRESCU –Rector of ”DimitrieCantemir” Christian University; Dr. CSABA FERENC ASZTALOS – President of NationalCouncil for Combating Discrimination ;TITUS CORLĂŢEAN PhD. – Ministry of Exterior;Prof.univ.dr. CRISTIAN DUMITRESCU; Acad.Prof.univ.dr. ALFONSO ROLDANMORÉ(Spania); Prof.univ.dr. FLORENCE BENOÎT ROHMER (Franţa);Acad.Prof.univ.dr. MILJIA ZECEVICS (Serbia); Acad.Prof.univ.dr. BOJANA RILKE(Serbia); Prof.univ.dr. DUMITRU MAZILU-”Dimitrie Cantemir” Christian University;Prof. PIERRE HENRI IMBERT (Franţa); Prof. PAUL MAHONEY (Marea Britanie);Prof.univ.dr. IRINA ZLĂTESCU - Romanian Institute for Human Rights; Prof.univ.dr.CRISTIANA CRISTUREANU- Vice-Rector of ”Dimitrie Cantemir” Christian University;Prof.univ.dr. GHEORGHE LEPĂDATU- Vice-Rector of ”Dimitrie Cantemir” ChristianUniversity; Prof.univ.dr. VICTOR MUNTEANU- Vice-Rector of ”Dimitrie Cantemir”Christian University;Prof.univ.dr. NICOLETA DIACONU –”Al. I.Cuza” Police Academy;Prof.univ.dr. ALEXANDRU BURIAN – Academy of Sciences of Moldova; Prof.univ.dr.EDMOND JOUVE (Franţa) – Central European Academy of Sciences, Arts and Letters ;Prof. univ. dr. MICHAELA BERANOVA, Cyech Republic; Prof. univ.dr. ILONAKOJELYTE, Lithuania; Prof.univ.dr. PETRICĂ TRUŞCĂ – Dean of Faculty of Legal andAdministrative Sciences; Prof. univ.dr. KIRSI – MARJA TOIVANEN, North Karelia Univ.Finland; Prof. univ. dr. ALBINA GIRFANOVA, Russian FederationProf. univ. dr. SEHVOR BESIROGLU, Turkey; Prof. univ. dr. SEYNEP SOZEN, Turkey;Prof. univ. dr. JAN SADLAK, UNESCO Bucharest; Prof.univ.dr. ASHER MAOZ –Dean,Peres Academic Center Law School, Israel; Prof. univ. dr. BORYS BUDKA, POLAND;Prof. univ. dr. CEZMI KARASU, TurkeyProf. univ. dr. SPIROS GROPAS, USA; Prof. univ. dr. VULFS KOZLINSKID, LETONIA;Prof. univ. dr. LASZLO BORBAS, Hungary; Prof. univ. dr. PIO NODARI, Italy;Conf.univ.dr. VLADIMIR GROSU (Republic of Moldova); Conf.univ.dr. MĂDĂLINATOMESCU- Vice - Dean of Faculty of Legal and Administrative Sciences; Conf.univ.dr.CAMIL TĂNĂSESCU – Vice - Dean of Faculty of Legal and Administrative Sciences; Dr.MĂDĂLINA RALUCA ROŞU- Director of The Legal Department, National Council forCombating Discrimination; Conf.univ.dr. LUMINIŢA DRAGNE; Conf.univ.dr.GABRIELA POHOAŢĂ – Dean of Faculty of Educational Sciences; Conf.univ.dr.MIHAELA FODOR – Dean of Faculty of Law, UCDC, Cluj Napoca; Conf.univ.dr.CARMEN DUŢU – Dean of Faculty of Foreign Languages and Literatures; LecturerCONSTANTIN SAVA

CONFERENCE ORGANIZING COMMITTEE:Associated Professor MĂDĂLINA TOMESCU PhD.; Director MĂDĂLINA ROŞU PhD.;Jurist ADRIANA BITAN; Jurist ANA TARCUŢĂ; Assoc. Professor AGATADORMIHAELA POPESCU PhD.; Assoc. Professor DRAGOŞ MARIAN RĂDULESCU; Assoc.Professor CRISTIAN JORA; Assoc. Professor LUMINIŢA DRAGNE; Lecturer ANDRADAMIHAELA TRUŞCĂ Ph.D.; Lecturer VICTORIA CRISTIEAN PhD.; Lecturer IONUŢCIUTACU PhD.; Lecturer GABRIEL TĂNĂSESCU PhD.; Assistant CODRUŢA BADEAPhD. Student; Assistant RAMONA PARASCHIV PhD.; Assistant DAN CARBARĂU PhD.Student; IOANA MINODORA BĂLAN RUSU PhD. Student

3

EDITOR:ASSOCIATE PROFESSOR PhD.

MĂDĂLINA TOMESCU

COORDINATORS:

C.N.C.D. PRESIDENT PhD. DIRECTOR PhD.CSABA FERENC ASZTALOS MĂDĂLINA ROŞU

THE EXERCISE OF THE RIGHT TONON-DISCRIMINATION AND EQUAL

OPPORTUNITIES IN THECONTEMPORARY SOCIETY

7th Edition Proceedings ofNon Discriminationand Equal Opportunities International

Conference – NEDES 2013

MINISTERUL EDUCAŢIEI NAȚIONALEUNIVERSITATEA CREŞTINĂ „DIMITRIE

CANTEMIR”BUCUREŞTI SPLAIUL UNIRII NR.176 SECTOR 4

TEL. 021.330.79.00; 021.330.84.90; FAX 021.330.87.74Nr.de înregistrare din Registrul de evidenţă a prelucrărilor

de date cu caracter personal 1919

4

ISSN 2344-5629

5

Cuprins

FUNDAMENTALS ON DISCRIMINATING RULES SOCIAL PERIL ...... 9Corina Adriana Dumitrescu

EVIDENCE IN THE NON-DISCRIMINATION FIELD INROMANIAN LAW.............................................................................. 14

Csaba Ferenc Asztalos

NONDISCRIMINATION – MAJOR REQUIREMENTS IN THEPROCESS OF THE ACCESS TO THE SCHENGEN SPACE................... 25

Professor PhD. Dumitru Mazilu

EQUALITY OF OPPORTUNITIES AND NONDISCRIMINATION-THE ROLE OF THE COUNCIL OF EUROPE AND ECHR .....................31

Titus Corlăţean

THE PRINCIPLE OF NONDISCRIMINATION ON REASONS OFCITIZENSHIP OR NATIONALITY ..................................................... 37

Irina Moroianu Zlătescu

EVOLUTION OF RULES PROTECTION OF THE RIGHTS OFPERSONS WITH DISABILITIES ....................................................... 42

Nicoleta Diaconu

INCLUSIVE DEMOCRACY BY SUFFRAGE AND CITIZENSHIP ......... 50Florian Neuburg

CERTAIN CONSIDERATIONS ON THE REGULATION OF THEUSUFRUCT RIGHT ACCORDING TO THE NEW CIVIL CODE ........... 56

Cristian Jora

SOME CONSIDERATIONS CONCERNING THE PROHIBITIONOF DISCRIMINATION AND GENDER DISCRIMINATION ONTHE CRITERION OF SEXUAL ORIENTATION ININTERNATIONAL REGULATIONS....................................................64

Laura Macarovschi

DISCRIMINATION AGAINST WOMEN. A HISTORICALPERSPECTIVE .................................................................................. 72

Liliana Trofin,Mădălina Tomescu

6

DISCRIMINATORY PRACTICES FORESEEN IN ABUZIVECLAUSES FROM CONTRACTS WITH BANKS -CURRENTTRENDS- ..........................................................................................83

Agata Mihaela Popescu

THE RIGHT TO NON-DISCRIMINATION OF CHILDREN WITHAUTISM IN SCHOOL AND HOW TO RESOLVE ISSUES OFTHEIR INTEGRATION THROUGH MEDIATION .............................. 91

Dragoş Marian Rădulescu

POLITICAL NON-DISCRIMINATION AS DEFINED BYPHENOMENOLOGY OF LAW ...........................................................96

Anton P. Parlagi

NON-FORMAL EDUCATION AS INSTRUMENT OF FLEXIBILITYOF CONCEPTS OF TOLERANCE AND DISCRIMINATION............... 104

Magdalena Dumitrana

CULTURAL INEQUALITIES IN EDUCATIONAL PROGRAMS .......... 113Hasan Arslan

LES FEMMES DANS LA POLITIQUE................................................ 119Adrian Helstern

SOCIAL STEREOTYPES AND RULES...............................................132Florentina Nina Mocănaşu

THE WANDERING OF THE ROMANI PEOPLE THROUGH THEASHES OF THE EMPIRES............................................................... 140

Mariana Rodica Ţîrlea

NON-DISCRIMINATION AND EQUAL OPPORTUNITIES ARERESPECTED IN MODERN SOCIETY ................................................145

Ven. Shipon Barua

LOK ADALATS: AS AN INSTRUMENT OF ALTERNATIVEDISPUTE RESOLUTION IN PROVIDING JUSTICE TO ALL.............. 151

Ved Pal Singh Deswal

THE LEGAL CONDITION OF WOMEN IN DACIA, ROMANPROVINCE A NEW CONTENT APPROACH OF THE TRIPTYCHSIN TRANSYLVANIA .........................................................................156

Ionuţ Ciutacu,Elena Tudor

7

HUMANISM - ONE OF THE FUNDAMENTAL PRINCIPLES OFTHE INTERNATIONAL JUDICIARY COOPERATION INCRIMINAL PROBLEMS ...................................................................159

Victoria Cristiean

JUSTICE BETWEEN EMOTIONAL AND RATIONAL ........................167Daniel Sorin Duţă

ACCESS TO EDUCATION FOR CHILDREN WITH DISABILITIESIN ROMANIA ...................................................................................172

Mădălina Turza,Silviu Turza

REGIONALISM and REGIONALISATION ........................................179Ioan Mircea Zărie,Cristina Cojocaru

REGULATIONS AND INTERNATIONAL BODIES AIMED ATFIGHTING DISCRIMINATION.........................................................187

Ramona-Gabriela Paraschiv

NATURAL PERSON - EQUALITY, NON-DISCRIMINATION ANDPRIVATE LIFE. PARTICULAR ASPECTS IN THE MATTER OFNATURAL PERSON AND FAMILY LAW...........................................192

Adrian-Relu Tănase

MEDIATION – THE REASON OF DISPUTE AFTER LEGISLATIVECHANGES IN THE FIELD ...............................................................204

Mihaela Docan

BRIEF CONSIDERATIONS REGARDING THE RIGHT TO NON-DISCRIMINATION.......................................................................... 210

Elena Tudor

NATIONAL GENDER EQUALITY BODIES IN THE EU .....................217Cătălina-Adriana Ivănuş

CONSIDERING THE BEST INTERESTS OF CHILDREN INPRISON SENTENCE OF CAREGIVERS AND THEIMPLEMENTATION OF RIGHT TO EQUALITY............................... 224

Jim Nzonguma Mayua

PROTECTION OF PRESS FREEDOM VS. THE RIGHT TOPRIVACY ........................................................................................ 239

Margareta Gabriela Medeleanu

8

THE HIDDEN DISCRIMINATION WITHIN INTERNATIONALCOOPERATION A CASE STUDY: THE EUROPEAN AGREEMENTCONCERNING THE INTERNATIONAL CARRIAGE OFDANGEROUS GOODS BY ROAD (ADR) .......................................... 242

Monica Diana Stanciu

DISCRIMINATION IN THE ROMANIAN SCHOOL SYSTEM............ 248Nadia Olivia Bărbieru,Ionelia Staicu

THE NONDISCRIMINATION PRINCIPLE AND THE PUBLICMINISTRY’S ROLE IN APPLYING IT .............................................. 250

Ruxandra Mitică

CHARACTERS THAT CAN STOP DISCRIMINATION INCONTEMPORARY LIFE .................................................................. 258

Dana Căilean

9

FUNDAMENTALS ON DISCRIMINATING RULES SOCIAL PERIL

Corina Adriana Dumitrescu

Abstract: In the European nowadays society, the state of law has got its acknowledgement,slowly though undoubtedly, in both the spirit and soul of the people.

Beside positive phenomena, institutions and right rules, there also are negative, incorrectrules which fill the legal world of the state of law. Among the latter are the discriminating rules.

Keywords: equal rights, state of law, social peril, fundamental right, subsequent right,warranty-right.

1. On a possible hierarchy of human rightsFrom Pythagoras to the Magna Charta Libertatum, from it to the Social

Contract and later to the Man’s Rights Universal Declaration dated 1948, till theconstitutions of many civilized countries, the evolution of man’s fundamentalrights can be noticed.

An even brief analysis would also show that these rights emerged andevolved by the social values they had been associated with.

One could state that the historic destiny of one or another of such rightsmight be identified with that of the economic, judicial, political, ethical, historicalaesthetic or religious value they were born by. Nevertheless, such a fate does notprovide a strictly temporal view on the right, meaning that its coming into being,its existence and even its disappearance beside its value are ultimately called, onone hand to protect it and on the other to make it „vivid”; there is more in it thana „common experience”, and the full image unveils a common two stems root: thesocial value and the right to full acknowledgement.

If we consider the right to life, firstly and mainly from common arguments,one could notice that it has been and has both explicitly and sometimes implicitlyremained, the fundamental right which is present in almost all the doctrinededicated to this field of the human existence.

Life has been, is and it will always be the fundamental social value, and at thesame time, the sine qua non condition of the social existence; it is more thanobvious thus that the right accompanying its fate into the world is a part of thefundamental rights.

Life should be lived at its optimal parameters; besides individual physicalintegrity there should be a psychic integrity warranty. Moreover, the individual lifequality is essential, as the accomplishment of the individual destiny. From suchnormal perspective there come out subsequent rights to the life rights, in connectionwith social values meant to meet the most of a human status worth destiny. Thepractice of such rights has often been an individual choice, and from here come thedifferences among the various categories of people during their lifetime.

A first possible category might consist in the fundamental right and itssubsequent rights, a classification which could be also extrapolated to the valueuniverse that these rights actually materialize.

Professor PhD., Rector of the “Dimitrie Cantemir” Christian University.

10

The classification is ultimately meant to underline both the great importanceof rights to life, as well as the particular content of this right, a content which isever enriched by the contribution brought by the subsequent rights.

If we have not been able to evaluate our own destiny, mainly during the lastcenturies, beside the perspective of the soul harmony, a spiritualized soul though,the concern has been and still is natural at a both individual and a social level,with regard to ethical, religious and cultural values. In order to fully benefit fromall that, the individual has always needed and still needs strong health of his bodyand mind, and has always shown his openness towards the three types of valuealready mentioned. The access is not provided only through the individual fullphysical and psychical data; in the first place, he has to participate with his own„giving” to the personal „construction” of his cultural personality.

The achievement, the fulfillment of the „construction” of each individual takesplace inside a real process of education and of self education; the education isultimately looked upon as a value and a means of understanding the sense of life.

Thus, education, a social value in itself, is also a way through which theindividual gets, from the intellectual point of view, the needed level of a fullpractice in the field of his rights; education provides that „technology” needed toa higher step forward.

The fundamental right to life together with the subsequent rights could beevaluated and analyzed through the structure and superstructure concepts: thesubsequent rights represent the structure, whereas the fundamental right standsfor the superstructure; yet, infrastructure is missing, though.

Given the outstanding importance of the human rights, a quality got mainlydue to the social value they participate at, it is obvious that the whole „edifice”had to be laid on an infrastructure to ensure its force and sustainability. Suchinfrastructure is made of the right to nondiscrimination and chance equality, aparticular category in the field of human rights.

In this possible classification of the human rights there can also be added agroup represented by the social right, which can be called a warranty right; itsexistence and its practice are a protection for all the other rights. The outmostimportance of this warranty right is easy to notice: on one side it can be found inall the other rights, and on the other side its correct or incorrect action canstrengthen or ruin any other human rights.

The correct action actually represents its whole way, from the moment of itsinitial exercise to the effect of its action, according to the initiator’s will, at bothindividual and social plan.

Nevertheless, that if we accept the above mentioned concepts, the action of aright cannot be a single one; it will attract at least one right of the other twointerfering levels: a subsequent right will always attract both the fundamentalright and the warranty right. The relationship between all these rights is one of asystemic nature and this fact determines the full responsibility of those who bothpractice and observe them.

2. The social peril represented by the discriminating rulesThe human rights doctrine generally accepts all individual natural equality.

11

Sometimes, there is more in it, stating that all individuals are good ab initio,from their own nature. The changing into bad individuals is due to the socialenvironment, to the other people, mainly during the development period of theindividual psychical features.

The democratic regimes, mostly, defend the right equality for everybody, andthey ultimately build up an infrastructure and a warranty right to the wholetheory and practice of the human rights, meant to ensure individuals a powerfuldestiny.

Unfortunately, there have been rules generating discrimination even duringsome democratic regimes, and consequences have been noticed on two levels: firstlythey affected individuals, groups of people and communities, and later on, equallysevere, chronologically, they have disturbed the whole legal order of society.

The impact of discrimination engendering provisions is certainly verycomplex, having an objective and a subjective aspect.

Subjectively, it is the human personality that is wronged, first of all thedignity of the person or persons who are discriminated by the text of the law. Theextraordinary sensitivity that is, rightly, the privilege of any man and manifestsitself first and foremost in his dignity, once shaken by a discriminatory provisionengenders a very strong reaction, and one can assert that a single suchdiscriminatory provision can break down the trust in the very fundaments of thestate of law.

The state of law, that is the state in which justice prevails, is unconceivable ina framework of discriminatory provisions/regulations.

The state of law, or nearly ideal state, is formed by citizens who are aware oftheir whole array of rights and obligations placed within a structure that hasalready been illustrated. Or, having once accepted the fact that the infrastructureof human rights is represented by that equality of chances, which is the warrantyor the premise to everything, it is easily conceivable that the destruction of thisequality means the collapse of the whole structure of human rights.

Furthermore, this “judicial tragedy” generates a chain reaction within the legalsuper-system to which it belongs to, practically determining its abolition de facto.

Beyond these first consequences which may seem mostly technical, whatmatters is that when a system of rights is annulled by an “infusion of injustice” from adiscriminatory regulation, a whole “legal world”, a whole “legal universe” disappears.

The simple analysis of the special effort necessary for creating a state of lawwould be enough to understand the judicial, economic and social “wrong”determined by a single engendering provision discrimination.

But if such provisions exist and are more than one, it is not an overstatementto reaffirm what we have already stated, from the very title: the existence of aspecial social peril in the discriminatory legal norms.

The state, especially the state of law, has its foundations built on thecomplete trust of its members in the legal system. Trust – an essential element tothe creation of any human community - disappears in the citizen, the person, thepeople “stripped” of their own dignity.

Concretely, where subjective factors meet the objective ones, we mayconsider the situation of teachers in pre-academic school system, who, at the age

12

of 65, are forbidden the right to teach. Educated people, who created schools intheir field of study, who had tens or hundreds of national and internationalOlympic students, found themselves in the humiliating, discriminatory situationof being “good for nothing” according to certain patterns of thinking. The dramaengendered by the lack of respect, by dignity assault these people live, is clear;what trust can these people have, people who are still in their full intellectualvigor, in the state that they have selflessly served! Moreover, why should thepupils have their classes often taught by substitute insufficiently preparedteachers? Why should their tuition lack highest quality, a fact that will mark theirsubsequent social destiny? Such are social perils that come out, leading toirreparable social consequences.

The limitation of the right to work for university professors has been and stillis a source of discriminatory practice, moreover, the forced introduction of thisprovision that had already been declared unconstitutional, in the present Law no.1/2011, shows the former government disrespect for them.

Under the conditions in which when Law no. 1/2011 was adopted, in theRomanian university system there was, according to official statistics, a deficit of4000 teachers; thus, on one side, that law limited university professors right towork, while on the other hand, the professors “guilty” of having turned 65 yearsold, were denied the right to tenure, as well as the right to supervise doctoralresearch. Moreover, they were also forbidden to hold positions in management.

In the theory of discriminatory facts and acts it may seem almost irrelevant,in this example, that after almost two years, a government ordinance issued inDecember 2012 has somewhat attenuated the provisions referring to the age ofuniversity professors. The wrong had already been done, and rooted in theuniversity system: hundreds of doctoral supervisors had been subject to thehumiliation of joint-supervising, part of them refusing to participate in such amasquerade; definitely, the ones at loss were the Ph.D candidates, also. Certainly,the question remains: why in so many professions, in so many countries, one isnot replaced at the age of 65, whereas in Romanian education system onepractically is not taken into account and does not exist any longer? Also, anotherimportant matter: why in so many other fields, one can hold importantmanagement positions such as a mayor, a bank manager, or even a president ofthe country, whereas in Romanian education one cannot even be a vice-dean?

The above examples are related to the adult generation, but the young one isnot exempt either from regulations with a discriminatory character.

In 2011, by a Minister Order, webcams are introduced in the nationalBaccalaureate examinations. The stigma placed on the young people then – apriori considered dishonest, has created and still creates unimaginable dramas.Beyond the statistical consequences – in 2011 over 2013, 300.000 young peopledid not pass the baccalaureate exam, which is the only national examinationcarried on under video surveillance conditions, which means a surplus of emotionand, also, humiliation of the youngsters minds.

This discriminatory practice has already been the object of criticism, butprobably it will be too late when this criticism reaches its momentum. Correctresults of such an examination cannot be obtained by humiliating students,

13

teachers and parents by degrading surveillance systems; in such a way, one canonly obtain a mutual abandonment among young people, parents, teachers andsociety.

The premises of a correct baccalaureate examination are given by a goodpreparation during the whole pre-academic school cycle; moreover, the success ofsuch an examination is related to the pertinence of test subjects to the profile ofthe graduated high school.

This is a brief illustration, through a few examples, of the social perilsproduced by the provisions engendering discriminatory practices.

A step in this battle, ultimately closely connected to the instauration of thestate of law in the mind and soul of each member of our state community, isrepresented by the Government Ordinance no. 137 of August 31, 2000, regardingthe prevention and punishment of all forms of discrimination, approved by Lawno. 48/2002. Much more is still needed to be done, though, starting with aculture of the human rights that needs to be gradually learned since a relativelytender age.

3. Instead of conclusion…The problem of discrimination has increased in recent years; instead of

disappearing, it has reached higher levels due to its related practices.Discriminatory provisions rapidly applied contribute to the erosion of any

state where they are in effect; sometimes slowly, sometimes more abruptly, theycontribute to the degradation of social life. They could be placed in the “sick area”of any society, which has to produce the necessary antibodies. One of suchantibodies can be education, an education sustained in favor of a true culture ofthe human rights.

A second solution can be represented by the systematic debates between theinstitutions enabled in this field and the representatives of the civil society. Moreprecisely, the rightful members of the National Council for FightingDiscrimination systematic presentation of solutions provided to various issuesthat they received, and especially, the arguments for those solutions; that means,transparency, in order to gain a minimum of trust, at first.

Certainly, it would matter very much, first of all, to abrogate all thediscriminatory provisions from the present legislation, as a first step to socialreconciliation; thus, fundamental rights, their accessories and warranties in theConstitution would remain in the organic laws, and we have seen how easily it isto annihilate their spirit by discriminatory regulations.

Bibliography

Ciacchi Colombi Aurelia, Drepturile fundamentale ale omului şi Dreptulprivat, Ed. Themis Cart, Slatina, 2008.

Ionescu Steluţa, Justiţie şi juristprudenţa în statul de drept, Ed. UniversulJuridic, Bucureşti, 2008.

Rousseau Jean-Jacques, Contractul social, Ed. Antet XX Press, Filipeşti deTârg, Prahova.

14

EVIDENCE IN THE NON-DISCRIMINATION FIELD INROMANIAN LAW

Csaba Ferenc Asztalos

Abstract: Starting from the prerequisite that the victim of a discrimination deed already isin a difficult situation, the evidence in the field of non-discrimination generated by rules and case-law tend to support them, without attempting to aggravate their situation and make themundergo additional stress. The field of non-discrimination has specific peculiarities, reason forwhich the tools used in this field, including evidence, have different ordinary law requirements.

Keywords: right, non-discrimination, evidence.

Evidence fulfill a major function in the field of the right to non-discrimination.In settling a particular case which concerns a possible deed of discrimination, thepurpose is to produce enough evidence to prove that a person has been treated lessfavourably (in case of direct discrimination), identically, even if he is in a differentsituation from the majority (in case of indirect discrimination), was harassed orsubjected to an instruction to discriminate and was the target of an adversetreatment as a result of a complaint filed for the protection against discrimination(victimization). Producing evidence pursues on the other hand the interest andrights ot those accused of discrimination to defend themselves and prove that theydid not commit an act prohibited by the law.

However, the challenge for the legislator and practitioners concerns the wayby which “the veil is lifted” from the discrimination deeds that are hidden orcovered through various procedures and practices of the entities accused ofdiscrimination. For these reasons, solving a complaint regarding a possiblediscrimination deed encompasses a series of impediments translated through:access to evidence, deeds that have to be proves, gathering evidence, obtainingwitnesses’ statements or statistical data.

For this purpose, the legislator has ruled a series of legal tools to assist thevictims of discrimination in gathering evidence and case-law has developed apractice in line with the standards set by the European Union and the Court ofJustice of the European Union and with that of the European Court of HumanRights.

The evidence procedure in the field of non-discrimination in Romania variesby the area of law. Thus, in the civil, labour and administrative actions there is alarger substantiation system, while in criminal cases, in which the accused may besanctioned by imprisonement, the substantiation standards are more severe andit must be proved, beyond any doubt the guilt (intention) of the person ofperpetrating a discrimination deed.1

This article aims to review the legal tools referring to the means of evidencein the Romanian non-discrimination law (statistics, reversal of the burden ofproof, audio-video recordings) and their application in practice.

PhD., President of National Council for Combating Discrimination.1 Farkas, Lilla, Handbook on seeking remedies under the EU Non-discrimination Directives,

European Network of Legal Experts in the non discrimination field, European Commision, DG forJustice, July 2011, pag. 48

15

The legal framework on evidence in Romanian non-discrimination law

Romania has complementary legal provisions regarding evidence in the non-discrimination matter.

The framework law, Government Ordinance no. 137/2000 on preventing andsanctioning all forms of discrimination establishes the evidence which can beused by the parties before administrative and other courts. Thus, the legislatorestablishes the institution of the reversal of the burden of proof when it rules that“the interested person will present deeds on the basis of which there can bepresumed the existence of direct or indirect discrimination and the personagainst whom the notification was filed has to prove that there has been nobreach of the principle of equal treatment”.2 The reversal of the burden of proof issecured both before the National Council for Combating Discrimination(hereinafter NCCD), administrative judicial body and before the courts.3

Also, before NCCD and the courts “any kind of evidence can be used,respecting the constitutional system of fundamental rights, including audio andvideo recordings or statistical data”.4

Art. 35 par. (1) of Law no. 202/2002 on equal opportunities between womenand men stipulates that “the burden of proof devolves upon the persons againstwhich the notification/complaint was filed or, where applicable, the summons,for deeds which allow to presume the existence of direct or indirectdiscrimination, which have to prove the non-violation of the principle of equaltreatment between women and men”.

In labour relationships, art. 272 of Law no. 53/2003, the Labour Code,amended and republished is determined an element of reversal of the burden ofproof when it is stipulated that: “the burden of proof in labour conflicts devolvesupon the employer, that is obliged to sumbit evidence in its defence before thefirst hearing”.

As regards the documentary evidence, the Civil procedure code stipulates inart. 293 that the opposite party must submit the document if this: is common tothe trial parties, if the opposite party itself refers during trial to that document orif, according to the law it is obliged to present the document. The refusal tosubmit the document results in the possibility of the court to “consider proven thestatements made with regard to the content of that document by the party whorequested the hearing” according to art. 295 of the Civil code. We consider thatwe are in the presence of certain elements of the reversal of the burden of proof, afundamental tool in solving actions which refer to a possible discrimination deed.

The provisions of special laws shall be completed with the specifications ofthe Sub-section 3, Evidence, Second Book of the civil procedure Code, according

2 Art. 20 par. (6) of G.O. 137/2000 on preventing and sanctioning all forms of discrimination,amended by point 1 of the unique article of Law no. 61 of 21 March 2013.

3 Art. 27 par. (4) of G.O. 137/2000 on preventing and sanctioning all forms of discrimination,amended by point 3 of the unique article of Law no. 61 of 21 March 2013.

4 Art. 20 par. (6) and art. 27 par. (4) of G.O. 137/2000 on preventing and sanctioning allforms of discrimination, amended by point 1 of the unique article and point 3 of unique article ofLaw no. 61 of 21 March 2013.

16

to art. 28 par. (1) of Law no. 554/2004, the law on contentious administrativematters. In labour relationships, in discrimination cases are applicable theprovisions of the Labour Code, which shall be completed with civil laws accordingto art. 278 par. (1) of Law no. 53/2003, the Labour Code, amended andrepublished.

The previously mentioned legal framework applies to all cases ofdiscrimination in the field of civil law, labour law and cases submitted forsettlement within administrative procedures. The specific elements for evidencein Romanian discrimination law such as the reversal of the burden of proof donot apply to criminal deeds.

We consider that the system of evidence shall apply in analyzing all forms ofdiscrimination, such as: direct discrimination, indirect discrimination,harassment, instruction to discriminate, reasonable accommodation andvictimization.

Common evidence and evidence applicable in the field ofRomanian non-discrimination law

The special law uses a general phrasing for evidence and specifies that beforeNCCD and the courts “any kind of evidence can be brought”5 without indicatingexpressly the object of the evidence and the means. Considering the provisions ofthe general law we see that, in Romanian non-discrimination law are applicablethe provisions of art. 250 of the Civil procedure code providing that a deed “maybe proved by documents, witnesses, assumptions, confession of one of the partiesdone on its own initiative or obtained through investigation, expertise, substanceevidence, on-site investigation or by any other means provided by the law”

These are means of evidence common to several fields of law, which alsoapply in the non-discrimination field.

The specific evidence in Romanian non-discrimination law are expresslyprovided or ensue from national and international relevant case-law. Thus,evidence expressly provided by national legislation are: statistical data,audio and video recordings and the reversal of the burden of proof.6

The main evidence not specified expressly in legislation in force aretesting, applying of questionnaires to the parties and the expertise.Conclusions resulted from indirect evidence play an important role in provingdiscrimination deeds.

The legislator shows that all evidence, both general and specific mustrespect “the constitutional regime of fundamental laws”, withoutspecifying the meaning of this concept.7 We consider that the legislator took into

5 Art. 20 par. (6) and art. 27 par. (4) of G.O. 137/2000 on preventing and sanctioning all formsof discrimination, amended by point 1 of the unique article and point 3 unique artocle of La no. 61of 21 March 2013

6 Art. 20 par; (6) and art. 27 par. (4) of G.O. 137/2000 on preventing and sanctioning allforms of discrimination, amended by point 1 of the unique article and point 3 of the unique articleof Law no. 61 of 21 March 2013

7 Ibidem

17

account the inadmissibility of unlawful evidence or which could be obtainedillegally. For example, the request of evidence from the employer which wouldviolate the right to private life are illegal and therefore inadmissible.

Further we will analyze specific evidence in the non-discrimination field.

Statistical dataExpressly stipulated by the law, statistical data are useful evidence in proving

the discriminatory effect on a person or a group of persons, of an apparentlyneutral rule or practice, more exactly the indirect discrimination deeds. Weunderline that in ascertaining an indirect discrimination deed, it is notcompulsorily necessary to bring statistical data as evidence.

The role of statistical evidence is to prove the simple assumption of existenceof a discrimination deed, which results in transferring the burden of proof tothe party accused of discrimination.

Segregation in education on ethnicity or affiliation with a social categorygrounds can be proved by requesting statistics on the number of pupils in a classor school who belong to an ethnic group or a social category. Thus, NCCDascertained the existence of an indirect discrimination as a result of applyingnon-transparent criteria in establishing the Ist classes in schools. The statisticssubmitted by the petitioners and confirmed by the school management provedthat the pupils belonging to the Roma minority or to a disfavoured category hadbeen grouped in the same class, while the other pupils, with a better social statusand belonging to the majority, had been included in another class. The schoolmanagement indicated that when establishing the composition of classes it tookinto account the order of enrollment of children in the school, however withoutbeing able to prove the existence of a transparent procedure of registeringapplications for enrollment in school. 8

In another case, the court obliged NCCD to take into account the statisticaldata submitted by the parties concerning the ethnical composition of I-V classesin establishing a segregation deed in education.9

We make note of the fact that, in ethnical segregation cases, statistics arelegally carried out, by observing the principle ruling the protection of personaldata. Affiliation with an ethnic group can be established only with the consent ofthe interviewed person, only with the purpose to apply public policies or legalrequirements and by keeping the data in question anonymous.

Affiliation with a social category or vulnerable group may be more easilycalculated through statistics and thus in practice we see classes with segregatedchildren on the monoparental and/or family benefitting from social aid grounds.

In the case of shaping up the simple assumption of discrimination throughthe existence of an employer practice to demote women who return from thematernity leave or that of care/growth of the child or to make these womenredundant, NCCD requested the employer to provide statistical for the last 3years regarding the number of women who benefitted from maternity leave andthat of child care/growth by specifying the number of those women whose

8 Decision no. 559/2012 of the National Council for Combating Discrimination, unpublished9 File no. 65/2007 National Council for Combating Discrimination

18

workplace was changed (were demoted), the number of women whose labourcontract ended by agreement of the parties and the number of women who weremade redundant.10 Such a statistical analysis allows ascertaining the existence ornon-existence of a practice of the employer of treating women who gave birth to achild.

As regards the justification of a request to know a minority language in theemployment on a position, NCCD requested statistics regarding the number ofemployees who knew the minority language in the department where theemployment was to be completed. These statistics allowed to establish the need toemploy labour force who would know the minority language.11

Statistical data are relevant for establishing the effects of public policies on agroup or another. Thus, granting a fixed allowance for the growth of the child ofup to 2 years without taking into account the different contribution of the parentsto the state budget depending on the income level has a discriminatory effect alsoin terms of equality of gender and opportunities. Statistically, in the presence ofsuch a measure in 95% of the cases, women are those who apply for the child careleave. In a differentiated system this percentage raises to 87%.12

Establishing indirect discrimination deeds through the non-observance ofthe principle of equal pay for equal work can be done only with help fromstatistics which highlight the less favourable treatment of women compared tomen.13

In conclusion, statistical data: support interpretation of the case of an individual victim to structural

discriminations; are useful in making a simple assumption in case of establishing direct

discrimination. In this case, the analysis focuses on the effects of a criterion orapparently neutral practice which put at disadvantage a person or a group ofpersons;

do not constitute a preliminary requirement (evidence) for theascertainment of the existence of indirect discrimination perpetrated against aperson;

allow the victim to prove the existence of a discriminatory practice againsta group he/she is part of;

could contribute to establishing discrimination deeds expressed through:ethnical segregation, gender discrimination by violating the principle of equal payfor equal work, gender/pregnancy/maternity grounds discrimination throughpractices of demotion and laying off women who are back from child growthleave, imposition of the requirement of knowing a foreign language when the

10 NCCD decision no. 169/201311 Sentence no. 76 of 05.09.2008 of the Court of Appeal Targu Mures, Commercial Section,

administrative and fiscal contentious12 Sentence no. 1914 of 20.06.2008 of the Court of Appeal Bucharest, Section VIII

Administrative and Fiscal Contentious13 EUCJ, Hilde Schonheit/Stadt Frankfurt am Main and Silvia Becker/Land Hessen, joined

cases C-4/02 and C-5/02 (2003) RJ I -1257, 23 octombrie 2003

19

employer has enough human resources ensuring the use of the foreign languagein question;

refer to data which are sufficiently strong to make the assumption, astatistical level for the operation of the assumption has not been established;

data may also originate from non-governmental organizations recognizedfor their activities of monitoring and reporting discrimination deeds and cases ofhuman rights breach (Amnesty International);

operate as a simple assumption which triggers the sharing of the burdenof proof.

Video and audio recordingsVideo and audio recordings are evidence that prove discriminatory attitudes

expressed mainly verbally. The courts constantly allow audio and videorecordings, irrespective if the respondent had knowledge of the fact that he hadbeen recorded. The classical example is that of the president of the state, who,without knowing, registered himself on the ocassion of a conversation in which heused an expression categorized as racist (“stinking Gypsy”), both by the firstinstance and by the High Court of Cassation and Justice.

The courts and NCCD allow video and audio recordings which are obtainedby victims, employees in their relationship with employers or their representativein order to prove discriminatory attitudes and language. We consider that suchevidence could not be admissible when the person producing the evidencedirectly incites to discrimination.

The court allows audio-video recordings by which it is proved that there wasdiscrimination on ethnicity grounds by denying the access of Roma persons to aclub. The audio-video recordings sufficed for the court to eliminate the defence ofthe owner of the location stating that the club had been rented for a private partyat the moment of refusal of the Roma people.14

TestingTesting – situation testing in English, constitutes an experiment aimed at

finding discrimination “on the spot”.15 Testing constitutes not expressly regulatedevidence, however it is enshrined in international and internal case-law. Testingis a way of investigating the behaviour or certain persons such as employers,owners who rent properties or those managing clubs and restaurants in relationto persons having certain features due to which they are treated less favourablythan persons not having those features.

Property owners often hide behind non-existent reasons when they refuserenting spaces for living or for business. Thus, they justify their refusal bypretending that the property had already been rented. The owners of restaurantsand clubs claim that in the locations concerned only registered members haveaccess and that private events take place in those premises. The employer refuses

14 Civil sentence no. 336/2013 of Dolj District Court, Civil Section.15 Rorive, Isabelle, Proving Discrimination Cases – the Role of Situation Testing, MPG and

the Centre for Equal Rights, July 2008, pag. 43

20

to hire the person with a certain feature, justifying that the workplace had alreadybeen assigned or is not available anymore.

In all these cases direct discrimination takes place and testing has thepurpose of bringing “light” in practices of hidden discrimination, resulting fromattitudes and behaviours easy to hide behind apparently legitimate reasons.

Testing consists of a role play in which a person is in a situation ofperpetrating a discrimination deed, without knowing that he/she was underobservation, monitoring. Testing requires the presence of a person with a featurewhich may influence the monitored person to adopt a discriminatory behaviourin comparison with that towards a person that doesn’t possess these features. Thepurpose of the supervision is to scrutinize the behaviour of the monitored persontowards the person possessing the feature, compared to that who does not havesuch a characteristic.16

The testing method was firstly instituted in the United States of America inthe sixties and Havens case (1982) settled by the US Supreme Court of Justicewas the turning point for the recognition of the right of the tester (in that case ofan organization that advocated for the right to rent houses correctly), of settingdown accusations of discrimination on the basis of evidence got through testingmonitoring.

In Romania, NCCD and the courts have admitted testing as a way to observeand prove discriminatory behaviours towards Roma persons. Such non-governmental organizations have organized testing regarding the access of Romapersons to clubs. By using volunteers, the NGO’s made up two groups, onecomprising persons belonging to the Roma community and the other to themajority. The result of the monitoring show that the tested person had adopted aracist behaviour, denying the access of Roma persons in the club.17

Admissibility of evidence resulted from testing are subject to conditionalitiesrelated to the methodological rigor of the procedure, to ethical elements, thecorrectness of evidence and existence or non-existence of a level of incitementduring testing.

In this regard, while admitting evidence resulted from testing, the court setdown as follows: “it is very significant in this case that the individuals subjectedto a discrimination deed had the capacity of volunteer-subjects in the given NGO,non-profit legal person, the situation produced in those circumstances havingbeen anticipated by them since the beginning, given their organization in twogroups, namely white and black. Therefore, they way in which these personsacted was undeniably peculiar for an activity of social volunteering, in otherwords it was not a discrimination deed that they had suffered spontaneously, in acertain moment, but in a situation which had been assumed since the beginningof that activity, the group of volunteers having went together in this purpose witha camera.”18

16 Rorive, Isabelle, Situatian Tests in Europe: Myths and Realities, European Network ofLegal Experts in the non discrimination field, European Anti-discrimination Law Review, no. 3-2006.

17 Civil sentence no. 336/2013 of Dolj District Court, Civil Section.18 Civil sentence no. 336/2013 of Dolj District Court

21

Beyond the disputes it triggers, testing remains an indispensable tool in thelegitimate approach of “lifting the veil” from the discrimination situations hiddenunder a number of illegitimate reasons. The testing method requires thedevelopment of a procedure to secure the respect for the right to private life of themonitored person, of equity and correctness in producing evidence.

Sharing, reversal and shifting of the burden of proofThe principle that governs the burden of proof is that the person contending

something has to prove it (Onus probandi incumbi actori). This requirementresponds to the equity and equality of tools used in the civil and administrativeprocedure, in which the parties are equal. The equality situation also involvesequal access to means of evidence. In the discrimination cases, equality istroubled by the condition that the victim of discrimination does not have accessto evidence or cannot prove hidden behaviours, attitudes.19 The reality inquestion generates an inequality of tools and troubles the equity principle indiscrimination cases.

In order to reinstate the balance in the equality of tools, international andinternal legislation regulated the institution of the reversal of the burden of proof,which consists in the obligation of the person accused of discrimination to provethat there has been no breach of the principle of equal treatment following thepresentation, by the interested person of certain deeds through which it can bepresumed the existence of discrimination.20 The burden of proof is sharedbetween the interested person and the person accused of discrimination.21 Theapplication of sharing consists of a test in two stages.

the first stage in which the interested person produces the proof of deedswhich allow the existence of discrimination;22

the second stage, in which the respondent has to prove that despite theappearance of discrimination (created by the interested person), the principle ofequal treatment was been breached.23

Proving certain deeds which at first view – “prima facia” – allowto presume the existence of discrimination is the key element leading tothe shifting of the burden of proof to the accused party. We are in the presence ofa simple assumption which, starting from a known fact, generates the

19 Schiek, Dagmar, Waddington, Lisa, Bell, Mark, Cases, Materials and Text on National,Supranational and International Non-Discrimination Law, Hart Publishing, Oxford and Portland,Oregon, 2007, pag. 237

20 Art. 20 par. (6) of G.O. 137/2000 on preventing and sanctioning all forms of discrimination,amended by point 1 of the unique article of Law no. 61 of 21 March 2013 – and art. 8 of the Directiveregarding the equality of treatment between persons, irrespective of race or ethnical origin2000/43/EC and art. 10 of the Directive establishing a general framework for equal treatment inemployment and occupation 2000/78/EC, art. 19 of the Directive regarding the implementation ofthe principle of equal treatment between men and women in employment and labour2006/54/EC

21 Palmer, Fiona, Re-dressing the Balance of Powet in Discrimination Cases: The Shift in theBurden of Proof, European Network of Legal Experts in the non discrimination field, EuropeanAnti-discrimination Law Review, no. 4-2006, pag. 27.

22 Feryn (C-54/07, Rep., p. I-5187) CJEU Decision of 10 July 2008.23 Asociaţia Accept vs. CNCD C-81/12, CJEU Decsion of 10 July 2013, par. 42.

22

appearance of a discrimination deed (an unknown fact). The simpleassumption, the known fact has enough importance to justify a reasonableconclusion of its existence, however it does not have the worth of conclusiveevidence to prove the discrimination deed. In the light of probabilitiesmeasurement, the simple assumption constitutes a deed which creates theconviction that the perpetration of a discrimination deed would be more probablethan the observance of the equality principle. At “first sight”, the simpleassumption is sufficient for raising a factual assumption and reversing the burdenof proof and in some cases even for establishing the deed in question.

Thus, the court accepted as a simple assumption of perpetration of adiscrimination deed when the employer applied only to the petitioner theincompatibility criteria in the restructuring and redundancy process. The burdenof proof was shifted to the employer who was obliged to prove that he applied thesame incompatibility criteria in the assessment of other employees in establishingthe persons made redundant (the employer failed to comply with thisobligation.24

Exemption of relatives and in-laws of first level from the payment of theamount of 5,000 Euro for entry in the profession of bailiff is a sufficiently strongsimple assumption to create the appearance of perpetration of a discriminationdeed and to transfer the burden of proof to the National Union of Bailiffs.25

Raising by the petitioner, a pregnant woman of a different treatmentcompared to the other employees, treatment which results from the differentdecisions made at a very short interval by the management of SC TERAPIA SA bysuspending her activity and paying her a wage of 75% compared to the rest of thecolleagues which benefitted from a 100% wage and meal tickets, was consideredby the court to be a sufficiently strong simple assumption to create theappearance of the perpetration of a direct discrimination deed on the pregnancyground and proceed to the transfer of the burden of proof to the employer.26

Sending by the superior of jokes with a sexual content to the petitioner, asubordinated employee and the use of a sexist language in the labourrelationships with her constitutes a sufficiently strong simple assumption for thecreation of an appearance of perpetration of a sexual harassment deed and non-fulfillment of the employer’s obligation to secure the principle of equality andnon-discrimination in employment rapports.27

After the establishment of the simple assumption, in the secondstage the accused party has the burden to prove that despite the discriminationappearance, the principle of equal treatment was not breached.28 In this stage, theparty accused of discrimination will be able to reverse the simple assumption(appearance) of perpetration of a discrimination deed, by proving the following:

24 Sentence no. 53/2013of Court of Appeal Galati, Administrative Contentious and FiscalMatters Section.

25 Sentence no. 342/F – Cont of 28.09.2012 of the Court of Appeal Piteşti.26Sentence no. 197 of 24.03.2011 of the Court of Appeal Cluj, Commercial, Administrative

Conentious and Fiscal Matters Section.27 NCCD Decision 397/2013, not published.28 Accept Association vs. NCCD C-81/12, CJEU judgment of 10 July 2013, par. 42.

23

for direct discrimination: the lack of a differentiated treatment, the lack ofthe comparable situation, the lack of a discrimination ground or of causationbetween the ground and the differentiated treatment, existence of a legalexception or of the objective justification only in the case of the age ground;

for indirect discrimination: the lack of the adverse effect for a person or agroup of persons, the lack of the discrimination ground or existence of anobjective jstification;

for harassment: the lack of the deed which had generated a hostile,degrading, humiliating environment or the lack of the harassment ground;

for the instruction to discriminate: the lack of the constitutive elements ofthe deed – the lack of the differentiated treatment, the lack of the discriminationground;

for victimization: the lack of the adverse treatment, the lack of causationbetween the adverse treatment and the action regarding the defence of theequality right;

In the case that the accused party fails to reverse the simple presumption ofexistence of a discrimination deed, the court or the equality of opportunitiesinstitution will ascertain the breach of the principle of equal treatment.

The sharing of the burden of proof has application limits when therespect for private life is affected. Thus, to „reverse the simple assumption it isnot necessary that the respondent prove the fact that, in the past persons with acertain sexual orientation had been recruited, such a requirement beingeffectively likely to violate the right to the respect of private life”.29

Another limit in the application of the sharing of the burden of proof ensuesfrom CJEU Judgment C-415/10 Galina Meister vs. Speech Designe CarrierSystem Gmb according to which a woman employee whose application wasrejected following the notice of employment is not entitled to get access toinformation indicating if the employer hired another person at the end of therecruitment process. However, it cannot be excluded that the refusal to haveaccess to information could constitute a factor to be taken into consideration inascertaining the existence of a simple assumption of discrimination.30

The application of questionnaires to the parties and the expertiseThe application of questionnaires to the parties and the expertise are two

means of evidence applicable in the Romanian non-discrimination law, the firstthrough the institution of the interrogation regulated by art. 351 – 358 of the Civilprocedure code and the expertise by art. 330 – 332 of the Civil procedure code.

Art. 26 par. (3) of G.O. 137/2000 on preventing and sanctioning alldiscrimination deeds establishes the obligation of legal entities to allow access toevidence and make available to NCCD any means of evidence. Denying access toevidence shall be sanctioned contraventionally.

29 Accept Association vs. NCCD C- 81/12, CJEU Judgment of 10 July 2013, par. 57.30 For an analysis of the case see Farkas, Lilla, Getting it right the wrong way? The

consequences of a summary judgment: the Meister case, European Network of Legal Experts in thenon discrimination field, European Anti-discrimination Law Review, no. 15-2012, pag. 23.

24

Aspects which shouldn’t be proved – it is not necessary to prove areason, intention of discrimination; it is not necessary to prove that the rule orapparently neutral practice in question pursues a well-intended purpose, if itsconsequences are discriminatory and finally it is not necessary to identify adiscrimination victim.31

ConclusionsThe means of evidence have peculiarities in the Romanian non-

discrimination law. The particularities of evidence means result from thelegislators’ and practitioners’ need to identify and establish legal solution toensure an effective application of the principle of equal treatment. Without theabove presented means of evidence, the victim of a discrimination deed would notbe able to prove the breach of the equal treatment.

Evidence in the field of non-discrimination have the mission of discovering,of “lifting the veil” from the attitudes and deeds of discrimination hidden underunjustified behaviours.

The legislator and judicial practice must endeavour in the future to developthe legal system of evidence in the field of non-discrimination.

31 See the European non-discrimination law manual, Agency for the Fundamental Rights ofthe European Union, Council of Europe 2010, page 137.

25

NONDISCRIMINATION – MAJOR REQUIREMENTS IN THEPROCESS OF THE ACCESS TO THE SCHENGEN SPACE

Professor PhD. Dumitru Mazilu

Abstract: This study points out the major nondiscrimination requirements that need to bemet in the process of accession to the Schengen Space.

In order to demonstrate this natural trend, the author has highlighted the most importantrules and regulations adopted by the European Union Institutions in this respect.

The fact that certain European leaders have continued to discriminate Romania in herprocess of accessing to the Schengen Space cannot be in accordance with the legal orderestablished by the European Union.

Keywords: non-discrimination; Schengen Space; acces; equal treatment.

Based on the regulations stipulated in the European Union’s treaties, nondiscrimination involves equal treatment of all member states and their citizens.1

The Treaty of Lisbon states that “the Union offers her citizens a space of liberty,security and justice, with no internal frontiers within this space, granting freemovement of persons in correlation with adequate measures regarding control ofthe external frontiers.2

These are, beyond any doubt, fundamental coordinates regarding normalrelationships that must govern cohabitation in the European space, and this isexactly what does not justify certain European leader’s attempt of discriminatorytreatment in their relationships with some member states.3 In the last years,Romania and Bulgaria’s access to the Schengen Space has been obstructed,postponing a decision which is expected on behalf of the Council of Ministers ofJustice and Internal Affairs.4

1. A new debate regarding Romania and Bulgaria’s joining theSchengen Space

As it is known, on March 7, 2013, the Council of Ministers of Justice andInternal Affairs held a new debate regarding Romania and Bulgaria’s joining theSchengen Space. It is known that – even since June 1985 – Belgium, France,Germany, Luxemburg and Holland came to the conclusion that “the UniqueEuropean Market can function at the level expected if the controls carried out atthe common frontiers regarding citizens circulation are eliminated facilitating the

Vice – Chairman of the Legal Committee of the General Assembly of the UnitedNation Organization (1996-1997), Member of the Central European Academy ofScience, Arts and Literature.

1 Item 3, art.2, The Treaty of Lisbon regarding the European Union and the Treaty for theestablishment of the European Community (2007.C306/01)

2 Ibidem, item 2, art.23 Reference is made to Romania and Bulgaria.4 The Council for the Ministers of Justice, Internal Affairs has debated on a number of

occasions the issue of Romania and Bulgaria’s joining the Schengen Space, however they were notable to take a decision in this respect.

26

circulation of goods and services”5. The respective states have signed – on June14, 1985 – at Schengen in the Great Dukedom of Luxemburg the Agreement thatwas given the name of the locality where it was negotiated and signed. Five yearslater, in June 1990, the Convention for applying the Schengen Agreement wassigned, convention that came into force on March 2, 1993. Gradually, Italy, Spain,Portugal, Greece, Austria, Denmark, Sweden, Norway, Island, and, after havingobtained the status of member state of the European Union, all the states havejoined the Schengen Space. Romania and Bulgaria – who have become EuropeanUnion member states on January 1, 2007 – have been submitted to evaluation inorder to join the Schengen Space in January 2011, in Brussels.

The group of experts that have carried out the evaluation on December 6-7,2010, have come to the conclusion that the requirements have been met from atechnical point of view, stipulating that “the Schengen Information System is alsovery well secured, in a secure location”. It is known that – even since November 5,2010, our country has been connected to the SIS (Schengen Information System).

However, since 2011 when the joining had to be approved until March 2013,a decision could not be taken regarding Romania’s joining to the Schengen Space.

2. How the repeated post postponing of the decision forRomania’s joining the Schengen Space is explained

A thorough analysis of the causes of postponing a decision regardingRomania’s joining the Schengen Space lead to the conclusion that certainmember states have added new criteria for Romania and Bulgaria’s joining to thisspace.

The analysts have identified two categories of causes: a. public causesinvoked in press conferences, but also during the debates in the Council ofMinistries of Justice and Internal Affairs; b. causes that have not been invoked inpublic, that make reference to the extended access of certain persons havingcriminal behavior and of certain goods of a questionable or inappropriate quality.

Corruption in both countries has frequently been invoked, a fact that couldendanger the observance of the imposed standards for the free circulation ofgoods in European Union.

In order to give arguments regarding postponing the decision of joining theSchengen Space – the Mechanism for Cooperation and Verification (MCV) hasbeen added to the technical criteria stipulated, mechanism containing clausesreferring to the functioning of Justice.

3. Imposing the clauses stipulated in the Mechanism forCooperation and Verification – an act of discrimination

Several personalities in the country, but also from the European Unioninstitutions have appreciated that the including of the Mechanism forCooperation and Verification among the compulsory criteria for the joining to the

5 Preamble, The Agreement between the governments of the member states of the BenelluxEconomic Union, German Federal Republic and French Republic on the gradual elimination ofcustoms control of common borders, concluded at Schengen, on June 14th,, 1985.

27

Schengen Space represents “a discriminatory decision”, “an abuse” even,concerning the application of the June 14, 1985 Agreement.

The President of this country – in December 2011 – stated that in the casewhere “Romania’s access will be justified by the way Justice works, it is highlyprobable that nobody will be able to support Romania and Bulgaria’s accessionuntil the Mechanism for Cooperation and Verification is lifted”6.

In June 2011, Jerzy Buzek, President of the European Parliament, - after themassive vote in favor of Romania and Bulgaria’s joining to the Schengen Space – hasasked the European Council to take into consideration the option of the LegislativeCouncil of the European Union: “Schengen represents one of the most importantvalues of the European Union” – the President of the European Parliament stated –“and we do not have the right to destroy it through rushed decisions”7.

On September 22, 2011, the Council of Ministries of Justice and InternalAffairs – during the debates regarding Romania and Bulgaria’s joining to theSchengen Space – were not able to adopt a decision because of Holland andFinland’s opposition. The President in force of the Council, Jerzy Miller statedthat “Romania and Bulgaria met all the requirements for joining” and that “Theposition of two member states has made a positive solution impossible”. Adiscriminatory behavior in the relations with the member states is affecting theprocess of European integration.

4. Nondiscrimination – major requirement of the European legalsystem which has to be observed in the process of joining theSchengen Space

Before the debates regarding Romania and Bulgaria’s joining to theSchengen Space scheduled for March 7, 2013, the Minister for Foreign Affairs,Titus Corlatean, - having some information regarding the fact that no positivedecision would be taken at the Council of Ministers of Justice and Internal Affairs– stated that a new postponing will be incorrect being against the criteriastipulated in the Schengen Agreement, June 14, 1985. The new criteria notimposed for other member states’ joining to the Schengen Space – showdiscrimination in the relations with Romania.

Under these circumstances, “Romania can live without the Schengen Space”and this objective ceases to be an absolute priority for Romania, stated ourMinister for Foreign Affairs.

Finding out that following the minister’s statement, some commentatorshave reacted against, maintaining that Titus Corlatean has made a mistake byadopting this position, Victor Ponta stipulated that the Foreign Affairs minister’sstatement is in compliance with the position of the Romanian Governmentregarding joining the Schengen Space.

Following the Foreign Affairs minister’s statement, supported by the PrimeMinister, the President of Romania found it necessary to delimitate himselfstating that “joining the Schengen Space remains a priority “and that at the

6 Traian Basescu, Interview for Hot News RFI, published by “Adevarul” on December 17th, 2010.7 Jerzy Buzek, Statement on June 7th 2011.

28

Council of Ministers of Justice and Internal Affairs on March 7, 2013, not onlyGermany, but 7 member states will not be against Romania’s joining theSchengen Space. If in December 2010 the President was drawing the attention onthe fact that the new MCV conditions “are not found in the Treaty for Romania’sjoining the European Union, in March 2013 after the position expressed by theRomanian Government – Traian Basescu has insisted that the power inBucharest give way to all the measures stipulated in the last Monitoring Reporton Romania through the Mechanism for Cooperation and Verification.

Two days before the Council’s session on March 7, the German minister forInternal Affairs, Hans Peter Friedrich stated that “Germany will exercise her rightof veto if Romania will insist for a vote on her joining the Schengen Space”8.

5. The debates in the Council of Ministers of Justice and InternalAffairs on March 7th, 2013

Contrary to the Romanian President’s statements, according to which 7member states will be against our country’s joining the Schengen Space, duringthe debates of the Council on March 7th, 2013, only Germany was against,invoking corruption that has expanded and the need to observe the measuresstipulated in the Mechanism for Cooperation and Verification.

Two states, Holland and Finland, have proposed that Romania and Bulgariashould be granted a new deadline for joining the Schengen Space, a new debatehaving been scheduled for December 2013.

During the debates regarding the joining, the representatives of 13 memberstates, while taking the floor have criticized the position of certain member statesin their relations with Romania and Bulgaria, by postponing a decision regardingtheir joining.

In a short period of time, even in the political circles of some member states,disapproval is manifested against the position of certain political leaders who areagainst Romania and Bulgaria’s joining the Schengen Space. For instance, GunterKrichbaum,- President of the Commission for European Affairs in Bundestag,stated that Germany is not allowed to keep away from the German labor marketpersons of high qualifications” and Gisela Piltz, Vice President of the LiberalMembers of Parliament Group (LMPG) in Germany insisted on the freemovement of persons that “German employees are also benefiting”. Thesestandings taken have disapproved the attitude of the Minister of Internal Affairsabout whom “Der Spiegel wrote: “Fiedrich wants to prevent Romania andBulgaria from joining the Schengen because of an alleged assault on the Germansocial system”, but in reality “very few citizens who immigrated from Romania orGermany are registered as unemployed”9.

6. Mona Pivniceru: “MCV should cease to be a mechanism withmoving targets”

The Romanian Minister of Justice, misses Mona Pivniceru, following thedecision of the Council of Ministers of Justice and Internal Affairs have decided

8 Hans Peter Friedrich, Statement on March 4th 2013.9 Statements published by Der Spiegel, March 11th ,2013

29

to postpone the discussions regarding Romania and Bulgaria’s joining theSchengen Space until December 2013, at least, during the meeting with VivienneReding, The European Commissioner for Justice, has sent Romania’s explicitrequest that the Mechanism for cooperation and Verification “ceases to be amechanism with moving targets”.

Mona Pivniceru evoked the evolutions of this mechanism in the last years,reminding of the changes that it has included, requesting the Romanianauthorities to constantly meet other requirements. Such an option of theCommission has resulted in transforming the Mechanism for Cooperation andVerification in the main obstacle in Romania’s way towards joining the SchengenSpace”.

The Romanian minister of Justice has demonstrated the necessity to clarify“the requirements we should meet”. In this context, Mona Pivniceru mentioned,< the moving targets since 2006. Firstly, Romania had to establish the NationalAgency for Integrity, and the Romanian authorities have complied with, howeverthe expected decision did not come up. Then Romania was asked “to enhance theresponsibilities of the National Agency for Integrity” and the Romanianauthorities complied with again. Mona Pivniceru drew the attention to theCommissioner for Justice that “every year the MCVs add new elements ofconditionality and the Romanian state does not have the possibility to anticipatetheir existence and, consequently, to meet them”10.

7. Ilie Serbanescu – Germany’s direct intervention, the mostimportant event since Romania’s joining the European Union

One of the most known and appreciated Romanian economists, professorIlie Serbanescu, came to the conclusion that “Germany’s direct intervention in theprocess of Romania and Bulgaria’s joining the Schengen Space has been, beyondany doubt, the most important event since these countries’ joining the EuropeanUnion”11.

The eminent analyst remarks that after it was about time for Romania andBulgaria to join the Schengen Space12, Germany “preferred to push forward othercountries to take a stand against the joining, Holland taking the lead, withoutmentioning the “true motivations”, invoking: Romania and Bulgaria’s lack ofqualification, as well as the insufficient fight against corruption and certaindeviations (included invented ones in the absence of finding the real ones) fromthe rule of law”13, about which Ilie Serbanescu maintains that “have nothing to dowith the issue of belonging to the Schengen space”14.

In his analysis, he remarks that the true motivations regarding postponingthe decision for Romania and Bulgaria’s joining makes reference to thepreoccupation that access from other areas outside the Union should not befacilitated. Germany – like other countries in the West of the Continent – came to

10 Statements published by Jurnalul National, March 12th , 201311 Ilie Serbanescu, But it is not about Schengen!, “Jurnalul National”, March 20th, 201312 Based on the European regulations adopted on June 14th, 198513 Ilie Serbanescu, R.w., q.s.14 Ibidem

30

the conclusion that “the Greek Schweitzer is enough in this respect; we do notneed to add another Romanian and Bulgarian one”15. It is appreciated that, mostprobably, the reason behind the respective diversion16 is Germany’s real intentionto nominate, with the help of regulations in Brussels, German customs officersand policemen at the borders of the Empire which is the European Union”.

** *

In conclusion, discrimination in the case of Romania and Bulgaria’s joiningthe Schengen Space is obvious, because – under the circumstances where the twocountries have met the criteria agreed in the Agreement established on June 14,1985, the decision to join represented the only correct option of the Council ofMinisters of Justice and Internal Affairs, a body empowered to find out on behalfof the European Union if these requirements are met.

In the literature specialized in this field, the negative effects of anydiscrimination acts or deeds are being pointed out: “All the discriminationdeeds”17, two distinguished analysts of the discrimination phenomena remark,Madalina Tomescu and Cristian Tomescu – “are equally important from thepoint of view of gravity of the consequences”18.

The European construction – founded on the principles of liberty, securityand justice19 – has to take all the measures necessary in order to eliminate anyform of discrimination among the member states and to guarantee the constantpromotion of the nondiscrimination principle, including the process of themember states’ joining the Schengen Space.

15 Ibidem16 It is about the invocation of certain “causes” that have nothing to do with Romania ands

Bulgaria’s joining the Schengen Space.17 Ilie Serbanescu, R.w., q.s.18 Mădălina Tomescu, Cristian Tomescu, Discrimination criteria in the contemporary society,

in the volume “The Right to nondiscrimination and Equal Opportunities in the ContemporarySociety” Pro-Universitaria Printing House, Bucharest 2012, p.134, (O.U. – Dumitru Mazilu).

19 Item 2, art.2, The Treaty of Lisbon…, q.s.

31

EQUALITY OF OPPORTUNITIES AND NONDISCRIMINATION-THE ROLE OF THE COUNCIL OF EUROPE AND ECHR

Titus Corlăţean

Abstract: Article provides a summary of the main aspects of the issue of the right to non-discrimination and equal opportunities both in Romania and in Europe. The legislativeframework in Romania in the field of non-discrimination requires equality of all citizens withoutdistinction of race, nationality, ethnic origin, language, religion, sex, opinion, political affiliation,wealth or social origin, and punishing acts discrimination.

Also, given that the principle of human rights is one of the pillars underlying the work of theorganization, the Council of Europe attaches attention of equal opportunities and non-discrimination.

Therefore, it is essential that the authorities continue to work to ensure that both women andmen can participate fully in the labor market and reconciliation of work and family life inRomanian society.

Keywords: non-discrimination, equal rights, equal opportunities, human rights.

Ladies and gentlemen,Distinguished audience,

Romania’s legislative framework in the field of non-discrimination stipulatesthe equality of all citizens regardless of race, nationality, ethnicity, language,gender, opinion, political affiliation, wealth or social origin, as well as thesanctioning of all acts of discrimination.

The Romanian Constitution sanctions, in art. 4, 2nd paragraph, theprinciple of non-discrimination on gender grounds, while the dispositions fromart 16, 3rd paragraph, guarantee the equality of opportunities between men andwomen with respects to the access to public, civil or military positions anddignities.

On the other hand, the Constitution establishes the priority in respecting theagreements and treaties on human rights, to which Romania is a signatorycountry.

Core provisions on the protection of human rights, in general, as well as ofequality of opportunities, can be found in a series of normative, special,documents (for example, Law no. 215/2000 on local public administration, Lawno. 202/2002 on the equality of opportunities between men and women).

The Law on the equality of opportunities and the treatment ofmen and women promotes this principle in the political, social, economic andcultural fields.

Also, in order to address the central objective that establishes the de factoattainment of equality between men and women at all levels, a second Nationalstrategy for equality between men and women for 2010-2012 has beendeveloped.

Associated Professor PhD., Faculty of Law and Administration, ”DimitrieCantemir” Christian University, Minister of Foreign Affairs.

32

The governing program for 2013-2016 also includes a series of specificpriorities, among which we can mention the promotion of women’s activeparticipation to the decision-making processes and to public structures ofrepresentation, the enhancement of the institutional capacity with regards to theimplementation of gender policies, the creation of a national system of supportand promotion of policies on equality of opportunities in the labor market.

Romania’s efforts in legislative and programmatic fields have to be sustainedmore vigorously through actions of improvement of gender equality policies,including through the elaboration of a new National strategy in the field ofequality of opportunities between men and women for 2014-2017.

The areas of intervention of the future Strategy and its main objectives are:education (the integration of the gender perspective in education, formally andnon-formally), labor market (raising awareness on the remunerationdifferences between men and women and implementing measures of reconcilingthe family life with the private and professional one), gender violence(combating this phenomenon, including at the work place), roles and genderstereotypes (their elimination from mass-media), integrative genderapproaches in national policies.

The principle of the equality of opportunities has been included in othergovernmental strategies/policies, such as: the National Strategy regardingpolicies on the work force for 2007-2015, the National Strategy of inclusion ofRomanian citizens pertaining to the Roma minority for 2012-2020, the Nationalstrategy against human trafficking in 2012-2016, the National Plan forDevelopment 2007-2013, the National Strategy for the Prevention and Fightagainst Domestic Violence 2008-2013.

The Ministry of Labor, Family and Social Protection includes a Direction ofEquality of Opportunities between Men and Women, while, in 2005, a NationalCommission in the Field of Equality of Opportunities between Menand Women (CONFES) has been created. Through its organization andfunctioning regulations, CONFES has a consultative role and comprisesrepresentatives of ministries and other specialized bodies of the central publicadministration under Government coordination or under autonomousadministrative authorities, of trade unions and employers’ associations (frombusiness, industry, etc) that are representative for the national level, as well asNGO representatives with activity in the field, designated by consensus.

Furthermore, the legislation in the non-discrimination field stipulates thecreation of an organism that implements the dispositions, namely the NationalCouncil for Fight against Discrimination.

The Council has the role of implementing the principle of equality betweencitizens, established by the Romanian Constitution, in the internal legislation andin the documents to which Romania has adhered. In order to exercise itscompetencies, the Council’s activity is independently made, without anyinterference from other institutions or public authorities.

Through the specificity of its activity, as well as given the size of itsattributions, the Council is the first institution of this sort in Central and EasternEurope.

33

The Ombudsman has been created through Law no. 35/1997 on theorganization and the functioning of the institution of the Ombudsman. One of theOmbudsman’s four deputies coordinates the field of human rights, the equality ofopportunities between men and women, the religious cults and nationalminorities affairs.

Among the attributions of the Ombudsman relevant for this field we mentionthe activity of petition resolution, received from natural persons and legalentities, and the development of inquiries respectively (in order to know theconcrete aspects seized by petitioners and the results after self-notices) and thereferral of the matter to itself on possible breaches of fundamental rights andliberties, respecting the mandate of the institutions. The Ombudsman issuesrecommendations through which it notifies public administration authoritiesover violations of the petitioner’s rights or the illegality of administrativedecisions.

With the accession of Central and Eastern European states, the Council ofEurope became the pan-European institution that generated and continues togenerate a common European juridical environment, represented by theframework of adopted conventions within the organization and which constitutesthe basis of cooperation between member states in matters of high politicalrelevance: human rights, regional cooperation, minorities, social cohesion,children’s rights, asylum rights, equality of opportunities, fight againstdiscrimination and others.

The keystone of the system proposed by the Council of Europe is representedby the European Convention on Human Rights that enables a series of civil andpolitical liberties insured by the European Court of Human Rights.

The Council of Europe has elaborated a series of mechanisms that facilitatethe respect of fundamental principles inscribed in the convention for theprotection of human rights and liberties and its protocols. Given the fact thathuman rights is one of the pillars that fundaments the organization’s activity, theCouncil of Europe gives a particular attention to the equality of opportunities andnon-discrimination principles. Thus, the equality of opportunities is considered afundamental right and the Council of Europe has developed a series ofinstruments, such as the 2012 Transversal Program for Gender Equality, whichseeks to improve the implementation of standards of gender equality in memberstates, and the 2011 Istanbul Convention on the prevention and fight against theviolence against women and domestic violence, based on prevention, protection,prosecution and monitoring. Moreover, within the Council of Europe there is aCommission for Gender Equality, body that offers member states expertise on thedevelopment of legislation, policies, practices and activities that can facilitate theapplication of standards in gender equality. Thus, the Council of Europe plays animportant role in the process of defining common principles that help insuringthe respect of equality of opportunities, of non-violence and of non-discrimination.

Moreover, the Council of Europe promotes equality of opportunities throughinstruments that enable the equal access of citizens to the public life, such as the2006-2015 Action Plan for the promotion of rights and full participation of

34

people with disabilities, plan that supports member states in taking non-discriminatory measures while granting the necessary liberty and freedom ofchoice to persons with disabilities. Also, the Council of Europe’s activity includesthe promotion of tolerance and anti-racism through the European Commissionagainst racism and intolerance, body that monitors discrimination based on race,ethnicity, religion, or the Framework Convention on the Protection of NationalMinorities.

Regarding the Romanian position on matters of discrimination, theRomanian authorities condemn all forms of racism, intolerance and xenophobia,which represent a grave violation of human rights and fundamental freedoms. Inthis respect, Romania joined the efforts of combating racial discrimination andaimed at promoting the values of tolerance, dialogue and multiculturalism and itis in a constant dialogue with the international organizations dealing also withdiscrimination, such as the Council of Europe through the European Commissionagainst Racism and Intolerance, and the United Nations.

Romania also gives high importance to the role the European Court ofHuman Rights has in insuring the respect of human rights, as well as theprinciples of non-discrimination and tolerance. Thus, article 14 from theEuropean Convention on Human Rights stipulates that “the exercise of the rightsand liberties recognized by the Convention has to be insured without anydifferentiation, especially, based on sex, race, colour, language, religion, politicalopinions or any other opinions, national or social origin, appurtenance to anational minority, wealth, birth or any other situation”. Protocol no. 12 to theConvention, forbidding in its turn any kind of discrimination, has been ratified by18 Council of Europe member states and signed by a total of 19 states. Romaniahas ratified it in 2006.

** *

The current Romanian context highlights the fact that the problem ofdiscrimination based on gender is still a challenge that our society is facing on ageneralized note, given the existence of some traditions and the perpetuation ofsome stereotypes about the women’s role within the community, including theviolence.

Domestic violence and violence against women are a universal issue, presentin every country of the world, no matter their degree of development, and in everylayer of the society.

When we talk about domestic violence, we talk about a serious phenomenonwhich affects the fundamental rights to life, security, liberty, dignity, physical andpsychological integrity that supposes sustained, long-term efforts of preventionfrom the authorities’ side.

The level of knowledge of the Romanian society on this matter has risen inthe last years, thanks to the actions undertaken by authorities and NGOs active inthe field (for example, educational campaigns, distribution of informationalmaterials, the developments of assistance programs and services for victims, etc.)

35

Even since 2003, Romania has passed a law for the prevention and the fightagainst domestic violence, which defines this concept and establishes thecategories of offences considered to be domestic violence, according to relevantprovisions from the Penal Code.

The fields that further require efforts of improvement are: the consolidationof the system providing specialized social services in preventing and fightingdomestic violence, the reinforcement of the institutional capacity of central andlocal public administration authorities for the implementation of these socialservices, the development of a culture of partnership and social solidarity in thefight against domestic violence at a national level, the creation of a sense ofgreater responsibility on this field inside the Romanian society.

Honorable audience,The last years’ economic challenges reveal the current role of women in

economy and their resolution to play an increasingly important role on the labormarket. Women are an ever significant part of the work force, in Romania and inthe European Union, and, an increasingly important provider for their families.

New researches confirm the economic gains of an equal participation on thelabor market, for society in its entirety: gender equality can significantly enhancethe potential of economic growth.

Well-aimed policies can “close” gender gaps and thus promote growth andinclusion, and I am referring to those policies that can lead to the enhancement ofwomen’s participation on the labor market that can contribute to the rise in thenumber of jobs accessed by women. These measures are well-known: theextension of facilities for raising children, the elimination of fiscal constrains forpersons having a second revenue, the equal payment of men and women.

Having a workplace is a necessary condition- but not always a sufficient one-for economic independence and a decent living for men, as well as for women,whose age gives them a status of active persons on the labor market.

In 2012, the deficit in work places affected the lives of many men andwomen- even though in distinct ways- but especially affected the labor market foryouth.

The profound causes for the remuneration gap between men and women arewell-known: direct discrimination left aside, women are confronted with sectorialand professional segregation, the undervaluation of their work and the unequaldistribution of responsibilities of care for the dependent members of the family.

These gender inequalities on the labor market reveal the segregation basedon gender and the differences in the educational and professional trainingsystems, however, the recent trends in education and the policy of remunerationhave probably brought their contribution to the reduction of the remunerationgap between men and women.

By all means, the access to jobs based on gender criteria and the differencesin payment between men and women have major consequences on the revenuesand women’s contribution to the household’s revenue, to the retirementrevenues, to the level of poverty.

36

With respect to the participation of women in all levels of decision-making,statistical data show that, overall, the number of women in decision-makingpositions is lower than that of men1. This reality has multiple causes, be themgeneral or professional: the low levels of professional experience and sometimesof education of women; the stereotypes linked to women’s status and role as solecare-takers of the family, women’s absence from the work place during maternalleave, the lack of an equitable system of promoting women at the work place andof an organizational culture, etc.

However, the main conclusions of the statistical analysis on men and womenin decision-making positions inside the public administration system in recentyears show an improvement, namely2:

At a national level, over half of the positions implying decision-making inthe central public administration are occupied by women.

Inside ministries, the majority of these positions are occupied by women.The statistical weight of women in decision-making positions is bigger inministries compared to their localized territorial units, to institutions under theirauthority and to other specialized bodies under ministry authority.

It is essential that Romanian authorities continue to work in order to insurea full participation of men and women to the labor market and the reconciliationof professional life with the family life in the Romanian society.

On this optimist note, I thank you for your attention.

1 The progress report of the European Commission concerning the equality between men andwomen 2012, published in May 2013 mentions, in its section regarding the Equality in takingdecisions, that “the level of representation of women in the regional assemblies is approximately40% in four Member States (France, Spain, Finland and Sweden) and over 30% in other six *GreatBritain, Austria, Holland, Germany, Denmark and Belgium). Nevertheless, levels of 15% or lesscontinue to exist in Hungary, Italy and Romania.

2 According to the study realized by the MLFSP concerning the situation of women and men indecision positions within the central public administration for the year 2011 (available on thewebsite of the ministry), at national level, of the total of decision positions occupied by 9541persons, over a half are occupied by women: 4850 (50,83%) compared to 4691 (49,17%) men. Outof the total number of decision positions within the ministries, the majority is occupied by women:514 (59,35%), respectively 352 (40,65%) men.

37

THE PRINCIPLE OF NONDISCRIMINATION ON REASONS OFCITIZENSHIP OR NATIONALITY

Irina Moroianu Zlătescu*

Abstract: Article 18 Para 1 of the Treaty of the Function of the European Union forbids anytype of discrimination on reasons of nationality or citizenship irrespective if this is direct orindirect, and its implementation can be done in the relationship between states or/and in therelation with private persons. Also, according to settled case-law, fundamental rights form anintegral part of these principles and the Court of Justice of the European Union ensures theircompliance.

Keywords: human rights, principles, generations, citizenship, nondiscrimination,nationality.

The UN Universal Declaration of Human Rights of 10 December 1948,stipulates in Article 2 ”Each person is entitled to all of his or her rights andfreedoms proclaimed in the present declaration irrespective of race, color, sex,language, religion, political pinion or any other social or national opinion,irrespective of fortune, birth or any other status”.

In the field of European regulations, the European Institution which coveredalmost exclusively, until the middle of the years 70, the western standards regardinghuman rights was the Council of Europe. As a matter of fact, its regulationssubstituted at this chapter the exigencies of the European Economic Community.Also after the years 70 until the Maastricht Treaty of 1992 which introduces therevolutionary concept of European citizenship1, EEC dealt (through secondarylegislation) with issues of combating discrimination and equality of chancespromotion only for the inhabitants of the EU space (although the Treaty of Rome of25 March 1957 by which the Economic European Community was founded stipulatedin Article 7: „With regard to the implementation of the present Treaty and withoutviolating the special rights provided by it, any discrimination on reasons ofcitizenship or nationality is forbidden”).

It was only after the Treaty of Amsterdam that the issue of discriminationbegins to be clearly defined in the amendment Treaties of the EEC, so that basedon Article 13 (according to the new numbering ), of,,Le traité instituant laCommunauté européenne”2, which stipulates: ”Without prejudice to theprovisions of this Treaty and within the limits of the power conferred within theCommunity, the Council, acting unanimously at the proposal of the Commission

* Professor PhD., member of International Academy of Comparative Law – Paris,Director of Romanian Institute for Human Rights.

1 See Irina Moroianu Zlătescu, Mecanisme politice şi administrative de garantare adrepturilor omului, in ”Administraţia şi puterea politică. Tendinţe şi evoluţii în spaţiul publiceuropean”, Ed. Comunicare.ro, Bucureşti, 2013, p. 231 şi urm.

2 Du Traité Instituant la Communauté Européenne Article 13(5) 1. Sans préjudice des autresdispositions du présent traité et dans les limites des compétences que celui-ci confère à laCommunauté, le Conseil, statuant à l'unanimité sur proposition de la Commission et aprèsconsultation du Parlement européen, peut prendre les mesures nécessaires en vue de combattretoute discrimination fondée sur le sexe, la race ou l'origine ethnique, la religion ou les convictions,un handicap, l'âge ou l'orientation sexuelle.

38

after consulting the European Parliament, can take appropriate measures forcombating discrimination on reasons of sex, ethnic or racial origins, religion orfaith, disability, age or sexual orientation.

The European Council Convention for defending human rights andfundamental freedoms, adopted in Rome on 4 November 1950 stipulates inArticle 14: ”The exertion of the rights and freedoms recognized through thepresent Convention must be ensured irrespective of sex, race, color, language,religion, political opinions or any other opinions, national or social origins,belonging to a national minority, irrespective of fortune, birth or any othersituation”, wording which is taken up and updated by the Treaty of Amsterdam.

The concept of discrimination and combating discrimination is stipulated inour national law, especially by the Constitution3 and by the laws and ordinancesthat have been subsequently adopted, the national law being part of the Europeanlegal order including on the issue of combating discrimination and promotion ofthe principle of equal opportunities.

The creators of the international modern law on human rights, the greatthinkers of the UN Charter and of the Universal Declaration of Human Rights4,assumed the more than bold goal to remove the main forms of discrimination, inabout 100 years.5 This objective must be achieved given that during the wholehistory of mankind, from the appearance of the first human settlements to themodern and contemporary times, manifestations of discrimination abound.

We are of the opinion that the provisions of the Universal Declaration of HumanRights in this field (Article 2. ”Each person is entitled to all the rights and freedomsproclaimed by the present Declaration irrespective of race, color, sex, language,religion, political opinion or any other opinion, national or social origin, irrespectiveof fortune, birth or any other status”) has been enriched ”on the way” with newdimensions leading the way to many ”generations”6 of regulations on combatingdiscrimination. This fundamental document represents the starting point fordefining and prioritizing the main categories of regulations on discrimination7.

Also, other key documents, this time as part of the European system ofhuman rights, which complement and develop both old and new generations ofrights regarding discrimination are: the European Convention on Human Rights8

3 See Irina Moroianu Zlătescu, Constitutional Law. Romania, Ed. Kluwer, London, 2013, p. 3and next.

4 John P. Humprey, Emile Giraud, Eleonor Roosevelt, Sir Hersch Lauterpacht, Charles Malik,Rene´ Cassian –also see the documents presented at the International Colloqui organized by IRDOon 28.11.2003 under the theme: The Artisans of Modern Thinking on Human Rights, IRDO ReveiwNo.. 4/2003.

5 A conclusion drawn from the analyses of the summits sessions of the UN on the UniversalDeclaration of Human Rights and the Millenium Declaration.. See Irina Moroianu Zlătescu,Mihaela Muraru Mândre, Equality, Nondiscrimination and Good Governance, Ed. IRDO,Bucureşti, 2008, p 32.)

6 Seel Vasak, rédacteur général, Les dimensions internationales des droits de l'homme,UNESCO, Paris, 1978, p. VII şi urm.

7 See Irina Moroianu Zlătescu, Protection against racism and discrimination, Ed. IRDO,Bucureşti, 2011, p. 25 şi urm.

8 Known under the name of the Convention for the protection of human rights and offundamental freedoms adopted on 4 November 1950.

39

of the Council of Europe9 which provides in its Article 14: ”the exertion of rightsand freedoms recognized by the present Convention must be ensured irrespectiveespecially of sex, race, color, language, religion, political opinions or any otheropinions, irrespective of national or social origins, belonging to a nationalminority, fortune, birth or any other status” 10.

The European Union11 Chart of the Fundamental Rights stipulates underTitle III ”Equality” (Art. 21) that the European Union is combating ”Anydiscrimination on reasons of sex, race, color, social or ethnic origin, geneticcharacteristics, language, religion or faith, political opinions of opinions of othernature, belonging to one of the national minorities, fortune, birth status, age orsexual orientation is forbidden.”

To be noted that the Treaty of the Function of the European Union (TFEU)stipulates in Article 18 Para 1 (the former Article 12 of ECT) as an elementaryprinciple of EU law, the general interdiction of discrimination on reasons ofcitizenship or nationality. This provision is embodied in various other provisionsof the same Treaty.

The text and the conditions of the implementation of Article 18 of TFEU havean effect on national law. It must be highlighted that this article is applied only incases of unequal treatment. This must not be mistaken for a mere inconsistencyof two national regulations. Also, we should not forget that Article 18 Para 1 doesapply only if it does not violate the special dispositions.

The nondiscrimination principle based on citizenship or nationality has beentaken over and embodied in a series of other provisions. Obviously in cases whenthe special provisions take into account the objectives of Article 18. Para 1 of theTreaty, this article is no more applied. However, the exact importance of thislimitation it is not very clear and the case law is not always constant.

In practice, we believe that it can be considered ”special provisions” anyother legal provisions which take into account the criteria of nationality andwhich contain an interdiction of discrimination, and we are hereby especiallyreferring to the fundamental freedoms. In so far as a special provision is applied,one cannot resort to Article 18 Para 1 of TFEU.

Also this Article forbids any discrimination on reasons of nationality andcitizenship irrespective if this is direct or indirect. The interdiction cannot beinvoked unless it pertains to ”the field of the implementation of Treaties”12.

A link with the EU Treaty's situation is required, especially if we considerthat the manner of determining the scope of the Treaties is controversialconsidering that the problem is addressed by the European Union Court ofJustice (EUCJ) from case to case, based on practice development.

9 Artisansi: Winston Churchill, Pierre –Henri Teitgen, Edouard Heririot ş.a. See The Artisansof Modern Thinking on Human Rights, „Hunan Rights”, nr. 4/2000.

10 See Irina Moroianu Zlătescu, Victor Dan Zlătescu, Hunan Rights in Action, Ed. IRDO,Bucureşti, 1994, p. 75. şi urm.

11 Launched at the European Council in Nisa 2000 it became an official document of theEuropean Union on the occasion of the signing of the Lisbon Treaty of 13 December 2007.

12 See Astrid Epiney, Robert Mosters, Sarah Progin-Theuerkauf, Droit européen II. Les libertesfondamnetales de l’ Union européenne, Stampfli Editions SA, Berne, 2010, p 7 şi urm; Ase vedea IrinaMoroianu Zlătescu, Drept European, Ed. Pro Universitaria, Bucureşti, 2012, p. 11 şi urm.

40

Of course, according to settled case-law, the fundamental rights form anintegral part of the principles of law, the compliance of which it is ensured by theEuropean Union Court of Justice. The Court draws inspiration from theconstitutional traditions common to the Member States and from the guidelinessupplied by international instruments for the protection of human rights to whichthe Member States have collaborated or joined.

Although at first the European Union Court of Justice refused to examine,for example, the validity of EU acts on the fundamental rights protected by theConstitution of the Federal Republic of Germany, as it was required by thepetitioners (in 1959 and 1960), it had to change over time, the modality ofaddressing issues of fundamental rights on the grounds that reference to suchrights protected by a national constitution would present a danger of disruptionto the Community legal order still in the process of shaping.13.

Time has shown that the development of a system of fundamental rightsprotection in Europe is an integrating factor and an element of legitimacy of newinstitutions and agencies. It is the reason why the Court decided at some pointthat "fundamental rights form an integral part of the general principles of lawwhich the Court shall ensure compliance" and that "the protection of these rightsis fully inspired from the constitutional traditions common to the Member shallbe provided within the structure and objectives of the Community".

Thus, by the praetorian way the gap in the Treaties was remedied. At thesame time, new perspectives arose for a considerable development in the activityof both European institutions and Member states, and even in the jurisprudenceof the Court.

As time passed, the Court of Justice of the EU has progressively developedcase law thus issuing a European catalog of principles and fundamental rights,catalogue which, although not exhaustive, includes a number of rights such as theprinciple of equality in its different aspects, the freedom of movement of workersand employees, the independent, religious freedom, freedom of expression andinformation, protection of privacy, inviolability of private homes, the respect ofthe right to defense during repressive procedures, no retroactivity of criminallaws, the right to legal appeal, the right to ownership and economic initiative,freedom of association and trade union rights.

One such principle is that of equality that finds multiple expressions in theEuropean law, whether it relates to the prohibition of discrimination on groundsof nationality, sex, pay, between producers and consumers, according to theorigin of products within the European public functions.

Equal treatment between EU citizens which prohibits any discriminationbased on nationality lies at the main foundation of the European legal order. It isa basic principle for the functioning of the common market, i.e. that area withoutinternal frontiers in which the free movement of persons, goods and capitalbetween Member States is ensured.

13 See Irina Moroianu Zlătescu, Human Rights- a System in Evolution, Ed. IRDO, Bucureşti,2008, p. 120.

41

The prohibition of discrimination also refers to other specific situations suchas the free movement of migrant workers in terms of access to different forms ofschooling, vocational training, the employment, the provision of services, cultural

organizations, sports, travel, healthcare, travel, etc.Article 18 Para. 1 of the TFEU

addresses primarily the EU Member States and EU bodies. Of course, thequestion is whether this provision can be invoked by individuals. Europeanjurisprudence is still not consistent on this issue.

Indirect discrimination can be justified on objective grounds. In addition, itmust respect the principle of proportionality. The problem of knowing whetherthe provisions of the TFUE represent a relative or absolute prohibition ofdiscrimination and also the need to know to which extent a justification ispossible in the case of direct discrimination are controversial subjects both incase law and in legal literature.14

A coherent judicial practice supported by doctrine, would, we believe,contribute to the promotion of new regulations or to the modification of existingones, in order to protect and promote human rights in Europe.

Obviously, according to the Paris Principles on the establishment of nationalinstitutions for the promotion and protection of human rights, the nationalinstitutions for human rights play a significant role in ensuring a betterunderstanding by the public institutions, NGOs and individuals of the human rightsissues and of the way they are ensured in different countries, in compliance with theprovisions of the international covenants and treaties to which the State is a party.

Bibliography

Epiney Astrid, Mosters Robert, Progin-Theuerkauf Sarah, Droit européen II.Les libertes fondamnetales de l’ Union européenne, Stampfli Editions SA, Berne,2010.

Vasak Karel, Les dimensions internationales des droits de l'homme, UNESCO,Paris, 1978.

Zlătescu Moroianu Irina, Constitutional Law. Romania, Ed. Kluwer, London,2013.

Zlătescu Moroianu Irina, Drept European, Ed. Pro Universitaria, Bucureşti,2012.

Zlătescu Moroianu Irina, Drepturile Omului – Un sistem în evoluţie, Ed.IRDO, Bucureşti, 2008.

Zlătescu Moroianu Irina, Mecanisme politice şi administrative de garantarea drepturilor omului, în Administraţiaşi puterea politică. Tendinţe şi evoluţii înspaţiul public european, Ed. Comunicare.ro, Bucureşti, 2013.

Zlătescu Moroianu Irina, Mândre Muraru Mihaela, Egalitate.Nediscriminare. Buna guvernare, Ed. IRDO, Bucureşti, 2008.

Zlătescu Moroianu Irina, Zlătescu Victor Dan, Drepturile Omului în acţiune,Ed. IRDO, Bucureşti, 1994.

14 See ECCJ case C-456/02 (Trojani) în Recueil 2004, p. 7573;EC CJC Case C-11/06 şi C-12/06(Morgan) în Recueil 2007, p. I – 9161.

42

EVOLUTION OF RULES PROTECTION OF THE RIGHTS OFPERSONS WITH DISABILITIES

Nicoleta Diaconu

„Disability should not bean obstacle to success"1

Stephen W. Hawking

Abstract: Disability is a complex contemporary society overall legal because the companyneeds to find legal solutions to social integration of people with disabilities. From the point of viewof the rights involved, disability falls within the legal protection of human rights in a broad sensebecause people with disabilities face discrimination on the exercise of fundamental rights. Incontemporary times we see increased national and international concerns regarding the rights ofpeople with special needs.

Keywords: disability, disabilities, special needs, national and international legalprotection.

1. ConceptualThe international community has shown an attention to regulating the rights

of persons with physical or mental disabilities, given the fact that due to theirstate of physical and mental health, they need special legal protection.

From the point of view of the rights involved, disability falls within the legalprotection of human rights in a broad sense because people with disabilities facediscrimination in education, social, in health services, and so on (the lack of skills).

Disability is a complex problem of the whole society, not just a personal issuefor people with special needs because society as a whole must find solutions to thesocial integration of people with disabilities. Disability must be seen as a socialproblem, but not restrictively, the medical problem of the person with specialneeds.

In national and international law as well as legal and psycho-pedagogicalliterature, several terms are used, depending on the approach to the problems ofpersons with special needs.

Question of the definition of disability is based on two perspectivesapproach:

- An individual approach, a medical nature (it is estimated that thedifficulties that people with disabilities are caused by biological and psychologicalcharacteristics thereof);

- A social approach, in relation to the social, count as the difficulties peoplewith disabilities.

With this approach, the national and international legislation used twoconcepts, namely that of "disability" and the "handicap".

Professor PhD., "Alexandru Ioan Cuza" Police Academy.1 OMS/ONU- Stephen W. Hawking, Forward / World Report on Disability, Bucharest, 2012,

p.1 (translation) - Published by the World Health Organization in 2011 under the title "WorldReport on Disability".

43

The individual was long dominant in defining this state, considering thatpeople have a disability caused by personal physiological or cognitivedeficiencies.2

According to the social model, a person with a disability (lack of skills of anytype) face a disability occurs when the social perception of his situation. Fromthis perspective, disability is "an individual is experiencing barrier in relation tothe social environment."3

In the literature it was found that often, medical and social model arepresented as being in opposition, but no disability should not be regarded aspurely as a purely medical or social: people with disabilities can often faceproblems due to the state their health4.

A third is the biopsychosocial model adopted by the WHO (World HealthOrganization) that provides a framework of integrated medical and social modelin terms of inability. This model assumes that none of the first two models do notprovide a comprehensive approach to the problem. In the biopsychosocial model,failure is approached as an interaction between biological, psychological andsocial factors. International Classification of Functioning, Disability and Health(ICF) adopted by WHO in 2001 addresses the issue of disability in terms of anapproach that recognizes the social, demographic, behavioral factors in analyzingdisability.

The term "disability" is used to refer to the disadvantage or restriction ofactivity caused by contemporary society organization that excludes people withdisabilities from current social activities in which all others.

New global trends require the term "disabled person" (by the company) inplace of "disabled person" to emphasize that disability is not an attribute of theperson, but is an attribute of the relationship person - environment. Inadequateenvironment is one that "dizabilited" a person because of barriers theyencounter5.

- According to the International Organization of Persons with Disabilities(DPI)6, disability is "the result of interaction between a person with a disabilityand barriers related to social and attitudinal environment that she can hit."

- The World Health Organization defines disability as "any restriction or lack(resulting from a disability) capacity (ability) to perform an activity in the manneror to the considered normal for a human being."

- Within the United Nations (UN), according to the text of Article 2 of theConvention on the Rights of Persons with Disabilities, "Persons with disabilitiesinclude those who have physical, mental, intellectual or sensory impairments

2 Degrees of disability are: easy, medium, and severely stressed. Types of disabilities: physical,visual, hearing, deafblind, somatic, mental, psychological, HIV / AIDS and associated rare diseases(The "integrated social services and vocational training for people with disabilities" Contract no.HRD / 96 / 6.2 / S / 54702 ID 54702, page 4).

3 http://asociatia-ihtis.ro/2008/06/10/diferenta-dintre-handicap-si-dizabilitate/4 Thomas C. Female forms: experiencing and understanding disability. Buckingham, Open

University Press, 1999.5 http://www.onphr.ro/dizabilitatea/ce-este-dizabilitatea/6 Founded in 1981, DPI is headquartered in Ottawa, Canada and more than 130 countries in

Africa, Asia-Pacific, Europe, Latin America and North America.

44

which in interaction with various barriers may hinder their full and effectiveparticipation in society on an equal basis with others."

- According to art.2 of Law 448/2006, "Persons with disabilities includethose persons who, because of physical, mental or sensory lack the ability toperform normal daily activities requiring protective measures to supportrecovery, integration and social inclusion".

Comparing the terminology used nationally with international terminologyfind that in our legislation used the term "disabled person" instead of the term"disabled person" as used in international documents7.

2. The international legal framework protection of the rights ofpersons with disabilities

Analyzing the international legal framework for the protection offundamental human rights notice the evolutionary process of internationalregulations, from general to particular.

Thus, we find that international society was concerned in the first instance toregulate and guarantee civil and political rights, regarded as inherent humanrights, passing a background to the regulation of economic, social and cultural.

After creating the legal framework governing international human rights as ageneral system, we find that international concerns were considered regulatingcertain categories of rights specific nature of certain categories of persons to whom itis necessary to take special measures of protection. In this regard were adoptedregulations on the protection of women's rights, child protection, protection ofminority rights, protection of foreigners, the rights of people with disabilities.

2.1. Concerns of international organizations for the protection ofpersons with disabilities

A. Evolution of UN regulations on the protection of persons with disabilitiesUN concerns regarding the regulation of the special rights of this category of

persons mentioned:a) - Declaration on the Rights of mentally retarded persons, proclaimed by

the UN AG 1971b) - Declaration on the Rights of People with Disabilities adopted by the UN

on December 9 AG., 1975. Under section 1 of the Declaration, the term "disabledperson" means a person unable to provide one, or part of an individual's needs ora normal social life, due to her physical disabilities or mental capacity.

c) - Declaration on the Rights of Persons with hearing and vision -1979;d) - the Declaration of 1981 as the International Year of Disabled persons in

which have been proposed to achieve the following objectives:- Supporting disabled people to adapt accordingly the company;- Encouraging national and international initiatives on ensuring job properly

disabled;- Integrating people with disabilities in education projects, research and

cultural projects;

7 Article 50 of the Constitution, Law 448/2006 on the Protection and Promotion of the Rightsof Persons with Disabilities, republished, etc.

45

- Informing the public about the rights of people with disabilities andcreating a favorable opinion of their.

e) - World Programme of Action concerning Disabled Persons - din1982stressed the need to create national structures with the role of implementinginternational strategies to protect persons with disabilities.

f) - Recording the International Day of Persons with Disabilities - 3December. On October 14, 1992 the UN General Assembly proclaimed December3 - International Day of Persons with Disabilities. Each year, the internationalcommunity records this event as a sign of solidarity with people with disabilities.

g) - Standard Rules on the Equalization of Opportunities for Persons withDisabilities - 1993;

h) - Convention on the Rights of Persons with Disabilities, adopted on12.12.2006.8

Convention on the Rights of Persons with Disabilities is the first legallybinding international instrument that directly regulate the rights and freedoms ofpersons with disabilities.

Apart from these documents that were particular to the UN, the rights ofpeople with disabilities are governed by the provisions of the legal instrumentsgoverning the overall basic human rights such as:

- Universal Declaration of Human Rights (1948);- International Covenant on Civil and Political Rights (1966);- International Covenant on Economic, Social and Cultural Rights (1966);

B. Concerns regional organizationsAlso, the regional organizations adopted specific regulations on the rights of

people with disabilities.- Charter of Fundamental Rights of the European Union regulates the art 26

"Integration of persons with disabilities" and in Article 25 "The right of personsage";

In the European Council adopted a number of regulations on the protectionof such persons, as follows:

- European Convention on Human Rights and Fundamental Freedoms(1950);

- European Social Charter (1961) and the Revised European Social Charter(1996), which regulates in Article 15 "The right of persons with disabilities toindependence, social integration and participation in community life," and inArticle 23 "right of elderly persons to social protection".

- Recommendation (818) on the situation of mentally ill person (1977);- Recommendation (1185) Strategies for Rehabilitation of Persons with

Disabilities (1992);- Recommendation R (92) on a coherent strategy for Rehabilitation of

Persons with Disabilities (1992).

8 Opened for signature on 30 March 2007 and signed by Romania on 26 September 2007. ByLaw no. 221 of 11 November 2010 was ratified the Convention on the Rights of Persons withDisabilities. The Convention was ratified in 2011 and the Union.

46

2.2. Summary of regulations contained in the Convention on theRights of Persons with Disabilities

Convention on the Rights of Persons with Disabilities, adopted by the UNGeneral Assembly on December 13, 2006, provides an unprecedented level ofprotection and establishes minimum universal standards of action, concretemeasures that would ensure inclusion of people with disabilities in all areas ofactivity, and implementation mechanisms.

In recitals Convention specifies that disability is an evolving concept and thatit results from the interaction between persons with disabilities and attitudinaland environmental barriers that hinders their full and effective participation insociety on an equal basis with others.

a) - need to adopt the Convention is based on the valuable contributions -existing and future - made by persons with disabilities to the general welfare andthe diversity of the communities to which they belong, and that the promotion ofthe full enjoyment of human rights and fundamental freedoms by people withdisabilities and their full participation will result in strengthening the sense ofbelonging and significant development in human society, social and economic, aswell as poverty eradication,

b ) - The purpose of the Convention, stated in Article 1, is to promote, protectand ensure the full and equal basis of all human rights and fundamental freedomsby all persons with disabilities and to promote respect for their inherent dignity.

For the purposes of the provisions of the Convention, "persons withdisabilities include those who have physical, mental, intellectual or sensoryimpairments which in interaction with various barriers may hinder their full andeffective participation in society on an equal basis with others".

c) - The principles underlying the Convention, contained in article 3, are:- Respect for inherent dignity, individual autonomy including the freedom to

make their own choices, and independence of persons;- Non-discrimination;- Full and effective participation and inclusion in society;- Respect for difference and acceptance of persons with disabilities as part of

human diversity and humanity;- Equal Opportunities;- Accessibility;- Equality between men and women;- Respect for the evolving capacities of children with disabilities and respect

for the right of children with disabilities to preserve their identities.d) - States' obligations regarding the rights of people with disabilities are

determined by main article 4. The States Parties undertake to ensure andpromote the full realization of all human rights and fundamental freedoms for allpersons with disabilities without discrimination on grounds of disability. To thisend, States Parties undertake:

- To adopt all appropriate legislative, administrative and other measures forthe implementation of the rights recognized by the Convention;

47

- To take all appropriate measures, including legislation, to modify or abolishexisting laws, regulations, customs and practices that constitute discriminationagainst persons with disabilities;

- Take into account the protection and promotion of human rights of personswith disabilities in all policies and programs;

- Refrain from engaging in any act or practice contrary to the Conventionand to ensure that public authorities and institutions act in conformity with theConvention;

- To take all appropriate measures to eliminate discrimination on the basis ofdisability by any person, organization or private enterprise;

- To undertake or promote research and development, to make known theoffer and encourage the use of new technologies, including information andcommunication technologies, mobile devices support, devices and assistivetechnologies, suitable for persons with disabilities, giving priority to technologiesaffordable;

- To provide accessible information to persons with disabilities aboutmobility aids, devices and assistive technologies, including new technologies, aswell as other forms of assistance, support services and facilities;

- Support training in the rights recognized by the Convention ofprofessionals and staff working with persons with disabilities, to improve thedelivery of assistance and services. With regard to economic, social and culturalrights, each State Party undertakes to act with all available resources andinternational cooperation, where appropriate, to ensure that progressively, thefull realization of these rights, without any prejudice to the obligationsimmediately applicable, contained in the Convention, in accordance withinternational law.

Also, under the provisions of Article 5, States Parties undertake to promotethe principles of equality and non-discrimination.

e) - Content rights of persons with disabilities is vast, including both civil andpolitical rights category and the category of economic, social and cultural.

f) - on how to safeguard the rights of people with disabilities, the Conventioncontains provisions on international cooperation for national implementationand monitoring of the implementation of the provisions villages. Conventionrefers to two mechanisms to guarantee the rights of persons with disabilities thatthe Special Committee and the Conference of States Parties

As a control mechanism Convention establishes the Committee on the Rightsof Persons with Disabilities, which will, based on reports, the observance of theprovisions of the Convention.

The Committee shall report every two years to the General Assembly andEconomic and Social Council on its activities and may make suggestions andgeneral recommendations based on the examination of reports and informationreceived from States Parties. Such suggestions and general recommendationsshall be included in the report of the Committee together with comments ofStates Parties, if any.

States Parties shall meet regularly in a Conference of States Parties toconsider any matter relating to the implementation of the Convention.

48

3. The national legal framework protection of the rights ofpersons with disabilities

- Constitution governing the dispoz.art.50 "Protection of Persons withDisabilities".

According to these provisions, persons with disabilities enjoy specialprotection. State ensure that a national policy of equal opportunities forprevention and treatment of disability in order to participate effectively disabledin the community, respecting the rights and duties of parents or guardians.

Principle provisions contained in the Constitution are supplemented bydetailed regulations of special laws, such as:

- Law 448/2006 on the Protection and Promotion of the Rights of Personswith Disabilities, republished.

- Law no. 202 of 19 April 2002 on equal opportunities and treatmentbetween men and women;

- Law no. 487 of 11 July 2002 - mental health and protection of persons withmental disorders;

- Nr.292/2011 Law - Law on Social Assistance.- Law no. 116 of 15 March 2002 on the prevention and combating of social

exclusion;- Decree no. 1194 of 27 November 2001 on the organization and functioning

of the National Council for Combating Discrimination.The analysis synthesized, coordinated result of these laws concern the

legislature to create suitable conditions for the integration into society of personswith special needs. From the provisions of these regulations that society's attitudemust be one of appropriate support to ensure equal rights and opportunities forpeople with special needs affirmation, not an attitude of pity or permanent caresimilar to that of the sick.

National legislation is support offered by the company to persons withspecial needs, is the guarantee of normality of a modern society concerned withthe fate of all persons to whom it is addressed.

4. Practical ways to overcome the problems faced by people withdisabilities

Barriers favoring the creation of the state of disability were analyzed andhighlighted in the 2012 World Health Report on Disability9, which are basicallythe following:

- Policies and Standards inadequate - promoted at national level;- Negative attitudes, inhibitors of the social environment;- Failure to provide adequate services but special needs individuals;- Inadequate funding;- Lack of accessibility to social services, education, health.WHO Report on Disability suggests that many of the barriers faced by

persons with disabilities can be overcome.

9 WHO / UN World Report on Disability, Bucharest, 2012, p.278.

49

In this regard, the report contains a set of recommendations to overcome thebarriers faced by persons with disabilities required, namely:

- Providing access to all policies, systems and conventional services- Investing in specific programs and services for people with disabilities- Adopt a national strategy and action plan;- Involving people with disabilities;- Improve human resource capacity- Provide adequate funding and improve affordability;- Increase public awareness and understanding of disability;- Improve data collection on disability;- Strengthen and support research on disability.For the implementation of these recommendations, the report suggests how

to involve a specific set of policy makers and others - such as governments, UNagencies and development organizations, organizations of persons withdisabilities, service providers, academic institutions private sector, localcommunities, people with disabilities and their families as follows:

- Governments - need to review the policies, systems and services, to developa strategy and a national action plan, to regulate the provision of services, toallocate adequate resources services, to adopt national standards for accessibility,to introduce measures to protect against poverty people with disabilities, toinclude disability data collection systems nationwide.

- UN agencies and development organizations - need to include disability indevelopment aid programs, to share information and coordinate actions, toprovide technical assistance to countries, to contribute to the development ofresearch methodologies for collecting internationally comparable and dataanalysis.

- Organizations of persons with disabilities - should provide support, torepresent the views of their members, to contribute to the assessment andmonitoring services, to conduct audits of the environment, transport, etc.

- Service providers - provide appropriate staff training, to develop individualservice plans, to ensure that persons with disabilities are informed of their rights.

- Academic institutions - need to recruitment and participation of studentsand staff with disabilities, to conduct research on the lives of people withdisabilities.

- The private sector - need to promote diversity and inclusion in workenvironments, to develop a range of quality support services for people withdisabilities etc.

- Communities - must critically evaluate and improve their own beliefs andattitudes, to promote the rights of persons with disabilities.

- People with disabilities and their families - need to promote the rights oflocal communities, to participate in forums to determine priorities for change,influence policy and improve service delivery, to take part in research projects.

50

INCLUSIVE DEMOCRACY BY SUFFRAGE AND CITIZENSHIP

Florian Neuburg

Abstract: The article discusses the situation of non-citizens in Austria, especially regardingthe regulations for their naturalisation and suffrage. It sums up arguments that, in comparison toother European countries, the legal situation of migrants without citizenship and their offspringin Austria leads to a deficit of democratic participation in this country. Suggestions are madewhat steps should be taken to cope with this problem.

Keywords: Austria, citizenship, suffrage, inequality, migration, sociology.

National Council Elections in Austria, 2013On September 29, 2013, the most recent Austrian National Council election

was held. On this occasion two negative records were established: firstly, the twolargest parties, namely the Social Democratic Party (Sozialdemokratische Partei)and the conservative Austrian Folk Party (Österreichische Volkspartei) achievedtheir worst results ever in the history of the Second Republic (that means since1945); secondly, voter turnout fell to the lowest level ever in the history of theSecond Republic as well.

While 78,81% of the persons entitled to vote exercised their voting rights in2008, only 74,91% did so in 2013.1 This turnout is not that low when compared tothe international average, but a downward trend has been observable over years.In terms of democratic politics this trend gives cause for concern.

What is also alarming in terms of democratic politics is the fact that a largerpart of Austria's resident population was excluded from the election for theNational Parliament, mostly due to their holding a citizenship other thanAustrian. Here, the Austrian legal position is quite clear: at the federal level, onlyAustrian citizens are granted the right to vote. This position results in a cleardeficit when it comes to including other parts of the population in the democraticprocess in this country.

The capital Vienna, the Austrian city with the highest proportion ofinhabitants who do not hold an Austrian passport, may serve as an example here:Vienna's population has been growing steadily over the last 25 years -byapproximately 14% between 1982 and 2012. However, the number of inhabitantsentitled to vote has gone down by 1%.

The electoral reform of 2007 introduced the right to vote for citizens age 16+.The proportion of Vienna's inhabitants of the right age but foreign citizenship isapproximately 20% - in short, about every fifth person living in Vienna isexcluded from voting.2

Therefore, the situation in Austria is somehow perplexing: while a decreasingnumber of inhabitants who are entitled to vote make use of their right, there is at

Project Coordinator, Multikulturelles Netzwerk, Viena, Austria.1 http://orf.at/wahl13/ergebnisse/ (10.10.2013)2http://www.wahlwexel-jetzt.org/2013/09/das-schrumpfende-elektorat-wiens-

von.html#more) (10.10.2013)

51

the same time a growing number of inhabitants living in this country who are -due to their nationality - excluded from political participation via elections.

Interventions by NGOsIn the run of the National Council election several NGOs took action

concerning foreigners' suffrage. SOS Mitmensch, a big and firmly establishedNGO, stood up for foreigners' right to vote by organizing a symbolic "Pass egalWahl" (No Matter What Passport election). The SOS Mitmensch proponentspointed out that in Austria there are about 1 million residents without Austriancitizenship, 40% of which have lived in the country for more than ten years. It isalso worth mentioning that 15% out of this population group were born inAustria.3

Hundreds of non-enfranchised people participated in the public "Pass egalWahl" - it goes without mentioning that their votes did not count officially.

Another initiative, titled "Wahlwexel jetzt" (Vote swapping now), smaller insize and mainly active in Vienna, chose a different strategy: their proponentscalled on eligible voters who had taken out an absentee ballot but had nointention to vote to put their votes at the disposal of non- enfranchised people. Acouple of days before the election an event was organized where elegible voterscould leave their absentee ballots to non-enfranchsized people. Since this eventwas about ceding valid votes, the activists were given some media attention, notthe least so because the Ministry of the Interior commented the protest event byjudging it as illegal. In fact, an eligible voter confirms by handwritten signaturethat she/he filled in the absentee ballot personally, unobserved and unaffectedbefore sending it off. Violations of this regulation are liable to prosecution -according to a statement of the Ministry of the Interior on the occasion. Incontradiction, the Lord Mayor of Vienna declared the action as legal.4

Interestingly enough, it was also the Vienna city government which intendedto introduce the right to vote for foreigners at municipal level some years ago.However, this plan failed due to a highest judicial decision by the SupremeAdministrative Court.

The right to vote and citizenship in AustriaSince in Austria the right to vote is subject to citizenship - with the

exceptions of district/community elections for EC citizens - initiatives ofincluding those parts of the population without Austrian citizenship and therebystep up the democratic political process must follow two directions of impact: onewould be demanding an electoral reform that grants under certain conditions theright to vote to non- citizens; the other one would be aiming at a liberalisation ofnaturalisation and citizenship legislation. This direction of impact relates to thefact that - in comparison with other EC countries - Austria has become a countryof very restrictive access to citizenship. One of the main differences lies with the

3http://www.vienna.at/sos-mitmensch-setzt-sich-fuer-wahlrecht-fuer-auslaender-ein/3668095) (10.10.2013)

4http://derstandard.at/1379292179091/Wahlwexel-Aktion-koennte-strafbar-sein)(10.10.2013)

52

Austrian strong emphasis on nationality by descent (ius sanguinis) whilenationality by birth (ius soli) has no regulatory impact on granting citizenship -except that an Austrian place of birth somewhat facilitates a non-citizen'sacquiring of the Austrian citizenship upon application later on. Otherwise,parents pass on foreign citizenships to their children and grandchildren overgenerations.5

So far there is no political intention for a change of the present situationdiscernible, which may be partly ascribed to the fact that Austrian's elite and thegeneral public have never understood their country as a country of immigration.For a long time social-and political scientists have pointed out that Austria is(also) a country of immigration (Dachs 2006: 726 ff). However, although thenumber of migrants and their offspring have been rising over the last decades,policy -makers seem to fear the loss of xenophobic votes so much that, at present,major changes of policy in the near future are rather unlikely.

In this respect, Austria differs from other EC countries' identifyingthemselves as countries of immigration - either long ago or else in the recent past.What may be of significance in the matter is the role ius soli (nationality by birth)plays in regulating citizenship law. In this context, let us consider briefly therespective legal situations in Germany and France by way of example.

Ius Soli regulations in FranceNationality by birth (ius soli) has a long tradition in French citizenship law:

children born in France obtain qua birth French citizenship, irrespective of theparents' nationality, provided at least one parent was also born in France. In 1998 thefollowing rule was established: children born in France of parents without Frenchcitizenship are to obtain French citizenship upon legal age provided their permanentresidence was in France for at least five years after reaching the age of eleven.6

Ius Soli regulations/rules in GermanyIn Germany, once a traditional ius sanguinis country, ius soli regulations

came into effect on January 1, 2000 - though not without some restrictions:children born in Germany obtain the German citizenship automatically, providedat least one parent has had Germany as his/her permanent dwelling for at leasteight years and lived there lawfully and with unlimited right of residence. Havingmultiple nationalities is permissible for their children until they reach legal age.However, the age of 23 is the deadline by which they have to decide on the onecitizenship they wish to keep.7

Concluding, we can see that in Germany, a European country comparablewith Austria, the turn towards the better concerning inclusive citizenship started(moving) more than ten years ago. This applies at least for the treatment of

5https://www.help.gv.at/Portal.Node/hlpd/public/content/26/Seite.260410.html(10.10.2013)

6 http://www.ambafrance-de.org/Staatsburgerschaftsrecht-Die (10.10.2013)7http://www.bundesregierung.de/Webs/Breg/DE/Bundesregierung/BeauftragtefuerIntegrati

on/Staatsangehoerigkeit/geburtsortprinzip/_node.html;jsessionid=D3EE0D6CA354C1AE482384F967FB1EFF.s4t2 (10.10.2013)

53

children born of non-citizens on German territory. Concerning naturalisation offirst-generation migrants, both Germany and Austria, like other EuropeanCountries, are setting the bar high. In most cases it takes many years andconsiderable economic resources before the right to naturalisation is achieved. Inmay places language-and naturalisation tests have become the rule.

More inclusive democracy through extending rights ofparticipation

Due to the absence of voting rights, a growing number of people are beingdenied representation in the Austrian democratic system. This absence has notonly drawn negative criticism from NGOs for a long time but also fromproponents of the scientific community. One of them, political scientist GerdValchars (Vienna), deserves exemplary mention here. In his work he finds faultwith the present state of inclusion for non-citizens caused by the Austrianpolitical system of electoral-and citizenship law. Valchars outlines a model for therealisation of improved rights of participation. (cf. Valchars: 2006)

The cornerstones of this model are firstly an electoral law that includes non-citizens and thus grant them representation in election results; secondly, a reformof the prevailing citizenship law that grants facilities for naturalisation and doesnot bar people with migration backgrounds from citizen rights for generations.(Valchars 2006: 114 f)

Insofar as citizenship law is concerned, Valchars suggests a right tonaturalisation after a certain span of residence in a country, whereby the timespan ought not to be significantly longer than the time span assessed forobtaining a permanent residence permit. Here, the right to naturalisation is to beunderstood as a right people living in a country can claim. This right is not to beleft to the respective country's discretion, but should be regulated bindingly byinternational law.

Thus, states would then bow to a precept of inclusion because whatever thedemands of the state on people living on its territory, can be vice versaunderstood as the demands of people on the state (Valchars: 2006: 117 f).Furthermore, according to Valchars, requirements for obtaining citizenshipshould be low-threshold. Emotional and financial costs for complying with givenrequirements ought to be low as well. Some requirements, oriented at what is the"ideal citizen", should be critically questioned, as there are e.g. integrity,knowledge of the country's history, language and a patriotic attitude in principle.Demanding those "ideal citizen" attitudes from people aspiring to naturalisationoften prevent legal inclusion although social inclusion has already stood the testof time and become reality. Besides, how many citizens can actually comply withthe like ideal conception? According to Valchars, a greater number of dualcitizenships should be permitted, because in times of global migration dualcitizenships reflect, for example, the increasing number of marriages andpartnerships of people from different national backgrounds. (Valchars 2006:118f)

Valchars states that raising objections against multiple citizenship, whichmay lead to loyalty conflicts for the people concerned, has become out-of date; he

54

understands citizens of a state as stakeholders. These stakeholders couldconceivably obtain stakeholdership in two or more countries without creatingdemocratic political problem situations for the country in question because theprinciple of one person/one vote would still hold good for each national politicalsystem. (Valchars 2006: 118f)

Valchars also makes suggestions of how to heighten the degree of inclusionof non-citizens in the framework of an improved electoral law. He points out thatthe social rights of citizens and non- citizens are being successively aligned inmany European countries - owing in large part to non-discriminationadjudications by Supreme Courts. Granting the right to vote to non-citizenswould be both a further step towards judicial alignment and towards resolvingdemocratic deficits. Non-citizens, who are affected by governmentaladministration decisions in the length of time, should vice versa also beempowered to co-determine the being-as-it-is of a state (principle of concern).

Valchars concedes that an extension of the right to vote should be subject toa reasonable duration of residence - two years at most - so that the right to vote asan instrument of inclusion takes effect before naturalisation. People applying fornaturalisation should not be kept waiting longer for naturalisation than for apermit of establishment.

By the way, inclusive regulations of electoral law can already be found inseveral countries as e.g. New Zealand, where non-citizens can actively participatein national elections after only one year of legal stay in the country. (Valchars2006: 121f)

ConclusionA few days ago, in October, US citizen Martin Karplus, chemistry scientist,

was awarded the Nobel Prize. The day after, Heute, the Viennese subway- daily,titled a photo that shows Karplus at table in his Boston home "Hier frühstücktunser Nobelpreis" - "Here breakfast our Nobel Prize". Why "our"? The reason isthat Karplus was born in Vienna in 1930, but had to flee the country as a boy ofeight because he was labelled "Jude" (Jew). On the occasion of an interviewKarplus gave for an Austrian TV-channel, he made it very clear that he has donehis scientific work in the US and France - and therefore one could not really speakof an "Austrian Nobel Prize".

This little anecdote illustrates how in Austria people are persistently definedaccording to nationality by birth. The exclusion of people who live in Austria fromtheir democratic rights and citizenship is legitimized by family background. Inshort, exclusion is a legacy perpetuated by restrictive naturalisation laws.

In times of increasing global migration (flows), an increasing part of thepopulation becomes inevitably afflicted by these mechanisms of exclusion. Thisprocess can be understood as a growing deficit of democracy. Legislative reformsof citizenship law, like the ones in Germany, are a step towards resolving thecomplex of problems. However, there is no distinct trend of extendingliberalisation, and the issue of the right to vote is met with disregard.Notwithstandingly, the introduction of ius soli regulations is definitely a measureof strengthening inclusion

55

Societies with prevailing legal norms along lines of ethnic and social criteriaof discrimination - comparable to those of Austria - are running a high risk of"cementing" inequalities concerning political rights of participation. It can beargued that an under-representation of non-citizens in a political system meanslikewise an under-representation of workers and lower strata of society - to whichmany migrants belong. These inequalities are not merely a political complex ofproblems, they also weaken the stability and integration of a society. It istherefore high time for a change of policy and more opportunities of democraticcodetermination for all people.

References

Dachs, Herbert (Ed.) (2006), Politik in Österreich. Das Handbuch. Wien:Manz.

Valchars, Gerd, (2006), Defizitäre Demokratie. Staatsbürgerschaft undWahlrecht im Einwanderungsland Österreich. Wien: Turia + Kant.

Internet:1. Results of the National Council Elections in Austria 2013:

http://orf.at/wahl13/ergebnisse/ (10.10.2013)2. NGO Wahlwexel-Jetzt: http://www.wahlwexel-jetzt.org/2013/09/das-

schrumpfende-elektorat-wiens-von.html#more (Stand 10.10.2013)3. NGO SOS Mitmensch: http://www.vienna.at/sos-mitmensch-setzt-sich-

fuer-wahlrecht-fuer-auslaender-ein/3668095) (10.10.2013)4. Newspaper„Der Standard“ (Online-Edition) about Wahlwexel-Jetzt:

http://derstandard.at/1379292179091/Wahlwexel-Aktion-koennte-strafbar-sein)5. (10.10.2013)6. http://www.ambafrance-de.org/Staatsburgerschaftsrecht-Die)

(10.10.2013)7. http://www.bundesregierung.de/Webs/Breg/DE/Bundesregierung/Beauf

tragtefuerIntegration/Staatsangehoerigkeit/geburtsortprinzip/_node.html;jsessionid=D3EE0D6CA354C1AE482384F967FB1EFF.s4t2) (10.10.2013)

56

CERTAIN CONSIDERATIONS ON THE REGULATION OF THEUSUFRUCT RIGHT ACCORDING TO THE NEW CIVIL CODE

Cristian Jora

Abstract: In the dismemberments of the right of private property, a special position isoccupied by the right of usufruct, the new Civil Code regulating the object of this real right. Thecoexistence of the legal ownership with the right of usufructwithin the condition of exercising bothtipe of rights over the assets forming the object of usufruct.

Keywords: usufruct, legal ownership, object of the usufruct right.

1. According to the regulations of art. 703 of the New Civil Code, „Usufruct isa right to use another person's property and benefitting of its usage, as theowner, but with the duty of preserving its the substance”.

As the legal deffinition shows, one may observe that usufruct is real derivedrightDin definiţia legală se poate observa că acesta este un drept real derivat,dismemberment of the right of private property, under which a subject of civillaw, natural or legal person - called usufructuary - is entitled to possess and usean asset belonging to another person, with the obligation to preserve thesubstance of the asset and to return it to its owner at the settled deadline or thelatest at his death, in case the usufructuary is a natural person or, after more than30 years, when the usufructuary is a legal entity.

One may notice that the usufruct right is a main, derived real rightSe observăcă dreptul de uzufruct este un drept real principal derivat, fundamentallytemporary and it is regulated by art. 703 – 748 of the New Civil Code1.

As it was stated within the older doctrine, the usufruct appears to be "a realright essentially temporal, granting power to the usufructuary to exerciseproperty attributes, namely those contained in jus utendi et fruendi, over theasset belonging to another. The property itself temporarily so emptied, nude,remains to the owner, who is temporary deprived of the faculties exercisescontained in jus abutendi as the exercise of these faculties would offend exerciseof the utendi and fruendi right belonging to the usufructuary. But jus abutendi inthe meaning of power to change the specific nature and destination of the asset,or to deplete or destroy its productivity, does not belong to the usufructuarywhich by the nature of its right is bound to keep the specific nature of the asset,its destination and its productive ability (save rerum substantia) and to return theasste at the end of the usufruct.”2

The usufructuary and the legal owner are both and each of them holders of aportion of the property right, the two rights coexisting in relation to the same asset.3

Associate Professor PhD. „Dimitrie Cantemir” Christian University Bucharest,Scientific Researcher at the Institute of Judicial Researches „Acad. AndreiRădulescu” of the Romanian Academy.

1 Petrică Truşcă, Andrada Mihaela truşcă, Drept civil. Partea generală, Universul JuridicPublishing House, Bucureşti, 2012, pp. 88-91; Petrică Truşcă, Andrada Truşcă Trandafir, Elementede drept civil. Curs pentru administraţie publică, Universul Juridic Publishing House, Bucureşti,2009, pp. 51-53.

2 M. B. Cantacuzino, Elementele dreptului civil, Ed. All Educational, Bucureşti, 1998, p. 160.3 Al. Weill Fr. Terré, Ph. Simler, Droit civil. Les biens, 3e édition, Ed. Dalloz, Paris, 1985, p. 636.

57

The usufruct is a dismemberment of the ownership because it requiresdetachment from the legal content of property of jus utendi and jus fruendiattributes, and their establishment in a real right which belongs to anotherperson, other than the owner called usufructuary. The atribute of provisionremains to the owner of the asset, who retains the legal ownership.4

Concerning the birth of the usufruct right, this is produced bydismemberment of private property right, namely by removing the attribute ofusage, with both its characteristic elements - usus and fructus - and by dividingthe attribute of possesion, as the owner of nthe dissmemberment has the right tomastre the asset, but not as owner, but according to his right.

2. Regarding the judicial characteristics of the usufruct right, on what itconcernes the regulation of the New Civil Code, we shall face certainparticularities.

Such as it results from the analyse of the legal definition of the usufruct right,and also to the deffinition given within the specialized works, under the aspect ofthe judicial nature, we may note this is a dismemberment of the private rightproperty, it is a fundamelay temporary right, it is a right with intuitu personaecharacter, now with improved accessibility and the usufructuary may cede eventhe emoluments of his right.

First, the right of usufruct is a mainly real right, a dismemberment ofownership, which is distinguished by the way of birth and by its legal content5.

That being the case, it is established within the judicial doctrine that theusufruct is a dismemberment of the property and not its task and, even less, notof the bare properties.6

The owner of the usufruct exercise use of of the property as the ownerhimself.

Uzufruct is a real right, as usufructuary is in direct relationship to the asset,exerting all its rights and privileges, without having to ask the consent of the legalowner.7

It may be noted that the usufruct constituted on a debt or security is not areal right because the right from which it results, has not such character.8

The legal content of the right of usufruct is composed of possession and useattributes, usufructuary being entitled to collect and receive, in property, theasset benefits, while the owner remains only with the attribute of legal provisionthat can be exercised freely, without prejudiceing the right of usufruct.9

In the case of usufruct, two different real rights coexist on the same good,namely the one belonging to the usufructuary, who allows it to master, to use the

4 I.P. Filipescu, A. I. Filipescu, Drept civil. Dreptul de proprietate şi alte drepturi reale, Ed.Actami, Bucureşti, 2000, p. 322.

5 Petrică Truşcă, Andrada Mihaela Truşcă, op.cit., pp. 89-90; Petrică Truşcă, Andrada TruşcăTrandafir, op.cit., pp. 51-52.

6 E.Safta-Romano, Dreptul de proprietate privată şi publică în România, Ed. Graphix, Iaşi,1993, p. 202.

7 E. Chelaru, Curs de drept civil. Drepturile reale principale, Ed. All Beck, Bucureşti, 2000, p. 158.8 I. P. Filipescu, A. I. Filipescu, op.cit., p. 322.9 L. Pop, Dreptul de proprietate şi dezmembrămintele sale, Ed. Lumina Lex, Bucureşti, 1996,

p. 160.

58

fruits of the good and the right of the legal owner, which gives him the power todispose of the asset and to have benefits from it, as it is encumbered by usufructright.

Secondly, as real right, the usufruct right is erga omnes opposable and it andcan not be confused with the tenant on leased property rights.

The owner of the usufruct exercises the use of the asset as the owner himself,and its usage is not to be confused with the use resulting in the benefit of abeneficiary holding a right to claim that would result from a tenancy, a comodator a lease 10.

The usufruct must not be confused with mere right to use, which is a right todebt.11

It results that the usufruct is a real right, regardless of whether its object isthe movable or immovable property and lease is a debt right, even if its subject isthe immovable property, as debts rights are movable according to the law12. Also,stems from the fact that rental springs from an obligations report, several dutiesbelong to the owner, while in case of the usufruct, the owner has mainly anegative obligation, not to do anything likely to disturb the usufructuary in theexercise of its rights.

Unlike tenant who is unable to leave or abandon the use of property, theusufructuary may abandon the property and its use.

Finally, when the rights and obligations arising from the contract of lease aresubmitted to the Contracting Parties heirs, usufruct is extinguished by the deathof its owner.13

As real, erga omnes enforceable right, the usufruct is enforceable even to theowner from whoom right it has been established, and the usufructuary is handyto defend his right, a real suitor specific action, the usufruct confessor action.

Thirdly, usufruct right is essentially temporary as it expires the latest at thedeath of the usufructuary, when this is a natural person, according to art. 708para. (1) of the Civil Code, and when the usufructuary is a legal person14, theusufruct can not last more than 30 years, according to art. 708 para. (2) of thesame Code. Usufruct has an intuitu personae character and can be settled for ashorter period than the life of the usufructuary, which is the maximum durationof the usufruct. Thus, if an individual holder, the usufruct may be lifecontingency. Note that according to art. 708 para. (4) Civil Code, the usufructestablished until the date when another person will get to a certain age, theusufruct lasts till that date, even thet person would die before reaching that age.

The initial duration of usufruct is not an impediment to early terminate thisdismemberment, if other reasons for termination occur.15

10 C. Bîrsan, M. Gaiţă, M.M. Pivniceru, Drepturile reale, Institutul European, Iaşi, 1997, p. 154.11 I.Dogaru, T.Sâmbrian, Drept civil român. Tratat. Vol. II. Teoria generală a drepturilor

reale, Ed. Europa Nova, Craiova, 1996, p. 111.12 Petrică Truşcă, Andrada Mihaela Truşcă, op.cit., pp.106 şi urm; Petrică Truşcă, Andrada

Truşcă, op.cit., pp. 62-65.13 D. Lupulescu, Drept civil. Drepturile reale principale, Ed. Lumina Lex, Bucureşti, 1997, p. 145.14 Petrică Truşcă, Andrada Mihaela Truşcă, Drept civil. Persoanele, Ed. Universul Juridic,

Bucureşti, 2013, pp. 194-197.15 V. Stoica, Drept civil. Drepturile reale principale, Vol. I, Ed. Humanitas, Bucureşti, 2004, p. 477.

59

Usufruct may be movable or immovable, in relation to the assets on which itwas established.

Forthly, the usufruct right maz be cedeed. According to Art. 714 Civil Code,unless otherwise provided, the usufructuary has the opportunity to transfer hisrights to another person without the consent of the legal owner, in compliancewith the statutory land register. In this case, the usufructuary remains indebtedto the legal owner, onlz for the obligations arised before the transfer16. Pendingthe transfer notification, the usufructuary and the transferee are jointly liable.This is a new aspect, the legislature, creator of the new Civil Code is concernedregarding the possibilitz that the usufructuary may transfer his right, in order toobtain a grater mobility for real rights in the legal field.

Among all the dismemberments of the private ownership rights, the usufructright is the broader, since it grants to its owner not only the possession and use,but also some disposal rights. In relation to the owner of the property, accordingto an opinion expressed within the legal literature, the usufructuary would be apoor holder. However, as long as usufructuary possessess and uses the asset forhimself, being able to acquire the property by usucaption, he is an owner.17

It was stated that the usufruct, as all potestative rights, is characterized byautomatism, because its effects are reflected not only on their legal situation, butalso on the legal situation of its recipient, namely the bare owne, intervening inthe legal sphere.18

3. The usufruct may be established on any movable or immovable, tangibleor intangible asset, including a mass asset, a universality of fact or a share of it.19

According to Art. 712 of the Civil Code the usufruct may be established onconsumable goods (money, grains, beverages), in case when the usufructuary maydispose of them so that he can acquire the ownership of the property. Theusufruct constituted on such consumable goods called quasiusufruct, theusufructuary being hold to return the goods of same quality, quantity and valueor at the owner’s choice, the counter value at the settlement date of the usufruct.

The legislature did not distinguished according the object of the usufruct,tangible or intangible, fungible or fungible, resulting that the usufruct may beestablished having any kind of asset as object.20

In the case of the universal and universal title usufruct, according to art. 743para. (1) and (2) of the Civil Code, if the usufructuary pays debts incurred by thepatrimponial mass or y a part of the patrimonial mass given as usufruct, the legalowner must repay the amount advanced at the date when the usufruct isextinguished, without paying any interest and if not paid, the bare owner has theoption either to pay himself or to sell a sufficient portion of the goods in usufruct.

16 Andrada Mihaela Truşcă, Particularităţile răspunderii juridice în dreptul mediului, Ed.Universul Juridic, Bucureşti, 2012, pp. 7-9.

17 E. Safta-Romano, op.cit., p. 202.18 I. Sferidan, Reflecţii asupra raportului juridic de uzufruct, Dreptul nr. 4/2007, p. 67.19 Al. Weill, Fr. Terré, Ph. Simler, op.cit., p. 640.20 L. Pop, L.-M. Harosa, Drept civil. Drepturile reale principale, Ed. Universul Juridic,

Bucureşti, 2006, p. 231; M.B.Cantacuzino, op.cit., p. 154.

60

When the bare owner pays these debts, the usufructuary owes interest duethroughout the usufruct.

Within the universality, real universal subrogation is operating, thereplacement value of the asset taking its place. By composing the alienation ofuniversality would not be argued that the usufruct object is affected substance,namely universality or fraction of universality on which to set the right ofusufruct.În interiorul universalităţilor, operează subrogaţia reală cu titluuniversal, valoarea de înlocuire a bunului luând locul acestuia. Prin înstrăinareabunurilor ce compun universalitatea nu s-ar putea susţine că este afectatăsubstanţa obiectului uzufructului, respectiv universalitatea sau fracţiunea dinuniversalitate asupra căreia s-a constituit dreptul de uzufruct.21

The distinction between universal usufruct and the universal title usufructon one hand and individual usufruct, on the other hand, is legally relevant,whereas in the first case, the usufructuary shall exercise his powers not only inrelation to the asset but also to the liability, which means the contribution to thepayment of that liability and in the second case, the usufructuary is not held inany existing debt.22 According to Art. 743 para. last of the Civil Code, theuniversal usufruct or universal title usufruct legatee is required to pay inproportion with the object of the usufruct and without any right of refund, thelegacies with particular title covering maintenance obligations or, whereappropriate, annuities.

Usufruct may be constituted on intangible assets23 or even on factuniversalities, such as trade fund. Under the provisions of art. 745 Civil Code, inthe absence of a contrary stipulation, the usufructuary of a trade fund maydispose of the assets composing this fund, and when he disposes of them, he isheld to replace them with other similar and of equal value.

Trade fund is a universal fact, composed of tangible and intangible assetssuch as commodities, raw materials, customers, brands, patents, company,commercial venue.

If the case the usufructuary is bankrupt, creditors can pursue only thebenefits that he has done, not trade fund, which was the subject of usufruct.24

Therefore, unlike the legal universalities, the fact universalities actuallycontain no debt on their usufruct, reason why the usufruct of these wasconsidered as being more close to the usufruct with particular title. It wasmentioned that on the trade fund, regarded as universal fact, so as an intangible,the general real subrogation does not operates, but the obligation of theusufructuary to preserve the ensamble as a whole, as an application of theobligation to preserve the essence of the asset, which does not involve keeping thesubstance of each component of the overall good.25

21 E. Chelaru, op.cit., p. 160.22 V.Stoica, op.cit., Vol. I, p. 481.23 Cu privire la posibilitatea dezmembrării dreptului de proprietate asupra unui bun

incorporal, I. Popa, Uzufructul acţiunilor şi al părţilor sociale, în revista Dreptul nr. 10/2005, pp.74 şi urm.

24 D.Lupulescu, op.cit., pp. 147-148.25 Al. Weill, Fr. Terré, Ph. Simler, op.cit., p. 644.

61

At the expiry of the exercise of the usufruct right, the usufructuary returns tothe bare owner, the trade fund with its components at that time, which will bedifferent from the trade fund received in the moment of the establishment of theusufruct right.26

A usufruct right can be established even in relation to life interests unde theprovision of art. 737-738 of the Civil Code. The usufruct of a receivable is enforceableagainst third parties under the same conditions as the assignment of receivables andpublicity formalities prescribed by law and usufructuary is granted wth the right tocollect the capital and debt interests and to perform all acts necessary for thepreservation or collection of interests. The owner of the debt can make all provisiondocuments that do not affect the rights of the usufructuary.

Once the payment debt is done, the usufruct right continues in relation with thecapital and the usufructuary is compeled to repay it tothe lender at the moment ofusufruct extinguish. All costs and burdens on interest are paid by the usufructuary.

Specialized literature, under the regulation of the 1864 Civil Code,considered that "the right to participate as a legal representative in the profitsmade from a company is also capable of an usufruct." Civil Code, Art. 742provides that dividends whose distribution was approved, under the law, by thegeneral Assembly during the usufruct, belong to the usufructuary.

The right of usufruct may be established in relation to a life annuity and inthis case, the usufructuary has the right to collect, during the usufruct, theincomes received day by day, but will be required only to repay revenue receivedin advance. (Art. 739 Civil Code).

Usufruct may concern a flock (Art. 736 Civil Code), young forests (art. 717Civil Code) tall forests (art. 718 Civil Code), orchards (Art. 720 Civil Code), sandquarrying in operation (Art. 721 civil Code), the corresponding shares of acompany (art. 741 civil Code).

The land and buildings privately owned, being in civil circuit, may be objectof usufruct.

The usufruct can not be constituted on the assets that are the object of publicownership, but can be set on private property belonging to the state andmunicipalities. So it is can be dismembered, even through the establishment of ausufruct, the right to private property of the state or municipalities.27

The importance aims regarding the existence of the property, movable orimmovable, corporeal or incorporeal, within the civil circuit.28

The right of usufruct, as we have shown, may be established in relation to theconsumable goods. In this case, the usufructuary becomes owner of the goods,because only in that capacity he may consume them, with the obligation that atthe expiry of usufruct, to return the property to its owners, of the same kind in thesame amount and same quality consumable goods which were the subjectusufruct.

26 I. P. Filipescu, A. I. Filipescu, op.cit., pp. 324-325.27 V. Stoica, op.cit., Vol. I, p. 478, B. Florea, Drept civil. Drepturile reale principale, Ed.

Universul Juridic, Bucureşti, 2011, p. 197.28 D. Cigan, Drepturile reale principale, Ed. Universităţii din Oradea, Oradea, 2001, p. 112.

62

The usufruct established in relation to consumable goods, gained both inliterature and in practice the name of quasiuzufruct and is governed by art. 712Civil Code. What usufruct and quasiuzufructul have in common is their purposeand what distinguishes them is the legal nature. Quasiuzufructuary acquires theasset in the property, so that its heritage is born an obligation to return the assetsof same kind, in the same amount and same quality with the consumable assetsgoods which were the subject of quasiusufruct while usufructuary acquires adismemberment of the right ownership of the asset.29

After the establishment of the quasiusufruct, the original owner is not nudeowner but becomes the creditor and quasiusufructuary has at the moment of theend of the quasiusufruct an obligation to give and an obligation to make that runsimultaneously30.

The usufruct is a real right mainly derived from private ownership and it maybe established only in relation to the goods which are commercially available.31

References

Alexandresco D., Explicaţiunea teoretică şi practică a dreptului civil român,Vol. III, Bucureşti, 1915;

Andrada Mihaela Truşcă, Particularităţile răspunderii juridice în dreptulmediului, Ed. Universul Juridic, Bucureşti, 2012.

Bîrsan C., Gaiţă M., Pivniceru M.M., Drepturile reale, Institutul European,Iaşi, 1997;

Cantacuzino M.B., Elementele dreptului civil, Ed. All Educational, Bucureşti,1998;

Chelaru E., Curs de drept civil. Drepturile reale principale, Ed. All Beck,Bucureşti, 2000;

Cosmovici P.M., Drept civil. Drepturi reale. Legislaţie, Ed. All, Bucureşti,1996;

Dogaru I., Sâmbrian T., Drept civil român. Tratat. Vol. II. Teoria generală adrepturilor reale, Ed. Europa Nova, Craiova, 1996;

Filipescu I.P., Filipescu A.I., Drept civil. Dreptul de proprietate şi altedrepturi reale, Ed. Actami, Bucureşti, 2000;

Florea B., Drept civil. Drepturile reale principale, Ed. Universul Juridic,Bucureşti, 2011.

Lupulescu D., Drept civil. Drepturile reale principale, Ed. Lumina Lex,Bucureşti, 1997;

Pop L., Dreptul de proprietate şi dezmembrămintele sale, Ed. Lumina Lex,Bucureşti, 1996;

Pop L., Harosa L.M., Drept civil. Drepturile reale principale, Ed. UniversulJuridic, Bucureşti, 2006;

Popa I., Uzufructul acţiunilor şi al părţilor sociale, în revista Dreptul nr.10/2005;

29 D. Cigan, op.cit., p. 111.30 V. Stoica, op.cit., Vol. I, p. 484.31 M.B. Cantacuzino, op.cit., p. 154.

63

Safta-Romano E., Dreptul de proprietate privată şi publică în România, Ed.Graphix, Iaşi, 1993;

Sferidan I., Reflecţii asupra raportului juridic de uzufruct, Dreptul nr.4/2007;

Stoica V., Drept civil. Drepturile reale principale,Vol. I, Ed. Humanitas,Bucureşti, 2004;

Terré Al., Weill Fr., Ph. Simler, Droit civil. Les biens, 3e édition, Ed. Dalloz,Paris, 1985;

Truşcă Petrică, Truşcă Andrada Mihaela, Drept civil. Partea generală, Ed.Universul Juridic, Bucureşti, 2012;

Truşcă Petrică, Truşcă Andrada Mihaela, Drept civil. Persoanele, Ed.Universul Juridic, Bucureşti, 2013;

Truşcă Petrică, Truşcă Trandafir Andrada, Elemente de drept civil. Curspentru administraţie publică, Ed. Universul Juridic, Bucureşti, 2009;

64

SOME CONSIDERATIONS CONCERNING THE PROHIBITIONOF DISCRIMINATION AND GENDER DISCRIMINATION

ON THE CRITERION OF SEXUAL ORIENTATION ININTERNATIONAL REGULATIONS

Laura Macarovschi

Abstract: In this article we first treated the issue of the prohibition of discrimination fromthe perspective of General obligations of States, both at the level of the UN, as well as Europeanlevel, presenting the main regulations in this area, and then I detailed gender discrimination andbased on the criterion of sexual orientation, with many examples from case law of the ECHR, theCourt of Justice of the European Union, but also from the National Council for CombatingDiscrimination in Romania.

1. International Regulation of non-discriminationThe universality of human rights means that they are recognized for all

individuals, equally, i.e. without any discrimination; This principle has been laiddown in article 1 of the Universal Declaration of human rights, which States that"all human beings are born free and equal in dignity and rights", article 2 withnext 2 of the Universal Declaration of human rights provides that everyone isentitled to all the rights and all the freedoms it proclaims, without any referenceto race, color, sex, language, political opinion, national or social origin, wealth,birth or any other situation of, and article 7 of which proclaims the equality of allbefore the law.

In similar terms, non-discrimination is stipulated in article 2 of theInternational Covenant on Civil and political rights, in article 6. 1 with next. 1 ofthe American Convention on human rights, art. 2 of the African Charter of humanand peoples' rights; In addition, the said documents and proclaims the equality ofall before the law (art. 26 of the Covenant, article 24 of the American Conventionand article 3 of the Charter 1, with next African)1

In the European Convention on human rights, in article 14 provides thatrights and freedoms must be carried out without discrimination based on sex,race, color, language, religion, political opinions or any other opinions, nationalor social origin, membership of a national minority, wealth, birth or any othersituation; It is observed that article. 14 of the European Convention, does notcontain a general prohibition of discrimination which will cover all the rightsbelonging to the national legal systems of the Contracting States.

The non-discrimination clause laid down in article 14 of the Convention doesnot have an independent existence, but must be linked with other texts of law,because it does not add extra rights, but merely complement existing ones, in thelight of the prohibition of discrimination, for example, the mere racial separationof children in schools, not that this would mean a decrease in the quality ofeducation is equivalent to a serious form of discrimination against children which

Associate Professor PhD.1 C. Helga the European Convention on human rights. C.H. Beck Publishing House,

Bucharest, Romania, 2010, p. 950.

65

means a breach of their right to education, as laid down in art. 1 of Protocol No. 1of the European Convention on human rights, combined with the violation of art.14 of the Convention, which prohibits discrimination, including in the field ofracial.2

This shortcoming was corrected by the provisions of Protocol No. 12 of theEuropean Convention on human rights, which provides that the exercise of anyright provided for in the national law of a Contracting State, shall be securedwithout discrimination on any of the criteria set out in art. 14 of the Conventionand no one may be subject to discrimination on the part of a public authority, if itwould be based on one of the reasons shown.3

The consequence of the ratification of this protocol is that all persons ofContracting States will be able to invoke before the Court of the European right tonon-discrimination, not only in respect of the rights laid down in the EuropeanConvention on human rights or its protocols, but also with regard to any rightrecognized by the national legislation, even if it is beyond their content; forexample, such an individual could invoke an alleged discrimination in respect ofemployment, as of a social nature which is not stipulated in the text of theConvention or of its protocols (maybe that's exactly why many Council of EuropeMember States, including the United Kingdom and France have not even signedthe protocol).

Another international treaty which bans discrimination is the Charter offundamental rights of the European Union, annexed to the Treaty of Lisbon,which in article 20 proclaims equality of rights, and in article 21 prohibitsdiscrimination based on sex, race, color, ethnic or social origin, genetic features,language, political opinions or beliefs, or other opinions, membership of anational minority, fortune, birth, disability, age or sexual orientation.

You can see the progress of the legislator in the European Union, as it relates tothe grounds of discrimination, such as that related to age, disability or sexualorientation.

2. Conceptual BoundariesThe concept of discrimination, the aforementioned international documents

do not provide a definition of discrimination, which dealt with only through theprism of grounds of discrimination.

In common language, discrimination means distinction, distinction is madebetween multiple items; a policy by which a State or a category of nationals of aState are deprived of certain rights on the basis of groundless grounds; asegregation4.

In our opinion, the most appropriate definition of discrimination isconferred by the International Convention on the Elimination of all forms of

2A. Chirita, the European Convention on human rights. Second Edition, C.H. Beck PublishingHouse; Bucharest, p. 606

3 The Protocol (No 12) entered into force on 01.04.2005, while Romania has ratified with lawNo. 103/22006; at the time of 18.07.2013, this protocol has been signed by 19 States and ratified by18 States of the Council of Europe, in accordance with htttp://conventions.coe.int/Treaty

4 According to DEX, Romanian Academy, Institute of Linguistics "Iorgu Iordan", Ed. UniversEnciclopedic, Bucharest, 2008.

66

racial discrimination, which refers to it as constituting any distinction orexclusion, restriction or preference based on race, color, descent or national orethnic origin, aimed at destroying or compromising the recognition or exerciseunder conditions of equality, of human rights and fundamental freedoms in anyfield of public life5.

Although the definition concerns only acts of racial discrimination, ethnicand national, we believe that it reflects the best all actions or inactions that couldbe cataloged as acts of discrimination.

It can be seen that the definition refers to a wide sphere of acts _distinctions, exclusions, restrictions or preferences-what are qualified throughtheir repercussions on human rights, namely when they aim to set aside, tocompromise the recognition or exercise of the rights of man. Specifically, it'sabout actions or omissions with intent to discriminate on criteria set out above6.

3. Negative and positive the obligations of States

3.1. The positive ObligationsStates are required to adopt legal and administrative measures to prevent

and punish discrimination which might interfere in the relationships governed bypublic law or private law7

States have an obligation to apply non-differentiated treatment similar orcomparable situations, and the introduction of differences between thesesituations must meet the criterion of objective and reasonable justifications. Itfollows that discrimination requires two conditions:

-There is a difference of treatment applied in similar situations andcomparable

-There is no objective and reasonable justification for this behavior.In terms of differences in treatment, this implies that a person is disadvantaged

over another in a similar situation, depending on the social context in which themeasure in question occurred. For example, if the condition of exclusion from thepossibility of contraction in employment relationships governed by private law, theGypsy-in ads, one can talk about a treatment unjustified differentiation; Similarly,when a gay man can't get a right to succeed to a tenancy, as it could get if her partnerof the deceased employee would be in a heterosexual relationship, that situation canbe qualified as discriminatory treatment8.

With regard to the existence of a legitimate aim, objective and reasonableapplication of a differentiation in treatment, it must be considered depending onthe social context in a particular State, and depending on the means used toachieve this goal; for example, in a particular case, the issue of law enforcement

5 The Convention was adopted by the UN General Assembly through Resolution No. 2106 A(XX) of 21.12.1965; Romania joined it at 14.07.1970

6 I. Diaconu, Human rights in contemporary international law, Lex Light Publishing House,Bucharest, p. 175

7 for example, the ECHR obliges States to intervene in inheritance relationships when creatinga difference of treatment between heirs through a will, Because the AWP and Puncenau c. Andorra(13.07.2004), cited in a. Chirita, op.cit., p. 608

8 ECHR, due to l. and v. c/Austria (09: 01.2003) commented in r. chirita, op.cit., p. 611

67

in Lithuania lustration namely that claimants who had worked on previouslyacquired the country's independence in the KGB, could no longer work in thepublic domain or to hold public office, being fired in 1999. The ECHR held thatAlbanian lustration law had a legitimate purpose, because they defend thenational security of the Republic of Lithuania9. Also, the difference in treatmentbetween adults and minors with regard to the control of legality of possession, themeasures provided for in national legislation is more favorable to minors, isjustified by the objective need to protect them10.

In conclusion, a different treatment is discriminatory when it lacks objectiveand reasonable justification or does not pursue a legitimate aim or there isproportionality between the means employed and the aim envisaged. States enjoya margin of appreciation as to whether the application of different rules in similarsituations is justified11.

States have an obligation to apply different treatments, different situations,so if your personal circumstances are different and are not the same, then theauthorities have the obligation to make a distinction without which it would beable to reach a result that is discriminatory. Thus, in a particular case12,theCOURT held that, although in principle they have interest to be excluded fromthe exercise of the profession of chartered accountant on those people who havehad criminal convictions, which means that this measure has a legitimatepurpose, though a conviction for refusing to wear a military uniform for religiousreasons, do not denote "dishonesty and moral turpitude" likely to question theperson's ability to exercise this professions its inclusion on the refusal of theprofession constitutes a "disproportionate penalty", having no objective andreasonable justification; Therefore, in the case of a particular situation, theauthorities must apply a different treatment, because otherwise the interferenceis no longer justified and the person concerned is discriminated.

States have the obligation to carry out effective investigations when there arereasonable grounds to believe that a person or a group of people were victims ofdiscriminatory treatment, identifying him and punishing his guilty.

9 ECHR, Cause Sidabras and Dziautas c/Lithuania (27.07.2004)10 ECHR, Cause Boumar c/Belgium (29.02.1988)11 ECHR, Locksmith and others Case c/Romania (13.11.2012), following the incidents in 1993

in the village of Hadareni, when Roma citizens who lived there were torched 13 houses, stables andcars, and 3 of them were killed by Romanian villagers and police did not intervene in time forsettling the conflict, several plaintiffs Rome claimed descent from the ECHR that were u applieddiscriminatory and degrading treatment by the State authorities, have been violated, and the rightto a fair trial; The Court noted, inter alia, that there had been a violation of article 3. 3, 6 and 8 ofthe European Convention on human rights, in conjunction with art. 14 relating to prohibition ofdiscrimination, because it showed that the Roma ethnicity of victims was a decisive factor in thelegal proceedings that followed. Furthermore, the Court of Appeal's decision in Targu Mures, thenconfirmed by the High Court, at 25.02.2005, reducing the amount of moral damages owed tovictims of discriminatory remarks content in relation to ethnicity. Accordingly, ECHR foundviolations of article 2. in conjunction with article 14. 6 and 8 of the Convention, concerning the wayin which ethnic origin of applicants ' has influenced the manner of settling the case by nationalcourts, the case commented in Dragos Calin (Coordinator), etc., the decisions of the ECHR in casesagainst Romania, vol. VIII, University Publishing House, Bucharest, 2013, p. 3399

12 ECHR, Thlimmenos Case c/Greece (06.04.2000), cited in c. Helga, op.cit., p. 975

68

This obligation of result you have State authorities constitute a guarantee ofthe right to non-discrimination, which has a preventive role. In one case,authorities have investigated a charge of racist behavior on the part of the Greeks,guards against the gipsy minority, although there were strong indications in thisrespect the ECHR concluded that the passive attitude of the authorities, whichwas established by the Act in question, the investigation has resulted in aviolation of the right to non-discrimination13.

3.2. The negative ObligationsThe main negative obligation of States is to abstain to discriminate against

persons under their jurisdiction; therefore, they must not undertake activitiesthat could be qualified as discriminatory treatments-that is, those differences oftreatment which does not have a legitimate justification, as I pointed out above.

4. Positive discrimination problemThe concept of "positive discrimination" -this means an interruption of

equality, justified by the existence of a inequity, which is intended to restoreequality14; the concept has generated controversy because the phrase seemsparadoxical, because discrimination cannot have positive connotations.

In reality it is about the "differentiation", which, if they meet certainconditions, has the legitimate aim of restoring equality between certain categoriesof persons who have been deprived of through the ages. Therefore, it has beenproposed in the literature, the term "positive measures", which seems to be moreappropriate than that of "positive discrimination"15.

In accordance with the provisions of art. 14 of the European Convention onhuman rights, preferential treatments granted to certain categories of persons arenot prohibited, even if they are not provided for expressly. As I mentioned earlier,sometimes situations actually require a differential treatment, justified by theneed to ensure real equality.

The preamble to the Protocol. 12 stipulate that the principle of non-discrimination does not prevent States parties from taking measures to promotefull equality, provided that they meet the objective and reasonable justification.Thus, the fact that certain groups or categories of persons are underprivileged orthe fact that there are some inequalities can actually constitute a justification forthe adoption of measures by granting specific advantages in order to promotegender equality, respecting the principle of proportionality16.

The fact that the principle of "positive measures" included only in thepreamble to Protocol. 12, does not diminish the importance, because if theProtocol does not impose any such obligation, it is explained by the fact that suchan obligation would not fit into the global character of the Convention and in itscontrol system.

13 ECHR, Cause Bekos and Koutropoulos (13.12.2005), quoted in A. Chirita, op.cit., p. 61814 J.F.Renucci, Treaty of European human rights law, Ed. Hamangiu, Bucharest, 2009, p. 16215 J.F.Renucci, op.cit., p. 16416 C. Helga, op.cit., p. 1875

69

5. Removal of gender discriminationDiscrimination against women is one of the oldest and most widespread

forms of discrimination, and the concerns of modern international societytowards removing them are reflected in the adoption of numerous internationaltreaties in this field, some of a general nature, related to gender discrimination,along with other forms of discrimination, other specific particular character,which we will present in the synthetic way.

- The Convention on the Elimination of all forms of discrimination againstwomen, adopted by the UN General Assembly, by resolution No. 34/180 of18.12.197917 defines discrimination against women as "any distinction, exclusionor restriction based on sex, which aims to prevent or to cancel the recognition,enjoyment or exercise by women, irrespective of their marital status, on thebasis of equality between men and women, of human rights and fundamentalfreedoms in the political, economic, social, cultural, civil or any other field. "

The Convention defines discrimination against women as any distinction,exclusion or restriction based on sex which has the effect or intended to preventor terminate the recognition, enjoyment or exercise by women, irrespective oftheir marital status, on the basis of equality between men and women, of humanrights and fundamental freedoms in all fields of social life.

In addition, the Convention sets out the main positive and negativeobligations of States parties, including the adoption of measures to suppresstrafficking in women and their exploitation through prostitution18.

The Convention has identified the main areas of social life in which genderdiscrimination have occurred, such as the labor market: the right to work, toequal opportunities in the choice of profession, equal pay for work of equal value,prohibition of dismissal on the grounds of pregnancy or maternity leave, specialprotection of pregnant women who are engaged in hazardous work, etc. Forexample, it was found that there is a segregation in the field of employment ofvarious professions, and women receive lower remuneration for work of equalvalue, even in the States of the European Union; Thus, the Court of Justice of theEuropean Union decided that employers should provide objective justification forlower earnings in professions occupied by women, believing that the mere fact ofthe existence of such differences, in itself constitute discrimination19.

Moreover, the Court of Justice of the European Union held constantly needequal opportunities in the work force, ruling out for the Equalization of the

17 Romania has ratified the Convention by Decree No. 342, published in b. Of., part I, no.94/28.11.1981.

18 I. Diaconu, op.cit., p. 17119 C Frenchay Walter Enderby Authority Case, OJ C-128/93 of October 1993, commented in

i. Diaconu, op.cit. p. 198; According to the International Court of the European Union, Decision No.13th 2008 rendered in the cause of the Commission of the European communities c/Italy anddecision No 26.03.2009 rendered in the cause of The "c/Greece, C-559/07, social measures shouldcontribute to ensuring equal professional lives and imposing different retirement ages for men andwomen, cannot compensate for the disadvantages that women face in their professional careerandconcern for the upbringing of children should not be reported only to women, but also men, http//:www.eurlex.com

70

retirement age for men and women, under the laws of the Member States of theEuropean Union20.

Another area where gender discrimination is often involved refers to privateand family life, given the fact that in some countries the husband has the right tooppose the termination of pregnancy or planning site family.

6. The elimination of discrimination based on sexual orientationa) The concept of discrimination on sexual orientationDiscrimination based on sexual orientation presupposes the absence of

criteria of equal treatment, which consists of all limitations, exclusions ordisadvantageous practices against people of a different sexual orientation, whichcannot be justified objectively.

From this point of view we distinguish: acts of direct discrimination, whichconsists in the fact that a person is treated less favorably in comparison withanother person, having a different sexual orientation, under the samecircumstances or in similar circumstances and acts of indirect discrimination,consisting in the application of criteria, procedures or practices, which creates adisadvantage compared to people with a certain sexual orientation, which cannotbe justified objectively.

For example, an act of direct discrimination is refusal of employment of a gayman, given that fully meets requirements of the post in question; an example ofindirect discrimination refers to the imposition of a married couple'sengagement, given that it is known that in Romania, only persons of different sexcan get married, and not those of the same sex.

b) Positive ObligationsState authorities have an obligation to adopt national legislative measures

to ensure equal treatment of their citizens, without giving the possibility of director indirect discrimination. An example of this, indirect discrimination on sexualorientation, criterion is that Austrian civil code forbidding the adoption of a childby its biological mother's partner, for the reason that in this way, it would breakthe family ties of the child with the biological parent (biological father); followingcondemnation of the Austrian State in the ECHR, because the authorities couldnot provide convincing evidence that the difference in legal treatment isnecessary in order to protect the interests of the child, Austria passed a law thatamended the civil code, which entered into force on 01.08.201321.

Other situations in which one can speak of discriminatory legislation on thecriterion of sexual orientation refers to the establishment of different ages ofconsent for heterosexual and homosexual relations22, the courts' refusal to

20 Currently, most European Union countries called for both the Equalization of retirementages, and its growth, in the context of the increase in life expectancy after retirement date, which isaveraging 14.7 years for males and 22 years for women, according to http://wikipedia.com

21 Cause X c/Austria (02.02.2013), the case cited in the http//: www.hotariricedo.ro22 Cause L and V c/Austria (09.01.2003), in which it was revealed that the criminalization of

homosexual relations a criminal offence to an adult and a minor who has reached the age of 14years, and if there's heterosexual relations between an adult and a minor what he was about thatage; so, in Austrian criminal law, there is a difference in legal treatment

71

countenance no adoption by homosexual persons declared23, the difference intreatment in the awarding of minor child, it being entrusted to the mother onlybecause of the sexual orientation of the father24, and the exclusion of homosexualcouples from the benefit of the transfer of the lease from its holder deceased, theremaining alive, as happens in the case of heterosexual couples25.

State authorities have an obligation to conduct effective investigations toidentify and penalize people who are guilty of acts of discrimination based onsexual orientation, so the criterion of protecting persons belonging to sexualminorities, against acts of individuals.

7) Internal legislative Guarantees-Article 16(1). 1 of the Constitution enshrines the equal rights of all citizens

before the law and before public authorities, with no privileges and withoutdiscrimination;

-art. 30. 7 of the Constitution prohibits, in the context of the right to freespeech, urging the national hatred, racial, class or religious incitement todiscrimination [...].

-art. 30 of the JV Codeit enshrines the equality of all before the law, statingthat race, color, nationality, ethnic origin, language, religion, age, sex or sexualorientation, [...], they have no bearing on civil capacity.

-art. 247 of the penal code criminalizing the offence of abuse of Office, therestriction of certain rights, as an official public deed that broadening the rightsof citizens on grounds of race, nationality, language, religion, gender, sexualorientation, views, [...], and art. 317 of the penal code criminalizing the offence of"Incitement to discrimination", i.e. to hatred on grounds of race, nationality,ethnicity, gender, religion, language, opinions, [...].

- Law No. 48/2002 on preventing and sanctioning all forms of discrimination;-The National Council for combating discrimination (CNCD), a public

institution that was established under the ORDINANCE. No. 137/2000, republished.

23 Case E. B c/France (21.01.2008), the ECHR ruled that the Court's decision to reject theapplication for adoption only because petenta was a lesbian was discriminatory because the State couldnot present a reasonable justification for rejection of his application, given that it had the necessarymaterial and moral qualities and education of a child, so corresponded to the interest of the minor.

24 ECHR, 21.12.199925 Cause Karner c/Austria (24.07.2003), the case in which a couple of gay partners, Austrian

law did not allow the transfer of the benefit of the lease from her owner passed away, the remainingpartner in life, creating a difference in legal treatment, compared with heterosexual couplespartners; The ECHR found that the Austrian authorities did not reasonably justify the difference oftreatment between gay partners couples and heterosexual ones, which resulted in negative effects interms of right at home, on the criterion of sexual orientation

72

DISCRIMINATION AGAINST WOMEN. A HISTORICALPERSPECTIVE

Liliana Trofin,Mădălina Tomescu

Abstract: At the basis of women’s lower positioning in society are patriarchal mentalitiesthat despite the historical evolution are still quite strong. Blaming the victims is more convenientthan changing popular mentalities, because it prevents the identification of true moralresponsible, the men. Some will think that the affirmation is seeming harsh, hazardous or absurd.But, if we look at things in depth, we see the roots of evil, somewhere in the dawn of history.Vulnerability and bigger physical and emotional fragility of women urged men to impose theirwill within groups and communities. And also they were those who have restricted women'sfreedom, for keeping things under control somehow. From here to legal, social, economic andcultural discrimination of woman was only one step. The rest are details.

Keywords: woman, discrimination, history, tradition, mentality, society.

Motto: "Oh! It's exhausting to read every dayand hear everywhere and every day

about women and humanitarianism orabout any cultural event of

Europe infected by feminism... "(Mircea Eliade)

The strength and religious constraints have transformed the woman froma subject, equal in rights with man, if it is permitted such a formulation forolder ages, into an object of pleasure, submissive to male’s whims andfantasies1. In a certain sense, we can say that the bond which intensifies thereligious manifestations of man is woman’s guilt that will be claimed along thetime by all misogynists on duty.But if we look detached and over-simple thethings, we do not think we are wrong when we say that Pandora2,

Associated Professor PhD., Faculty of History, ”Dimitrie Cantemir” ChristianUniversity.

Associated Professor PhD., Faculty of Law and Administration, Vice-Dean”Dimitrie Cantemir” Christian University.

1 See also Paul Ionut Amza, Legal Status of woman - Quo vadis?, in Journal of Legal Sciences,2, 2008, pp. 104, http://fdsa.ucv.ro/RSJ/ RSJ_nr2_2008.pdf, accessed online 14.09 .2013: "Thewoman was the heart of a genuine slavery and sold as a commodity, has been and still is the subjectto an ungrateful treatment, so that being subjected to prostitution or exposed to obscenepublications, the woman is kept into a situation of inequality to man. The woman is among the safevictims of armed conflicts and in many areas on Earth she is lack of basic political rights. Therefore,the inequality between men and women has been strengthened for centuries among all companiesand therefore the recognition of those rights to both sexes had made the object of a struggle fightthat continues, unfortunately, and now".

2 Vered Lev Kenaan, Pandora's Senses: The Feminine Character of the Ancient Text, Univ ofWisconsin Press, 2008, pp. 3-7, 10-14; Froma I. Zeitlin, Playing the Other: Gender and Society inClassical Greek Literature, University of Chicago Press, 1996, pp. 53-62; Mark P.O. Morford,Classical Mythology, 6th ed, New York: Oxford University Press, 1999, p. 60; Nicole Loraux, Bornof the Earth: Myth and Politics in Athens, Cornell University Press, 2000, pp. 1-3, 7-8; MonicaSilveira Cyrino, In Pandora's Jar: Lovesickness in Early Greek Poetry, University Press of America,

73

Psyche3, Eve 4or Lilith 5are sides of the achievement, weakness, helplessness andmale decay.

That collective memory is selective, is not something new. In general it tends toretain the good things of its existence and everything it thinks that is specifically. Incontrast, it seeks to associate the less pleasant events with some culprits more or lessresponsible for what happened (the woman, the stranger, the demons, unleashedforces of nature, gods, etc.). Formulated differently, the collective memoryreconstructs the past images according to the needs of the present. When isrebuilding a dark image, it resorts to clichés, prejudices and empty of contentgeneralizations. Things are not different when it comes to woman.

Are not wrong those who say that at the basis of feminine’s identityconstruction "as a deviant gender representation" stood a "symbol of evil6." Wealso know that the statute of woman in the ancient world varied from one societyto another. Without going into unnecessary details, we just say that everywherewe encounter both social and cultural prescriptions of gender roles andstereotypes and prejudices against women. That these prejudices were shared bythe best minds of Antiquity, it should not surprise us anymore. "Platon overlapsgender differences and puts them among other accidentals differences, coveringup the asymmetry of parental roles.Equality of woman from the ideal city is paidby putting in brakets the generational maternal power, reduced to anepiphenomenon. He goes so far as to say that being a woman is only a curse of thegods7. From the curse was passed easily to theexpulsion of woman from political life andclosing her into a house dedicated to women (fr.gynécée -figure 1).

Figure 1. Women in Ancient Greece8

Unlike Egypt where the woman had equalrights with men9, in ancient Rome the statute ofwomen was established by the way of concludedmarriage (cum manus; sine manus10).

Closely linked to the inferior statute ofwomen is the theme of sexual violence against it. Needless to say it is a reality

1995, p. 3; Cynthia L. Caywood, Gillian R. Overing, Teaching Writing: Pedagogy, Gender, andEquity, SUNY Press, 1987, pp. 15-16.

3 Vered Lev Kenaan, op.cit., pp. 12-13; Cynthia L. Caywood, Gillian R. Overing, op.cit., p. 154 Froma I. Zeitlin, op.cit., pp. 53, 57, 60-61; Cynthia L. Caywood, Gillian R. Overing, op.cit., p. 15.5 Isaia, 34, 14; Siegmund Hurwitz, Lilith the First Eve: Historical and Psychological Aspects

of the Dark Feminine, Daimon, 2007, pp. 31-37; Howard Schwartz, Lilith's Cave: Jewish Tales ofthe Supernatural, Oxford University Press, 1991, pp. 1-7.

6 Ancuţa-Lăcrimioara Chiş, A critique of discrimination concept in terms of feminism,passim,http://doctorat.ubbcluj.ro/sustinerea_publica/rezumate/2010/filosofie/Chis_Ancuta_ro.pdf, accessed online 9/10/2013.

7 Ibidem8 http://plightofwomen.com/?p=484, accesed online 14.09.20139 Amza Ionuţ-Paul, op.cit., p. 105.10 Ibidem.

74

which we can retrieve it in all patriarchal societies or dominated by a patriarchalmentality. To be noted that the theme of gender sexual violence is best illustratedduring the anti-Christian persecutions, where we see the women disgraced,intimidated, raped, forced sent to brothels or subjected to physical and spiritualstortures (figure 2).11

Figure 2. St. Martyr Cecilia12

In Jewish tradition the woman is the one who exalts man, but the one whoknock him down, influencing his behavior both in living space and beyond13. Arelated interpretation belonging to Midrash Rabbah’s Genesis 14makes it clearthat "everything comes from woman, a holy woman makes the man holy, a badwoman makes the man bad15." In other words, the influence exercised by thewoman is "fundamental," although no man is denied the right to choose16. Still,Eva is the one who led knowledge in the world, fact pointed by Adam in themoment he defended himself in front of God because he violated the divine order,eating from the forbidden fruit17. Also on the line of positive evaluations are

11 Holy Women of the Syrian Orient, the current and translated from Syriac by SebastianP.Brock and Susan Ashbrook Harvey, the English translation by Gheorghe Fedorov PublishingSofia, Bucharest, 2005, pp. 26-27,

http://invitatielaortodoxie.files.wordpress.com/2013/07/sfintele-femei-ale-orientului-sirian.pdf, accessed online 09/14/2013, Daniel Boyarin, Dying for God: Martyrdom and theMaking of Christianity and Judaism, Stanford University Press, 1999 pp. 81-85, Kyle Harper, FromShame to Sin, Harvard University Press, 2013, p 180, Thomas AJ McGinn, Prostitution, Sexuality,and the Law in Ancient Rome, Oxford University Press, 2003, p. 310.

12http://www.crestinortodox.ro/biserica-lume/biserica-sfanta-cecilia-trastevere-roma-97499.html, accesed online 15.09.2013.

13 Iolanda Constantinescu, Talmudic tradition reflected in the status of women, in Noema, IX,2010, pp. 535-549 ( în special p. 536), http://www.noema.crifst.ro/ doc/2010 _e_04.pdf, accesedonline 12.09.2013.

14 „Gen. R.17:7”; cf. Iolanda Constantinescu, op.cit., p. 53615 Iolanda Constantinescu, op.cit., p. 53616 Ibidem17 Ibidem

75

registering the woman's ability to give life, like the Creator18, and her endowmentwith good qualities (a real divine gift): "A house and a wealth are inherited fromparents, but a wise woman is a gift from God19", "Wie women build the houseand the foolish ones are ruining it with their hand20" etc.

Beyond these advantages that woman possess, she is not immune tocriticism,subjected to censure and discrimination. But let's see some examples:"From woman is the beginning of sin, and through her we all die21"; "Allwickedness is small beside the wickedness of woman; the fate of the sinner is tofall upon her22; "Gold ring in pig’s snout, so is beautiful woman and mindless23";"Better live in desert than with an irritable and angry woman24"; "Do not givein the hand of a woman, for not have power over you25"; "High disaster is thedrunk woman and nothing will cover her shame26".

If in the Old Testament women communicate with men, this "privilege" is notlooked well by Talmud, the reason being linked to the tempting picture of womanwho can steal the man from the study27. "It is considered inappropriate theconversation of a man with women in public, begining with the wife: "Do notmultiply conversations with women: with your woman, the wisest say, the more withyour neighbor's wife. From where the wise axiom: "the one who sits too much talkingwith women, draws upon him the evil, neglecting the study of law and will end up inhell." (Avot 1 "5)"28. The meetings with women should be avoided, especially when itwas about young unmarried because they easily could fall prey to the temptation oflust29. Therefore, the access to study and collective prayer was restricted to women30,"primarily because the way they were seen by men".31

In the territories dominated by Islam the right was essentially integrated inreligion32. So it is that "Woman's rights are based exclusive on the Koran, are tolive with her husband, to be maintained during the marriage and in the period ofa near divorce, to ask her husband to amicably end the marriage contract throughhull – the redemption from marriage, to inherit her husband33". Because the old

18 Ibidem19 Parables, 19, 14 (see trad. of the Bible published by the Biblic and Ortodoxal Romanian

Church Mision Institute Publishinh House Bucharest, 1988; all references will be made at thisedition).

20 Parables, 14, 1.21 Wisdom, Sirah, 25, 27.22 Wisdom, Sirah, 25, 21.23 Parables, 11, 25.24 Parables, 21, 19.25 Wisdom, Sirah, 9, 2.26 Wisdom,. Sirah,26, 9.27 Iolanda Constantinescu, p. 546.28 Ibidem, pp. 546-547.29 Ibidem, p. 547.30 Ibidem31 Ibidem32 Ibidem33 Adriana Cîteia, Shariah - the sacred law and human rights in the Universal Declaration of

Human Rights in Islam, pp. 220-221http://www.scipio.ro/documents/173004/188849/11.+Adriana+Citeia,+Shariah-

+legea+sacra+si+ drepturile+omului, accessed online 02/09/2013.

76

traditions affect the efficacy of laws in Islamic space, the women continue to beblamed for the abuse they face. The social stigma and the shame associated withcrimes like rape and molestation, often discourage the victims to appeal toauthorities for receive justice. To this is added the fact that some abused womenare pressured by their families to drop the charges34. The honor is very importantto men who see in woman nothing but a useful object of their needs.

Reading into a christian manner the essay of biblical creation, we see that thestate of the victim seduced by Eve in which Adam pose is meant to alleviate theguilt and even to place it exclusive to partner’s shoulders, even if both haveviolated the divine command. At her turn, the woman, forgetting that it was niceto sit at discussions with the snake, brings it to account35. It is obviously a lack ofresponsibility that each runs as best as they can. However, although bothancestors were guilty of the sin of disobedience, but only the woman will besubjected to discrimination by the Church and society. Thus, according toChurch’s teaching the woman must be submitted to man, to be helpful in case ofnecessity, to support his behavior and especially, not to embarrass him in society.All this she had to endure stoically just because she trusted the snake's deceptivewords. These opinions lined up many of the Holy Fathers, who expressedreservations towards woman, geting over the prejudices of their time beingimpossible. There is one notable exception to societal space, the Holy Virgin

Mary, which embody the feminine ideal vision of church people(figure 336).

Figure 3. Virgin Mary (Vladimir, Russia; XII century)37

Among the eager critics of women stands the writer andjurist Carthage Tertullian, who incriminate the woman in veryharsh terms, "You should be eternally mournful, covered withrags and buried in rpenitence, to redeem your sin of leading toperdition the mankind.. Woman, you are the devil's gate"38. Itconstitute a symbolism that will be developed by those who

cannot see the woman as a subject, but only as an object. It does not matter thatthis great slanderous will end at an old age in the arms of Montanism39 heresy.

34 N. Popa, op.cit. loc.cit.35 Genesis, III, 1-24; see Ioan Mircea Ielciu, grace and freedom in theological vision of St. John

Cassian, printed with the blessing of His Eminence Dr. Antonie Plămădeală, Metropolitan ofTransylvania, Maramures Crişana and Publishing Parallel 45, Pitesti, 2002 P. 269, St. JohnCassian, Spiritual talks, II, 24, in St. John Cassian volume, selected Writings, PSB, 57, Bucharest,1990, p 441, ftp://ftp.logos.md/Biblioteca/_Colectie_RO/ John% 20Casian% 20 -% 20Scrieri.pdf,accessed online 09/17/2013: "The woman, who advised him to do evil, it is condemned to sorrow,pain and moans, forever doomed to be constantly subjected to man."

36 Jaroslav Peljkan, the Virgin Mary over the centuries. Her place in the history of culture,Bucharest, 1998, passim

37 http://ro.wikipedia.org/wiki/Fi%C8%99ier:Vladimirskaya.jpg, accesed online 14.09.2013.38 Victoria Huiban, Feminine hypostasis between sacred and profane, p 443,

http://www.cntdr.ro/sites/default/files/ c2009/c2009a45.pdf, accessed online 9/14/2014.39 Stephanie E. Binder, Tertullian, On Idolatry and Mishnah Avodah Zarah: Questioning the

Parting of the Ways Between Christians and Jews, BRILL, 2012, pp. 57-58 şi urm; Christine Trevett,Montanism: Gender, Authority and the New Prophecy, Cambridge University Press, 2002, pp. 70-72.

77

The damage had already been done. A more nuanced position has St. JohnChrysostom, who says that "There is no relationship between peers deeper thanthat between man and woman, if they are united as it should be... The lovebetween man and woman is the power that holds society together. The men willrise in arms and will even sacrifice their lives for this love. St. Paul would havenot strengthened this subject without a solid reason; why would he have saidwomen, be submitted to your husbands, as to the Lord? Because whenunderstanding reigns, children grow well, the household is well kept and theneighbors, friends and relatives praise the result. And thus the family andsociety are achieving large interests. And when there is no understanding,everything becomes confused and the values are overturned. When is peacebetween the leaders of an army, everything takes place in order, but when it isnot, everything is in a mess. So it is here. For the sake of understanding, then, hesaid: Women, be submitted to their men as to the Lord. To suppose, then, thatman occupys the place of the head, and the woman, the place of the body, and tolisten what the "head" means: because the men is the head of the women asChrist is the head of the church, His body, of whom is the Savior. Thus, as thechurch is submitted to Christ, and women must submit to their husbands ineverything. Note that immediately after saying that the man is the head of thewoman as Christ is the head of the church, he says that the Church is His Body,and He Himself is its Savior. Is the head, who holds the welfare of the body. Inhis other epistles, Paul has already littered the foundation of love betweenspouses, and committed the man and woman to their rightful place: the man,the leader and supporter, and woman, the submissive. Therefore as the churchis submitted to Christ - so the Church, remember, consists in both men andwomen - women to submit to their husbands in everything as to God".40

The great bishop was aware that many will not take in regard to him, but thisdid not prevent him to draw the women’s attention that is not nice to nag thepartner: "A woman should never nag her husband: "You are a coward and lazyand you have lack of ambition! Look at our relatives and neighbors, they haveplenty of money. Their wives have much more than me". Do not let any womanto say something like this, she is the body of her husband, and is not for her tocommand the head but to obey and listen. "But why suffer the poverty?" somewill ask. If it is poor, she must caress with the thought at those much poorer. Ifshe had truly love the man, she never would talk to him this way, but she wouldappreciate that he is next to her, more than all the gold in the world... Trimmeryour home simply and tastefully. If the groom shows to his wife that he has nopleasure in worldly excesses, and that he does not desire it, their marriage willremain untouched by the evil influences that are so common nowadays. Mustavoid inappropriate music and dances that are so fashionable now. I am awarethat many consider me ridiculous for giving such advices, but if you listen to me,as time passes, you will understand the advantages of a quiet life. You will notlaugh by me, but instead you will laugh at the way people live now, as silly

40 St. John Chrysostom, Preaching on marriage,http://saraca.orthodoxphotos.com/biblioteca/omilie_asupra _casatoriei.htm, accessed

online 9/14/2013.

78

children or drunk people. Then what is our duty? Remove from your livesshameful music, immodest and devilish, and do not associate with people whoenjoy such loose fun (...)".41

In another train of thoughts, "The use of female sexuality as a religioussymbol that defines the poles of perdition and purity is a common place inChristian early literature and in the patristic one, in such an extent that definesthe way in which women are described in all situations".42

In the Middle Age, we see how both functions of womanhood, maternal andfuneral, become the source of male anxiety. There is no doubt that woman'sassociation or alliance with Death has affected the inner balance of a man in an illegalmanner43. For the medieval man "the grim reaper" was the "reversed figure offertility44," and this thing referred to the loss of paradise and implicitly of the eternitybecause of Eve (figure 4)45. There was, naturally, an unequal war against woman ledby Christian 46preachers who will not hesitate to demonize her. So we get to talkabout the famous and bloody witch hunt during the Renaissance, triggered bymisogyny and male’s prejudices47. It is, in essence, another woman's history stagewritten by men. "Woman’s debilitation in patriarchal texts had a great impact overthe evaluation of feminine existence in which there was no reason to judge thewitches, women were killed just because they were women, and this should behighlighted as discriminatory and toremind that in the history of Europe hadbeen an involuntary and unrecognizedmartyrdom of "the second sex"48.

Figure 4. Adam and Eve49

The trends to falsify the image ofwoman in the modern era does notdisappear. Hobbes, Locke and Kant, forinstance, oppose woman's empowermentand social equality with men50. Thewomen are potential opponents for men,and this is a major problem. According to the social contract theorists womenwere born in subordination, as emphasized by Carole Pateman: "The contractdoctrine holds that there is only one single origin of political right, conventionallyand yet, with the exception of Hobbes’s theory where both sexes are described as

41 Ibidem42 Holy women…, ed.cit., p. 2743 V. Huiban, op.cit., p. 442.44 Ibidem45 Ibidem46 Ibidem47 Ibidem., p. 443.48 Ancuţa-Lăcrimioara Chiş, op.cit., loc.cit.49 http://www.golgota-seini.ro/categorie-resursa/imagini-cu-scene-biblice-47, accesed online

15.09.2013.50 Amza Ionuţ-Paul, op.cit., p. 105

79

naturally free and equal, the contract theorists argue that the rights of men overwomen have a natural base. Only men have the necessary attributes of free<<individuals>>. The relationship of subordination between men must, if it is tobe legitimate, to be originated in the contract. Women are born insubordination51. For female authors the things are clear: the women have nochance to obtain political freedom52.

Although the reaction of women began rather timidly, some voices met one’sear (Mary Wollstonecraft, Mary Gouze)53. But here what Henrieta AnisoaraSerban says regarding this aspect: "Mary Wollstonecraft criticized even since1792 the idea that women should respond to appetite of man’s saturation or be asuperior servant that offers meals and takes care of his underwear, and ThorsteinVeblen named the wife the household head janitor. Family ties made andprobably still often causes some women in the family to be used as unpaiddomestic servants (Leonore Davidoff). Only after the ‘30s, is required in Europeand in the Anglo –Saxon the family without servants, in which the wife remains,in fact, the only house servant whose poverty, higher than the spouse is ignoredby economic analysts and even by socialists writers (like George Orwell in TheRoad to Wigan Pier), all approaching the model of tolerant husband. The pictureof the wife who deprived her of the most basic needs to ensure that the man andher children are fed is a substantial social narrative of modernity even in the"civilized" world54. Of the recorded, it emerges that the transition from the privatesphere (housewife) to the public (working woman) only partially reduced thedependence of woman to man.

A special note is represented by the totalitarian regimes that emphasize themale dominance in society55. Keeping the proportions, we can draw a parallelbetween the Nazi regime's fight against inferior races and class struggle promotedby the Soviet regime, based on gender discrimination56. In former communistareas, for example, the key words were destruction and reconstruction57. But,

51 See Henrieta Anişoara Serban, Contractualism and freedom. A critical investigation, inPolicy sphere, no. 150, 2010 http://www.sferapoliticii.ro/ sfera/150/art03-serban.html, accessedonline 15/09/2013.

52 Ibidem53 Amza Ionuţ-Paul, op.cit., pp. 105-106.54 Henrieta Anişoara Şerban, op.cit. loc. cit.55 James Smith, Terry Eagleton, Polity, 2008, p. 65; Ileana Vlassa, Intellectual condition of

women in the XIXth and XXth centuries in Transylvania. Image and representation,passim,http://www.google.ro/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCwQFjAA&url=http%3A%2F%2F193.231.20.119%2Fdoctorat%2Fteza%2Ffisier%2F1010&ei=mjs4UvzGIYXasgaz14DQBA&usg=AFQjCNGpTFbi7Lso5GTgRSR4bnw3aKG3uQ,accesed online 15.09.2013.

56 Robert G. Moeller, War Stories: The Search for a Usable Past in the Federal Republic ofGermany, University of California Press, 2003, p. 10; Frederick Taylor, Exorcising Hitler: TheOccupation and Denazification of Germany, Bloomsbury Publishing, 2011, pp. 47-49; Plots ofWar: Modern Narratives of Conflict (Series: Culture & Conflict 2), ed by Isabel Capeloa Gil,Adriana Martins, 2012, pp. 104-106; Dennis J. Dunn, The Catholic Church and Russia: Popes,Patriarchs, Tsars, and Commissars, Ashgate Publishing, Ltd., 2004 , pp. 92-9

57 Denis Fabian, Course Notes. Political development of countries of the South-EasternEurope in the postwar period, Cahul, 2010, p 6 and passim,

80

contrary to expectations, attacking the very structure of society has proved adifficult task, more difficult than the removal of “class enemies58". According toDenis Fabian "It was not followed the family destruction, but building a "Sovietfamily" by banning abortion and make harder the divorce proceedings,supporting the full equality between man and woman, socialization of householdactivities, leaving the education of children in the care of society. The power of thehead family fell off, being replaced with the power of the party, which intervenesincreasingly in solving personal and family problems, sets political criteria ofclass membership for choosing the spouses, is required as a mediator in the caseof marital discords 59".

Nowadays, man still decide the fate of woman, although there have beenmade serious steps regarding its emancipation in law60. Everywhere theydominate the political sphere, fact that allows them to decide vital issues ofsociety and humanity as a whole. Education, culture, manners, folklore andmentality reflects the unquestionable domination of man.

About the topic of women discrimination we will talk in the future, because itis visible the superficiality whereby is treated by men who do not want to give upthe lead role in society. The bad news is that women who want the change ofmentality, implicitly of their statute, give up their own femininity by adopting amasculine attitude. But this is a mistake that turns them into slaves of their ownillusions.

Bibliography

Amza, Ionuţ-Paul, Legal Status of Women - Quo vadis?, in the Journal ofLegal Sciences, 2, 2008, pp. 104-116,

http://fdsa.ucv.ro/RSJ/RSJ_nr2_2008.pdf, accessed online 14.09.2013.Bible, published by the Biblic and Mission Institute of the Romanian

Orthodox Church, Bucharest, 1988.Binder, Stephanie E., Tertullian, On Idolatry and Mishnah Avodah Zarah:

Questioning the Parting of the Ways Between Christians and Jews, BRILL, 2012.Boyarin, Daniel, Dying for God: Martyrdom and the Making of Christianity

and Judaism, Stanford University Press, 1999.Caywood, Cynthia L., Overing, Gillian R., Teaching Writing: Pedagogy,

Gender, and Equity, SUNY Press, 1987.Chiş, Ancuţa-Lăcrimioara, A critique of the concept of discrimination in

terms of feminism,http://doctorat.ubbcluj.ro/sustinerea_publica/rezumate/2010/filosofie/Chi

s _Ancuta_ro.pdf, accesed online 10.09.2013.

http://www.usch.md/Documents/Note% 20de% 20curs/Catedra% 20de% 20Istorie% 20si%20%Stiinte%20 Sociale% 20 / EUROPA% 20DE% 20EST_doc.pdf, accessed online 9/17/2013.

58 Ibidem59 Ibidem, p. 7.60 Mădălina Tomescu, Protection and promotion of women's rights at international level in

Cultural and Educational Gazette no. 1/2009, MAI, pp. 82-101.

81

Cîteia, Adriana, Shariah, sacred law and human rights in the UniversalDeclaration of Human Rights in Islam, pp. 211-224,

http://www.scipio.ro/documents/173004/188849/11.+Adriana+Citeia,+Shariah-+legea+sacra+si+drepturile+omului, accesed online 02.09.2013.

Constantinescu, Iolanda, Talmudic tradition reflected in the status ofwomen, in Noema, IX, 2010, pp. 535-549, http://www.noema.crifst.ro/ doc/2010_e_04.pdf, accesed online 12.09.2013.

Cyrino Monica Silveira, In Pandora's Jar: Lovesickness in Early GreekPoetry, University Press of America, 1995.

Dunn Dennis J., The Catholic Church and Russia: Popes, Patriarchs, Tsars,and Commissars, Ashgate Publishing, Ltd., 2004.

Fabian Denis, Course Notes. Political development of the countries of SouthEast Europe in the postwar period, Cahul, 2010,

http://www.usch.md/Documents/Note%20de%20curs/Catedra%20de%20Istorie%20si%20Stiinte%20Sociale/EUROPA%20DE% 20EST_doc.pdf, accesed online 17.09.2013.

Harper Kyle, From Shame to Sin, Harvard University Press, 2013.Huiban Victoria, Hypostasis of femininity between sacred and profane pp.

441-448, http://www.cntdr.ro/sites/default/files/ c2009/c2009a45.pdf, accesedonline 14.09.2014.

Hurwitz Siegmund, Lilith the First Eve: Historical and PsychologicalAspects of the Dark Feminine, Daimon, 2007.

Ielciu Ioan Mircea, Grace and freedom in theological vision of St. JohnCassian, printed with the blessing of His Eminence Dr. Antonie Plămădeală,Metropolitan of Transylvania, Maramures Crişana and Publishing Parallel 45,Pitesti, 2002.

Kenaan Vered Lev, Pandora's Senses: The Feminine Character of theAncient Text, Univ of Wisconsin Press, 2008.

Loraux Nicole, Born of the Earth: Myth and Politics in Athens, CornellUniversity Press, 2000.

McGinn Thomas A. J., Prostitution, Sexuality, and the Law in AncientRome, Oxford University Press, 2003.

Moeller Robert G., War Stories: The Search for a Usable Past in the FederalRepublic of Germany, University of California Press, 2003.

Morford Mark P. O., Classical Mythology, 6th ed, New York: OxfordUniversity Press, 1999.

Peljkan Jaroslav Virgin Mary over the centuries. Her place in the history ofculture, Bucharest, 1998.

Plots of War: Modern Narratives of Conflict (Series: Culture & Conflict 2),ed by Isabel Capeloa Gil, Adriana Martins, 2012.

Schwartz Howard, Lilith's Cave: Jewish Tales of the Supernatural, OxfordUniversity Press, 1991.

Serban Henrieta Anişoara, Contractualism and freedom. A criticalinvestigation, in policy sphere, nr. 150, 2010, http://www.sferapoliticii.ro/sfera/150/art03-serban.html, accesed online 15.09.2013.

82

St. John Cassian, Spiritual talks, the volume of John Cassian, SelectedWritings, PSB, 57, Bucharest, 1990,

ftp://ftp.logos.md/Biblioteca/_Colectie_RO/Ioan%20Casian%20-%20Scrieri.pdf, accesed online 17.09.2013.

St. John Chrysostom, Preach on marriagehttp://saraca.orthodoxphotos.com/

biblioteca/omilie_asupra_casatoriei.htm, accesed online 14.09.2013.Holy Women of the Syrian Orient, current texts translated from Syriac by

Sebastian P. Brock and Susan Ashbrook Harvey, the English translation byGheorghe Fedorov Publishing Sofia, Bucharest, 2005.

Smith James, Terry Eagleton, Polity, 2008Taylor Frederick, Exorcising Hitler: The Occupation and Denazification of

Germany, Bloomsbury Publishing, 2011.Tomescu Mădălina, Protection and promotion of women's rights at

international level ”Cultural and Educational Gazette ” no. 1/2009, MAI, pp. 82-101.

Trevett Christine, Montanism: Gender, Authority and the New Prophecy,Cambridge University Press, 2002.

Vlassa Ileana, Intellectual condition of women in the XIX and XX centuriesTransylvania. Image and representation

http://www.google.ro/url?sa=t&rct=j&q=&esrc=s&source=web&cd=1&ved=0CCwQFjAA&url=http%3A%2F%2F193.231.20.119%2Fdoctorat%2Fteza%2Ffisier%2F1010&ei=mjs4UvzGIYXasgaz14DQBA&usg=AFQjCNGpTFbi7Lso5GTgRSR4bnw3aKG3uQ, accesed online 15.09.2013.

Zeitlin Froma I., Playing the Other: Gender and Society in Classical GreekLiterature, University of Chicago Press, 1996.

83

DISCRIMINATORY PRACTICES FORESEEN IN ABUZIVECLAUSES FROM CONTRACTS WITH BANKS

-CURRENT TRENDS-

Agata Mihaela Popescu

Abstract: The nature of negotiated character from pre-formulated contracts of bankscreates a significant imbalance between the rights and obligations of the parts, contrary to therequirements of good faith, making in this way a waiting room for unfair terms which areabsolutely void, and which should be eliminated from contracts.

Contractual imbalance induced by these terms and the lack of good faith of the bank shouldbe analyzed according to the fairness of the fee from the bank costs related with the activity ofcredit.

Keywords: contract, contract terms, unfair practices, collective actions, damages.

I. General aspects of some existing clauses in contracts with banksThe contract, known as an agreement between two or more people with the

aim of giving birth, modify or extinguish among themselves a legal repport, isfound in the everyday life in various forms, but among them a specialresponsibility occurs to credit agreements with banks, in theirs several clauses inwhich are inserted requirements which could not have been negotiated at thetime of their conclusion.

According to Law no. 193/2000, any contract between professionals andconsumers will include clear clauses, unequivocal, for which understanding arenot necessary the speciality knowledge, being expressly forbiden thestipulation of abuzive terms in contracts closed with consumers.

The law provides that a contractual term which has not beennegotiated directly with the consumer will be regarded as abuzive if, byitself or together with other provisions of the contract, it creates, to theconsumer’s detriment and contrary to the requirements of the good faith, asignificant imbalance between the rights and obligations of the parties.

Moreover, a contractual provision will be deemed as not being directlynegotiated with the consumer if it is determined without giving to the consumerthe possibility to have an influence to its nature, such as the standard pre-formulated contracts or the general sale’s conditions applied by traders to theproduct or to the special service’s market.

Among the considered to be unfair we remind: the unfair terms concerningcommissions, provisions governing the payment of a management fee calculatedat the initial value of the loan, the terms governing the payment of a fee oftracking risks calculated at baseline credit terms on the other charges improperlycharged, improperly charging interest1 etc.

Associate Professor PhD. at the Faculty of Law and Administration, “DimitrieCantemir” Christian University; email address: av.agata@yahoo.com

1 Bucharest Court ordered to a bank to return to its customer the interest charged abusive,amounting to 4,000 CHF, the information can be read on the court's website. The court ruling

84

According to the Article 12 from Law no. 193/20002 concerning the abuziveclauses in contracts concluded between traders and consumers, it was establishedthat, when it is found the use of adhesion contracts containing unfair terms, theNational Authority for Consumer Protection (ANPC) will notify the court fromthe bank’s headquarters, requesting the obligation of this court to amend/modifycontracts with pending execution by eliminating the abuzive clauses/ the unfairterms.

Amendments to the Articles 12 and 13 of Law 193/2000 come to ensure thecompliance of the national law with the European Community’s law3. From thetime of the law, postponement of the application of legal provisions that could notget far, invoking by their own government, under pressure from the IMF, NBRand ARB need for an impact assessment, which raised many question forunwarranted delay in the implementation of these provisions makes it extremelyfrustrating condition Romanian citizen consumer.

The EU Court ordinated that, once identified the abusive clauses, they mustbe eliminated from contracts, specially in order to discourage the professionalswho could be tempted to use these abusive clauseswithout interruption. Pureand simple these clauses doesn’t produce effects, indifferently of the date whensuch contracts were concluded and indifferently of its contents and the concretesitiation of each contract in part. Moreover, the national Courts/Instances have

comes shortly after the High Court of Cassation and Justice ruled in favor of another customer anddecided to halve interest. Bucharest Court ruled in favor of a client in a lawsuit filed by the client toa bank, forcing the bank to repay to the client the interest which charged improperly the customer,worthing 4,000 Swiss francs, the amount that will be updated with the inflation index. Inaddition, the credit institution will have to pay LEI 3,500 the law’s costs. Client's arguments, both infact and the review started from the failure of the bank to the national and European legalprovisions which establish the unfairness of certain contractual agreements between professionalsand consumers (namely Law no. 193/2000 on unfair terms in contracts concluded betweenprofessionals and consumers, law transposing Council’s Directive no. 93/13/CEE/05.04.1993 andGO. 21/1991 on consumer’s protection),…it was demonstrated ..... "the unfairness of the contractualprovisions which entitle the bank the right to unilaterally change the interest credit in relation to afixed margin determined solely by the bank, highlighting the clear imbalance between the rightsand obligations of the bank towards the consumer."

2 The Law 193/2000 on unfair terms in contracts concluded between professionals andconsumers, republished in 2012, republished in the Official Gazette, Part I no. 543 fron August 3rd2012 and pursuant to the provisions of Article 80 from Law no. 76/2012 for theimplementation of Law no. 134/2010 on the Code of Civil Procedure, published in theOfficial Gazette of Romania, Part I, no. 365 of 30 May 2012, the texts renumbered. Law no.193/2000 on unfair terms in contracts concluded between professionals and consumers wasrepublished in the Official Gazette of Romania, Part I, no. 305 of 18 April 2008, and subsequentlyamended by Law no. 161/2010 to amend Article 84 of Law no. 295/2004 on Consumer Code andLaw no. 193/2000 on unfair terms in contracts concluded between traders and consumers,published in the Official Gazette of Romania, Part I, no. 497 of 19 July 2010.

3 In the absence of an express Sanction Law. 193/2000 on unfair terms in contracts concludedbetween professionals and consumers, the doctrine knew opinions which ranged from the absolutenullity and the reputation of the clause as unwritten clause. See C. Toader, A. Ciobanu, Animportant step towards European integration: Law No.193/2000, OG No. 87/2000 and O.G. No.130/2000, in the Commercial Law Review no. 3/2001, II Balan unfair terms in contracts concludedbetween traders and consumers, law no. 6/2001, I. Popa Fl, repression of unfair terms in RomanianPandectele no. 2/2004, J. Goicovici, The Consumption Right, The Legal Sphere Printing House,Cluj-Napoca, 2006.

85

the obligation to examinate ex officio the abusive character of a contractual clauseas soon as they dispose of the elements of Law and de facto necessary in thatsense.

1. Abuzive clauses concerning commissionsThe content of contracts contains clauses on commission, which are not

justified to the costs incurred by the bank in relation to its activity to give credit.In reality, this commission is nothing but a disguised interest that, in addition toadversely affecting the economic interests of customers and the competitiveenvironment may affect the bank and actually conceals an increase in interestknown under the name of commission.

According to art. 15 from Law no. 190/1999 which limitatively indicateswhich are the costs which have to bear a consumer as following a creditagreement / housing loan: "the borrower will be charged only with the costs ofcompiling the available credit and the mortgage and related securities", it resultswithout any doubt that this commission is expressly prohibited. Article 9 of thesame Law lists the clauses that may be included in a housing loan contract.

As such, any other costs charged to the clients, including award fee /administration fee, is expressly prohibited by law, fact which draws that thisclause considered to be deemed invalid and excluded from any concludedcontract.

2. The terms governing the payment of a management feecalculated at baseline credit

The terms governing the payment of a management fee calculated at theinitial value of the loan are unfair because their inclusion creates a significantimbalance between the parts’ rights and obligations.

The management fee is calculated and charged monthly on the credit’s baselineand notfor the loan’s balance4 in reality it is a real interest rate consistent, artificiallyincreasing the effective cost of the loan and, in addition, creating an advantage to thebank, so I appreciate that is nothing but a disguised interest that, in addition toadversely affecting the economic interests of customers but warrants a way to getmore value statement based on the bank's bad faith.

By calculating this fee it arrives to a way of misleading customers, bypresenting initial advantageous interest rates compared with other banks offeringthe same relevant market acted with the respective bank (but which, in reality,owing to the addition to the DAE commission’s management, were not really suchadvantageous), an, on the other hand, is a way to purchase a competitiveadvantage in violation of fair traders’ customs.

It is therefore necessary to find, in front of the invocated arguments theascertained fact of the fairness of terms governing the payment of a managementfee calculated at the credit’s baseline.

4 Regarding the fee charged to the original credit and not at its balance, it makes, for leasesgranted over several years, as the interest (applied to the loan balance) will come to be even lowerthan the fee (which will be applied to the original amount borrowed, regardless of the value of theloan already repaid at some considered moment).

86

3. The terms governing the payment of a fee of tracking riskscalculated at the credit’s baseline.

The clauses governing the payment of a fee of tracking risks calculated atbaseline abusive loan are abusive, they being imposed by some banks whenclosing a contract so that the customers are obliged to a monthly payment oncewith the loan rate’s payment, paying, in that way, a fee of tracking risks in acalculated amount of the initial loan’s value. As such we are now clear that wefiind ourselves in the presence of a different kind of a hidden interest, disguisedunder the name of commission.

In this case, given all arguments to which the management fee applies, Iappreciate them to be valid, mutatis mutandis, for this type of fee under thatveiled dress.

The injustice that generates these clauses is the fact that the commission isnot an actual cost of credit but, in the worst case, it is an assurance taken by thebank against the risk of consumer being in default paying entry but it looksquestionable is the fact that the bank receives it monthly and do not return it tothe good-paying customer after one or more contract’s working years withoutpayment incidents.

In this case in favor of the bank will operate an unjust enrichment at theexpense of customers, although they have fulfilled their contractual obligations,they paid a monthly fee of tracking risk, without the risk have been materialized.Furthermore, it is known that the bank provides in all contracts a number ofmechanisms to protect themselves against the risk of payment’s default, whichproves once more, again, that this commission of the fraud risk is abusive,because the risk of the warranties’ depreciation and of the value’s non-collectionin the sale’s case is also supported by the borrower who will answer with all hispossessions.

When the bank must recover its debt securities it does not limited to followthe warranties, but also it extends to all present and future assets, and warranty’sdepreciation exclusively affects the borrower’s security. In addition, the goods areinsured and the bank always require the insurance company and the risk of notreceive compensation from the insurer is practically nonexistent.

Finally, the bank has created another tool insurance against the risk ofpayment default by requiring to the borrower to make personal guarantees (co-debtors, fideiusors).

All these guarantees that the bank have against the risk of payment defaultrepresent powerful arguments in order to support all stated above, meaning thatthe contractual provisions governing the commission tracking risks as to be, infact, unfair contract terms that are null and void.

Market risk must be taken equally from both sides, by the bank, which is proplayer but also by the consumer.

Risk monitoring fee is charged by the bank in order to cover their own risk.So, besides a consumer must bear its own risk (deterioration of the exchange rate,lower revenues, etc.), he is bound by these unfair clauses to bear the risk of thebank.

87

Disproportion between the contractual rights and obligations of the parts iseasily demonstrated because, until now, the consumers have suffered, on onehand, the increase due to the devaluation of the leu monthly’s rate, and, on theother hand, the risk premium that the bank put safe from any risk, including therisk probably conversely, in which the course should be developed for thepurposes of the domestic currency’s appreciation.

This fact demonstrates unequivocally that all provisions in consumercontracts relating to the levying of a fee of tracking risk are unfair terms due tothe contractual imbalance it creates, by transferring all the risks5 to theconsumer’s charge6.

Some banks, rather then to fulfill their obligations under the actualregulations, and to establish concrete and real criteria by help of which they candetermine categories of customers by categories of risk and lending todifferentiate products according to these criteria, they chose the abusive variant,more expensive for good-paying borrowers, on which base, by paying this fee riskthey actually cover their losses from loan forgiveness by other customers,transferring, in this way, the consequences of its no-performance losses from badloans towards the good -paying customers.

Compared to the unfairness of risk commission have repeatedly ruled courts,observing the force of res judicata and therefore the invalid and abusive characterof clauses which allow its perception as by charging these fees, while the bankmade huge gains because the bad credits are not so large as to compensate for thetotal amount of fees at risk.

4. Terms of other fees charged improperlyThe abusive clauses which are commonly used by banks are those which give

them the right to intervene unilaterally and discretionary in changing thecontractual terms, in particular the costs of a loan modification, independent ofan objective element such as the change in a verifiable benchmark index. Even ifthe legal provisions prohibites this clause as unfair they are not of recent date,banks have continued to practice such contractual clauses.

At the same time, these clauses have a significant impact and by the natureof bank credit’s agreement which is a contract of adhesion, the client having thepossibility of negotiating contract terms. For the credit granted under the art. 36

5 The art. 44 of NBR Regulation No. 3/2007 on the limitation of the credit risk on loans toindividuals, requires that the banks which borrow are obliged to inform their customers bymentioning the possibility of increase, upwards of amounts due, in the case of currency risk’smaterialisation, of the rate’s risk of exchange interest or when increasing credit costs from fees andother expenses as result of administration of the loan under the contract.

6 Regulation talks about the materialization of the risk, on borrower's expense, which excludesthe idea that it would be allowed for the receipt by the bank of the opposite amounts which cover hisown risk. Text regulation requires the bank must inform each client (either through repaymentschedule, either by contractual arrangements) concerning the possibility of increasing the amountsthat will be due under the credit agreement, increase determined by: (i) Currency risk materializingor of the interest’s rate (if they occur on the expense of borrowers, not in their favour), or (ii) due tothe increase of the credit’s cost from the management fees and other expenses concerning themanagement of the credit foreseen in the contract.

88

GEO. 50/2010, as a creditor, the bank can only charge: the analysis fee, the creditmanagement, the account management for early repayment, the security costs,penalties, single fee for services provided to the consumer’s demand. This legaltext leaves no room for interpretation. But above fees do not fall into the legaltext, so it requires removal of clauses that they stipulate.

The mentioned clauses which regulates various types of fees charged by thebank, some of which are set out in the special conditions, general conditionselsewhere in the Convention. Presenting bank costs in this way is at leastconfusing for consumers when they want to obtain a loan they direct theirattention to the interest, cost which should be the mai none and whichdifferentiating the credit offers on the banking market.

The mention of an excessive number of commissions violates the consumers'right to a fair and accurate information as governed by art. 45 of Law 296/2004on Consumer Code (in conjunction with the APR miscalculation, not includingthe costs of credit), being also an unfair trade practice which has the purpose andeffect the substantial distortion of the economic consumers7’ behavior.

Preventing the consumers in order to appreciate the credit’s costs from theabove mentionned clauses fall within Law Articles and, therefore, should bepunished as such.

II. Judicial intervention methods to eliminate unfair termsThe judicial tools used for the elimination of unfair terms in standard

contracts (Law no. 193/2000 on unfair terms in contracts concluded betweenprofessionals and consumers), are justified not (only) in the case of the generousjurisprudence caused by inconsistent implementation of Directive 2008/48/ECconcerning the consumer’s credit contracts by Government EmergencyOrdinance no. 50/2010 concerning the credit agreements for consumers, duringwhich mechanisms of unfair consumer was discovered by the Romanianconsumer8 and his lawyers, but to apply the reform in the matter of the collectiveaction in order to eliminate the unfair terms.

Under the new Code of Civil Procedure on the legal standing of organizationsworking to preserve an interest group, through an amendment of Law no.193/2000 on unfair terms in contracts concluded between professionals andconsumers by Law no. 76/2912 for the implementation of the Code of Civil

7 The definition covered in art. 2 letter. e) of Law 363/2007 on combating unfair practices oftraders with customers, the substantial deformation of the economic behavior of consumersrepresents the use of a commercial practice which significantly affect the consumers’ ability tomake an informed decision about the cause, a decision that otherwise should not have been taken.

According to art. 6 letter d) of the same law states that a commercial practice is unfair and isconsidered a misleading action if it contains false information (such as calculating the annualpercentage rate without taking into account all costs of the loan) or, in any event, misleading orlikely to deceive the middle consumer, so it leads to a decision that would not otherwise have beentaken, concerning the price or the method of calculating it.

8 Who had the courage and the strength to bear in mind that the law doesn’t speak aboutnullity is invalid as a sanction applied on such clauses, because it reproduces the provisions ofDirective 93/13/EEC on unfair terms in contracts concluded with the consumers, but leave to thelatitude of the national legislature to setting the appropriate sanction adequate to the legal orderand to the national court to determine it.

89

Procedure9 was dedicated to a legislative first performance in Romania: thecollective action against professionals practising abusive clauses10, innovativeinstitution but which was received with critical reactions from banks’professional.

These provisions relating to unfair terms in contracts concluded betweenprofessionals and consumers establish two types of action: action by individualconsumers, which the law, in reality, does not regulate it, but do not exclude it11,and the referral action taken while claimed by the public independent bodyresponsible for protecting collective interests of consumers, the NationalAuthority for Consumers’ Protection12.

Regardless of the chosen path, the new text still raises some questions : thedifference in treatment between the National Authority for Consumers’Protection and the representative associations for consumers’ protectionregarding locus standi in injunctions using standard adhesion contractscontaining unfair terms, in their capacity as contractual model of professionalpractice, the absence of a procedure for extending the effects of the judgmentrendered on a particular clause referring to other professionals who practice thesame clause or a mechanism to extend the terms of the judgment different inwording, but identical as effects or a relapse of professional sanctioningmechanism which subsequently finding the unfairness of a term, he continues topractice the unfair terms which produce the same effects in another formulation,the legislative technique disputable on defining the judicial intervention instandard adhesion contract which contains unfair terms, the absence of a text toclarify the conflict of judicial decisions having adverse effects between consumers,given their individual actions, and the posterior judgment favorable toconsumers, delivered in a collective effort and this list can be expanded asinconsistent practice, while blur situations will arise again in order to createuncertainty also in the future.

Creating effective mechanisms by which consumers should be able to endabusive practices and obtain compensation for damages is recognized andencouraged at the community level. By the European Commission’sRecommendation from 11 June 2013 are set out the common principlesapplicable to collective actions for infringement of the rights conferred by Union’slaw. Among the areas where the additional assurance of compliance capacity at

9 Article 37 Civil Procedure Code. Legal standing of others: "In the cases and conditionsprovided solely by the law, claims can be introduced or defenses can be formulated and by people,organizations, institutions or authorities, which, without justifying a personal interest, work toprotect the legitimate rights or interests of some persons being in special situations or, asappropriate, in order to protect a group or general interest."

10 See Ion Deleanu, Treaty of Civil Procedure, Volume I, Wolters Kluwer Publishing House ,Bucharest, 2010, pag.480 -630, I, Les, The New Code of Civil Procedure. Comment on articles, vol.I, C.H. Beck Publishing House, Bucharest, 2011, pag.165 -242.

11 Art. 14 of Law no. 193/2000 on unfair terms in contracts concluded between professionalsand consumers provides: "Consumers harmed through contracts concluded and having as result theviolation of this law have the right to appeal to the judiciary in accordance with the Civil Code andthe Code of Civil Procedure."

12 It refers to the professional sanctioning, if initiated action upon notification of the NationalAuthority for the Consumers’ Protection.

90

private rights conferred by EU law is referred to as collective13 action primarilyconsumer.

In C.E.D.O.’s practice it is consistently shown that the uncertaintyjurisprudence is contrary to the principle of the legal certainty’s principle. Themost importantly aspect, however, is given by the national courts’ mission in theiractions concerning the abusive clauses in order to create a transparent,consistent, unambiguous jurisprudence, unequivocal and detached by emotionalinvolvement.

Bibliography

Bălan I.I., The Abuzive Clauses in contracts concluded between traders andconsumers, Law no. 6/2001;

Deleanu Ion, Treaty of Civil Procedure, vol. I, Wolters Kluwer PublishingHouse, Bucharest, 2010;

Goicovici J., The Right of consumption, The Legal Sphere Publishing House,Cluj-Napoca, 2006.

Les I., The New Code of Civil Procedure. Comment on articles, vol. I, C.H.Beck Publishing House, Bucharest, 2011.

Popa I. Fl Suppression unfair terms, in Romanian Pandectele no. 2/2004;Toader C., Ciobanu A., An important step towards the European

integration: Law No.193/2000, OG No. 87/2000 and O.G. No. 130/2000, in theCommercial Law Review no. 3/2001;

13 According to the principles of the Recommendation, all Member States should havemechanisms for collective action at the national level for both injunctions and damages actions andcollective actions to ensure that procedures are objective, fair, fast and nonprohibitive in terms’costs. It also recommends that courts and public authorities solve expeditiously injunctions, usingsummary procedures when appropriate, to prevent any additional negative effect caused by theviolation causing injury. Member States should establish effective penalties against professionalfallen in pretentions in order to ensure the effective compliance with the cessation order.

91

THE RIGHT TO NON-DISCRIMINATION OF CHILDREN WITHAUTISM IN SCHOOL AND HOW TO RESOLVE ISSUES OF

THEIR INTEGRATION THROUGH MEDIATION

Dragoş Marian Rădulescu

Abstract: In modern society there is a great concern for understanding people withphysical disabilities or psychiatric disorders. If in the past they were rejected and isolated todayare trying their integration into the community, of the desire to provide a life as close to normal.But such an approach is extremely difficult due to existing concepts in society which believes thatsuch individuals are only a danger to others. This study aims to examine the place of autisticchildren in the education system and the way that mediation can occur in settling conflicts createdaround these people.

Keywords: autism, school, conflict, mediation.

1. Introduction.Autism is a disease that manifests itself from the earliest age that affects

between 4.5 and 13 patients in 10,000 and at childrens, the incidence is 1 in 166children. Sex ratio is about 3 to 1 for boys, but girls are more severely affected andhave a lower IQ1.

Unfortunately you can not determine the cause of autism in children beingtaken into account several causes leading from conception the baby is born so,due to genetic causes (being investigated chromosomes 15, 5 and X, which couldbe involved, autism is a disorder affecting polygenic), biological (which affects thecentral nervous system that causes mental and delay associated with epilepsy,congenital rubella existence, of metabolic syndrome, etc..), neuroanatomical(certain areas of the brain are affected in children autism: ex. frontal lobes,temporal, cerebellum) to the ones who believe that autism occurs due to a lack ofaffective contact (parents emotionally cold, detached, with an increased level ofstress and mothers 'negative' hostile not have wanted the baby).

Children with autism are normal physical appearance, often very beautiful,and head circumference is 10% higher than normal age. Some children may havea disharmonious face, areas of skin discoloration or stains (called familialdiseases facomatoze).

Autism is characterized by: deteriorating quality of social relationships ( watching eye to eye, facial

expressions, gestures, posture, inability to start relationships with other adults orchildren, the inability to understand emotions and feelings of others, lack ofdesire to share joy and sorrows, achievements interests or troubles.

damage of communication - lack or delay of spoken language withoutcompensation alternative ways, the inability to initiate or sustain a conversation,stereotyped and repetitive use of language. Often, language is absent or, if

Associate Professor PhD., Christian University “Dimitrie Cantemir,”dmradulescu@yahoo.com

1 Dr. Gabriela Croitoru, MD Pediatric Psychiatry http://www.cdt-babes.ro/articole/autism-infantil.php

92

present, is not intended communication. Expression is the second person or thirdwhen referring to oneself sometimes repeat the question or words, phrasespreviously heard. Prosody (sonority and intonation) is private or "cantata" or asharp pedantry.

stereotyped and repetitive behaviors: adherence to rituals without anyfunction, routines, mannerisms and stereotyped movements (eg. Waved ortwisted hands or fingers, watching the hands, bouncing, rocking, walking tips,concern for parts of objects, etc.)

Children with autism can not tolerate any changes and the activities arelimited. Even "in their world" does not feel the need to be petted and cuddled,look no eye contact, seem as if they do not hear shouts, do not notice if someoneenters or leaves the room, do not play with other children but more parts ofobjects, seem indifferent to everything around.

Intellectual Development - approximately 75% of those affected by autismhave a mental deficit, difficulty in handwriting.

Additional Features of children affected by autism: indifference to pain, feelingcold, unusual sensitivity to odors, capricious appetite, urinary control disorders,sleep, anxiety (fear) especially at loud noises locations, unmatched panic hugs ortouch fascination for objects or toys that spin, mechanisms, machines.

2. Integration in school of children with autism.Because there is no specific treatment as soon as identified disability, the

child must commence a special recovery program that will teach communicationand social interaction.

For children under 3 years appropriate intervention usually takes place athome or in a center of education, we use specific methods of learning,communication, language, imitation, motivation, compliance and initiativeinteraction. This includes physical therapy, occupational and communicative. Daywill begin with a physical activity to help develop coordination and physicalattention, puzzles, painting, plasticine.

During the break teacher encourages social interaction and model how to uselanguage to ask for more juice for example, so that children learn by making.

Children over 3 years usually have special education, individualized schoolsmay be in a special class with other autistic people, or in a integrated classes withchildren without problems for part of the day to help your child learn socialcommunication and functional.

For integration into a typical normal school to be beneficial, a child withautism should be prepared for this. Integration actually means, adaptation toenvironment, colleagues, the teachers, the rules and level of work for allclassroom activities.

It is important that the school be open (the director and its teaching)integration of children with autism in mainstream educational system. Childrenshould be integrated into an institution, in a classroom where teachers believe inthem and their chances, needing the help of parents, and colleagues, who have toexplain what it means autism2.

2 www.autism.raa.ro

93

Everyone needs to understand what the barriers that children with autismhas been to adapt to the school environment, the difficulties related to the specificdisorder and the efforts they made to pass successfully through the process3.

Moreover and the state took measures to this end, legislating the right tospecial protection enjoyed by people with disabilities4 by establishing a complexof measures to succor them to be protected against any abuse.

However legislature can not interfere in the personal conflicts these peoplehave with others and the situation is even more complex when it comes to theperiod of adolescence, one of stress and confusion, because young people withautism may become aware that are different from others, because they lackfriends and they do not have meetings.

Like other children, they need help to deal with sexuality and increasedaggressive behavior may be how these young people show their new confusionand tension.

For some it sadness that comes with this observation motivates them to learnnew behaviors and better social skills5.

3. The school MediationMediation is an alternative dispute resolution method that is part of the ADR

(Alternative Dispute Resolution), which can be seen, above all, an art in which themediator is able to transform conflict into an agreement as a result of optionsgenerated and selected by the parties6.

Mediation is a conflict management process, which enables to prevent orresolve conflicts due to the intervention of a third party, unbiased and withoutdiscretion, and guarantee communication between partners and thus help torestore the social bond.

Such a conflict that the parties can resolve their discrimination based onprejudice issues arising in relations between them by calling a special mediator,who will be able to discover the cause of the conflict parties, going over theprejudices and stereotypes promoted by reaching causes they generate conflict.

Advantages of mediation, which is a procedure based on privacy and takesplace in a private, away from public view, is that it manages to create a relaxedatmosphere in which conflict and tension has been exacerbated due usually to theexistence of witnesses and especially supporters, one or other of the parties.

Also that mediation can participate and specialists related to the cause, toexplain exactly what happened and thus to delineate those situations arising fromnegligence, ignorance or indifference, discrimination is extremely important inresumption of dialogue between part7.

3 Costinela Caraene, Andreea Sorescu, Magasine Business Woman,http://www.businesswoman.ro/ro/index.php?p=articol&a=2602&inters4 Truşcă P., Truşcă A.M., Drept civil. Personele, pag. 84, Universul Juridic Publishing House,

Bucharest, 2013.5 http://www.la-psiholog.ro/info/autismul6 Oprea, A., Rădulescu D.M., Mediation (yet) stars-ups, în Revista Dezbateri Social

Economice, nr. 1/2012, pag. 4, Rosetti International Publishing House, Bucharest.7 Rădulescu D.M., Medierea – metoda de combatere a discriminării, în Exercitarea dreptului

la nediscriminare şi Egalitate de şanse în societatea contemporană, pag. 81-85 Pro UniversitariaPublishing House, Bucharest, 2013.

94

4. The school mediation role in resolving conflicts regardingintegration of children with autism in school.

Integration of children with autism in regular schools can create manyproblems related to how they respond to the challenges of the community andhow they are treated by other children.

The fact that autistic children have certain repetitive and mechanical tics thatdo not react immediately or crying facial expressions can create confusion andannoyance of the people around that can degenerate into physical violence orverbal, can to these children, turned problems in a target "perfect" for otherironies.

Moreover such an attitude will lead to conflict between those stressing orassaulting a child with autism and those who try to defend them aware that theyhave before them a child with problems that can not respond alone and thereforecan not defend.

In such a critical situation is the attitude of teachers, classroom teachers,headmaster and teacher of service that must to take action quickly and tactfullyexplain to children the special nature of autism and how it manifests.

Their action must be supported by the school psychologist which mustidentify emotions resulting from these conflicts, but also the parents of thechildren involved.

But if these actions fail to be a person external intervention of a mediatorspecializing in conflict school of its kind, with serious knowledge of childpsychology and understand the specific behavior of children with autism..

The mediator must be supported by specially trained people able to identifythe causes of conflict and how to intervene to settle it, without mediationtransforms in a treatment method for children with autism and withoutsubstituting a personal therapist for children with autism.

Impartiality is essential, even if you may feel some compassion for childrenwith autism in its attempt to fit into a world that does not understand and askhim more than he can give.

Mediation must take place in private place, in the presence of the personsinvolved, and confidential discussions focused on ways of resolving conflicts thatarise. An important role of parents to be involved to explain their children'sautism what it means, that there is no "blame" to children suffering from autismand especially no known treatment to cure this pain. That can not occur withoutthe patience to succeed by children with autism overcome problems adjusting tosociety and their integration in the community.

The mediator will use the information provided by the teachers, the schoolpsychologist and the parents who will document the preparation of mediation,ensuring that it will be supported by an independent psychologist during mediation.

It should be noted that, compared to a usual environment in which partiesdecide alone plays a key role of parents of children with autism who have todecide what is better for it.

The mediator should be aware of competing interests exist within the school,which would not be a conflict affecting its reputation, that there may be somehostility towards him from the school psychologist, who sees a stranger who tries

95

to solve problems, but also from some parents who just want removing"intruders".

But precisely because of these problems and attitudes mediation isappropriate in this situation because after exhausting internal solutions to schoolare at risk of conflict to escalate, and the most likely outcome is forcing autisticchildren to leave the school, which will create even more anger and despair fromtheir parents.

5. Conclusions.The essential feature in autism is impaired social interaction, the child is

completely uninterested in who they are, reject any communication, moreover,seems incapable of receiving the emotions of others, respond to them.

In fact, the defect is more profoundly autistic child does not seem tounderstand the meanings of the signals from the social environment, so can notoffer reciprocity can not adapt and integrate appropriate. For this reason, thesymbolic function of language itself is affected.

Thus usually do not occur often shows features bizarre notions used contentloses its meaning or the use of "language parrot".

Behavior is stereotypical bizarre stiff. Instead it can attach to an object whichwill capitalize certain unusual valences. Climate change may lead to aggressiveand self-aggressive on his part, because autistics prefer immutability8.

All these features of the disease are difficult to integrate childrens withautism into a normal school and cause verbal or physical conflicts likely todisrupt school activities.

Because of this internal intervention teachers and the school psychologist isessential and if the intervention fails the intervention of outsiders who may havean overall, unaffected by existing biased positions.

It may be that the intervention of others, especially human rights activists, isextremely dangerous because it can not resolve the conflict enflame existing bestsolution is to call an impartial and neutral mediator, providing a steady positionand stability, able to lead to conflict resolution.

Indicating that the intervention of the mediator can not be successfulwithout the cooperation of all parties involved, because only together can theparties to overcome any conflict.

References

Oprea, A., Rădulescu D.M., Mediation (yet) stars-ups, in Magazine DezbateriSocial Economice, nr. 1/2012, Rosetti International Publishing House, Bucharest.

Rădulescu D.M., Medierea – metoda de combatere a discriminării, inExercitarea dreptului la nediscriminare şi Egalitate de şanse în societateacontemporană, Pro Universitaria Publishing House, Bucharest, 2013.

Truşcă P., Truşcă A.M., Drept civil. Persoanele, Universul Juridic PublishingHouse, Bucharest, 2013.

8 Despre autism, Psihologia copiluluihttp://forum.7p.ro/Despre-autism.aspx?g=posts&t=417#ixzz2hTdB2SnU

96

POLITICAL NON-DISCRIMINATION AS DEFINED BYPHENOMENOLOGY OF LAW

Anton P. Parlagi

Abstract: Whenever we deal with the topic of political non-discrimination, we have to takeinto consideration the fact that there is no equivalence between political non-discrimination andpolitical correctness not even from an ideonomic point of view. From a socionomic perspective,one has to distinguish between the correctness of relationships established by society membersand political correctness, which politonomically refers to the distribution of power among themembers of our society. If a law on social equity existed, it should deontonomically define politicalcorrectness through non-discrimination, i.e. as equality between individuals or equality indistribution of justice. Political phenomenology of law reveals that social inequity generatesconflicts basically as regards the ideonomy of non-discrimination; on the one hand, sociocracy(understood as a social category which holds economic power) generates inequitable correctness,while, on the other hand, politocracy (understood as a social category which supports politicalpower) tries to impose an equitable inequality.

Keywords: political correctness, demo-equity, politonomy, social justice, non-discrimination.

ContentBlaise Pascal underlined avant la letter the politonomical character of justice

when he stated that “justice without power is useless, and power without justice istyranny”; consequently, justice and power have to coexist. From a socionomicperspective, this conflict generates a paradox which is characteristic of non-discrimination; on the one hand, sociocracy tries to elude legal norms in order toaccomplish its own social justice; on the other hand, politocracy defends legalnorms to perpetuate injustice. The history of law has recorded a lot of situationsin which politocracy imposed its own system of “justice” while breaking legality,and not vice versa; as M. Bastid pointed out, justice is never fair when it judgesthe political factor, no matter the century or the state, and the opposition betweenjustice and politics is quite significant. If we accepted Pascal’s paradox –according to which justice is possible exactly because injustice is human, weshould return to the idea that justice transcends society and, thus, we would findourselves in a dead end due to the fact that one should set up equity institutionsthat are based on other principles but not justice. From an ideonomic point ofview, correctness is a norm, a supra-empirical notion (in the sense that it isdetermined in a purely rational way), and it is different from non-discrimination,which is a political obligation, a pseudo-norm which can be empirically tested. Inconsequence, justice – as political non-discrimination – must be accomplishedthrough a set of legally institutionalized norms, which should imply both theindividual’s right to equity, and his/her right to benefit from this form of equity.In the first case, equity has a socionomic value since it refers to equality of rightsfor every individual; as regards the access to equity, the significance is obviously apolitonomical one since the political system sets up the norms regarding access to

Associate Professor PhD., University of Bucharest, Faculty of Administrationand Business, antonparlagi@yahoo.com.

97

justice; exempli gratia, access to justice is granted only to the citizens of a state.This is the reason why universalist theories on non-discrimination shouldinclude, as M. Walzer noticed, the issues regarding the individuals’ access and/or the access of groups to the sphere of law. Compatibility between thesocionomic nature of rights and the politonomical dimension regarding theaccomplishment of these rights finally illustrates the fairness of social non-discrimination. Social justice is politonomically correct whenever the legal systemensures non-discrimination treatment of citizens through the legal regulation ofpolitical correctness. Political phenomenology of law reveals that in all instancesin which this ideal regarding justice came intro contradiction with a politicalsystem, legal order had to be replaced simply because the ideal regarding justiceis immutable. According to politocracy, the correctness of non-discrimination is aform of impersonal non-discrimination, while according to sociocracy, thecorrectness of non-discrimination is a way of ensuring that an individual is notdiscriminated.

If social justice defines non-discrimination in relation to a certain politicalsystem, political correctness implies that non-discrimination functions not onlyideonomically (i.e. as a concept), but also socionomically (i.e. as a fact). Inconsequence, for justice to remain just an ideonomical principle, it is necessary tohave norms, principles and procedures whereby non-discrimination should beapplied, and these procedures should be regulated through the law-maker’spolicy; furthermore, the law-maker is always a political one. J.J. Rousseau drewattention towards the fact that politocracy and democracy are different insubstance; first of all, this is due to the fact that the will of the people is notreflected in the legal norms adopted by law-makers; secondly, because the waysocial relations are regulated is discriminatory since it differentiates those whogovern from those who are governed; and, finally, he drew attention towards thefact that the acts of those who apply the law are discriminatory. Consequently,social justice, from an ideonomic perspective, cannot generate non-discrimination for individuals unless it is regulated and guaranteed atpolitonomic level. Discrepancy between the ideal of justice and the practice ofnon-discrimination is also reflected in the opposition towards (criticism of) themanner in which non-discrimination is distributed and also towards justicewhich is regarded as a temple of non-discrimination. Justice as equity is quitesuggestively defined by P. Roubier, who stated that: “for a positive legal rule togovern human societies it is necessary that the law should correspond to an idealof justice, otherwise this rule is not going to be respectable or respected”.

The fact that the theory of natural right could not settle the conflictsregarding social discrimination by means of the antinomy between freedom-equality has made legal positivism implement into the legal system the criterionbased upon the relation between deeds and social values. In line with M. Weber’sdoctrine, legal positivism upholds that it is only by understanding non-discrimination that individuals can benefit from justice; thus, the politonomiclevel of knowledge can be reached only after the ideonomical one is experienced.However, if hypothetically there was a universal consciousness as regards a wholeset of unanimously accepted norms on non-discrimination, ideonomically no law

98

could be considered incorrect. Taking this hypothesis as a starting point, L.Strauss stated that outside the criteria shared by society, social criticism would beconceptually impossible. Demosnomia reveals that these criteria can grantlegitimacy to the legal system which aims at non-discrimination and at foundingthe political system, which attempts to ensure social equity. According to thetheory of law, justice is non-discriminatory simply because it ensures socialequity outside the legal or non-legal institutions which accomplish the act ofjustice. From this point of view, the institution of mediation is symptomatic for itaccomplishes a form of social justice through extra-legal means, while it bringsinto discussion the issue of political correctness as to the adopted decisions. It isobvious that, politonomically, a solution adopted thanks to the agreement of theparties cannot have a state character (a public nature), but a private one, a factwhich indicates that the state admits the possibility of a form of parallel justice.Moreover, politonomically, mediation as a form of justice, which functions inparallel with state-implemented justice, raises the question of social correctnessas to the settling conflicts by mediators who are not magistrates and who makeuse of means and procedures which come from outside the legal system. Since itis hard to distinguish between the social correctness of mediation and legalcorrectness in the settlement of a conflict, one has to accept the fact that the onlyvalid criterion is the politonomical one, i.e. the criterion of social usefulness of themediation act.

Politonomically, non-discrimination means more than a person’s right tobring cases before courts of law; it also means that person’s right to benefit froman equitable form of justice. As Rousseau required, “correctness which must beproved by law-makers as an elite group in any democratic society is somethingwhich no one should contest”. Even if this statement seems to be redundant, onehas to distinguish between justice understood as ideonomy, (an ideal systemwhereby fundamental rights and freedoms are accomplished) and justiceunderstood as politonomia (a system which guarantees the individuals’ politicalequality), this distinction being necessary for the exercise of rights.Fenomenology of law reveals the fact that access to justice does not imply accessto all procedural means whereby justice is accomplished; setting up rules for thelegal proceedings and regulating ordinary, as well as extraordinary means ofappeal fall into the competence of the law-maker, as a representative institutionfor politocracy. Thus, according to the phenomenology of law, it is obviouslynecessary for the political and legal system to guarantee both the right to haveaccess to justice, and the right to benefit from non-discrimination, in particularfrom the right to benefit from an equitable form of justice. Free access to justiceproves insufficient as a constitutional safeguard for guaranteeing all thefundamental rights and freedoms if non-discrimination is not in itself fair.Socionomically, non-discrimination can confer equity to a process, but it cannotensure the accomplishment of justice if the political system does not guaranteethe right to justice. Naturally, the phrase equitable process seems to betautological from an ideonomic perspective since, by definition, any process mustensure the correct administration of the evidence, equal treatment as to theobservance of the parties’ right, the judge’s impartiality, as well as the other

99

conditions that are imposed by the legal system. In consequence, the notion ofequitable process is created by politonomy in the sense that it exists in a politicalsystem because politocracy ensures through certain political insitutions thecorrect accomplishment of the process of justice. On the other hand, the right toan equitable form of justice is of politonomical nature since it implies the right toa fair trial. Ideonomically, one can imagine an equitable form of justice outside aprocess; politonomically, the equitable process ensures the pre-eminence of lawthanks to the political significance of non-discrimination in a democratic society.In this respect, we make reference to Article 6 of the European Convention: “Anyperson has the right to a fair and public trial and a solution to one’s cause withina reasonable term by an independent and impartial court of law set up inaccordance with legal provisions in force...”

Ideonomically, jurisprudence promotes the idea of correctness of law and itbecomes concrete thanks to the law practitioners’ effort to promote the principleof non-discrimination; one should not omit the fact that jurisprudence onlyreflects the ideonomic dimension of law apart from legal order, which reflects thepolitical character of law. According to the phenomenology of law, justice hasideonomically determined the course of history through the decisions adopted bycourts of law in the crucial moments of social development, especially when thepolitical system had to confront with social injustice. Jurisprudence was and stillis deeply influenced by political processes; perhaps it would be correct to say thatlaw has been deeply influenced by the influence exercised by politics upon justice.If there is demo-equity as a form of political non-discrimination, one shouldadmit the merit of magistrates in administering justice. Jurisprudence illustratesthat justice is, at the same time, the instrument and the effect of the confrontationbetween politics and law; that is why whenever the evolution of society is ahead oflegal institutions, jurisprudence adapts to reality before legal order is modifiedand with a view to safeguarding justice. Even if the process of bringing into linejurisprudence with social reality is socionomically correct; however, this processis politonomically incorrect because it breaks legal order. The issue of politicalcorrectness is also at stake as regards the question whether the law provides ornot all the possible situations; however, jurisprudence intervenes for ensuringnon-discrimination and for bringing into line facts and legislation. Theobservance of non-discrimination is similarly important for the cases in whichjurisprudence is, in its turn, behind the on-going modifications that legislation isundergoing. Thus, as L. Bruhl noticed, it is important for law practitioners tostudy the social environment to check whether regal rules are applied and to whatextent they are applied and to evaluate the grounds that led to the creation ofevery norm, as well as to assess its efficiency and to establish whether that normis not obsolete.

Social justice is the expression of political non-discrimination as long as thisis accomplished through legal institutions; it is only social institutions which canregulate relations between persons with a view to establishing social order. Theissue of social equity, as an expression of political non-discrimination isimportant as to the relation between politics and justice. First of all,ideonomically, social justice is different from social equity thanks to the fact that

100

non-discriminations means the freedom of the act of justice, whereas equity isnon-discrimination in the manifestation of freedom. Secondly, from asocionomical perspective, social justice is bound to distribute equity within aninequitable social system without discriminating those who are favoured fromthose who are not favoured. Thirdly, from a politonomical perspective, socialjustice should ensure equality as a political correctness principle while politocracysets up inequality between governors and those who are governed. From aphenomenological point of view, social justice, as a politically non-discriminationsystem could exist if and only if politocracy would not intervene either prior to orsubsequent to the act of justice, which implies that, in the end, the judiciary isrecognized by the political power. In other words, social justice understood asequality between individuals can be accomplished only if it is politonomicallysupported and if it is safeguarded by a political norm which guarantees thatpolitocracy is compelled to observe the law.

What really matters from the perspective of political correctness as regardsnon-discrimination is its democratic nature; thus, the equitable social effects arethose that matter as to non-discrimination. In consequence, equality – as aprinciple of social non-discrimination – is correct ideonomically, but it lackspolitonomic value as long as it does not make the legal act concrete. We can addto the theory of non-discrimination, as defined by political correctness, thestatement of Alexis de Tocqueville, namely that democracy depends on the way inwhich politocracy manages to establish the conciliation of the spirit of equalitywith the spirit of freedom. We should not ignore the theory of Tocqueville inrelation to the idea that equality can generate two tendencies: one which leadspeople to independence and to the anarchy, and another one, which leads them tothe long and ‘hidden’ way of servitude.

Political phenomenology of law reveals the fact that political non-discrimination is accomplished as a type of community law, as an institutionwhich distributes justice within a community and it is a distinct form of justice;thus, it is different both from state-implemented justice and from private justice,which resembles lex talionis. For example, we could refer to the community lawsystem applied New Zealand, which allows the participation of the family in theaccomplishment of justice, alongside with the policeman and the counsellors forminors. The Waga Model of community justice consists of a series of meetingswhich are mediated by a police officer in which the victim and the offender takepart. The Canberra Model of community justice uses the Waga procedure butoutside the victim’s presence. From an ideonomic point of view, communityjustice defines the administration of non-discrimination for those cases whichendanger the existence of a community or of its political leaders through a systemof justice which is acquiesced both by the citizens and the state. From asocionomic perspective, community justice deals with social wrongs, whileregarding them as an effect of interpersonal relations and / or the socialinterdependence; community justice functions as a social institution which ismeant to repair the damage that was caused and to rebuild the aggrievedrelations within the community. This type of distribution of non-discriminationknown as community justice comprises social institutions, mediation norms and

101

procedures, negotiation forms that are necessary for an extra-judicialunderstanding of justice and for identifying remedies for the victims. Thecorrectness of community justice is ensured thanks to the fact that the (physicalor legal) persons who are responsible for the application of law are instructed (orevaluated) as to the adequate use of the authority that they have to exercise insuch a way that no groups or persons could be discriminated. From apolitonomical perspective, one has to recognize the fact that the state recognizescommunity justice and if the community could not accomplish this form ofjustice, one could resort to state justice. For the phenomenology of law whatmatters is the politonomic significance of community non-discrimination since itimplies the participation of the state and the community in the accomplishmentof justice. The phenomenon is primarily a political one because the system ofcommunity non-discrimination reveals a form of judicial authority transfer fromthe public to the private sphere. Community justice attempts to ideonomicallyreconciliate individual freedom with legal normativity, and socionomiclly to bringinto agreement “natural” rights with social constraints. From this perspective,community justice is meant to be useful both to the individual and to stateinstitutions, as well. Politocracy obviously prefers the transfer of the act of justicefrom state level to local community level with a view to reducing the degree ofstate responsibility in ensuring social equity. According to a series of authors,community justice requires a series of methods from preventive actions andtreatments, such as psycho-therapeutic treatment, to political action.

Political non-discrimination also implies the problem of the so-calledrestoring justice correctness, as a form of social justice accomplishment by non-legal institutions and through the direct participation of those involved in aconflict, including state representatives and/or local community representativeswith a view to finding a solution that could repair the damage caused subsequentto the perpetration of an illicit act. The socionomic goal of restoring justice is tore-establish and/or help victims be cured, improve relationships between thevictim and the offender, make offenders responsible, help community relations bere-built, etc. Restoring justice is based on the theory of E. Durkheim, according towhom there is a repressive right which affects the person and a restoring right,which compels a person to repair the damage he / she caused and which, in fact,is an expression of justice. Restoring justice has also a politonomic meaning ifjudicial initiative is approved by the public authorities with a view to involvingthe offender in compensating or re-establishing the previous material, social orpsychical state of the victim subsequent to the damage caused through theperpetration of the offence. According to the phenomenology of law, restoringjustice serves the purpose of re-building social relations which are affected by asocial wrong and of recognizing the fact that justice must satisfy the needs andresponsibilities of all those involved: victims, offenders and community.

Political non-discrimination is tackled whenever one has to deal with theconflict between law (seen as a set of institutions which reflect a transcendentform of justice) and politics (seend as a set of institutions which rule and exercisesocial control). Ideonomically, there is no difference between political justice andother types of justice since the principles of equity, non-discrimination and

102

impartiality are identical. Socionomically, one can accept, lato sensu, the fact thatlaw stability is guaranteed (supported) by the perennial nature of social equityprinciples. Politonomically, however, law stability depends more on the politicalfairness (correctness) rather than on social justice. If we accepted the existence ofa form of political justice, we should in fact accept that there are more forms ofcorrectness in law: one is applied to political persons and another one on non-political persons. According to J. Rawls, political obligation applies as a conceptonly to law-makers; all the other factors lack these obligations, while having onlynatural obligations. Responsibilities, which are different from obligations, “areapplied in our case outside our voluntary acts”. Even if we considered that there isa political criterion which determines the occurrence of crime, we could notjustify the existence of political justice because, generally speaking, all crimesagainst social order are in fact politically grounded. The phrase political justicecannot be supported with arguments from an ideonomic point of view becausejustice has a legal rationale; from a socionomic point of view, both justice andpolitics are social temporary phenomena, which are undergoing a continuoustransformation; finally, from a politonomic point of view, the distribution ofjustice by a political institution would exclude justice and vice versa, theaccomplishment of justice would exclude the intervention of politics. Finally, thepolitical correctness (and incorrectness, too) of non-discrimination can beanalysed as a control function which is applied in the situations in which thegovernors’ responsibility for power abuse is at stake or, on the contrary, which isapplied in the situations in which governors ought to be defended from powerdetractors. In this respect, M. Bastide stated that there is a tendency towardsnormalization as regards the relation between law-politics, as well as the“guidance” of politics through law.

Bibliography

Barnes B., La natura del potere. Il Mulino, Bologna, 1995.Bastid Paul, Les grands proceses politiques de l`histoire. Fayard, Paris,

1962.Bastide Marcel, La justice politique - cours de droit constitutionnel

compare- D.E.S. de droit publique, Paris, 1956-57, iuris.Bruhl Levi, Sociologie du droit, Dalloz, Paris, 1964.Deleanu Ion, Drept constituţional şi instituţii politice. Tratat vol. II, Europa

Nova, Bucuresti, 1996.Durkheim Emile, Dex lois de l`evolution penale. Anee sociologique vol. 4,

1899-1900.Năstase Adrian, Drepturile omului. Religie a sfârşitului de secol. Bucureşti,

1992.Parlagi A.P. Fenomenologia politică a dreptului, C.H. Beck, Bucureşti, 2013.Pascal Blaise, Cugetări, Ed. Univers, Bucureşti, trad. I. Alex. Badea, 1978.Ramon, S, Community Care in Britain. In A. Lavender and F. Holloway

(Eds) Community Care in Practice. Chichester Wiley Ch. 2. 1988.

103

Rawls John, A Theory of Justice. The Belknap Press of Harvard UniversityPress, 1971.

Richardson Jeremy and Andrew, Jordan, Governing Under Pressure: ThePolicy Process in a Post-Parliamentary Democracy, Martin Robertson, Oxford,1979.

Robertson L, Injury, in B. Edelstein and L. Michelson, Handbook ofPrevention, Plenum Press, New-York, 1986.

Roubier Paul, Theorie generale du Droit, Dalloz, Paris, 1946.Rousseau J.J., Contractul social. Ed. Ştiinţifică, Bucureşti, 1957.Sartori G., A Theory of Democracy Revisited, Chatham House Publish. Inc.

1987.Strauss Leo, Natural Right and History. University of Chicago Press,

Chicago & London, 1953.Tocqueville, A., De la democratie en Amerique. Edition Eduardo Nolla, Vrin,

Paris, 1990.Walzer Michael, Spheres de la justice. Le Seuil, Paris 1983.Zimmerman M. and Rappaport J., Citizen participation, perceived control

and psychological empowerment, Journal of Community Psychology, 1988.

104

NON-FORMAL EDUCATION AS INSTRUMENT OF FLEXIBILITYOF CONCEPTS OF TOLERANCE AND DISCRIMINATION

Magdalena Dumitrana

Abstract: It is a commonplace the fact that the modernity contains important and fastmodifications in all the human life fields, including the instructional domain. if until now the roleof the school, of the formal instruction, seemed to be unquestionable, today appears a developingtransfer of many of the traditional school tasks to the non-formal education. It became obviousthat the essential information concerning the social norms, the life values, and the kind of therelationship accepted by the society is conveyed today in a large measure, by the non-formaleducation institutions, especially by mass-media. The impact is so strong that, through this type ofeducation, the concepts are modified in their content and even they depart from their initialsignificance. In this context, the present paper approaches the notions of tolerance anddiscrimination.

Keywords: non-formal education, conceptual alteration, rights, mass-media, deviation.

Incongruence of social consensusAny society, if considered historically and every society/community, if we

place ourselves on the horizontal axis, is dominated by at least two trends, withinwhich there are several variants, more or less accentuated. One of these is theideological trend-it represents the power ideas in society, formulating directly orimplicitly, the objectives of the leaders in the respective society. We use the word“current” in its most concrete meaning; the difference is that, instead of a streamof water we speak about a stream of ideas. The effect is the same – thevulnerability of the one being in the middle of that stream that is in anuncontrollable situation. Phrases “to waft along, to drift” illustrate the situation ofthe members of a society who are subject to the leading ideological pressure. Howis this pressure built and how it functions? - By coordinating the differentinfluential psycho-social factors in order to obtain the desired behavior from themembers of the respective society and moreover to obtain the convictions andbeliefs necessary for the movement of the society towards the planned direction.

The political – financial ideology needs homogeneity in the social feedback.This homogeneity has nothing in common with civic and moral regulations, orwith some ascending movement, institutionally supported, of the awareness andof social conscience of the individual. As a matter of fact, this one, as an averagemember of the community is not called, not even at a declarative level, as usuallyhappens in the communist ideologies, to contribute to the progress of the society.It is out of the question. He is asked only one thing: accepting the requiredregulations, as good and true. The main argument is a simple and also asimplistic one- once the individual accepts these social regulations, things workwell for him and he/she will succeed to become a pawn necessary in the action-which is interpreted as a job, wage, social insurance and pension. If he/she does

Associate Professor PhD., Adventist Theological Institute of Cernica, AdventistTheological Faculty, Department of Theology and Soci-Human Sciences, e-mailtas@institutadventist.ro, secretariat@institutadventist.ro.

105

not accept such rules, or fails to adapt himself/herself it is obvious that he/she iseliminated in one way or another.

Political ideology trend, supported by administrative-juridical actions,actually works identically in any of the societies. Differences are rather related tothe presentation methods; in socialism, it is asserted that the aim is actuallyrepresented by the progress of the society, as a whole and the individual shouldcontribute to the collective welfare. In the capitalism, the discourse focuses on theindividual, on his/her success, on the capacity to dispose of a larger recognition.It is recommendable to permanently mention that we are talking aboutideologies- meaning that we are talking about words and not about real facts.

Ideologies are supported, we might say, from conviction, by the category ofindividuals placed on the top of the society. The principle is essentially self-centered: I am doing well, so the society is well.

Despite this, the individuals belonging to such category generally represent amass of maneuver, interested in being manipulated and that it does notrepresent, in any way the ideological source or the supreme forum of the socialdecision. Instead, they make up the most disciplined performer army, taking intoaccount that the self-identity is exclusively assigned by the comfortable positionthat should be kept and why not, increasingly extended.

But in any society there is at least a second stream of ideas, shown in thesocial psychology, of collective psychology shared by a larger number of membersof the society. This time we talk about those who place themselves in the bottomhalf of the social success. Individuals of this section have the same purpose asthose from the first section: survival at a more comfortable level as possible basedon the principles displayed by the dominant ideology. Conditions are much moredifficult and success is rather singular. If, individually, people try as much aspossible, to conform themselves to the success criteria, there is a doubt at thelevel of the micro-group; it is a kind of subconscious understanding of the factthat imposed ideology is, in fact, an illusion, or more directly, a lie.

What is thus obtained from the individuals of a society is a kind ofconceptual schizophrenia. On the one hand, they are born into a society that hasbeen already guided by these principles; they already find values expressingsuccess. Child, adolescent, absorbs through every pore, these criteria of socialsuccess, and in case of mismatch, it blames itself and its lack of ability. Thishappens on a conscious level. Meanwhile, in the subconsciousness, things aregoing exactly the opposite: the individual "knows" that what goes wrong is not onhim; he "knows" that what he is required to think and perform is somehowagainst what he should think and do. Obviously, due to the fact that theseprocesses do not reach the consciousness field, can not be clarified and turn intoaggressive or depressive emotional manifestations.

Thus, if the "top" of society is used to promote political and ideologicalgoverning law, the "down" side becomes easily manipulated in the socialexplosion design. Both events are the expression of congruence, of continuityunder the appearance of a dysfunction and incongruity.

As I said, different bearing or not progress trends can be found in anysociety; difference from today is that these ideas can be imposed and the human

106

thought may be directed in an infinitely greater extent than in any other historicalperiod. The lead role is increasingly incumbent on the non-formal education,which is more and more institutionalized and using all modern technologies. Incontrast, formal education, school, gradually loses its importance and theinfluencing power.

Truth and False. Ways of persuasionEvery society in history knows, to a greater or lower extent, the fight between

different ideological trends. But as I said, what is the specific feature ofcontemporary concerns quantity and quality. In previous eras, large groups ofpeople remained practically outside the change trends, for these people, the worldis moving slowly, changes occurred gradually and not completely, with anadjustment time that could span multiple generations. The modern era, however,does not allow this adjustment, because it is in a hurry. Its instrument, the mostuseful and most menacing at the same time, the technological communicationskills, brutalizes the human brain, the lives of individuals and violently introducesnovelty. Most times this novelty is temporary and / or insignificant, but thedamage is produced and the individual, being permanently subject to theaggressiveness of information- information in the largest meaning, loses not onlyits ability to accurately assess data presented, but rather the will of doing it. But,just like any untrained skill, the cognition also abandons its capacities, keepingonly what is needed for daily survival, if possible, a bearable survival. Thisphenomenon multiplies rapidly and at least in the so-called "civilized" countries,it encompasses almost all categories of the population.

At the same time, the effects are shown in depth - we are speaking of thehuman mind, but also a diversified one. What is common - in this induced andassumed reception condition, is the confidence that others take decisions and alsothe relief that there is no individual responsibility in evaluating those decisions.This cognitive and attitude teaching is offset by one other fact: the existence oflarge areas of extreme poverty where the only concern is the biological survival.So, here we shall find neither power, nor will to resistance to one or anotherideology, but this is not important, because in this situation, there will appearsome other mechanisms of control.

The abandoning of your own life in other people’s hands is therefore, notonly a global phenomenon, but, it also seems to be one of the well definedpurposes of the so-called globalization. In this context, the uncontested forceremains the nonformal education exercised especially by mass-media channels.The actions of making up and modification of opinions show in a scheduled ways,in various areas and modalities of mental impregnation. A first direction, formedlong before we deem to be nowadays refers to “clairvoyance”. A clairvoyanceespecially expressed through literature. One can cite at least three names for adetailed description of the future world, in the large measure our world today:H.G Wells, Isaac Asimov, Orson Welles. At least three names may be cited inorder to describe the future world in detail, our current world, to a great extent:H.G. Wells, Isaac Asimov, Orson Welles. Much less known as a writer is AlexandrBeleaev, but his writings had a powerful impact through the film industry, in

107

particular. All these authors are classified in the category of "science fiction",although it seems more than ever that, in their writings nothing is fantasticanymore, but rather a description of a real picture, a photograph.

A second level of action is the early age at which training is initiated. Theearly training is more than necessary. However, the contents are filtered so that,it should not be the individual, but social interests to prevail. It is again a goodthing. But what is different from the previous eras is the translating of thecurricula objectives, from the interests of society as a whole, to the interests of aso-called financial elite, that controls, ideologically and politically, larger andlarger areas of the world. This selection of teaching contents and aids isaccompanied, apparently paradoxically, by the stimulation of cognitive and moralilliteracy, in the context of forced secularization of society. On the other hand,school training, where possible, gives rise to more and more complaints, choosingthe mentor being more and more inspired by the characters of the television andfilm. Thus, the world of intellect, ethical and aesthetic values, not speaking of thespiritual ones, is enclosed in an increasingly narrower sphere and although it iscontinually open, it becomes more and more inaccessible to the rest of thepopulation.

Another action level refers to the gradual change of attitudes and ways ofthinking, to changes of values considered undeniable until now. At this point, thephilosophy - the sector occupied by socio -politics and ideology, played animportant role. The first step was represented by the relativization of the factsand ideas. The saying "de gustibus", which is understandable when referring tothe everyday1 aesthetics was applied deliberately to the world of ideas, bringing itinto the zone of the derisory intelligible. This relativization covers cognitiveconcepts such as true / false, truth / righteousness, right / wrong, concepts builtusing basic intellectual operations (analysis, synthesis, comparison, classification,etc.). However, even a simple reasoning, supported by the formal logic,embedded as it were, in the linguistic structure is somewhat denied, based on thesame assertion of relativism. The arguments come from individuals; they aredifferent, therefore their conclusions are different, too. There is some truth here,but it is personal and can not be generalized. In other words, cognitive reasoningis cancelled as a value and it converted into an opinion. And the personal opinionbecomes a landmark when meeting other opinions stating quite the same thing.There is no space for logic and the argument is based on quantity and not ontruth. Right and wrong are also unnecessary concepts.

Extending relativization becomes then much easier, towards attitudes andbeliefs – the individual evaluations of the moral and religious values occurnaturally as manifestations of personal beliefs, with no generalization potential; itis a "personal matter", equal in value to other "personal matters". What is

1 It should be remembered that here it was also started an offensive of promoting the"aesthetic of ugliness" with great success especially among products intended for children -vulgarity, violence, murder, occultism, positive appreciation of all that is horrible, dehumanizingtattoos and applying graffiti at leisure, presented as forms of "art" and "creativity", have shapedmany generations who are now adults and are still modelling the future adults under the sign of"cute monster”.

108

attacked here? Nothing else, but the hierarchy of values. Vertical aspiration iscancelled and horizontal survival is promoted, as the ultimate goal. The old ideaof human equality, used in many ways, becomes now equality based on instinctsand basal needs.

These activities of impregnation of the average individual with non- thinkingand non- value are doubled as reinforcement, by the promotion of various typesof opinions issued by different communities, by the promotion of sub- cultures asequal values of truth2.

The multiplication and diversification of information, facts, ideas, values, theequalization of the essential with the facile as having the same "rights", along withthe supported work of annihilation of the individual mind capacity to extract thetruth and prioritize things lead to confusion, lower self-confidence and the urgentneed to find landmarks. Namely strong values. So, this requirement is met bydifferent advertising –values, provided by seemingly different channels of media,film industry, dramatic art and art in general3. Meaning, by all means of the non-formal education.

Discrimination and toleranceOne of the most aggressive forms of action in terms of reinventing attitudes

and beliefs in the modern era is linked to the linguistic assault. Specifically, weare talking about the change in the meaning of the words, placing them indifferent contexts that are tasked to validate the modification of these words andtheir return to the social life with a new sense already and with another emotionaland value load. Many times, such load is bearing at sight or subliminally, anindication of guilt.

When referring to the word "discrimination", it is, or better say, was one ofthe most clear and neutral concepts, extremely useful in the world of ideas. Todistinguish, estimate, compare, classify, systematize into concept categories orhierarchies, all these intellectual processes work (correctly) just based on a (wellused) discrimination. Without this precious capacity, the human mind clods andbecomes the slave of a concrete, insecure and vulnerable thinking towards ideascoming from outside. In the absence of discrimination, truth and falsehoodbecome relative, thus losing their threatening character towards mental /intellectual comfort.

Discrimination has also a positive history in the field of ethics, of behaviorand moral judgment. By means of discrimination ability, the individualdistinguishes the right from the wrong, at different levels and in differentcontexts and is able to exercise its decision properly, freely and knowingly. The

2 Thus, it happened, for example, that Wicca “religion”, a modern pagan witchcraft, be listedwith equal rights, along with the major religions of the world, founded by major figures, with levelof spirituality which is undeniably superhuman.

3 That is how it appeared the excess of texts in cartoon strips that infantilize the reader andshape its taste towards simple things and cognitive non-discrimination. But, "artistic" or "scientific"exhibitions, such as corpse exhibition, making morbid taste becoming "natural", unless the effectsare even deeper. Not to mention the "idols" such as Lady Gaga type, made especially for stimulatingof all that was considered non- value or better, anti –value, during the previous eras.

109

modern era has also relativized these values-the good becomes a pure individualcondition, being equated with the material wealth, which, at a certain financiallevel, turns even into "happiness". Evil also remains only at the individual level,as suffering to individual inconveniences. Part of the population may bringreligious arguments that support this discrimination between good and evil.Wrong. On the one hand, we already find religion and belief as mere “personalbusiness", so they do not really have potential for the others, and on the otherhand, some major contemporary religion representatives deny themselves thejustice of discrimination4, “making it flexible” the words of Scripture andinvoking other concepts, already disposed of as regards the content, namely faithand love. Indeed, given these circumstances, it seems highly pertinent the title ofan article written by S. Zizek, "passion in the era of decaffeinated faith".(2)

To discriminate means to judge, to weigh the value polarity, to issue correctconclusions. What is required now, through all institutions of non-formaleducation potential, is exactly the opposite. Not to judge. Discrimination, andthus, discernment has become an exclusively negative concept, also reducing itscontent to the political-juridical approach, by which the word "discrimination" isseen only in the acceptance of punishable conduct.

But if the concept of discrimination has extremely limited its content,another concept knows excessively, too, a change in the opposite direction. It'sabout the large used and worn word "tolerance" that has come to cover everythingthat could mean ethic discrimination and awareness, good-evil judgment. Themodern era, born in the shadow of the document regarding the human rights,pushes the tolerance so far that it succeeds to cancel the rights of a large group ofpeople. Through all forms of media communication, within a project developed insmall steps, tolerance has completely changed its meaning, by broadening withlogical fallacies. The first step was represented by the aesthetics of ugliness, byrepealing more or less the traditional criteria of beauty and valuing of everythingwhich was before, just repulsive and grotesque things. By media channels,movies, by art in general, it is appreciated the horrible, terrible, terrifying,moreover and it is promoted the attraction to everything would have horrifiedpeople during “normal” times. The wonderful fairy tale “The Beauty and theBeast” has become a cruel reality, devoid in fact, by the humanistic and aestheticmiracle of the story.

The moral area was somehow, the second step; here, acts of life, sporadicotherwise, become examples and then proliferate unwanted behavior, using,mostly, positive and human feelings, feelings which become then justifyingexcuses for repealing moral prohibitions5. Among these pretexts, there are alsothe New Testament verses, widely used as the basis of the behavior exactlyopposite to those of spiritual-religious type. Transitions between moral andemotional are easy to make. Tolerance implies love and love encompasses

4 It is already known the rhetorical question of the last pope on homosexuality: "Who am I tojudge?"

5 An example would be to promote the attraction that some people, apparently well integratedinto society, feel towards bloody criminals, reaching to marriages concluded in prison. Or killingsome innocent people- see Zimmerman case.

110

everything. Including, for example, what traditionally would have beenautomatically considered a punishable behavior: same-sex intimacy. Those whodo not accept the "tolerance" are declared enemies of human rights andsanctioned, not by public opinion or by manipulated religious commandments,but directly, by state law, by legal punishment. These legal penalties on"intolerance" tend to globalize with an absolutely remarkable speed. Obviously,the tolerance acts only in one direction; anyone who is outside the legalrequirements is a person to be eliminated by the society.6

The tone which requires tolerance from the members of society graduallychanged: from "it would be better, it would be nice like that", it moved to animperative "must" that does not allow any reply.

It is important to note that tolerance does not stay as it is – for examplethere is an attempt to reduce the severity of (yet) paedophilia offence, by loweringthe age at which the child is considered to be a child. But the requirement ofequal rights is not limited to the human species; there are also animal rights, aseasily to manipulate, maybe even more. Bestiality, sexual love between animaland human being can not be criticized, as long as there is consensus and mutualpleasure7. The way of assessing the animal "pleasure" is not yet clarified ordifferentiated too much by its torture. It is a logical conclusion, sincediscrimination and tolerance, reported exclusively to instinctual manifestations,that really binds the animal kingdom to the human one are criteria based onwhich various behaviors are legally sanctioned.

6 This is the case of Diana Medley, a teacher in a small special school, who was severelypunished for her desire to organize the graduation prom in a "traditional" way - that is, only withthe school students, without gay couples of some of the students. The revolt of ordinary citizens ofthe United States was immediate and due to the pressure of public opinion and media, the teacherhas been suspended ; e-mails sent to the school management, in this respect, were numerous; it hasbeen required that her children be taken away, because she is not able to be a good mother, but onlyal homophobic fanatic; there have been published repeatedly the school address, teacher’s homeaddress teacher and her phone number, as subliminal incitement to aggression against women. Notto mention absolutely terrible injuries that have been made to them and her defenders, obviously, inthe name of love for people and love that Jesus showed for all (obviously a manipulative statement);here is also the case of a girl who decided to become a boy and pretended to compete for "the promking and not for the "queen”: Issak Wolfe, a trans student who identifies as male, became part of aprom controversy after his principal placed him on the ballot for prom queen, switching at the lastmoment after Wolfe had campaigned to be prom king.....Wolfe had said he would like an apologyfrom principal Mark Shue for the “degrading” incident, while his girlfriend, Taylor Thomas, starteda petition to get Wolfe named prom king…..A letter sent by the ACLU (The American Civil LibertiesUnion) on 26 April demands an apology within one week, with the potential for future legalaction….The letter also demands a guarantee that Wolfe will be able to wear the black cap and gownworn by male students at graduation, as opposed to the yellow one worn by females, and beannounced as Issak Wolfe….Although his school diploma will carry his birth name, SierraStambaugh, as he has not yet legally changed it, Wolfe said being treated as a man in every otherrespect was significant. (http://www.pinknews.co.uk/2013/04/30/us-aclu-demands-apology-for-trans-student-after-prom-queen-controversy/)

7 Unfortunately, in this well defined direction are oriented the books and speeches of anAustralian professor, Peter Singer, widely promoted in the media, which supports bestiality in a waythat seems logical to non-discriminatory minds or those interested in "tolerance" in this direction.

111

ConclusionsThe modern era has an infinitely richer, more various and sophisticated

communication, persuasion and control toolbox, as compared to previousperiods. This toolbox really allows what no book, teacher or school could perform,namely educating the broad masses, various categories of people who, in terms ofdaily life, might not ever meet, but, who meet on the ground of the non-formaleducation. These categories, groups of individuals influence each other to agreater or lesser extent, in a "non-discrimination" way, in a mutually "tolerance"and even declare that they “love each other”. On one condition however: to feelcomfortable, each of them, with his/herself. Indirectly, this means neither morenor less than the cancelation of the social relations8, cancelation of empathy andgenerally amputation of aspiration to spirituality.

World communities are maybe designed and built differently, but on thesame basic concepts: faith, religion, love, understanding, forgiveness, support.The meanings of these concepts are increasingly deviating from the originalmeaning. By "equality" promoted by non-formal ideological structures, theessence of human individuality itself is affected, despite, obviously of multiplicityof "delivering" discourses. In a world where freedom is proclaimed at every step,the constraint is more present and powerful than ever. And this constraint doesnot aim at the regularization of the human life but in a reverse way, itsirregularity. And, probably the one who best expresses this reality is the same S.Zizek: "...ultimately, passion as such is “politically incorrect”: although everythingseems permitted, prohibitions are merely displaced. Recall the deadlock ofsexuality or art today: is there anything more dull, opportunistic and sterile thanto succumb to the superego injunction of incessantly inventing new artistictransgressions and provocations (the performance artists masturbating on stageor masochistically cutting himself, the sculptor displaying decaying animalcorpses or human excrements) or to the parallel injunction to engage in more andmore „daring” forms of „ sexuality”....In some „radical” circles in the US therecame recently a proposal to „rethink” the rights of necrophiliacs (those whodesire to have sex with dead bodies) – why should they be deprived of it?...[...]what the Politically Correct tolerance is giving us is a decaffeinated belief: a beliefwhich does not hurt anyone and does not fully commit even ourselves.”(2) Schoolin our age, the formal education, seems to lose the battle in front of the strengthand intelligence of promoting, let’s say, the post-modern ideology. The young andthe less young people are coagulated under the securing umbrella of some ideasissued by the globalizing financial and political institutions, defended by a courtwhich is leading itself towards globalization. Under this umbrella, each individualhas the trust that he will be protected if obeys to the rules and that, in any case, hewould not be responsible. But he might be in error if we remember the words ofAnna Politkovskaya, murdered shortly afterwards: "In my opinion, a fungusgrown under a higher leaf can not hope that it will be not found. More than likely,someone will run over it, it will break and eat it. If you were born a human being,you can not behave like a fungus "[1, p. 384).

8 But, of course, not of the primary manifestations of the crowd.

112

Bibliography

Politkovskaia A., Jurnal rusesc, Translated from English by E. Jalbă-Şoimaru, Meteor Press, Bucharest, 2010.

Zizek S., Passion In The Era of Decaffeinated Belief,http://www.lacan.com/passion.htm, consulted 1st of Sept 2013

113

CULTURAL INEQUALITIES IN EDUCATIONAL PROGRAMS

Hasan Arslan

Abstract: The purpose of this study is to examine the perceptions of elementary schoolteachers about the sensitiveness of principals, teachers, and curriculum on multiculturaleducation. Education provides the transmission and the advancement of its culture while it isdeveloping and enhancing the common values, the integrity and the progress of multiculturalsociety (Sahin, 2006). If the society has multi-ethnic culture, the educational policy should coverall kinds of multi-ethnic cultures to exchange cultural values each other. The findings of this studyindicate that Turkish educational system ignores multiculturalism in their schools. Curriculumdoes not cover cultural differences. Principals and teachers performing their responsibilityrelatively show respect different cultures even if it is not at the expected level.

Keywords: inequalities in educations, multicultural education, educational policy.

IntroductionPolicy makers and educators should address and embrace multiculture

culture, and educate their students about other cultures and the importance orlearning about those cultures. This approach in diversity has caused manyeducators to recognize the need to expand their knowledge of multiculturaleducation within public schools (Nagel, 1995). Turkish educational policy doesnot care about the differences of ethnic, racial, and religious backgrounds, itseems that the Turkish educational system has the operative melting potwhatever their ethnic, racial, or religious backgrounds although there is noofficially announced policy about melting pot. The population of Turkey is nowmore than 70 millions. 86 percent of the population (60 millions) is Turks and 14percent of the population (10 millions) is ethnic groups. There have been manyethnic groups and different religious backgrounds in Turkish society (İnalcık,2006). According to Andrews (1992), there are at least 21 ethnic groups and 10religious backgrounds. Within the larger macroculture in the Turkey are manysmaller subsocieties or subcultures known as microcultures. According to Chinn(2002), microculture share cultural patterns of the macroculture but also theyhave their own identity sets of cultural patterns. Students from the microculturalgroups share their traits and values that bind them together as a group.

Methodology for ResearchThis is a descriptive study. A quantitative method was used to understand

the teachers’ perceptions of multicultural education. The purpose of this study isto determine elementary school teachers’ perceptions of multiculturalism.

A questionnaire developed by the researcher and based on a five-point likertwas selected to measure teachers` perceptions of multicultural education. Thequestionnaire consists of 55 statements in three dimensions. The first dimension,21 statements, asks teachers how much the school administration is sensitive to

Associate Professor PhD., Head of Department of Educational Sciences&Director of Department of Educational Administration and Supervision & Presidentof International Association of Social Science Research, Educational Sciences, Facultyof Education, Canakkale Onsekiz Mart University, arslan.phd@gmail.com.

114

the multicultural issues in the school. The second dimension, 22 statements,focuses on teachers’ perceptions about teachers’ responsibility and sensitivity tomulticultural issues while teaching in the classroom. The third dimension, 12statements, asks the sensitiveness of curriculum to multicultural education.

The FindingsResults show that the sensitiveness of multicultural education differentiates

among the dimensions of scale (Table I). The highest mean score was found inschool administration. Even if the sensitiveness of multicultural education is notenough level in administration, the mean score of school adminisration(mean=3,55) is higher than the dimensions of teachers and curriculum. However,the score of 3.55 tells us that the school administration has some knowledge andsensitiveness to the multicultural education. The lowest score was taken from thesensitiveness of curriculum. This result indicates that the curriculum mostly doesnot encourage multiculturalism in classrooms. If we think that teachers do notknow exactly what the multicultural curriculum is, the score of 3.03 should beconsidered as moderate. The mean score of teachers’ perceptions about the otherteachers is 3,33. It seems that teachers have some part of multicultural approachin their classroom but it is not enough to teach mutual respect among students.

Table I. The Perceptions of Teachers about the Sensitiveness of Principals,Teachers, and Curriculum on Multicultural Education

Dimensions N Mean SSSchool

Administration363 3,55 0,55

Teachers 368 3,33 0,51Curriculum 361 3,03 0,50

As looking at pearson correlation it seems that there is a significant positivecorrelation among the dimensions. While the correlation between schooladministration and teachers is r=0.632 (sig. 0.00 < 0.01), the correlationbetween school administration and curriculum is r=0.471. It seems that theschool administrators are more concern to the teachers rather than curriculum.On contrary to the relation between the administrators and curriculum (0.471),the pearson correlation between teacher and curiculum is r=0.658 which ishigher than that of administrators. From this result, it is inferred that teachersare more concerned with the curriculum that they say the curriculum does notcover enough multicultural education (Table II)

Table II. The Correlations of the Perceptions of Teachers about theSensitiveness of Principals, Teachers, and Curriculum on Multicultural Education

115

Dimensions administration teachers curriculumadministration Pearson

Correlation1 ,632(**) ,471(**)

Sig. (2-tailed) . ,000 ,000N 363 360 354

teachers PearsonCorrelation

,632(**) 1 ,658(**)

Sig. (2-tailed) ,000 . ,000N 360 368 360

curriculum PearsonCorrelation

,471(**) ,658(**) 1

Sig. (2-tailed) ,000 ,000 .N 354 360 361

** Correlation is significant at the 0.01 level (2-tailed).

The first sub-question was “is there any statistically significant differencebetween the mean scores of males and females in terms of sensitiveness ofprincipals, teachers, and curriculum on multicultural education?”

After testing dimensions of cultural sensitiveness by using t-test at asignificance level of 0.05, as seen table III, there is statistically significantdifference between the mean scores of males and females in terms of perceptionsabout school administration and teachers. Female teachers have lower meanscore than male of that. They perceive that school administration has lowersensitivity than males to multicultural education. In addition to this significantdifference, female teachers have higher mean score than males of that on thedimension of teacher. However, no statistically sinificant difference between themean score of males and females in terms of perceptions about curriculum (TableIII).

Table III. The Comparisons of Mean Scores of Males and Females in terms ofdimensions of cultural sensitiveness

Gender N Mean Std.Deviation

df t P

SchoolAdministration

Female 154 3.63 ,55977 349 2,71 0,007Male 197 3.46 ,59742

Teachers Female 157 3.39 ,44975 354 1,97 0,049Male 199 3.28 ,56458

Curriculum Female 154 3.07 ,43037 349 1,34 0,181Male 197 3.00 ,55832

Discussion and ConclusionCommon values are one of the important factors that keep individuals

together in a society. Education is expected to develop common values to enhance

116

the progress of the society. Curriculum is the agenda that we follow to developcommon values (Nobles, 1993).

With this increase in diversity among Turkish student populations comes anincreased responsibility to better prepare future educators to deal with thecomplex issues and needs of such diverse student groups. Although the Ministryof Turkish Education has no official policy of multicultural education in spite ofmulticultural structure of the society, administrators and teachers have somekind of sensitiveness to the multicultural education. Principals performing theirresponsibility relatively show respect different cultures even if it is not at theexpected level. However, principals ignore the importance of cirriculum informing of multicultural environment in school. It seems that they care ofcommunicative relations with students, teachers and parents.

Teachers play more important roles in forming multi-cultural schools in theeducational systems. They have significant effectiveness on students andadministration. If they believe the needs of responsive classrooms, they will dotheir best to support the multicultural education. Survey results indicate that theyhave medium concern on multicultural education and see principals’ endevourmore than theirs on multicultural education. Younger and female teachers havemore concern multicultural education than older and male ones. These findingsindicate that next generations would contribute to develop the sensitiveness ofmulticultural education and enforce the ministry to improve the multiculturaleducational policy. If the younger teachers would have lower points than olderones, it would be chaotic for the future of multicultural education. There is nodoubt that curriculum does not cover multicultural issues.

Curiculum shows the perspectives of the ministry on multiculturaleducation. The curriculum is prepared and provided to teachers by the Ministry.The teachers have no authority to revise the curriculum or to develop a new one.In order to meet the goals and objectives of the curriculum, the textbooks orrelated materials, which were approved by the Ministry of National Education,are selected each year by committees for each subject area in each school (Sahin,2006). Research results show that curriculum has the lowest sensitiveness ofmulticultural education in terms of teachers’ perceptions. If the curriculum isdominated by the culture of an ethnic majority, the students of the same originperceive that the behaviours, ideas, customs, and values of others are illegitimateor unimportant. Nobles (1993) noted the need for a core curriculum thataddresses various cultural differences. The curriculum should take into accountthe cultural realities of all the students in the school. Others agree that thecultural backgrounds of all students must be reflected in the curriculum (Banks,2004; Gay, 1993; Nobles, 1993)

It is clear that one of the most essential requirements of integrating with thesociety, learning its culture and obtaining educational and professionalopportunities is to learn and use the widespread and common values in thesociety (Corson, 1992 & Choumak, 2002). It was inferred that the important roleof the school principals and teachers to prevent racial bias and provideintegration at school (Choumak, 2002; Gilbert, 2004). It can be seen that schoolteachers and administrators try to help the students integrate culturally and they

117

do not discriminate on the basis of ethnicity. Even some teachers spend extraeffort for the pupils in ethnic minorities. On the other hand, we cannot say that allthe teachers are sensitive and voluntary enough about that topic. Besides, it isobvious that the contents of the lessons are not satisfactory for ethnic culturalintegration. However we know from Bruner (1986) that multicultural curriculumis a device to understand their own culture and the others and connects to alarger global community. Teaching multiculturalism at the all school levels is notonly to understand their society but also the world cultures.

It can be inferred from the research that it seems that one of the moreimportant obstacles is not to have multicultural educational programs. Politicalstatements about accepting culturally diverse structure should be reflected oneducational programs. In order to provide that, school principal who has to betolerant towards the ethnic diversity and well-experienced to encourage theteamwork among the teachers and the students. However, the struggles ofprincipals and teachers are not sufficient to remove the ethnical problems.Because the existing educational policy keeps ethnical discrimination in schools.Principals and teachers do not have any rights to change curriculum, theconstitutional rights do not make sense for children. The government shouldaccept and implement multicultural educational policy.

Schools are not teaching other cultures in our classrooms. Students who arestarting from the first grade and learning how to read and write but do not hearany ethnic name, culture, different religion etc. So they do not know that some oftheir friends have different ethnicities, religions, languages and cultures. After thegraduation from their school, they become Turkish nationalist due to educationalpolicy.

Higher education must enable teachers to learn and practice this concept.Teacher candidates must be prepared to be culturally responsive teachers. HigherEducation Institutions should teach the prospective students and the existingteachers how to teach the multicultural characteristics in schools. Because highereducation institutions should be models for the primary, secondary, high schoolsand, the community in reflecting respect for cultural differences. Schooling canprovide the knowledge, skills, and dispositions, for redistribution of power andincome among diverse groups of people (Ameny-Dixon, 2004). Principals mustwork collaboratively with school staff members, parents, and the community tobuild multicultural society.

The Ministry of National Education should be revised curriculum and care ofdifferent ethnics, religions and languages on the programmes. The programshould be sensitive to multicultrural education. For ethnical and culturalintegration, the contents of the lessons should be examined seriously and ethnicand cultural components of different ethnic minorities should be added to thecontents of the lessons. Otherwise, the Ministry would feed cultural biases in thesociety that can be the causes of many social problems.

118

References

Ameny-Dixon G.M., (2004), Why multicultural education is more importantin higher education now than ever: A global perspective. International Journal ofScholarly Academic Intellectual Diversity, (8)1.

Banks J.A., (1991), Teaching strategies for ethic studies (5th. ed.). Boston:Allyn & Bacon.

Bruner J., (1986), Actutal minds. Poossible worlds, Cambridge, MA:Harvard University Press.

Chinn K., (2002), Multicultural Education: Issues and Perspectives.Compare, Vol. 33, No. 1, Carfax Publishing, Hong Kong.

Choumak, L.N., (2002), Bilingual Education Models in Latvia: a view fromBelarus, Intercultural Education, Vol. 13, No. 4.

Corson J.D., (1992), Socialjustice andminority language policy. EducationalTheory, 42 (2): 201-216.

Gilbert D., (2004), Racial and religious discrimination: the inexorablerelationship between schools and the individual, Intercultural Education Vol. 15,No. 3.

İnalcık H., (2006), Büyük Türk Tarihçisi Prof. Dr. Halil İnalcık’tanKonferans Tarih ve Politika, Unihaber 2006, Sayı 64 (15 – 31 Mart)www.ankara.edu.tr.

Nagel T., (1995), Equality and Partiality. New York: McGraw Hill.Nobles W., (1993), The Infusion of African and African American content: A

question of content and intent. In S.L. Wyman (Ed.), How to respond to yourculturally diverse student population.. Alexandria, VA: Association forSupervision and Curriculum Development.

Sahin İ., (2006), Cultural Sensitiveness of School Goals and Students’Failure in Turkey International Journal of Progressive Education, Volume 2Number 2.

119

LES FEMMES DANS LA POLITIQUE

Adrian Helstern

Abstract: Romania contemporary woman goes, unfortunately, a crisis that makesfeminism and women's involvement in social and political life seem more like a mockery to them.Romania, a country with strong traditional family culture combined with Orthodox Christianreligion and intertwined with the obligations imposed by modern society for women in Romaniamakes life seem an impossible task. Therefore, this article proposes a brief analysis of the politicalparticipation of women, given their number worldwide is higher than men.

Selon une étude américaine effectuée par une compagnie d'assurance, lesfemmes sont de meilleurs conducteurs que les hommes. Pratiquement, 80% desaccidents graves sont produits par les hommes et le risque pour une femmed'avoir un accident baisse de 27%.

La société souligne que, généralement, les conducteurs de sexe masculin onttendance à prendre des risques et d’être agressifs, ce qui les rend plussusceptibles de commettre des fautes sur la route.

Les statistiques révèlent également que les hommes enfreignent plus souventles règles de circulation et dépassant la limite de vitesse maximale.

Si nous ne disposions que de cette étude il serait suffisant pour trouver desréponses et des explications sur la situation des femmes en politique. Commentlutter contre quelqu'un qui ne joue pas le jeu et qui est plus agressif que toi.

Il semble que la concurrence entre les femmes et les hommes est impossible.En fait, il n'y a pas de compétition. Si les hommes contestent leurs propres mères,les mères de leurs enfants et leurs filles et si les femmes contestent leurs pères,leurs fils et les pères et leurs enfants, alors nous pouvons parler d'une lutte entreles sexes.

Pourquoi en Roumanie peu de femmes participent activement à la viepolitique et pourquoi il y a si peu de femmes qui ont fait carrière dans le premieréchelon?

Une petite visite dans les bureaux des partis politiques pourrait révéler unetriste réalité, précisément que derrière la scène politique il y a un nombreimpressionnant de femmes engagées dans les activités des partis et certainesd'entre elles oeuvrant dans ce domaine à partir d’un jeune âge. Lorsqu'un jeunehomme est remarqué, il est assisté d'une manière soutenue pour devenir unhomme politique important. Lorsqu’une jeune femme est remarquée au sein d'unparti, généralement elle est recommandée pour secrétaire, directeur de cabinet ouconseillère d’un homme politique. En conséquence, peu d'entre elles parviennentà devenir des voix sonores en politique et, à regarder de plus près, nombre d'entreelles bénéficient du soutien d’un homme important, soit en politique ou enaffaires. Cette situation n’est pas produite uniquement par l’offensive deshommes, mais aussi par l’attitude défensive des femmes. Le message serait: Osez!On a besoin de vous dans la vie politique. Dans le monde politique d'aujourd'hui

Directeur, La Chambre des Députés, La Direction d'études et documentationlégislative.

120

les femmes sont nécessaires, car on a besoin de leur vision du monde et de sesproblèmes.

Si vous ne voulez pas que le féminisme soit détourné de ses principauxobjectifs, alors, osez!

Malheureusement, en Roumanie, la femme contemporaine passe par unecrise qui rend apparemment le féminisme plutôt une dérision à l'égard desfemmes. En Roumanie - un pays ayant une forte culture de la famille, associée àla religion otodoxe et entrelacée aux obligations imposées par la société moderne- pour les femmes, la vie politique semble une tâche impossible. De nombreusesfemmes sont confrontées au dilemme: une bonne épouse et mère ou une femmeindépendante? Être une une bonne épouse et mère n'est pas suffisant dans lemonde actuel. Le revenu ramené par une femme est devenu strictementnécessaire dans un pays pauvre, d'une part. D'un autre côté, du point de vuesocial, une femme sans emploi est susceptible d'être isolée et d’avoir un avenirincertain dans un monde où le mariage est devenu un provisoire. Et, une femmeindépendante est détournée de sa vocation essentielle/d'être épouse et mère.

Il est vrai qu'une femme sait comment aborder les questions liées à la familleen général, aux droits maternels, aux droits de l’enfant, à l'enseignement desécoles maternelles et des écoles, même à la santé et à la violence domestique.Pour une femme, l’enjeu politique est de voir ses projets mis en œuvre et lafonction politique est considérée un emploi quelconque, tandis que pour unhomme l’enjeu politique est d’accéder au pouvoir et la lutte politique signifiedominer et conserver le pouvoir.

Mais il semble qu’en Roumanie ces problèmes ne sont pas assez importantspour justifier l'attention et le sacrifice des partis politiques, signifiant d'accorderaux femmes certaines positions importantes dans le Parlement et au sein del'Exécutif.

D'un autre côté, même dans les pays où la situation est bien meilleure entermes de représentation des femmes dans la politique il a été nécessaired'introduire des dispositions dans les lois électorales, concernant le système desquotas minimaux sur l'égalité des sexes.

La Roumanie et les femmes dans la politiqueLa participation équilibrée des femmes et des hommes dans la prise de

décision est un principe fondamental, assumé par la Roumanie au moyen desdispositions légales en vigueur, ainsi que par les programmes des institutionsspécialisées et par tous les États membres de l'Union Européenne.

Une analyse de genre sur les acteurs décideur influençant la situationéconomique, sociale ou culturelle d’une communauté reflète, actuellement, lapersistance des rapports inégalitaires, défavorables aux femmes. Les facteursculturels, religieux et biologiques ont été fréquemment invoqués afin depermettre la perpétuation de la discrimination sexuelle au niveau décisionnel etla gaspillage du potentiel de nombreuses femmes. Ainsi, des représentationssociales propices à la répartition des rôles des sexes ont été des obstacles de lareprésentation des femmes en politique.

121

Selon les données concernant la participation des femmes dans le processusdécisionnel, on peut voir une sous-représentation des femmes dans la prise dedécision, en particulier aux niveaux parlementaire et gouvernemental:

- 11,5% de femmes au Parlement de la Roumani (13,3% de femmes à laChambre des députés et 7,4% de femmes au Sénat);

- le gouvernement actuel compte 27 ministres, dont seulement six sont desfemmes.

Le dernier rapport sur la disparité entre les sexes au niveau mondial - IndexReport Gender Gap 2012 - classe la Roumanie près de la moitié du classementdes pays analysés avec un score s'approchant de la limite supérieure, concernantl'égalité des sexes. Il n’y a pas de différences importantes par rapport aux annéesprecedentes, mais le chapitre le plus problématique reste l'implication desfemmes en politique.

La Roumanie se trouve sur la 67-ème positions sur 135 pays analysés, ayantun score de 0,686 (un niveau plus proche de 1 signifie la réduction des disparitésentre les sexes), pour une population de 21.390.000 habitants.

Le pointage final est calculé en vérifiant l'existence des disparités entre lessexes par rapport à quatre domaines: l’économie, la politique, l’enseignement etla santé. La deuxième position concernant le plus bas niveau est enregistrée dansle domaine économique - un score de seulement 0.681. On observe uneamélioration dans le domaine politique - un score de 0.089, en hausse de 0,033points par rapport à l’année 2011.

Au sein des partis politiques, le pourcentage des femmes parlementaires estle suivant: ARD - 12,6% (10 sièges sur 79), PP-DD - 18% (12 sièges sur 66), USL -11% (44 sièges sur 398), UDMR - 3,7% (1 siège sur 27), l'Association la Ligue desAlbanais de Roumanie - (1 siège).

Par rapport à une moyenne de 20,8% femmes dans les parlements du mondeentier, la Roumanie se trouve dans la dernière partie du classement - auParlement de la Roumanie on ne retrouve que 11,5% femmes, bien que lesfemmes représentent près de 52% de la population. Dans l'Union Européenne, laRoumanie ne surpasse que le Chypre et l’Hongrie en termes de pourcentage desfemmes au Parlement et, au niveau mondial, la Roumanie se trouve sur la 99-èmeposition sur 141, derrière des pays comme le Turkménistan, l'Azerbaïdjan, leZimbabwe, le Bangladesh, l'Irak et l'Afghanistan. Dans ces circonstances, laRoumanie ne parvient pas à atteindre l'objectif de l'égalité des chances pour lesfemmes et les hommes du décalogue des Objectifs du Millénaire pour ledéveloppement. La Roumanie réussit à se démarquer au dessus de la moyenneuniquement concernant le pourcentage de femmes au Parlement européen, avec36,4% eurodéputés femmes par rapport à la moyenne européenne de 35,2%.

Les motifs de la faible représentation des femmes dans la politique sontfacilement identifiables: les préjugés et la discrimination; le processus desocialisation et la couverture media des femmes; les responsabilités familiales; lesmythes concernant le manque de qualification, l'accès limité aux fonds pour lescampagnes - ce sont quelques-unes des problèmes qui portent atteinte à laparticipation des femmes roumaines dans la vie politique.

122

L'expérience des pays développés montre que la proportion des femmes dansles organes décisionnels des institutions politiques et publiques n'augmentera passans le concours des mesures concrètes, telles que les quotas de representationaccompagnés par des campagnes promotionnelles en faveur de la participationactive des femmes à l’évolution de la société.

Les quotas minimaux sur l'égalité des sexes, sous leurs diverses formes, sontdes pratiques déjà légiférées dans les pays européens tels que la Belgique, laFrance, l'Espagne, la Norvège, la Finlande et la Slovénie et on retrouve des quotasdéfinis dans le statut des partis politiques dans des pays tels que l'Allemagne, laSuède, la Pologne et le Royaume-Uni.

Pourquoi avons-nous besoin des femmes dans la politique?Une meilleure représentation des femmes permet d’aborder les aspects

spécifiques de la vie des femmes, des enfants et des familles, ainsi que lesquestions liées à l'absence des politiques publiques concernant les bonnesd’enfants, la violence ou d'autres sujets traités de manière périphérique dans lavie publique décisionnelle de la Roumanie des vingt dernières années1.

Dans les grandes entreprises européennes, en termes d'environnement detravail, d'innovation, de responsabilité et de profit, les meilleurs emplois, autantpour les femmes que pour les homes, sont offerts par les compagnies qui ontinclus un grand nombre de femmes dans le leadership. De plus, les entreprisesqui ont une composition équilibrée entre les sexes peuvent atteindre un bénéficed'exploitation de 56% plus élevé que les sociétés ne comportant que des hommes,selon une étude réalisée par la société de conseil McKinsey.

Plusieurs études portant sur les meilleures entreprises américaines, figurantdans Fortune 500, ont révélé que la performance financière des entreprises ayant unplus grand nombre de femmes à la direction sont remarquables. Les entreprisescomptant au moins trois femmes qui occupent des postes de direction bénéficientd'une efficacité organisationnelle plus élevée que les entreprises n'ayant aucunefemme dans les postes de responsabilité. De plus, l’augmentation du nombre desfemmes dirigeantes conduit à l’accroissement de l'innovation dans l'entreprise.

Égaliser l'impact des pourcentages de femmes et d'hommes employés setraduirait par une augmentation de jusqu'à 13% du PIB de l'Union Européenne,selon une simulation gérée par Goldman Sachs.

D'autres études montrent que l'efficacité, l’ingéniosité, la responsabilitésociale et morale sont encore plus élevées pour les entreprises ayant des femmesdans des postes de direction.

Une perspective féminine à la haute direction et à la gestion des sociétéspourrait conduire à une augmentation de la responsabilité sociale des entreprises,de la préoccupation pour l'environnement et, en general, du respect pour lesdevoirs moraux.

1 Voir Mădălina Tomescu, Liliana Trofin - Considerations regarding the implication of theromanian woman in the political life – International Conference: “DIMENSIONS OF CHANGE ATTHE BEGINNING OF THE XXIst CENTURY “October 23-24, 2009, Târgu Mureş, Ed. Risoprint,Cluj Napoca, 2009, ISBN: 978-973-53-0150-7, p. 48-52

123

Sont les romains prêts de créditer une femme à une fonctionpolitique importante?

La Suisse et la Lituanie sont des pays européens dirigés par des femmesprésident. Deux autres pays européens - la Grande-Bretagne et le Danemark -sont représentés psr des reines. L’Allemagne et le Danemark ont des femmespremiers ministres. À l'époque turbulente de la crise économique, les finances etles économies européennes sont pilotées par neuf femmes ministres dans l'UE-27. Pourquoi ne serait-il pas possible en Roumanie?

Dans l'Union Européenne, la Roumanie est placée sur l'une des dernièrespositions concernant le nombre de femmes au sein du gouvernement - à cemoment, il y en a six. En revanche, les pays de l'Europe septentrionale etoccidentale ont le plus grand nombre de femmes ministres. Peut-être pas parhasard, ces pays sont les plus avancés en termes de développement économique.

La Roumanie se trouve dans la moitié inférieure du classement aussi entermes de représentation des femmes au Parlement - 11,5%. En Europe, il n’y aque la Hongrie et Malte qui se trouvent à la traîne de la Roumanie. Une meilleuresituation se reflète dans la représentation des femmes au Parlement européen. LaRoumanie se trouve dans la moitié supérieure du classement des pays de l'UE -plus d'un tiers des députés européens roumains sont des femmes. La situation estprobablement due au fait que, pour la classe politique roumaine, partir pourBruxelles équivaut à une retraite assez inefficace de la principale scène indigene -qui, après tout, a plus d'importance aux yeux des acteurs impliqués.

Ce n'est que lorsque les mécanismes de sélection et de promotion despolitiques vont commencer à s'approcher de ce que devrait être, c'est à dire, unmodèle basé sur la valeur réelle, sur les compétences, sur le travail, sur l'equilibre- y compris l'égalité des sexes - la Roumanie aura des raisons d'espérer àl'alignement avec des normes élevées, comparables à celles de l'Occident. C'estalors seulement qu’en Roumanie il y aura plus de femmes ayant la possibilitéd'occuper des postes de direction.

En résumé, il faut un projet par lequel les partis politiques, pour êtreautorisés à entrer dans la compétition électorale, soient tenus par la loi deprésenter aux élections locales et législatives une liste de candidats où les femmesse retrouvent à un minimum de 30%. Nous soutenons le même pourcentage pourles mandats gouvernementaux.

La dynamique actuelle et le taux actuel effectif de la représentation desfemmes dans les organes décisionnels gouvernementaux, centraux et locauxplacent les partis politiques roumains très loin des pratiques mondiales. Si lamesure de la démocratie roumaine est donnée par la représentativité desdirigeants, les traits de la société roumaine, comme en témoignent les rapportsdes experts, ne sont pas louables.

L'égalité des sexes2 n’est pas un donné a priori, mais une valeur sociale pourlaquelle il faut lutter. Introduire des quotas par sexe n’aboutit pas à unediscrimination positive de la femme, mais à une correction de la discrimination

2 Voir Mădălina Tomescu, Protecţia şi promovarea drepturilor femeilor la nivelinternaţional dans “Monitorul cultural-educativ” nr. 1/2009, MAI, ISSN: 1583-6126, p. 82-101

124

manifeste des femmes roumaines dans la vie politique, par rapport à leurpourcentage élevé au niveau national. Les droits des électeurs ne seront pasviolés, puisque les candidats seront sélectionnés, d'abord, par les partis politiquesvia le contrôle des nominations électorales, et ce n’est qu'ultérieurement que lescitoyens exercitent le droit de vote. On peut éliminer le risque que, toutefois,après l'imposition de quotas, les femmes jouent un rôle superficiel dans lapolitique, par le type de taux choisi - comme l'illustre l’expériences des autrespays. En outre, les dirigeants des partis ne peuvent se permettre le risque depromouvoir 30% des candidates manquant de véritables compétences alors que levote est nominal.

L’introduction des quotas minimaux pour la représentation politique desfemmes plutôt compense les obstacles qui empêchent les femmes de bénéficierdes positions politiques qui leur sont attribuées équitablement et empêchel’apparition des autres obstacles et mécanismes d'exclusion.

Les quotas minimaux sur l'égalité des sexes restreignent la tendance despartis politiques à designer des hommes en tant que représentants et les oblige àrechercher activement des candidates compétentes.

La situation internationaleLa représentation des femmes dans les parlements des pays européens varie

entre 44,7% et 8,7%. Selon les statistiques de l'Union interparlementaire (UIP)dans les parlements nationaux des 187 pays, les femmes représentent enmoyenne 20,8% de l'ensemble des parlementaires, tandis qu'en Europe (pays del'OSCE) le pourcentage moyen est de 24,1%.

Le pourcentage le plus élevé de femmes parlementaires est détenu par leRwanda (51,9%), suivi par l'Andorre (50%) et le Cuba (48,9%).

Au Top 20 il y a plusieurs pays de l'Afrique et de l'Amérique latine (leRwanda, le Cuba, l’Afrique du Sud, le Nicaragua, le Mozambique, le Costa Rica,l'Argentine, la Tanzanie).

Les pays de l’Europe du Nord (la Suède, la Finlande, l'Islande, le Norvège leDanemark, les Pays-Bas) figurent parmi les premières positions (positions 4-14)avec plus de 35% femmes au parlement.

La moyenne européenne: 22% femmes dans les parlements nationaux.La moyenne mondiale: 20,8% femmes dans les parlements nationaux.Les pays de l'UE avec les positions les plus précaires sont la Hongrie, le

Chypre et la Roumanie, situés sur les positions 119 (8,8% femmes au parlement),112 (10,7% femmes au parlement) et, respectivement 99 (11,5% femmes auparlement).

La Convention des Nations Unies sur l'élimination de toutes les formes dediscrimination à l'encontre des femmes (CEDAW), signée en 1979 et ratifiée partous les Etats membres de l'ONU, a mentionné - pour la première fois dans undocument international - l'égalité des femmes et des hommes concernant laparticipation politique et la décision publique.

Lors de la quatrième Conférence mondiale des femmes à Beijing, le 15Septembre 1995, ont été adoptés une Déclaration et un Programme d'actionconcernant l'élimination de la discrimination à l'encontre les femmes et des

125

obstacles pour atteindre l'égalité entre les femmes et les homes. Ces documentscontiennent aussi des dispositions relatives aux mesures législatives visant àfaciliter la participation des femmes à la vie politique.

Un rôle particulier dans l'élaboration et la mise en œuvre des politiquesrelatives à la promotion des femmes en politique revient au Conseil del'Europe, qui a abordé, en particulier, le thème de la relation entre les systèmesd'élection et de la promotion des femmes en politique3.

Les résultats des efforts déployés par les pays afin de promouvoir les femmesen politique sont modestes. Dans le monde entier, moins de 20% des sièges auparlement et des portefeuilles ministériels reviennent aux femmes et moins de 5%des chefs d'État sont des femmes.

La Commission pour l'égalité entre les hommes et les femmes a rappelé dansson rapport4 la faiblesse de toute démocratie qui ne facilite pas aux femmesd’assumer des responsabilités.

La résolution 1706 (2010) - Augmenter la représentation des femmes enpolitique par les systèmes électoraux5 recommande des mesures visant les quotasfondés sur le sexe ou la discrimination positive. Ces objectifs sont accompagnéspar des chiffres. Ainsi, dans le cas d’un système électoral de listesproportionnelles, les listes électorales doivent contenir au moins 40% decandidates et des règles strictes de placement. En cas de vote unique, les partispolitiques ont la competence de choisir des candidates. Les dispositions doiventêtre accompagnées de sanctions effectives.

La limitation par voie législative du cumul des mandats politiques auxniveaux local, régional, national ou européen est circonscrite aux moyensidentifiés par la résolution. Les partis politiques sont encourages d’adopter desquotas par sexe dans leurs propres structures.

L'Union européenne a une longue tradition de promouvoir l'égalité entreles hommes et les femmes, établie dès 1957, par le traité de Rome. L'article 2 dutraité reconnaît la promotion de l'égalité entre les femmes et les hommes commeune mission fondamentale de la Communauté européenne. On note lapréoccupation pour éliminer les inégalités ou la discrimination fondée sur le sexe.Au cours des années 1980, la question de la participation des femmes à la viepolitique constitue une préoccupation majeure de l'Union européenne, l'égalitéentre les femmes et les hommes est considérée un droit fondamental, une valeurcommune de l'Union européenne et une condition nécessaire pour la réalisationde ses objectifs6. Ensuite, ont été élaborés des règlements pour promouvoir desactions positives en faveur des femmes en matière d'égalité des chances entre lesfemmes et les hommes7. La Charte d'Athènes, adoptée lors de la Conférenceeuropéenne sur les femmes (1992) a abordé pour la première fois les questions de

3 Recommandation 1413 (1999), Rec. (2003)3/12.03.2003, Rec. 1676 (2004), Rec. 1899(2010)

http://assembly.coe.int/Mainf.asp?link=/Documents/AdoptedText/ta10/EREC1899.htmhttp://assembly.coe.int/Documents/WorkingDocs/Doc10/EDOC12367.pdf4http://assembly.coe.int/Main.asp?link=/Documents/WorkingDocs/Doc09/EDOC12097.htm5 http://assembly.coe.int/Main.asp?link=/Documents/AdoptedText/ta10/ERES1706.htm6 Recommandation 84/635/CEE du 13 décembre 19847 Recommandation 386 Y 0812/02 du 24 juillet 1986

126

parité dans la participation des femmes au processus décisionnel, notammentdans les zones urbaines.

Depuis 1995, le Conseil de l'Union européenne examiné la participationéquilibrée des femmes et des hommes à la prise de décision8, qui a conduit àl'élaboration d’une recommandation spécifique dans ce domaine. Suite à larecommandation du Conseil concernant la participation équilibrée des femmes etdes hommes à la prise de décision9 les États membres ont adopté une approcheintégrée pour atteindre les exigences communautaires en matière et ont pris desmesures législatives. Le Conseil a recommandé la promotion de l'équilibre entreles femmes et les hommes, dans la prise de décision à tous les niveaux.

Le rapport de la Commission européenne de l'année 2000 a souligné lemaintien de déficit démocratique, car la plupart des États membres avaient choisila solution de la représentation des femmes dans les instances de décision, dansdifférentes proportions (les pays scandinaves et le Royaume-Uni avaient optépour 50%, tandis que dans d'autres pays la limite critique était 30%).

Après la Conférence mondiale des Nations Unies à Beijing, en 1995, l'Unioneuropéenne a renforcé les politiques communautaires relatives à l'égalité deschances pour les femmes et les hommes, notamment par l'application duProgramme d'action (1996-2000)10.

En 2000, on a élaboré la Stratégie-cadre pour l'égalité entre les femmes etles hommes11 accompagnée par un plan d'action12 adapté, ultérieurement, auxévolutions concrètes dans ce secteur13. La stratégie affirme la préoccupation pour“l'égalité de participation et la présence de citoyens des deux sexes dansl'économie et dans la prise de décisions, comme dans la vie sociale, culturelle etcivile”, et identifie cinq domaines d'action, y compris l'égalité de participation etde représentation (3.2) Parmi les objectifs stratégiques et opérationnels ont étéinscrits l’évaluation de l’influence des systèmes électoraux, des lois, des systèmesde quotas et d'autres mesures concernant la participation équilibrée des femmeset des hommes dans les instances politiques élues (3.2.1).

L’analyse de la situation concernant la participation des femmes dans lesprocessus de décision politique a révélé que les femmes sont sous-représentées auniveau de l'UE et dans les États membres, en tenant compte de la représentationdes femmes dans les institutions européennes, dans les parlements des Étatsmembres de l'UE et dans les gouvernements nationaux14.

8 Résolution 95C 168/02 du 27 mars 19969 Recommandation 96/694/2.12.199610 COM (96)67 final11 Communication de la Comission au Conseil, au Parlement Européen, au Comité

Economique et Social et au Comité des Régions-Vers une stratégie-cadre communautaire enmatière d’égalité entre les femmes et les hommes (2001-2005), Bruxelles, le 7.6.2000 COM(2000)335 final.

12 Décision du Conseil du 20 décembre 2000 établissant un programme d’actioncommunautaire concernant la stratégie communautaire en matière d’égalité entre les femmes et leshommes (2001-2005).

13 Décision du Parlement Européen et du Conseil modifiant la décision 2001/51/CE et ladécision no.848/2004/CE-COM (2004) 551 final.

14 EUROSTAT 6/1999

127

Pour la période 2006-2010, la Commission européenne a élaboré une Feuillede route pour l'égalité entre les femmes et les hommes 15 qui a présenté sixdomains prioritaires d'action: l’indépendance économique, égale pour les femmeset les hommes; la conciliation entre vie privée et professionnelle; lareprésentation égale dans la prise de decisions; l'éradication de toutes les formesde violence fondées sur le sexe; l’élimination des stéréotypes de genre et lapromotion de l'égalité entre les femmes et les hommes dans les politiquesexternes et de développement.

Dans le chapitre sur la participation égale des femmes et des hommes à laprise de décisions (partie I, section 3) on a observé la sous-représentation desfemmes dans la prise de décision politique, ce qui a été considéré un déficitdémocratique (3.1). Selon le document mentionné il faut encourager davantagel’expression d'une citoyenneté active, la participation des femmes à la viepolitique et dans l’administration publique à tous les niveaux (local, régional,national et européen).

Un rôle particulier revient aux "actions clés", telles que: l’analyse desdonnées comparatives au niveau européen; le lancement d'un programme"Citoyens pour l'Europe"; l'établissement d'un réseau communautaire desfemmes occupant des postes de responsabilité dans l'économie et la politique; lesoutien accordé aux actions de sensibilisation, d'échanges d'expérience et derecherche concernant la participation des femmes à la prise de décision politique.

Le document a estimé que le Pacte européen pour l'égalité des sexesdémontrera l'engagement des États members, au plus haut niveau, d'intensifierles efforts pour atteindre l'égalité entre les femmes et les hommes, en partenariatavec la Commission européenne (Partie II). À cette fin, on a créé l'Instituteuropéen pour l'égalité entre les femmes et les homes. Les Fonds structurels, lesprogrammes financiers qui s'appliquent dans différents domaines politiques et leprogramme PROGRESS accompagnent la mise en œuvre de la Feuille de route.Chaque année on rédige des rapports et des analyses d'impact.

Les citoyens européens sont informés sur les évolutions dans le domaine del'égalité entre les femmes et les hommes via le portail "L'Europe est à vous” et leservice “Citizens Signpost”16.

La Commission contrôle en permanence les progrès en la matière et élabore desprogrammes de travail et des évaluations annuelles (au moyen d'indicateurs des 12domaines critiques, type BEIS, présents dans la Plateforme de Beijing)17. Parmi cesindicateurs on retrouve ceux liés à la promotion de la participation égale auxdécisions politique (dans les institutions européennes, les institutions nationales etles parlements nationaux et dans les administrations locales et centrales).

Le document indique qu'on cherche d’examiner la législation en matière envue de son amélioration et de sa modernisation. On suit et on évalue chaque

15 Communication de la Comission au Conseil, au Parlement Européen, au ComitéEconomique et Social et au Comité des Régions – Une feuille de route pour l’égalité entre lesfemmes et les hommes 2006-2010 [Sec (2006) 275] 1.03.2006.

16 http://europa.eu.int/citizenrights/signpost/front_end/index_fr.html17 (Annexe I –Road Map – Indicators for monitoring progress on the Women in Power and

decision Making).

128

année la feuille de route et, en 2007, on a élaboré un Indice de l’égalité entre lessexes. Le programme annuel pour la mise en œuvre de la politique en la matières'applique dans le prolongement de la Feuille de route.

Après dix années à partir du moment de la mise en œuvre desréglementations internationales et européenne concernant la promotion desfemmes dans la vie politique et publique, on a étudié les effets de leur applicationdans 162 pays du monde entier18. En avril 2004, les femmes représentaient plusde 51% de la population mondiale, 45% de la population active, mais, selon lesstatistiques de l'Union interparlementaire, ne représentaient que 15,4% des 181parlements élus du monde entier. Dans ce contexte, l'Europe comptait 17,8% desfemmes élues, dont 18,4% dans les Chambres inférieurs des parlements et 15,3%dans les chambres supérieures (la Finlande, la Suède, la Norvège et le Danemarkcomptaient environ 40% de femmes par rapport à tous les parlementaires). Auniveau national, neuf pays européens avaient atteint le seuil de représentation de30% femmes dans les parlements - ce seuil a été légèrement dépassé aux Pays-Bas, la Belgique, l’Autriche, l’Allemagne et l’Espagne.

À l'égard de la représentation des femmes dans les parlements nationaux, lespays européens peuvent être classés en trois groupes: les pays nordiques etl'Espagne; un groupe de 13 pays où la représentation des femmes au parlementest de 15-25%; un dernier groupe où la représentation des femmes au parlementest de 9-15%. Dans les chambres supérieures des parlements, comparer lareprésentation des femmes des pays d'Europe est une tâche difficile, car il y a desdisparités entre les systèmes électoraux (certains membres sont élus directementou indirectement, d'autres sont nommés par le gouvernement ou par leparlement).

Dans l’ensemble de l'Union européenne, sauf quelques exceptions (l'Irlande,la Pologne, les Pays-Bas, la Belgique), le nombre des femmes élues dans leschambres supérieures est inférieur à celui des chambres inférieures. Les pays quiont une forte représentation des femmes dans la chambre supérieure ontappliqué le scrutin proportionnel avec vote preferential; les Etats ayant le pluspetit nombre de femmes dans la Chambre supérieure sont ceux qui ont recouruau scrutin indirect par des collèges électoraux. La représentation faible desfemmes dans la Chambre supérieure s'explique, également, par le fait que, danscertains pays, l'élection et la nomination sont basées sur la carrière, sur leprestige acquis au cours d'une longue période d'activité politique ouadministrative19. Cependant, au fil des années, il y a eu une légère augmentationde leur représentation à la Chambre supérieure (de 14,8% en 1997 à 19,6% en2004).

Au niveau régional, la plupart des pays européens avaient desreprésentantes-femmes aux conseils régionaux, montrant les mêmes tendancesd'évolution du niveau national (les États du Nord sont plus “féminisés” que ceuxdu Sud).

18 Union interparlementaire, Bilan décennal: tendances mondiales de la presence des femmesdans les parlements, 2005.

19 CORRINE DELOY – Les femmes en politique, Fondation pour l’innovation politique, 2004.

129

Au Parlement européen, la tendance croissante de l'augmentation de lareprésentation féminine a été plus prononcée qu’au niveau national. Les électionseuropéennes montrent clairement que le système électoral proportionnel favoriseparticulièrement la promotion des femmes en politique. Certains pays européensont une plus forte représentation des femmes au Parlement européen que dansles parlements nationaux (la France, la Grèce, le Luxembourg) car la plupart despartis ont deposé des listes comprenant 30%- 50% candidates.

Au gouvernement, la représentation des femmes est réduite, car les membresdu gouvernement sont souvent appelés. Dans certains pays, il y a des femmes quisont des premiers ministres ou jouent le rôle de président du pays.

Au sein des partis politiques, les femmes détiennent un tiers des fonctionsdes organes directeurs.

L’analyses des expériences des dernières décennies ont montré que lesfacteurs qui influent sur la représentation politique des femmes sont trèsdifférents (géographiques, sociaux, culturels, religieux, etc). Cependant, leséléments décisifs sont le système electoral, le scrutin, la loi électorale, en general,et les partis politiques. Les experts considèrent que le système électoral est lemoyen par lequel les votes en faveur des partis politiques se transforment ensièges et en nombre de représentants au parlement, pierre angulaire de lareprésentation politique.

Dans l'Union européenne opèrent deux systèmes électoraux principaux: lesystème majoritaire, avec scrutin uninominal ou plurinominal et le systèmeproportionnel. Le système majoritaire avec une majorité simple est en vigueur auRoyaume-Uni. En France opère le système majoritaire avec majorité absolue.Dans d'autres pays européens, on utilise, en general, le système proportionnel.

L’étude des élections législatives a révélé une forte corrélation entre le niveaude représentation des femmes dans les chambres inférieures et les parlementsmonocaméraux et le système électoral du pays.

La plupart des pays dans lesquels les femmes sont représentées dans uneproportion supérieure à 30% ont adopté le système proportionnel. Dans les paysqui appliquent un système mixte, une majorité particulière ou un systèmeproportionnel (comme l’Irlande), le système du vote unique transférable, lenombre de femmes au parlement est plus bas. En Suède, le vote sur la listebloquée a été plus favorable que le vote préférentiel.

Les experts ont constaté que le scrutin uninominal majoritaire tend àégaliser l’offre électorale et permet la sélection d'un seul candidat parcirconscription électorale (ce qui limite l'accès des femmes aux fonctionspolitiques). Dans ce système, la personnalité et la réputation du candidat dans lacirconscription électorale sont très importantes20.

Les systèmes électoraux les plus favorables à la promotion des femmes enpolitique sont ceux de la représentation proportionnelle, les scrutins de listenationale ou des systèmes combinant les listes nationales et les circonscriptionslocales (la Suède, le Danemark, l’Allemagne). L'expérience a montré qu'on doit

20 www.idea.int/publications/

130

accorder une attention particulière au découpage des circonscriptionsgéographiques, en tenant compte des zones urbaines et rurales.

Concernant le rôle des partis politiques, il est clair que l'idéologie et leurorganisation ont eu un impact décisif dans la promotion des femmes. L'accès desfemmes aux listes de candidats dépend de l'idéologie des partis - ceux quisoutiennent les valeurs de l’égalité, de la modernisation et le progrès social sontdéterminés à promouvoir les femmes en politique. Les partis politiques de gauchese sont mobilisés dès le début pour une représentation plus équitable des femmesen politique.

La pratique des partis a montré que la méthode et la sélection des candidatessont essentiels pour la représentation des femmes en politique. Des étudesmontrent que l'accès des femmes à la candidature électorale est plus élevé lorsquela sélection dépend des militants du parti et surtout du niveau local, donc desstructures de base des parties.

Ces dernièrs décennies, un rôle important a été joué par les organisations defemmes du sein des partis, par les cours de formation et les facilités pour lesfemmes de la politique.

Les dispositions législatives concernant le système des quotasminimale des sexes

LA BELGIQUE - Les quotas minimaux par sexes sont légiférés au niveaunational par la loi électorale adoptée sur une base volontaire. L'existence d'unnombre égal d'hommes et de femmes sur les listes électorales est obligatoire, ycompris la condition que les deux premières positions de la liste des candidats nesoient pas occupées par le même genre.

LA FRANCE - Système des quotas minimaux par sexes légiféré au niveaunational par la loi électorale (parité obligatoire). Pour toutes les listes électoraless’impose l’alternance des hommes et des femmes, du commencement jusqu’à lafin.

LA SLOVÉNIE - système des quotas minimaux par sexes réglementé pardécret; on doit assurer un niveau minimal de 40% pour les représentants dechaque sexe sur les listes électorales.

L’ESPAGNE - système des quotas minimaux par sexes réglementé par la loipour assurer la représentativité minimale de 40% pour les deux sexes. Les quotassont appliqués non seulement pour les listes électorales des partis politiques,mais aussi pour toutes les cinq positions. Si le nombre de places éligibles estinférieur à cinq, la liste devrait être aussi proche que possible de l'équilibre40/60.

LA SUÈDE - système non réglementé, volontaire. Plusieurs partis politiquesont introduit des quotas volontaires en adoptant le système d'alternancehomes/femmes, afin que les hommes et les femmes alternent sur les listesélectorales.

L’ALLEMAGNE - système volontaire adopté par certains partis ayant unereprésentation de 30%-50% femmes sur les listes électorales. En vue del'élaboration des listes électorales on utilise trois méthodes: la fermeture éclair;les listes composées uniquement de femmes ou l'engagement volontaire, en vertu

131

duquel une femme doit tenir la deuxième position sur chaque liste électorale etun groupe de dix candidats doit compter au moins quatre femmes.

LA POLOGNE - système volontaire soit par quotas minimaux par sexes, cequi implique une représentation minimale de 30% sur la liste des candidats pourles élections, soit en adoptant des résolutions au sein des partis, en vertudesquelles une des trois premières positions sur chaque liste électorale doit êtreoccupée par une femme.

GRANDE BRETAGNE - système non réglementé, volontaire. Le système desquotas est basé sur la composition des listes de candidats dans chaquecirconscription, afin de sélectionner au moins 35% femmes.

RWANDA – Le système des quotas est mis en œuvre à la fois au niveauconstitutionnel et par la loi électorale. La représentation des femmes est assuréepar les structures électorales (en assurant un nombre de sièges dans les structuresde l'État) et par le système des quotas: au moins 30% des postes qui existent dansl'ensemble des décideurs s'adressent aux femmes.

132

SOCIAL STEREOTYPES AND RULES

Florentina Nina Mocănaşu

Abstract: Social change has become a very visible phenomenon in Romanian society and itoccurs so fast that individuals are not able to perceive any longer the daily changes as an event.Most individuals believe consider that adaptation to social rules and regulations is a proof ofmaturity and emotional intelligence. Any individual who violates the stereotypes of hismembership group might be considered as showing „disloyalty” to his group which will punishhim by rejection or poor integration thereof. The groups’ behavior determines a collectivebehavior and in this way individuals’ prejudices lose their intensity and tolerance and non-discrimination make way within social relationships and conflicts become increasingly rare. Thisstudy aims to analyze the resistance to change of behavioral stereotypes and to highlight them inthe collective mentality in relation to social rule observance as stereotypes are part of our culturalheritage and they are transmitted in time as well as social rules, habits.

Keywords: stereotypes, social change, cultural heritage, adaptation, collective behavior.

1. Identification of stereotype notionCambridge dictionary explains the notion of stereotype as a „fixed idea

people have about something or somebody, in particular about somethingwrong”.1 According to the same dictionary, prejudices are „an opinion or anunfair and unreasonable feeling formed without enough thought or knowledge”.2

In other words, stereotypes are preconceptions, clichés which individuals usefrequently while prejudices are irrational feelings of fear and dislike. These can beunderstood as protection filters against the multitude of information whichallows us to judge people without interacting personally with them or knowingthem only superficially: they limit our view to reality.

These situations arise because we communicate differently and each of ushas his own style to communicate as we use it differently depending on our social,professional and cultural identity, turning into resources which makecommunication possible. The more familiar speakers are with the context of asituation, the more they can manipulate the respective situation giving it anotherconnotation. Sociologists and specialists in communication sciences oftenemphasize that both individual and collective actions are visible due to rituals,social rules and practices.

One of the most striking things in relation to stereotypes and prejudices isthat they are regularly created by persons with strong personalities and applied toindividuals with weak personalities which cannot control the way others perceivethem and they cannot change these perceptions. Individuals who suffer fromstereotypes are not those whose feelings of fear are exploited, but those personswho are shown in a negative light. Stereotypes and prejudices are so deeply

Associate Professor PhD., Faculty of Law, Journalism, Psychology andEducational Sciences, Hyperion University, Strada Popa-Nan, nr. 90-92, Bucharest,Romania, motornina@yahoo.com.

1 Boia, Lucian, (2000), Hystory and myth in Romanian consciousness, Ed. II, Bucharest, Ed.Humanitas, pp.112.

2 Idem, pp.123.

133

rooted in the European culture that many times they are not perceived as such,but as an ordinary, usual fact. Those who suffer from them must embark on along exhausting way to convince others that they are unreasonably discriminated.

In relation to stereotype formation, there are three ways to explain thisprocess, namely3:

Stereotypes arise because human mind works as such, cognitive processeslead to stereotyping;

The main reason for classification and discrimination is the fact that ourpersonality makes us to use them or we use stereotypes in order to respond tocertain psychological needs;

There are social factors that constrain us to have this restrictive view onsociety.

2. Stereotypes and social rules between adults and childrenExamples of stereotypes which are frequently used in relationships between

adults and children: ”How are we supposed to buy this pink teddy bear? It’s for

little girls, not for boys. Let’s look for another toy suitable for you”. ”I told you not to play in the mud. You are being dirty all day

as if you were a boy not a girl. Look at the other little girls, they areall clean and they wear dresses, only you are full of mud” they arereactions which many parents have when their children show preferences whichare “not appropriate” to behaviors specific to boys, respectively to girls.

There are disproportionate requirements for children of a specific gender: “Boys don’t cry”, “Girls must be tidy, learn to cook and to clean”, “Boys must be strong and girls delicate”, “Boys are better at mathematics, exact sciences than girls”, “Girls must be good at handiness activities (sewing, for

instance)”.Such stereotypes underlie discrimination in various situations: girls who are

not encouraged to develop a career in fields dominated by men or boys who aresocially rejected because they have a more “gentle” behavior than they “should”.

The environment where children learn these frequent prejudices are asfollows:

• from TV;• from video games;• on internet;• from school;• in the family;• from ads;• from books.Children are not born with stereotypes and they do not learn them either as

if a poem, they born from interaction with people. Prejudice represents the

3 Antonesei Liviu, (1996), Cultural bases of education, Iaşi, Ed. Polirom, pp. 11-12.

134

affective dimension associated to stereotypes and stereotypes arepreconceptions.4 They are a fixed opinion someone has about something orsomeone else without knowing many things about it. These fixed ideas are unfairand unjustifiable and made up of erroneous knowledge and a generalizationwhich arises in relation to them. Prejudice leads to hate, hate leads to radicalismexpressed in words and the radicalism of words leads to radicalism of facts. Ifthese arguments are complemented by the fact that children watch plenty ofstereotypical situations at TV and mass-media and they watch cartoons andgames which built inside their personality violent reactions then those childrenwill become some stereotypical adults.

Voltaire claims that "Prejudice is an opinion without judgment"5, it is formedwithout a real knowledge about a person or a group of people. Prejudices involvestereotypes, which represents generalizations of some individual aspects to awhole group.

Stereotypes and prejudices show in time that the child’s skills and interestshaven’t been valued. A stereotype like ”Girls do not hockey, only boys”, does notallow girls which might be champions at this sport to use and value all her innateabilities thereof. The same happens with ballet in case of boys who are notallowed to practice it because it turns them into “girls”. Sport is meant to developour body, to create a discipline for individual, to show him how a positivecompetition is created and not to create him stereotypes or prejudiceswhatsoever.

3. Social environment of stereotypesMost stereotypes are visible in social environment or better said in the

environment we live in. Most of the time they are related to the group we belongto, then with community we live in and last but not least what we call the“culture” we are born in. Stereotypes are difficult to change and most of the timethey are perpetuated and transmitted from generation to generation, recognizedto be values by many individuals.

Mass-media, leaders of opinion, opinion polls, conversation networks,sometimes even ad speech, commercials generate first a tacit pressure onindividuals and subsequently they lead to stereotypes.

These stereotypes are fueled by social memory, by traditions and rituals,common symbols. They are induced by mental structures which some member ofa community might have and they are formed by a process of indoctrination, factthat worked very well during communism regime we passed through. Thisindoctrination is intended to replace certain social, family, cultural values fromthe individuals’ collective mind with others values deemed to be indispensable at

4 Laura Jiga Iliescu, (2007), About Europe in Romanian poular culture of XVIII century, inInterculture – studies, researches, experiences, Bucharest, Centrul Educaţia 2000+, pp. 114

5 Durandin, Catherine,(1998) Une mort roumaine, Paris, Éditions Guy Épaud, pp.87. See thehistorical esseys and fiction about Romania by the same author: Ceausescu, vérités et mensongesd’un roi communiste, Paris, Éditions Albin Michel, 1990; Histoire de la nation roumaine, Paris,Éditions Complexe, 1994; Histoire des Roumains, Paris, Éditions Fayard, 1995 (Romanians’ history,Iaşi, Institutul European, 1998);

135

that time.6 They were present everywhere in people’s lives, starting with childrenand ending with old people (literature, education, music etc.). The formulas usedin the communist regime were: formation of a new individual, education of amultilateral developed personality, scientific organization of work. In fact, behindthese short phrases there were totally different intentions. In order to controlpeople there was only one way that of unification namely of stereotypeintroduction.

Discrimination is the action induced by prejudices and it means unequaltreatment applied to individuals or groups in relation to ethnicity, religion, socialcategory, gender, aspect and others. Stereotypical thinking is a long-term processwhich starts always from childhood, in family and continues in school, group offriends. Much easier, we can say that stereotype is: we are plus and you areminus, as we have always tended to consider people different from us not onlydifferent but inferior. This mean san important source of world conflict:(Holocaust, genocides and violent racist conflicts)

Stereotype and prejudice change can be achieved by7

- underlying some representatives of the group where we identify theexistence of some stereotypes which refutes the stereotype.

- providing a significant amount of information in relation to that group –concerning all the values and norms specific to it and their members;

- motivating individuals to understand properly the group they want tocommunicate with;

- involving in activities with regard to achieve common goals;- identification of our own stereotypes and prejudices is essential on

achieving a real communication on long term among various cultural groups. It isalso the first step to the other one and development of new perspectives oncultural groups we interact with. Each of us puts labels or has certain stereotypesat a given time. They can prevent us from seeing reality as it is.

Stereotype is perhaps the best known notion of social psychology next todiscrimination and prejudice.8 These occur in intergroup relationships and notbetween singular individuals, consisting of generalization of some attributes metin few members of a group over all the persons belonging to that group. Each ofus forms part of different groups and social categories, based on somecharacteristics which distinguish them from others. It may be the age, socialcategory, race, gender, field of activity, observing a tendency to favor the groupwe belong to in the detriment of external groups. It is about a society division intous and them which makes us to “admire and praise ourselves” but to depreciateand denigrate them, to be on our people’s side and not theirs”.

In a hierarchically organized society, individuals have a certain behavior totheir superiors and another one to those situated on a lower position and that’swhy there are stereotypes and lies as they can be directed in both ways.

6 Foucault Michel, (2001), Other environments in Theatrum philosophicum. Studies, essays,interviews. 1963- 1984, Cluj-Napoca, Casa Cărţii de Ştiinţă, pp.251-60;

7 Nemoianu, Virgil, (2001), Tradition and freedom, Bucureşti, Curtea Veche, pp.144;8 Todorova M., (2000), Bakans and balkanism, Bucureşti, Humanitas, pp. 287; Imagining the

Balkans, 1997, pp. 47-54;

136

Individuals are always surrounded by social constraints, especially by inheritedobligations which can’t be explained if analyzing individuals’ behavior only. Socialfacts have social causes different from psychological ones and these causes aredifferent from their functions. Compliance with social rules by individuals mustnot lead them to certain discriminations or stereotypes as they constrain theindividuals and they also provide them opportunities.

Many times people are not sure of their capacities and opinions because theobservations on their personalities are not objective and then they self-assess bycomparison with other similar individuals. On each assessment, individuals tendto use stereotypes like “Mr. Such is...in comparison with me... but I havemore...than him.” When we answer the question „whom do we compare with?“,the answer is that we usually compare ourselves with those similar to us, avoidingto make comparisons with others much more efficient than us for not to feelinferior.

There are plenty of stereotype beliefs perpetuated by adults in ourcontemporary society9:

All gypsies are sly, lazy and thieves; All Hungarians are chauvinistic, conceited and irredentist; All Russians are alcoholic, cruel and sentimentalist; All English are phlegmatic, snobs and pragmatic; All Japanese are hardworking; Athletes are not quite intelligent; All librarians are silent; All accountant are boring; All teachers are pedantic; All students are absent-minded and unserious.We can realize that these stereotypes are not realistic, although they exist

and make individuals behave many times unduly in relation to the categories theyonce disfavored. People usually behave inadequately with their fellows when theirself-esteem is threatened by a failure in performing an important task these aremuch more motivates to negatively stereotype the others for a self-imageimprovement. Stereotype activation is facilitated and stimulated by the presenceof some members of stereotyped groups10.

4. Effects of stereotypes in societyNo individual can escape from labeling and we all are the target of the others’

stereotypes and prejudices; we are stereotyped and treated differently dependingon how we look, how we talk and where we come from. If labeling comes in amoment of life when self-esteem is low, then the danger is bigger as therespective person adopts a more and more indecisive behavior, loses hismotivation which may lead to dishonorable acts for society on long term. If socialinfluence represents the way people are affected by real or imaginary pressure theothers exercise over them, then this may determine individuals to behave the way

9 Yuval-Davis, Nira, (2003), Gender and nation, Bucureşti, Ed. Univers, pp.9;10 Idem, pp.38.

137

they were labeled due to stereotypes, even if they know that stereotype is not realand it is obvious to happen this, because we form our self-identity and the gameswe play in society and they way we are perceived by others. Stereotypes disarmpeople, kill their potential and aspirations and make discriminated persons feelashamed of what they are even without having done something reprehensible.Stereotypes and their evil effect and superiority reduce the success opportunity ofsome initiatives intended to cause a change in “bad reputation” communities”.

Stereotypes do as much harm as those who use and perpetuate them. Besidesthey poison their soul and spirit, they keep them away from the truth and agenuine knowledge of reality…namely they affect their development too.When someone uses stereotypes in his speeches, replaces the complexity ofsituations and various shades, with a simple, rigid thinking closed to new andchange namely to life itself which changes incessantly. In other words,stereotypes keep prisoners the minds of those who express, defend andperpetuate them.

Bibliography

Alexandrescu Sorin, Identitate în ruptură, Bucureşti, Ed. Univers, 2000;Andreß Hans–Jürgen, Katia Schulte, (1998), „Poverty risk and the life cycle:

The individualization thesis reconsidered”, în Andreß, Hans–Jürgen (coord) –Empirical Poverty Research in a Comparative Perspective, Ashgate, Aldershot,Brookfield USA, Singapore, Sydeny;

Antohi Sorin, Exerciţiul distanţei. Discursuri, societăţi, metode, Bucureşti,Ed. Nemira, 1998;

Antonesei Liviu, Paideia. Fundamentele culturale ale educaţiei, Iaşi, Ed.Polirom, 1996;

Bahtin M., Probleme de literatură şi estetică, Bucureşti, Ed. Univers, 1982,(cap. Discursul poetic şi discursul romanesc);

Bane Mary Jo, Ellwood David, „Slipping Into and Out of Poverty”, în TheJournal of Human Resources, vol. 21, Nr.1, 1986;

Baudrillard Jean, Guillaume Marc, Figuri ale alterităţii, Bucureşti, Piteşti,Ed. Paralela 45, 2002;

Boia Lucian, Istorie şi mit în conştiinţa românească, Ediţia a II-a, Bucureşti,Ed. Humanitas, 2000;

Bouhris Richard, John Turner, Andre Gaugnon, (1997), „Interdependence,Social Identity and Discrimination”,în Oakes, Penelope, Naomi Ellemers,Alexander Haslam (coord.) - TheSocial Psycholgy of Stereotiping and GroupLife, Blackwell Publishers, Oxford, Cambridge, Massachusetts;

Buhr Petra, Weber, Andreas, „Long-term Recipiency of Social Assistance inGermany: The Eighties versus the Nineties”, în Andreß, Hans–Jürgen (coord) –EmpiricalPoverty Research in a Comparative Perspective, Ashgate, Aldershot,Brookfield USA, Singapore, Sydney, 1998;

Durandin Catherine, Une mort roumaine, Paris, Éditions Guy Épaud, 1988.Vezi de aceeaşi autoare eseuri istorice şi ficţiune despre România: Ceausescu,vérités et mensonges d’un roi communiste, Paris, Éditions Albin Michel, 1990;

138

Histoire de la nation roumaine, Paris, Éditions Complexe, 1994; Histoire desRoumains, Paris, Éditions Fayard, 1995 (traducere în limba română Istoriaromânilor, Iaşi, Institutul European, 1998);

Duţu Alexandru, Ideea de Europa şi evoluţia conştiinţei europene, Ed. ALL,Bucureşti, 2002;

Ellemers Naomi, Ad van Knippenberg, „Stereotyping in Social Context”, inOakes, Penelope, Naomi Ellemers, Alexander Haslam (coord.) – The SocialPsycholgy of Stereotiping andGroup Life, Blackwell Publishers, Oxford,Cambridge, Massachusetts, 1997;

Foucault Michel, Altfel de spaţii, în Theatrum philosophicum. Studii, eseuri,interviuri. 1963- 1984, Cluj-Napoca, Casa Cărţii de Ştiinţă, 2001;

Foucault, Michel, Power, traducere de Robert Harley, „Essential Works ofFoucault”, 1954 – 1984”, Vol. 3, London, New York, Penguin Books, 2002;

Friedrichs Jürgen, (1998), „Do Poor Neighborhoods Make Their ResidentPoorer?”, în Andreß, Hans–Jürgen (coord.) – Empirical Poverty Research in aComparative Perspective, Ashgate, Aldershot, Brookfield USA, Singapore,Sydeny;

Jalan Jyosna, Ravallion Martin, (1998), „Determinants of Transient andCronic Poverty”, Policy Research Working Paper 1936, Banca Mondială;

Lascu Gh., Imaginea Franţei la românii din Transilvania până în anul1918, Ed. Casa Cărţii de Ştiinţă, Cluj, 2000;

Laura Jiga Iliescu, Despre Europa în cultura populară românească asecolului al XVIII-lea, în Interculturalitatea – studii, cercetări, experienţe,Bucureşti, Centrul Educaţia 2000+, 2007;

Leisering Lutz, Leibfried Stephan, (1999), „Time and Poverty în the WesternWelfare States – United Germany in Perspective”, Cambridge University Press,Cambridge;

Mitchel Deborah, Kenneth Cooke, „Cost of Childrearing”, în Walker, Robertşi Gillian Parker (coord.)– Money Maters - Income, Wealth and FinancialWelfare, SagePublications,London, Newbury Park, Beverly Hills, New Delhi,1988;

Mitu Sorin, Geneza identităţii naţionale la românii ardeleni, Bucureşti,1997;

Murphy Dervla, Transylvania and Beyond, London, Arrow Books, 1993;Nemoianu Virgil, Tradiţie şi libertate, Bucureşti, Curtea Veche, 2000;O’Hinggis Martin, Jonathan Bradshow, Robert Walker, „Income

Distribution Over the Life Cycle”, în Walker, Robert şi Gillian Parker (coord.)–Money Maters – Income,Wealth and Financial Welfare, Sage Publications,London, Newbury Park, Beverly Hills, New Delhi, 1988;

Said Edward, Culture and Imperialism, London, Vintage, 1994;Schöpflin George, Nations, Identity, Power. The New Politics of Europe,

London, Hurst and Company, 2002;Stangor Charles, „Stereotype”, în Manstead, Anthony, Miles Hewstone – The

Blackwell Encyclopedia of Social Psychology, Blackwell, Oxford, 1995;Swartz, Richard, Room Service. Povestiri din Europa de Est, Bucureşti, Ed.

Univers, 1999;

139

Tajfel Henry, „Social Stereotypes and Social Groups”, în J.C. Turner, H.Giles – Intrgroup Behaviour, Blackwell, Oxford, University Press of Chicago,Chicago, 1981;

Todorova M., Balcanii şi balcanismul, Bucureşti, Humanitas, 2000;Imagining the Balkans, 1997;

Wischembart, Rüdiger, Frica lui Canetti, Bucureşti, Ed. Univers, 1997,passim;

Yuval-Davis Nira, Gen şi naţiune, Bucureşti, Ed. Univers, 2003;Yzerbyt Vicent, Steve Rocher, George Schadron, (1997), „Stereotypes asupra

Explanations: A Subjective Essentialistic View of Group Perception” în Oakes,Penelope, Naomi Ellemers, Alexander Haslam (coord.) -The Social Psycholgy ofStereotiping and Group Life, Blackwell Publishers, Oxford, Cambridge,Massachusetts.

140

THE WANDERING OF THE ROMANI PEOPLE THROUGHTHE ASHES OF THE EMPIRES

Mariana Rodica Ţîrlea*

Abstract: The special rights of minorities are not privileges. These special rights are onlymeasures taken especially for them, in order to enable members of a minority group to maintaintheir identity, characteristics and especially their traditions. There are policies that supportminority rights, granting some protection to minorities as a group, in the sense that by law theyare guaranteed their individual rights and also some compensation, which have their source intheir status of minority group members. We are discussing the rights of the Romani people, in thesense of ensuring and providing opportunities and equal treatment when it comes to respectingand guaranteeing universal rights because it is the second minority group in our country and inrelation to the majority population, we should promote the respect for the fundamental humanrights regardless of ethnicity. Although these rights are not always respected and the reality isdifferent from theory, cohabitation does require our mutual respect.

Keywords: romani people, discrimination, segregation, poverty, culture.

1. Historical considerations on the roma ethnicityThe Romani come from India, more specifically, from the banks of the

Ganges River, where there are 147 spoken dialects. Being a nomadic nation, theyhad a turbulent history, especially due to the migration phenomenon. Thewandering of the Romani starts with their migration, in 1100 which led them toEurope in the 1300-1347 period of time. Specific to these Romani people, was theplacing of their camp, which was almost always next to a stream. During the1300-1347 timeframe they also reached our country, where for 500 years theywere slaves in Romanian mansions, estates and monasteries, living in a castesystem, having nothing of their own. The Romani only became free people in1847, when the liberation of the Gypsies happened. Becoming free people theytried to earn a living, their house being their caravan. They placed their caravansin the neighbouhood of streams, living in tents and they developed communitiesof blacksmiths, goldsmiths, silversmiths, etc., practicing the professions theylearned, being faced with social, legal, economical, cultural, political problems,etc. In support to the historical evidence proving the early presence of theRomani in our country, there are researches and documentations, which talkabout them, namely: a document found by Bogdan Petriceicu Haşdeu, which issigned by Mircea the Elder advocating that the Romani arrived in our country, inthe 10th century; or Jonathan Fox’s research in this direction, claiming thatRomani may have arrived in the 11th century; another document, uses the word"agypsy", talking about the appearance of the Gypsies on the territory of ourcountry, going back to the year 1385, the year when Dan I, Wallachian ruler, givesthe Tismana Monastery the possessions which had belonged to the VoditaMonastery near Turnu Severin, possessions he had received from his uncleVladislav I. This document also speaks about these possessions including 40

* Associate Professor PhD., “Dimitrie Cantemir” Christian University Bucharest,Faculty of Economic Sciences Cluj-Napoca, rodica.tirlea@cantemircluj.ro.

141

"agypsy" dwellings. Today, this Romani minority is the second ethnic minoritygroup in Romania after the Hungarian one.

2. Aspects regarding the Romani todayMajor changes happened in the social, political, economical and cultural life

of the Romani, due to gouvernamental strategies, to laws that come to helpunder-privileged categories, the Romani citizens and not just scriptically and notdeclaratively.

Today the Romani have a majorly differentiated financial and social status,materialized on one hand in a class of rich people as well as people with anaverage financial condition and on the other end people on or below the povertyline. The second category is typical of deprived areas, where the Romani areforced to live from hand to mouth, earning a piece of bread to raise their children.Some earn their living by making wood items for personal use, for households,others sell feathers or pots, others walk tens of kilometer through the forest insummer to gather forert fruits or mushrooms and then try to sell them to earnmoney for their family. They lead a bitter life with many hardships.

Sometimes both men and women, besides being treated with arrogance andcontempt, cannot find a job for the simple fact that they are Romani, because theyhave a poor education or because they are not qualified and consequently, thesepeople are doomed not to have an employment record book and therefore noaccumulated service, no medical insurance, they never get unemployment orretirement benefits.

When referring to Romani women, because of poverty, lack of correctinformation and lack of money, they cannot benefit from gynecologic tests orPapa Nicolau for testing breast cancer. Also because of the lack of money,children drop out of school very early or if they go to school, few care aboutlearning and most of them attend classes just for that bread and glass of milk,that they deceive their hunger with and for the social support that is guaranteedaccording to Law no. 416, support that often comes too late and is up to themayor, which means that he gives it to whomsoever he wants to.

Romani women are more frequently having their rights violated, being alsoaffected by racism. Romani women are confronted with a double discrimination:on an ethnical as well as gender base, discrimination and social exclusion affectsmany Romani people, but Romani women are frequently havinf their rightsviolated, being affected by racism as well as gender attitudes and displays.Poverty and economic marginalization, ill health, illiteracy and traditionalobligations imposed by culture, disproportionately affect Romani women.Romani women are most often the ones who take care of the household or othermembers of the community, therefore being overburdened with theseresponsibilities, and always in a need for income, women are often economicallymarginalized. Very often, the lack of security when it comes to housing makes theRomani women to have a poor economic autonomy, physical safety and dignity,marginalizing them and contributing to the feminization of poverty and theirfurther social subjugation. There is also a substantial gap between Romaniwomen and men in terms of education and participation in political leadership. It

142

is therefore important for these specific issues to be known and the rights of theRomani women to be raised and protected.

Returning to the title of this article: “the wandering of the Romani peoplethrough the ashes of the empires”, it has a special significance since thewandering of the Romani continues. Because of shortcomings and poverty,circumstances forced them to leave their families, their country or even theirchildren, wandering through Europe to earn a living, that loaf of bitter bread,because their soul is imbued with bitterness, sadness and longing for home,knowing that they have left families and in order to help and to give them a betterlife, they pay the high price of exile, of hopelessness, of insecurity. Some Romanigo wandering into the capitals of the world, where they shelter under river orhighway bridges, at the edge of forests where they improvise the so-calledcardboard houses and they send thier children begging. Besides this, there isanother huge trauma that has a major impact on the children, left behind withgrandparents or relatives. There are situations where the parents do not return orif they return, they may lose their jobs there.

There are also old people with insignificant retiring pensions, that cannotafford to live a decent life after many years of work and cannot even afford to buytheir medicines, we see children and elderly people digging through dumbstersand collecting whatever the merchants throw away as being expired.

And then we can ask ourselves the rhetorical question: Why do people leave?Why do families leave their children? Why do some people reach similarsituations?

If we spoke of Romani who beg abroad, there is another side of things also.In this regard, we also mention another category of Romani people, the Romanicommunities where the departed, after having worked abroad, returned homeand began little by little to built one room at a time, to make a fence, buy a carand slowly they started to stand on their own feet, being reborn from their ownashes like the Phoenix bird, or how someone used to say: it is the effect of hazardand chance.

3. Radiography of a school day for Romani childrenFrom the report of a history and romani language substitute teache, we

reproduce: in the town X, there are currently studying about 50 children in a"school" consisting of two buildings: a 3x3 room and a 1.5 lobby, the childrenlearn in two shifts. To get to school, these children must travel a 14 kilometresround trip distance across the forest to get to school, where they get an education.In summer or in winter, they cross this road daily. Originally separate classeswere created for the Romani children but later measures were taken and theclasses were merged. A school day in the life of Romani children presents itselflike this: in the early morning hours, children arrive late to school by cars, bywagons or on foot and they enter the classroom separately as they get there.Lacking even the elementary supplies, they are forced to use a single notebook inwhich they write for all subjects. Sometimes they have nothing to write with orthey carry their notebook for nothing because many cannot write, these childrenare ignored. They have no food packets for the breaks. Sometimes they are only

143

enrolled in school for the personal interest of professors, who do not want to losetheir job because there are not enough chindren in school. Often they come toschools for the loaf of bread and the glass of milk they receive there. They cannotplay and they are deprived of the most basic hygiene and education. Therefore theschool got to the situation where they mix children from different grades in oneclassroom where teaching is chaotic. There are many Romani children who arenot liked and who often are educated by stick or they by mistake break a windowfor exemple, the police is quickly called threatening them that they will be sent toreform school.

The curriculum for these children includes subjects like: Romani languageand Romani history and tradition. Because there was no teacher for thesedisciplines, children often came to school for nothing, because they were senthome. It only happened that the person who told us all these, is working with anNGO that seeks and helps Romani children and in his desire to support thesechildren, after having first traveled to all families of Romani children who weresupposed to study in this schools, receiving their written consent as well as theagreement of the Regional School District, committed himself to teach Romanilanguage as well as Romani history and tradition in this school as he is also ofRomani ethnicity and he has a higher education.

Surprisingly enough, when he presented himself in this school as a substituteteacher, willing to teach language and Roma history and tradition according tothe syllabusas, he was received with reluctance from managers and other staff,because he manifested interest in these children, into bringing them to schoolsregularly and teaching them everything he knew. There was much tension andsome teachers even told the Romani children not to attend these coursesanymore. Many times, before he got to this school, other teachers used to sendRoma children home because they simply didn’t want to teach. Finally this youngsubstitute teacher no longer had the strength to face these situations and left theschool at the end of the 2013 school year, but taught the children until the end ofthe school year, even if only 3 or 4 children attended his classes; he gave up theidea of fighting windmills. Today, children in the schools are once again leftwithout a teacher in these subjects especially as the number of Romani teachers,who know the Romani history and traditions are very few in our country.

The bright side of this professor’s experience is the fact that he hadperformances; the children who tried to assimilate the few concepts that untilthen they had no one else to learn from managed to surprise their parents. Theywere amazed how their children managed to assimilate in a short time certainknowledge that they had never heard about before. The children are still meetingtheir teacher on the street asking tearfully, if he will be ever coming back to teachthem. They got to like him and got attached to him. The big win for the teacher inthis experience is the spiritual aspect, the fact that the Romani children liked theway they were taught and the way he behaved with them, the fact that hemanaged to make himself understood, to go down to their level and tounderstand them himself. The teacher wanted the children to keep everything hetaught them for their entire lives.

144

4. ConclusionsWe are discussing the Romani community now. The Romani continue to be

victims of human rights violations, much frequently that the majority ofpopulation. Therefore, it takes equal opportunity to achieve equal treatment forall and not only in theory but also in practice. Regardless of ethnicity, equaltreatment must be applied to all. Regarding the respect for and the guarantee ofuniversal rights, one should also consider the promotion of and the respect for allfundamental human rights. Living within Romani communities, requires equaltreatment in respecting and guaranteing universal rights as well as mutualrespect. In meeting these challenges, the Government of Romania has drafted theNational Romani inclusion strategies until 2020, having a broad spectrum,covering social, economical, educational, health and Romani social inclusionaspects.

References

Communication no. 173, National Strategies for Roma Inclusion until 2020;Constitution of Romania;Government Decree no. 430/2001, the Romanian Government Strategy for

improving the Romani situation;Joint Memorandum on Social Inclusion for 2005-2010Universal Declaration of Human Rights;http://ro.wikipedia.org/wiki/Romii_din_Rom%C3%A2nia#Istorichttp://ling.kfunigraz.ac.at/~rombase/cd/data/pers/data/gheorghe.en.pdfhttp://www.edu.ro/index.php?module=uploads&func=download&fileId=1626http://www.romaworld.ro/editoriale/romania-de-dincolo-de-paradis.htmlhttp://www.romanialibera.ro/cultura/oameni/damian-draghici-este-cool-

sa-fii-rom-128477.htmlFrom the reports of a Romani teacher.

145

NON-DISCRIMINATION AND EQUAL OPPORTUNITIES ARERESPECTED IN MODERN SOCIETY

Ven. Shipon Barua

Abstract: This theme recognizes the scarcity of resources in the Nondiscrmination andEducation for a human rights to development, culture and the changing conditions brought uponthe planet by human manipulation of the human rights eco-system. It appears as though humanhave wrecked rather than helped the environment. I have not provided actual remedies for oursick and dying world. Last year we faced many challenges in our sessions, and I continue acontroversial and popular Education for the Ideas of Equality and Non-Discrimination themes.This year I had difficulties and nearly rejected almost every submitted article in this theme, andhad to work closely with some scholars to ensure that their papers included more scientificresearcher –natured data; I had to reach a compromise with some articles, and others containedbelow offer some refreshing insights into the strife that needs immediate attention. It was verypleasing to see numerous case studies in several of the conference papers. I hope in the future thatI see greater developed case studies –when contributions are received, I hope to see additionalpapers on how Buddhism becomes applicable into the human rights development and cultureenvironment. In this sense, I can have real Buddhist Ecology. I know that learning Dharma doesnot change the conditions of the world. So many papers needed to be more engaged, scientifically– and rely lesson scriptural representations common knowledge amongst us all.

Keywords: Equality; Non-Discrimination; modern society.

IntroductionThe principle of equality is a fundamental assumption of a democratic

society. It is well recognized that a corollary exists between equality and non-discrimination. To understand that we should first examine what we mean byequality and explore the characteristics that make it a progressive universal moraland legal principle.

Equality has been described as a “treacherously simple concept” yet a diversespectrum of opinions exists as to what is equality and what should a society do toincorporate and promote this value. The traditional approach of national legalsystems was to employ the concept of equality as a system of formal rules. Morerecent constitutional reforms, informed by increasing academic debate, have soughtto develop a more sophisticated concept of equality and have taken intoconsideration the richness and variety of modern human relations and the subtlecharacteristics which can lead to discrimination and disadvantage. A range ofdifferent opinions exist as to what model of equality should be employed withinmodern democratic states. Accepting that the broad range of different views andtheories regarding the nature of equality and non-discrimination can only be graspedwithin their own historical and cultural context, the focus of this article isnevertheless on what has informed various international and national legalstandards.

Discrimination and Unequal TreatmentWhile in its everyday sense the word “discrimination” imports the notion of

difference, in law the term “discrimination” generally refers to the different

MAHACHULALONGKORANRAJAVIDAYALA UNIVERSITY IN KhonkaenCampus THAILAND, barua_shipon@yahoo.com;

146

treatment of an individual or a group of individuals, which results in adisadvantage. Instances of discrimination as unequal treatment can be wide-ranging from harassment or work place bullying to the systematic exclusion orpersecution of an entire people. Although a “Golden Age” of fairness andharmony among humans is believed by some to have existed before the beginningof written history, discrimination as unequal treatment has defined the humanexperience throughout history and across regions of the world. Today, virtually allpeople live in a cultural and social environment formed by past, current andemerging forms of discrimination.

Formal Equality and the Traditional Approach – Treating LikesAlike and Unalikes Unalike

The idea of formal equality can be traced back to Aristotle and his dictumthat equality meant “things that are alike should be treated alike”. This is themost widespread understanding of equality today. Formal equality promotesindividual justice as the basis for a moral claim to virtue and is reliant upon theproposition that fairness (the moral virtue) requires consistent or equaltreatment.

Equality as formal equality has an important role in the law and policy ofmany countries with advanced equality and non-discrimination provisions. Forinstance, it forms the conceptual basis of the term “direct discrimination” utilizedin the UK or the guarantee of ‘equal protection of the laws’ contained in theUnited States Constitution.

The formal approach to equality and non-discrimination supports theposition that a person’s individual physical or personal characteristics should beviewed as irrelevant in determining whether they have a right to some socialbenefit or gain. At the heart of most protagonists’ defense of this model is theprinciple of merit. The liberal argument sets out that formal equality is necessaryif the principle of merit is to be maintained in a democratic society.

Libertarians further defend formal equality by arguing that it disfavorsarbitrary decision making processes – as when policies or people selectivelydisadvantage others due to a particular irrelevant trait. The value of formalequality is its ability to protect against defects being introduced into the decision-making process, and ensuring that irrational and unfair decisions based onarbitrary criteria are kept out. Furthermore, it prevents the harm which mayoccur from any arbitrary decision-making process, by permitting the person theopportunity to secure a benefit which may otherwise have been denied andreducing any resultant psychological injury.

Others suggest that the supposed value of neutrality of formal equality is merelyan illusion, as it is questionable whether the law, legislature and the judiciary canclaim to be truly neutral to all parties. To this end, formal equality cannot adequatelydeal with certain types of laws. For instance, laws concerning issues that do not relateto choices between groups, as with licensing laws, or laws which appear to be basedon prima facie neutral criteria but subsequently create a disparate impact for certainpeople. In this way formal equality, it is argued, confuses more than it clarifies. Bymasquerading as an independent norm, formal equality blinds us to the real nature

147

of substantive rights and creates a dichotomy between human rights and equality (ornon-discrimination), wherein both principles appear to operate independently ratherthan in combination with one and other.

One well documented drawback to formal equality is that it requirescomparison. The comparator predominantly applied in the UK in proving directdiscrimination is white, male, Christian, able-bodied and heterosexual. This ruleassumes the existence of a ‘universal individual’ which can neglect the variety anddiversity of modern society.

Modern society is rich in diversity. The approach of formal equality is to ignorethe personal characteristics of an individual altogether. For example, in respect toracial discrimination advocates of formal equality would proscribe a color blindrather than a color conscious approach. Whilst the model of consistent treatment hasa role in society, the richness and complexity of modern life and modern socialrelations makes the application of this approach, as a basis for integrated andcomprehensive non-discrimination laws and measures, overly simplistic.

Equality of OpportunityThe concept of equality of opportunity represents a departure from the

traditional notion of formal equality or treating likes alike and unalikes unalike. Itis partially based on a redistributive justice model which suggests that measureshave to be taken to rectify past discrimination, because to fail to do so wouldleave people and groups at different starting points. However, equality ofopportunity is also partially based on an individual libertarian model as it seeksto limit the application of full redistributive justice. Certain academics suggestthat a weakness of focusing on equality of results is that it affords too muchrespect to utilitarianism at the expense of other systems of thought.

The integration of these theoretical perspectives has lead to a notion ofequality which seeks to equalize starting points irrespective of a person’sbackground or status. At present only a small number of legal systems haveequality of opportunity legal provisions. For instance, the European Union haslegal mechanisms and policies in place which permit the use of positive action toprevent and compensate for disadvantage and to promote equality.

In practice equality of opportunity is a permissive interpretation of the conceptof equality and non-discrimination, allowing individuals from traditionallydisadvantaged groups to receive special education or training, or encouraging themto apply for certain jobs. Equality of opportunity recognizes the shallow nature offormal equality and injects a substantive element into its framework.

Equality of OutcomesEquality of outcomes is a substantive conception of equality, as it attempts to

provide substance to the concept of equality. Unlike formal equality, whichdictates behavior through applying rules and procedures consistently, equality ofoutcomes seeks to invest a certain moral principle (namely social redistribution)into the application of equality. This concept of equality manifests itself through aspectrum of policies and legal mechanisms in various jurisdictions. Reversediscrimination, positive discrimination and affirmative action are just a few

148

which have been put forward to represent this concept. Positive discriminationcan be succinctly discerned from positive action:

“Positive action means offering targeted assistance to people, so that theycan take full and equal advantage of particular opportunities. Positivediscrimination means explicitly treating people more favorably on the grounds ofrace, sex, religion or belief, etc. by, for example, appointing someone to a job justbecause they are male or just because they are female, irrespective of merit.”

In many ways the terms describing the equality of outcomes approach havepolitically controversial interpretations. Politically, more moderateinterpretations exist in the form of special treatment provisions wherein it hasbeen recognized that the principle of equal treatment sometimes requiresdifferent treatment for certain grounds of disadvantage.

This conception is inherently linked to the group/redistributive justice modeland the achievement of a fairer distribution of benefits. The equality of outcomesapproach has been adopted in the past in certain spheres in the USA andNorthern Ireland.

The social philosophy underlying this conception of equality is an egalitarianunderstanding of social justice and of the good life. Wherein the moral worth ofequality and non discrimination is centered on its ability to provide equaloutcomes for individuals or at the very least a satisfactory outcome for the mostdisadvantaged groups. In this sense equality of outcomes submits to a socialistagenda, albeit one which has limits imposed on it by the central tenets of a liberaldemocracy. The application of this conception of equality is subject to stringentscrutiny from classical liberalism which maintains that the distributive justicetheory is abhorrent to liberal democratic thought for it imposes too high a burdenon the state and individual autonomy.

Likewise, one perceived danger of this approach is that it places too littleemphasis on the importance of accommodating diversity by adapting existingstructures. In this regard some philosophers and theorists believe that the focuson certain disadvantaged social groups under this conception of equalitymisdirects the wider debate away from more serious and arbitrary distinctionsthat lead to disadvantage.

This point of conjecture reveals the quandary of whether countries foundedon common national and cultural values can expect to successfully incorporateindividuals, whose values and traditions are different to that of the majority. Itseems the answer must be positive: human rights and equality discourses haveconsistently and organically incorporated issues relating to diversity and culturalappreciation into its rubric. It is clear that such issues are inherent to the humanrights mainstreaming agenda. Therefore, it is necessary to recognize that treatingthese issues outside the equal rights framework will only serve to dilute the forceof the human rights discourse in general. Furthermore, expanding global marketspropel migration across borders. In order to accommodate these migrationpatterns states need to be in a position to capture the advantage of economicmigrants who possess the abilities and capacity to meet inevitable labor demands.

In sum, the concept of equality of outcome makes an important contributionto combating initiatives and processes involving the worst cases of disadvantage

149

and discrimination to different groups. However, it remains a politically chargedinterpretation of equality, under which competing economic, social and politicalinterests must be addressed and balanced.

A Human Rights Approach to EqualityIt has been suggested that equality as a stand-alone principle has little

impact on combating substantive disadvantage. Equality’s amorphous naturemeans it is capable of taking on arrange of different interpretations. It may beviewed as an empty vessel which provides a pattern for building human relations.Consequently, there is a need for it to take greater moral character, to invest inother moral principles and form an ethical basis from which acceptable humanrelationships can be derived. The concerns regarding the above equality modelshave led to the emergence of a human rights based approach, wherein equalitybecomes the vessel for the delivery of more enriching value-laden principles.

The contemporary approach of bringing the equality and non-discriminationagenda within a human rights framework has the effect of highlighting otherconceptions of equality that purely economic integrationist models largely seemto neglect. This approach is based on dignity, but dignity in this paradigm ismeant to reflect the universality, indivisibility, and inter-relatedness of all humanrights, as understood in present-day interpretations. It proffers a theoreticaldistinction between treating people equally in the distribution of resources andtreating them as equals, which suggests a right to equal concern, dignity andrespect. Treatment as equals shifts the focus of analysis, to whether the reasonsfor deviation between persons are consistent with equal concern and respect.Interpreted in this way, equality offers a range of different conceptions.

Equality of dignity, respect or worth as a foundation for equal rights mayensure that equality has universal application. Such conceptions of equalityprovide a moral basis which is comprehensive in respect to the spheres of societyit can penetrate. Also, it importantly replaces rationality with dignity as a “triggerof the equality right”. The human rights based approach to equality adopts asimilar substantive approach to equality as the equality of outcome model (and toa lesser extent the equality of opportunity model), however, it can bedistinguished from these two conceptions by the way in which it incorporates ahuman rights framework within its conceptual core rather than some varyingnotion of socialism. In this regard the approach creates the potential for a morepurposeful and workable application of law and policy, through correlating theequalities and the human rights agenda and removing any artificial conceptualdistinction among them. In addition, the human rights based approach presents atenable and workable framework to the equality and non-discrimination agendawhich has the potential to avoid the political rhetoric which surrounds so muchcurrent equality and non-discrimination discourse.

ConclusionThe principle of equality and non-discrimination has undergone a range of

interpretations. The scope of possible interpretation of the notion of equality andnon-discrimination is undoubtedly vast. Whilst no interpretation can claim to bea categorical truth in the application of the conception of equality or non-

150

discrimination, it seems the human rights based approach of ‘treatment as anequal not equal treatment’ provides an excellent philosophical maxim by whichequality and non-discrimination can be translated into meaningful legal andpolicy instruments. With such philosophical basis in place, equality can regain itsrole as a central pillar of the human rights discourse and break down any artificialbarriers which uphold the idea that equality and non-discrimination are anythingother than inherent, fundamental and indivisible to human rights.

References

Grant Evadre, “Dignity and Equality”, Human Rights Law Review, Vol. 7,No.2, 2007, p.300; McCrudden, Christopher. “Equality and Non-Discrimination”in Feldman, David (ed.) “English Public Law”, Oxford University Press, Oxford,2004, pp.581 – 668.

Holtmaat Rikki, “The Concept of Discrimination”, Academy of EuropeanLaw Conference Paper, 2004, p.2, (available at:

http://www.era.int/web/en/resources/5_1095_2953_file_en.4193.pdf).See, for example, the early interpretation of the “Equal Protection Clause” by the

Supreme Court of the USA in Plessy v Ferguson 163 U.S. 537 (1896). Similarly, thiswas the approach in the incorporation of early anti-discrimination law in the UK, forexample, the Race Relations Act 1965 or in the early interpretation of section 15 ofthe Canada Charter of Rights and Freedoms by the Supreme Court in Andrews v.Law Society of British Columbia, [1989] 1 S.C.R. 143.

For instance, in Canada in 1982 and the Supreme Court decision of Law v.Canada (Minister of Employment and Immigration), [1999] 1 S.C.R. 497 andSouth Africa in 1996.

For example, the International Human Rights Law contained within UNConventions and Declarations jurisprudence, and the law of countries such as theUK, the USA, Canada, South Africa or Ireland.

Aristotle, 3 Ethica Nicomachea, 112-117, 1131a-1131b, Ackrill, J.L. andUrmson J.O. (eds.), W. Ross translation, Oxford University Press, 1980.

Wesson Murray. “Equality and social rights: an exploration in light of theSouth African Constitution”, Public Law, 2007, p.751.

See for example, Section 1(1)(a) of the Race Relations Act 1976; Section1(2)(a) of the Sex Discrimination Act 1975.

Brest Paul. “In Defense of the Antidiscrimination Principle”, Harvard LawReview, Vol. 90, 1976, p.1.

Westen, Peter. “The Empty Idea of Equality”, Harvard Law Review, Vol. 95,No.3, 1982, p.537.

Dworkin Ronald, “Taking Rights Seriously”, London, Duckworth, 1977, p. 227.Fredman Sandra, “Discrimination Law”, Oxford University Press, Oxford,

2002, p.18.

151

LOK ADALATS: AS AN INSTRUMENT OF ALTERNATIVEDISPUTE RESOLUTION IN PROVIDING JUSTICE TO ALL

Ved Pal Singh Deswal

"Discourage litigation. Persuade your neighbours to compromise wherever youcan. Point out to them how the nominal winner is often a real loser - in fees, expenses,and waste of time. As a peacemaker, the lawyer has a superior opportunity of being a

good man. There will still be business enough."Abraham Lincoln

"I had learnt the true practice of law. I had learnt to find out the better side of humannature, and to enter men's hearts. I realised that the true function of a lawyer was tounite parties riven as under. The lesson was so indelibly burnt unto me that the largepart of my time, during the twenty years of my practice as a lawyer, was occupied inbringing about private compromises of hundreds of cases. I lost nothing, thereby not

even money, certainly not my soul."Mahatma Gandhi, the father of nation (India)

“One can be perfectly free till all are free; no one can be perfectly moral till all aremoral;no one can be perfectly happy till all are happy”

Herbert Spencer

“It is of fundamental importance that, justice should not only be done, but shouldmanifestly and undoubtedly be seen to be done"

One of the Principle of Natural Justice

Introduction:Lok-Adalat means court of the ordinary people. It has symbolized a human

sensitive forum to provide amicable, speedy, cheap justice by adopting informalprocedure and avoiding technicalities. My Research Paper has shown thedevelopment of access to justice to all in India. An analysis has been made onpotential utility of Lok-Adalat as one of the ADR tools and its potential utility tothe existing legal system which has been overburdened with pending litigations.Resolution of disputes is an essential characteristic for societal peace, amity,comity and harmony and easy access to justice. The procession formalization ofjustice as existing in Courts takes time and involves considerable amount ofexpenditure. The system of non-formal legal institutions has prevailed in Indiasince ancient times. The barrier in the way of implementation of socio-economiclegislations like The Legal Services Authorities Act, 1987 and its complementaryRules enacted by state governments is not the Indian law system rather thosewho run it. The Lok-Adalats are the flagship of the Indian judiciary fordispensation of justice to the poor. The concept of Lok Adalat (Peoples' Court) isan innovative Indian contribution to the world jurisprudence. It importance is asfollows:

Assistant Professor PhD., Faculty of Law, M.D. University Rohtak (Haryana),vpdeswal@gmail.com.

152

Features of Lok Adalats1. There is no Court fee and if Court fee.2. Speedy trial of the disputes.3. Directly interaction with the Presiding Officer through their Counsel.4. The award by the Lok Adalat is binding on the parties.5. Amicable settlement of disputes.6. Lok-Adalat have no adjudicatory or judicial functions.

Enactment of Lok AdalatThe advent of Legal Services Authorities Act, 1987 gave a statutory status to

Lok-Adalats, pursuant to the constitutional mandate in Article 39-A of theConstitution of India. It contains various provisions for settlement of disputesthrough Lok-Adalat. It is an Act to constitute legal services authorities to providefree and competent legal services to the weaker sections of the society to ensurethat opportunities for securing justice are not denied to any citizen by reason ofeconomic or other disabilities, and to organize Lok-Adalats to secure that theoperation of the legal system promotes justice on a basis of equal opportunity.Camps of Lok Adalat were started initially in Gujarat in March 1982 and now ithas been extended throughout the Country. The evolution of this movement was apart of the strategy to relieve heavy burden on the Courts with pending cases. Thereason to create such camps were only the pending cases and to give relief to thelitigants who were in a queue to get justice. Seekers of justice are in millions andit is becoming rather difficult for the Courts to cope up with the ever-increasingcases with the present infrastructure and manpower. Courts are clogged withcases. There is serious problem of overcrowding of dockets. Because of the ever-increasing number of cases the Court system is under great pressure. Therefore, ifthere was at the threshold a permanent mechanism or machinery to settle thematters at a pre-trial stage, many matters would not find their way to the Courts.Similarly, if there are permanent forums to which Courts may refer cases, theload of cases could be taken off the Courts. In order to reduce the heavy demandon Court time, cases must be resolved by resorting to 'Alternative DisputeResolution' Methods before they enter the portals of Court. Here comes thesignificance of Lok Adalat which has showed its significance by settling hugenumber of Third Party claims referred by Motor Accident Claim Tribunal(MACT). Except matters relating to offences, which are not compoundable, a LokAdalat has jurisdiction to deal with all matters. Matters pending or at pre-trialstage, provided a reference is made to it by a court or by the concerned authorityor committee, when the dispute is at a pre-trial stage and not before a Court ofLaw it can be referred to Lok Adalat. Parliament enacted the Legal ServicesAuthorities Act 1987, and one of the aims for the enactment of this Act was toorganize Lok Adalat to secure that the operation of legal system promotes justiceon the basis of an equal opportunity. The Act gives statutory recognition to theresolution of disputes by compromise and settlement by the Lok Adalats. Theconcept has been gathered from system of Panchayats, which has roots in thehistory, and culture of this Country. It has a native flavor known to the people.The provisions of the Act based on indigenous concept are meant to supplement

153

the Court system. They will go a long way in resolving the disputes at almost nocost to the litigants and with minimum delay. At the same time, the Act is notmeant to replace and supplants the Court system. The Act is a legislative attemptto decongest the Courts from heavy burden of cases. There is a need fordecentralization of justice.

Since April 1985, Lok Adalats have been exclusively organized for settlementof motor third party claims. Although the concept of Lok Adalat was very muchvogue since early years. This form was made available for settlement of MotorThird Party claims under the initiative of former Chief Justice of India, Shri. P. N.Bhagwati, since then number of Lok Adalats have been organized throughout theCountry through this forum to the satisfaction of the claimants. It is expected togather further momentum for settlement of these claims through this medium asboth claimants do and the Insurance Company get benefit out of it.

Lok Adalat in various DimensionsLok Adalat now is playing sole role in solving disputes and settling MACT

cases. It has become a Dispute Management Institution. It is an informal systemof dispute resolution. This is the expeditious method to settle large number ofMACT claims. It is the best provisions by the effort of judiciary. Disposal throughLok Adalat is the only panacea for controlling the arrears of cases. InsuranceCompany can save additional interest. This is the simplest method, which isdevoid of procedural wrangles of regular trial. According to Legal ServicesAuthorities (Amendment) Act 1994 effective from 09-11-1995 has since beenpassed, Lok Adalat settlement is no longer a voluntary concept. By this Act LokAdalat has got statutory character and has been legally recognized.

Position of Lok Adalat in Indian ConstitutionArticle 39 A of the Constitution of India provides for equal justice and free

legal aid. It is, therefore clear that the State has been ordained to secure a legalsystem, which promotes justice on the basis of equal opportunity. The language ofArticle-39 A is couched in mandatory terms. This is made more than clear by theuse of the twice-occurring word “shall” in Art-39 A. It is emphasized that the legalsystem should be able to deliver justice expeditiously on the basis of equalopportunity and provide free legal aid to secure that opportunities for securingjustice are not denied to any citizens by reasons of economic or other disabilities.It was in this context that the parliament enacted the Legal Services AuthorityAct-1987.

The need of the hour is frantically beckoning for setting up Lok-Adalats onpermanent and continuous basis. What we do today will shape our tomorrow.Lok Adalat is between an ever-burdened Court System crushing the choice underits own weight and alternative dispute resolution machinery including aninexpensive and quick dispensation of justice. The Lok Adalat and alternativedispute resolution experiment must succeed otherwise the consequence for anover burdened court system would be disastrous. The system needs to inhale thelife giving oxygen of justice through the note.

154

There is considerable evidence that ADR was widely used in ancient India,Rome and Egypt for the settlement of varied disputes. ADR's growth has longbeen an integral part of world's landscape, reflecting a sense that system of justicebased on technical rules and procedures and formal processes was inefficient,insufficient and incomplete response to the needs and expectations of mankind.The institution of Lok Adalat in India, as the very name suggests, means, People'sCourt. "Lok" stands for "people" and the vernacular meaning of the term "Adalat"is the court.

In this respect, traditional system of justice is not enough for the largersocietal interest and for the people committed to peace and inquisitive ofexpeditious, inexpensive and less complex settlement of their disputes. Therefore,even the sacred texts of the major religions and also reflections of words of greatphilosophers and thinkers are pertinent and evident.Aristotle in Rhetoric and onPoetics said, "Arbitration was introduced to give equity its due weight". Cicerohas also said that for a larger assessment of fairness processual justice manytimes would march over the substantive justice. He has also advocated theprocess of arbitration. Blackstone in his famous Commentaries on the Law ofEnglish has observed about the strict justice and formal rules on process and therequirement of adopting principles of process to deal with equities which matterin the controversy.

George Washington, the first President of the United States, borrowingfrom his experience as an arbitrator of private disputes in the 1770s, crafted itinto his last will and testament: "I hope and trust, that no disputes will ariseconcerning them; but if, contrary to expectations, of the usual technical terms, orbecause too much or too little has been said on any of the devices to be consonantwith law, my will and direction expressly is, that all disputes (if unhappily anyshould arise) shall be decided by three impartial and intelligent men, known fortheir probity and understanding; two to be chosen by the disputants - each havinga choice of one - and the third by those two. Which three men thus chosen, shall,unfettered by law, or legal constructions, declare their sense of the testators'intention; and such decision is, to all intents and purposes to be as binding on theparties as if it had been given in the Supreme Court of the United States."

The common man has started looking upon legal system as a foe and not as afriend. For him, law is always taking something away. When we go to court, weknow that we are going to win all or lose all. Whereas, when we go to any methodof ADR or for informal settlement with different expectations, we know that wemay not get all that we want, but we will not lose everything. In India, arbitrationand domestic or in-house tribunals are alternatives to formal courts. However,tribunalisation of justice has yet not, successfully, clicked to prove its true mettle.Many a times, experience has shown that the tribunals often end up as deadcycles of litigative voyage in the courts and resultant lengthening of the life ofdispute resolution process.

While we encourage ADR mechanism, we must, also, create a culture ofsettlement of disputes through such mechanisms. Various ADRM methods havebeen experimented and accepted as viable methods in different situations indifferent environments in different countries. The ancient concept of settlement

155

of dispute through mediation, negotiation or through arbitral process known as"Peoples' Court verdict" or decision of "Nyaya-Panch" is conceptualized andinstitutionalized in the philosophy of Lok Adalat. Some people equate Lok Adalatto conciliation or mediation, some treat it with negotiations and arbitration.Those who find it different from all these, call it "Peoples' Court". It involvespeople who are directly or indirectly affected by dispute resolution. It is, rightly,said participation, accommodation, fairness, expectation, voluntariness,neighbourliness, transparency, efficiency and lack of animosity are undoubtedly,all important characteristics of this unique Indian institution rooted in India'shistory and culture and environment.

Conclusion:We should always remember that"Yesterday is not ours to recover, but

tomorrow is ours to win or lose", and, therefore, let us get together, stand united,and strengthen our Bench and Bar irrevocable unique partnership and makecollaborative, concerted, cooperative, creative, collective and cohesive endeavoursin popularising, proliferating and pioneering, concept and philosophy ofimportant institution - alternative dispute resolution mechanism - so as tostrengthen our pluralistic democratic values, rule of law and thereby invigoratethe commandment, "Justice shall never be rationed". Let us therefore make allefforts to advance and strengthen "equal access to justice", the heart of theConstitution of India, a reality. The problem of delays and expensive litigation hasengaged the attention and consideration of several legal luminaries, thoseconnected with the management of the judicial system of the country.

The advocates are known as the social engineer or torch bearer of the society.It gives a responsibility to the advocates to look after the interest of common manof the land. In the welfare state we all need to join our hands with social workers(Like Anna Hazare), Media and right thinking persons to ensure equalopportunity of justice to all.

156

THE LEGAL CONDITION OF WOMEN IN DACIA, ROMANPROVINCE A NEW CONTENT APPROACH OF THE TRIPTYCHS

IN TRANSYLVANIA

Ionuţ Ciutacu,

Elena Tudor

Abstract: The activities developed within the society as well as within the familyare the criteria by which the social status is clarified. Although ancient times weremarked by a strong discrimination between men and women, this isn’t felt equallystrong in all the regions, proof that certain realities determined a differentiated socialcondition of women. This fact is also expressly supported by the texts written on the waxtablets in Transylvania, which confirm the implication of women in Dacia (Romanprovince), as well as in legal life.

Keywords: wax tablets in Transylvania, non-discrimination, the legal conditionof women in Dacia (Roman province), sales and purchase agreement.

1. Due to new discoveries, the Metal Age represented a new stage in thehistory of mankind. The use of metals and the first big social division of labor –agriculture and shepherdship - produced important changes over the society,including the territory inhabited by the Dacs, proof that in this historical periodthe society was organized with the help of new criteria, of patriarchal nature. Asof that moment, the condition of the members of the family was changed,meaning that the man acquired a dominant position in relation to the woman.This is explainable, because in both the society and the family the man performedthe most important activities, obviously, in the field of agriculture andshepherdship; the woman, who performed domestic activities, contributed onlyin an insignificant way in comparison with the productivity of the laborperformed by the man1. Here is how the woman, predominantly in past eras,when the society was matriarchal, played a secondary role, also evidenced by theancient historians’ scripts.

However, the woman did not have an ignoble position. In this respect wehave the arguments of numerous legal institutions in incipient form and the wayof life due to the emergence of individual households, in which the woman playedan important role in the economic life. Since in the Geto-Dacian society, slaverynever reached the classical level, we consider that in the families of thesimple men, that represented the majority, the lack of slavesdetermined the active immixture of women in both the family and the

Lecturer PhD., „Dimitrie Cantemir” Christian University, Faculty of Juridicaland Administrative Sciences, ionutciutacu@yahoo.com.

PhD. Candidate, “Alexandru Ioan Cuza” Police Academy, Bucharest,eley_28@yahoo.it.1 Karl Marx and Friedrich Engels, Opere, vol. 21, Bucharest, Politică Publishing House,

Bucharest, 1965, p. 158 apud Ioan Ceterchi şi colectiv, Istoria dreptului românesc, vol. I, AcademieiRSR Publishing House, Bucharest, 1980, p. 45.

157

social life, and this fact is likely to increase its prestige2. Maybe this iswhy, Pomponius Mela, historian and geographer who lived in the first centuryAD, stated in one of his works that “the honest and beautiful fetch the highestprice”3.

2. As opposed to the Geto-Dacian society, the Roman society was marked bygreat discrepancies, because the legal condition of the people had aheterogeneous character. This aspect was displayed, primarily within the society,as only the free people that were Roman citizens and, at the same time, head of afamily held full legal capacity. All the other categories of people, including theforeigners, namely the Latins and peregrine people, had an inferior legalcondition. Secondly, these differences were displayed inside the family, where thewoman had an inferior legal condition, under the false pretense of the intellectualincapacity of women4, which was also reflected in their name, proof that the girlstook the first name of the father or the genitive form of their ancestry, and thewives were named after their husbands name, in the genitive form, andsometimes that of the father5

This legal condition did not allow them to sign certain legal documents, asthe intercession, or the possibility to participate to certain legal relationships inthe presence of the custodian, because the woman sui iuris6 was under theguardianship of the closest agnates (civil relatives). Later, only in the year 410,following an imperial constitution issued by the emperors Honoriu and Teodosiu,women were not put under guardianship anymore, which meant a certainhomogenization of the persons’ status.

3. After the year 106, following the wars between the Dacs and the Romans,a great part of the territory inhabited by the defeated was transformed into aRoman province, known as Dacia, which, afterwards was reorganized severaltimes. Since Rome required the application of its legal norms in the conqueredterritories, we would be tempted to consider that in the new province the womanheld the same legal condition. In reality, only the colonizers who held the legalcondition of the Quirites7, because the peregrine people, who constituted themajority of the citizens of Dacia, held a different legal condition. This aspect isalso shown in respect to the women belonging to the peregrine people who couldparticipate to the legal life using either the norms of the people’s right8, or thenorms of the local right. Thus, this contributed to the fast integration of a newterritory within its borders, taking into account the realities inside the province,as their denial would have created malfunctions.

2 Vladimir Hanga, Crestomaţie pentru studiul istoriei statului şi dreptului RPR, vol. I,Economică şi Juridică State Publishing House, Bucharest, Bucharest, 1955, pp. 60-61.

3 Ibidem, p. 62.4 Emil Molcuţ, Drept privat roman, Ed. Universul Juridic, Bucureşti, 2011, p. 85, p. 105.5 Teodor Iordănescu, Viaţa privată în Imperiul Roman, Ed. Vestala, Bucureşti, 2003, p. 88.6 Are considered sui iuris all those who are not under the legal guardianship of another

person.7 Name after which the Roman citizens were known.8 Regulates the legal relationships between the Roman citizens and the peregrines.

158

The specificity of the legal relations in this Roman province also results fromthe texts written on the wax tablets discovered at Roşia Montană between 1786and 1855. As the papyrus was expensive, the inhabitants of the empire signedlegal documents in ad probationem form on pine-wood tablets, covered in wax,on which cursive writing was applied by means of a sharp instrument, found indiptychs and triptychs form. 25 tablets were discovered in the mines of that area,of which 14 were illegible. The latters contained several categories of agreements,including sales and purchase agreements. These are very important for our study,as in a sales and purchase agreement the subject of the legal relationship is aperegrine woman, Andueia Batonis, who bought half a house at the price of 300Denarius. Although the norms of the Roman right prohibited women to sign thistype of legal documents on their own behalf, here we have a peregrine womandoing this, and even more, by using the mancipation form9.

4. Taking into account the contents of this agreement, we would be temptedto consider it null, because it does not observe the substantive and formal issuesrequired by the civil right norms and by those pertaining to the right of theancestry. In reality, so as to assure that the legal document will come into effect,the parties resorted to a form of expressing the legal operations granted to theperegrines – the stipulation – by which they constrained the sellers to guaranteethe tenure, against hidden flaws, faults or eviction10. Therefore, considering thelocal norms, the inhabitants of the provinces, on these lines, achieved theobjectives pursued by this legal document, even if, sometimes, the realities in theprovince surpassed the scope of the regulatory Roman legal norms. To conclude,as shown in literature, we are not in the presence of parallel legal systems thatwork separately, artificially, because we find the existence of a new legal system,freestanding, namely the Daco-Roman right, that appeared after the unificationof the Roman legal system with the local system11.

5. Although the regulations regarding the people did not have a unitarycontent, the content of the wax tablets found in Transylvania shows that in Daciathe incapacities that affected certain categories of inhabitants in the provincebegin to dissolve. This fact is due to the legal proceedings specific to the Romanright which by reason of their purpose and flexible character, bearing in mind therealities, contrived to acquire new functions and to gain a practical character,thus satisfying the general needs in any society, including those in which peopledid not hold the same legal status.

9 Ioan Ceterchi şi colectiv, op.cit., p. 109.10 Vladimir Hanga, op.cit., p. 211.11 Emil Cernea, Emil Molcuţ, State history and Romanian law, Press and Publishing House

„Şansa” SRL, Bucharest, 1994, p. 31.

159

HUMANISM - ONE OF THE FUNDAMENTAL PRINCIPLES OFTHE INTERNATIONAL JUDICIARY COOPERATION IN

CRIMINAL PROBLEMS

Victoria Cristiean

Abstract: The international judiciary cooperation in penal matters is grounded on a series ofgeneral principles regulated by the Constitution, by internal laws and conventions as well by otherbilateral or multilateral international acts on penal matters. The principle of humanism is, as a matterof fact, the juridical law according to which the whole activity connected with the extradition procedureshall focus mainly on man’s fundamental interests. Alongside with his rights and liberties, manoccupies the main place within the national and international cooperation activity aiming to the socialdefense. This principle is considered to be a basic rule when referring to the values that shall bedefended, preserved and guaranteed; this rule shall start from establishing an agreement between thenorms of the international penal law and man’s fundamental interests and rights, as well as fromman’s human status and the necessity of transforming and re-socializing the infringer of the law.

Keywords: international judiciary cooperation in penal matters, principle of humanism,extradition, fundamental human rights.

Introduction“The obligation of all states is to act, to support, to join together and to put

their united forces in the service of eradicating the anti-social deeds, of offeringexamples and efficiency as to recognize that humanism is quite a universalauthority”1 - says the well-known Romanian thinker V. Pella when speaking aboutthe international judiciary cooperation thus, sketching the main principles meantto govern this domain in the years to come.

Each and every document that recognized and admitted these fundamentalrights, as well as the role and development of each and every body, was anecessary, yet difficult, step forward in building - in what it might be consideredthe best path - the path leading to the making-up and application of the law, insuch a way as to become a support, not a hindrance, in the evolution of thehuman being, as to assure the life of the generations to come the possibility ofliving in a world more and more concerned in the needs of the individual. Torecognize and guarantee man’s rights is not a mere juridical principle but anessential social value, a supreme aim of any democratic organization and, at thesame time, a legitimate right in any type of government. Man’s fundamentalrights and liberties are not a mere reality but the final utmost aim of the wholehuman activity.

No democratic state of law can exist if these essential attributes of the humanbeing are not respected or warranted. This is the reason why, according to theLisbon treaty, Europe grants an even greater importance to the concept regardingthe fundamental rights and liberties.

Lecturer PhD., “Dimitrie Cantemir” Christian University, Faculty of Juridicaland Adminstrative Sciences, 176 Splaiul Unirii St., Bucharest,

victoria_cristiean@yahoo.com1 V. Pella, Des incapacites resultant des condamnations penales en Droit International, Paris,

1920, p.53.

160

The general principles of law are and shall be part of no matter what branchof the law, although - because of the specific of the already regulated socialrelationships - each branch of law has its own specific principles.

The area these specific principles are in force is identical with the aria of thebranches of law they belong to. The general principles are adapted andtransformed according to the specific of each branch of law getting, thus, certaincharacteristics which the general principles do not apply at the level of the wholelaw system.

Breaking one of the principles very often brings the breaking of one or otherseveral principles. For instance, the breaking of one of man’s fundamental rightsbrings also the breaking of the law, as these rights are recognized and accepted bythe law and justified by international pacts, constitutional or organic laws.

The international juridical cooperation was especially created as to facilitateand accelerate the cooperation in the domain of judiciary procedures and to carryinto effect the decisions, so that to simplify the extradition procedure among themember states, by bringing into operation minimal laws connected with theconstitutive elements of the crimes and of the penalties applied to organizedcriminality, terrorism and traffic of narcotics.2

When analyzing the provisions of Law No 302/2004 on the internationaljudiciary cooperation in criminal matters/ problems, the Criminal/ Penal Codeand the Code of Criminal Procedure, alongside with the Constitution of Romania,several principles - which are the basis of the international judiciary cooperationin criminal matters - are to be noticed:

the principle of the pre-eminence of the international law; the principle of observing Romania’s fundamental interests; the principle of international mutuality and courtesy; the principle of recognition and reliability; the principle of legality; the principle of non bis in idem; the principle of confidentiality; the principle of humanism; the principle on the jurisdiction immunity.The principle of humanism - especially mentioned in the special law3 -

means that the whole activity of international judiciary cooperation in criminalmatters shall be carried on with a view to observing man’s fundamental rightsand liberties, the way they are included in the international instruments ratifiedby Romania. This principle was stipulated by numerous international documentslaying at the basis of all the judiciary activities regarding a series of measuresapplied to any citizen.4

2 A. Fuerea, The Institutions of the European Community, Universul Juridic Printing House,Bucharest, 2002, pp 31

3 Law No 302/2004 on international judiciary cooperation in criminal matters, republished inthe Official Gazette, Part I No 377 of May 31, 2011.

4 Alexandru Boroi, Ion Rusu, “The International Judicial Cooperation in Criminal Matters,C.H. Beck Publishing House, Bucharest 2008, pp21.

161

Juridical FrameThis principle is indirectly stipulated in art. 11 of the European Convention

on extradition, signed in Dec 13, 1957, in art 29 of Law 302/2994; it also residesin a multitude of treaties and conventions Romania concluded with differentstates (see art 7 of the Convention between the Socialist Republic of Romania andthe Kingdom of Belgium, on extradition and judiciary assistance in criminalproblems/ matters - the Convention was signed in Bucharest in Oct 14, 1976 andcame into force in September 1, 1984).

In conformity with the provisions of art 11 of the European Convention onextradition, in case the deed for which the extradition is required is given thecapital punishment by the law of the solicitant party and, if in such a case thepenalty is not provided by the legislation of the requested party or, if it is notexecuted, the extradition shall not be granted but under the condition that therequesting party shall offer sufficient warrants from the requesting party that thecapital penalty is not being executed.

This principle was stipulated in some international documents, as well: “TheInternational Pact on the Civil and Political Rights” - art 7, “The UniversalConvention on Man’s Rights” - art 5, “The Convention against Torture and OtherCruel, Inhuman or Degrading Punishments or Treatments” - art 10, “TheEuropean Convention on Man’s Rights” - art 3, “The Convention on TransferringConvicts”, etc.5

The UNO Universal Convention on Man’s Rights of Dec 1948 insists uponthe interdiction of torture, cruel, inhuman and degrading punishments ortreatments (art 5).

In agreement with the provisions stipulated in art 3 of the EuropeanConvention on Man’s Rights, “nobody can be submitted to torture or to inhumanor degrading punishments or treatments”. In this case, the European Court forMan’s Rights is entitled to examine not only the conditions in which the arrest orthe imprisonment were committed, the duration of these measures and thejudgments procedure but also, the regime and the penitentiary treatment theconvicts are submitted to, and especially the problems connected with discipline,conditions of executing the penalties, security measures, etc.6.

The European Court for Man’s Rights7 decided that “then when a persondeprived of liberty or, just in general, comes into contact with the enforcement

5 Daniela Lamasanu, “International Criminal Law,” Mirton, Printing House, Timişoara, 2004,pp. 23.

6 Toader Toma, “Some Considerations on Diminishing the Risk of Relapse in theInstitutionalized System in Acta Universitatis George Bacovia. Juridica, George Bacovia UniversityPublishing House Bacău, România, vol. 2/2013, pp. 101.

7 With regard to the European Court for Man’s Rights and to its importance see, for moredetails, Olteanu Ionel, “European Law on Man’s Rights and Its Importance - Material EuropeanLaw on Man’s Rights”, vol I, Fundaţia România de Mâine Printing House, Bucharest 2007; ChiriţăRadu, “The European Convention on Man’s Rights. Commentaries and explanations”, vol IC.H.Beck Printing House, Bucharest 2007, as well as Zdanovschi Alice Cristina Maria, “TheApplicability of art 6 paragraph 1 of the European Convention on Man’s Rights in fiscal litigations -Commentaries on the following cases: Janosevic vs Sweden and Västberga Taxi Aktiebolag andVulic vs Sweden” published in the Romanian Magazine on Forced Execution No 3-4/2008,Universul Juridic Printing House, pp 134 and next.

162

officers, the usage of the physical force against him - when his behaviour does notrequire such an attitude - injures the human dignity and is considered to be aninfringement against the right warranted by art 3 of the Convention.”8.

The Convention regarding the convicted persons, opened for being concluded inMarch 21, 1983 - to both the member states of the Council of Europe and to the non-member states that participated in drafting it - focuses on the transfer of the foreignconvicts towards their native countries and on their social reintegration, by creating asimple, rapid and flexible procedure. The regulation is based on humanitarianconsiderations, as it is taking into account the difficulties of communication causedby the linguistic barriers and by the absence of family contact.

Taking into consideration that, in some European countries, numerousforeign convicts, find themselves in the position to execute their penalties innational penitentiaries, was considered to create a double inconvenient: first forthe convicts themselves, whose social reintegration - in a social environmentwhich is not familiar to them - is hard to be achieved; second, the administrationof the penitentiaries should - at the same time - transfer their convicts to differentcultural and linguistic environments.9

NotionThe principle of humanism is the law regulation according to which the

whole activity connected with the extradition procedure should start from man’sfundamental interests alongside with his rights and liberties that occupy the firstplace within the activity of the national and international cooperation in the fightfor the social defense.

CharacterizationIn the basis of this principle, Romania can refuse an extradition request if

there are signs that the life, the physical integrity and/ or the health of therequested person are in danger.

The principle of humanism is a basic rule when speaking about the valuesthat have to be defended, preserved and warranted in the elaboration andimplementation of the norms settled by the criminal international laws, by takinginto consideration man’s fundamental interests and rights, man’s humancondition and the necessity of transforming and re-socializing the convict. It isinadmissible that when an extradition request is taken into account it may causephysical affliction, abase the convict’s person or, even worse, such a request to beaccepted from the part of the requesting state, in spite of a clear situation ofinhuman, degrading or lethal treatment. (“The capital punishment - If the deedfor which the extradition is required is sentenced with death by the law of therequesting state, the extradition should not be accepted but under the conditionthat respective state offer sufficient warrants from the Romanian state that thecapital punishment will not be applied, but commuted.”10).

8 See the Decree of the European Court for Man’s Rights of Oct 5, 2004 in the case of BarbuAnghelescu versus Romania.

9 J. Pradel, G. Cortens, Droit penal europeen, Editions Dalloz, Paris, 1999, p. 90.10 A se vedea art. 27 din Legea nr. 302/2004.

163

Although this principle is not stipulated by the law but marginally (forinstance as it happens in the case of mutuality and specialty), its real existenceand functionality derive from the whole legislation in the domain. It is not aprinciple specific to extradition, but refers to the whole activity of theinternational cooperation in criminal matters and it is also a fundamentalprinciple of the criminal law.

At the same time, the principle of humanism has an absolute character, asthe law does not specify derogations or exceptions and as it is considered to be amain rule in extradition. From the point of view of the condition it refers to, theprinciple of humanism aims at a punishment applicable only in case theextradition is admitted and has a main role in extradition.

In the basis of this principle, provided in art 21 - compulsory reasons toreject an extradition - paragraph 1, the extradition will be refused if:

a) the right to a fair trial was not respected, in conformity with the EuropeanConvention for the Defense of Man’s Rights and Fundamental Libertiesconcluded in Rome in Nov 4, 1950, or in conformity with any other pertinentinternational instrument in the domain ratified by Romania;

b) there are serious reasons to consider that the extradition is required withthe aim to pursuing or punishing a person in the basis of race, religion, sex,nationality, language, political or ideological opinions, affiliation to a certainsocial group;

c) the state of a risks to aggravate as mentioned above at letter b).

Similarly, the Romanian criminal law concerned with the international juridicalcooperation in criminal matters stipulates, in art 22 (optional grounds for refusingthe extradition) paragraph 2 that extradition of a person can be declined oradjourned if its delivery is susceptible of having serious consequences for therespective person, especially based on age and health. In case the extradition isdeclined, the provisions of art 23 paragraph 1 (the transfer of the criminal procedurein case of declining the extradition) are applied correspondingly.

The specialized literature mentions that11 by these orders, the Romanianlegislation joins the position taken by France and other states which, at themoment of adherence, had an attitude of reserve: they considered that extraditioncould be declined in case it had serious consequences for the requested person,especially if age or health is concerned.

It is also mentioned that a similar provision was included in the Conventionof Sept 26, 1996 on extradition among the member states of the European Union.

Although these provisions are not stipulated in the European Convention onExtradition, they are obviously in perfect agreement with its vision and aim.

A form of humanism is manifested in the way extradition was regulated andin Romania’s refusal to grant extradition in such cases when the person was to bejudged/ tried in the requesting state by a Court unable to warrant a soundprotection for the defense the person’s rights, by a national Court especially

11 George Antoniu, “European Criminal Law” - course notes, Academica Printing House, TârguJiu, 2005, pp. 76.

164

joined for the respective case or, in case the extradition was requested with a viewto enforce the execution of a sentence given by that Court12.

The reason why such an article was inserted in the law explains for thenecessity of any criminal trial to take place in the basis of certain well-establishedrules and for the necessity for all the rights and fundamental principles of acriminal trial should be observed.

The right to defense is, maybe, the most important of all these rights, as itoffers the extradited person the possibility to be defended by an expert injuridical norms, by a highly qualified person in the domain. Thus, the extraditedperson is given the opportunity to efficiently be defended against all theaccusations brought against him/ her.

Extradition is neither granted in the case when, in agreement with thelegislation of both states, the criminal lawsuit cannot start if the injured person’slodged a previous complaint in which the person raises an objection againstextradition13.

This principle was given serious attention to the Draft Resolution No2002/584/JAI of the Council of the European Union on the issuing a warrant ofarrest and on the extradition procedures among the member states. The principleof humanism is reflected in the new mechanism of extradition in:

an attorney and, if necessary, an interpreter should be present at themoment of the arrest, in agreement with the European warrant of arrest

the possibility for the arrested person to be freed the possibility for the arrested person to be freed on probation thus having

the obligation to appear in front of the executive judiciary bodies (of therequesting state). Similarly, the judiciary authority that issued the Europeanwarrant of arrest can decide whether to adjourn the execution of the warrant incase the arrested person agrees to benevolently appear in front of them14;

the person tried “in absentia” has he right to be accepted the re-trial of thecause, as for the right to be defended and the ways of attack should be exercised15;

the number of provisory arrests is limited and refers only to assuring theextradition and the appearance of the persons in front of the judiciary bodies thatissued the European warrant of arrest;

the transfer of the person is neither useful nor necessary if the hearing ofthe person can be obtained by the video-conference system16. Similarly, thepenalty can be executed there where the convict can be most properlyreintegrated in society17;

12 Art 31 of Law No 302/2004 - the right to defense.13 Art 30 of Law No 302/2004 lack of the previous complaint14 Art. 13 of the Draft Decision of the Council of the European Union on the European warrant

of arrest and on the extradition procedures among the member states..15 Art. 35 of the Draft Decision of the Council of the European Union on the European warrant

of arrest and on the extradition procedures among the member states.16 Art. 34 of the Draft Decision of the Council of the European Union on the European warrant

of arrest and on the extradition procedures among the member states.17 Art. 33 of the Draft Decision of the Council of the European Union on the European warrant

of arrest and on the extradition procedures among the member states

165

the acceleration of the criminal suit, as the parties have the right to judgethe cause within a reasonable period of time18and to limit to 90 days the provisoryarresting period, with the view to extradition19;

abjuring the double judiciary expenses and applying a milder law, fromthis point of view20;

the assurance that the provisory arrest should not be requested in thebasis of a European warrant, if this measure is not imperative.

ConclusionsIn conformity with this principle all regulations in criminal matters shall

start from man’s fundamental interests and rights.The principle of humanism lies at the basis of all measures taken against a

person. The criminal trial/ suit is meant to identify the guilty persons and holdthem liable but to neither put them into a humiliating position, to physical injurynor to jeopardize the life of the accused.

Certain forms of cooperation are obstructed or delayed then when therequested person is not respected the right to a fair trial in the requesting state or,then when that person can be made to suffer physical punishments or even death.The Romanian state can also adjourn the extradition then when the extradition ofthe respected person can induce suffer the respective serious consequencesbecause of age or health.

Consequently, the principle of humanism presumes the fact that thesanction/ penalty shall have an educational aim alongside with its socialreintegration but, by no means, should it be a means to cause useless pains andsufferings to the convict or to abase his dignity and personality.

Bibliography

Antoniu George, “European Criminal Law” - course notes, AcademicaPrinting House, Târgu Jiu, 2005.

Boroi Alexandru, Rusu Ion, “The International Judicial Cooperation inCriminal Matters, C.H.Beck Publishing House, Bucharest 2008.

Chiriţă Radu, “The European Convention on Man’s Rights. Commentariesand explanations”, vol I C.H.Beck Printing House, Bucharest 2007.

Fuerea A., The Institutions of the European Community, Universul JuridicPrinting House, Bucharest, 2002.

Lamasanu Daniela, “International Criminal Law,” Mirton, Printing House,Timişoara, 2004.

Olteanu Ionel, “European Law on Man’s Rights and Its Importance -Material European Law on Man’s Rights”, vol I, Fundaţia România de MâinePrinting House, Bucharest 2007.

18 Art. 39 and art. 40 of the Draft Decision of the Council of the European Union on theEuropean warrant of arrest and on the extradition procedures among the member states

19 Art. 20 of the Draft Decision of the Council of the European Union on the European warrantof arrest and on the extradition procedures among the member states.

20 Art. 27 of the Draft Decision of the Council of the European Union on the European warrantof arrest and on the extradition procedures among the member states.

166

Pella V., Des incapacites resultant des condamnations penales en DroitInternational, Paris, 1920.

Pradel J., Cortens G., Droit penal europeen, Editions Dalloz, Paris, 1999.Toader Toma, “Some Considerations on Diminishing the Risk of Relapse in

the Institutionalized System in Acta Universitatis George Bacovia. Juridica,George Bacovia University Publishing House Bacău, România, vol. 2/2013.

Zdanovschi Alice Cristina Maria, “The Applicability of art 6 paragraph 1 ofthe European Convention on Man’s Rights in fiscal litigations - Commentaries onthe following cases: Janosevic vs Sweden and Västberga Taxi Aktiebolag andVulic vs Sweden” published in the Romanian Magazine on Forced Execution No3-4/2008, Universul Juridic Printing House.

Law No 302/2004 on international judiciary cooperation in criminalmatters, republished in the Official Gazette, Part I No 377 of May 31, 2011.

167

JUSTICE BETWEEN EMOTIONAL AND RATIONAL

Daniel Sorin Duţă

Abstract: Justice is the most ought after and most loved element on earth; crusades wereconducted in the name of justice and word “justice” was written with blood, paint, with humanbodies. To defend justice, nations arm themselves and fighting machines are becoming more andmore efficient. Lunettes, telescopes and satellite systems are scanning every inch of the earth.There are no more secrets, almost everything is under control, the financial controls of the Earthare operated by fewer and fewer hands, we are approaching with the velocity of light to the finalvictory reflected by “Justice has to be captured”. It seems that justice is a "mirage": the closer weare getting closer to it, the more we realize it moves away from us. Justice is not the property ofthe inhabitants of the Earth.

Keywords: justice, principles, religious, parental, children, transgenerational, law, genesis,responsibility, society.

Children inherit a stock of traits from their parents, some of them beingpraise-worthy, while others are condemnable. Genetic transmission through DNAhas an important significance, but studies show that this information is greatlyinfluenced by parental and school education, as well as social environment(entourage). The seed of righteousness is sown in the relation between child andparent and this link is the prototype of the future belief that the child will exert,when growing up, both intellectually, as well as emotionally and volitionally.

So, it is no wonder that the fifth commandment of the Bible Decalogueexpresses, in a totally positive content, the following: "Honor your father andyour mother that your days may be long in the land which the Lord your God,gives to you". (Bible, 2011)

Modern psychology makes the child's education positive, removing thenegation adverb "Not" from the language and rightfully explains that therestrictive education reveals in detail a complexed, negativistic personality, withparanoid tendencies. On the other hand, this consensus liberalize the individualbehaviour, eliminating the "border" that marks out the course of life.

Do not forget that the parent often calibrates, standardizes, establishes theextent of what his child would become. Children do not choose their parents, butparents choose their children. Now, let’s relate the role of a parent to the child’sspecific psychology. What's a child for his parent? The child is zero and the parentis everything. The child does not know the law - the father is the one whodiscovers it for him – he is the child's legislator. Here is the proximal point forinsertion of shaping values representing the society individual. Likeness of thehuman being with a tree is quite viable and meaningful, due to the fact that thegrowth and orientation of the trunk depends on how the tree has been planted.

Justice, in general, is subject to culture, parental level and somewhat at thediscretion of the transgenerationalism that will lead us to see it distributedindividually to every human being.

Lecturer PhD., Adventist Theological Institute of Cernica,dutadaniel66@yahoo.com.

168

The first step giving rise to justice is made in the family.What is the parent’s role in the family? Currently, it is noticed a deterioration

in the parenthood. Children’s saying takes the following forms: father, old man,hoppers are coming, fossil – you have just one chance in this type of thinking, i.e.to get out of history because you deny, defame, destroy your past. You may say“he beat/ punished/ left me, “you have no right" to eliminate the confinement, nomatter harmful it is, because you also eliminate yourself- but “Who is this oldman? Is he not a daddy? For whom does he go and collect food daily?” – is it notfor his children, too? As you may notice, "father" represent a negligible termnowadays. Hitler proposed that the extermination should also spread to so-calleduseless aged persons.

Don’t they think that "what you sow, the same you shall reap?" How short-sighted we are! The way they behave towards their parents - describes thetreatment awaiting them when they become parents, too.

What we imprint now in the lurking generations we will get back even more."In order to love our neighbours, we must train ourselves in not speaking

ugly words" - Arcadia Martin.It seems that a society is more civilized as it protects minority and has more

rights for the weak.What is really worrying is not how society evolves, not to the level of wars,

borders, industries, economy - but to the parent - child relationship, which weneglect in our investments. This investment does not necessarily require money,but takes time and love. Values weigh more on the material side than to therelationship one.

The declaration of a great Romanian psychologist, during a conferencedebating juvenile delinquency sounded in radical terms: "if I were a primeminister, I would grant mothers a minister's salary to educate their children up toseven years at home, so prisons would be empty".

What does a society without prisoners mean? Justice is assumed by everyindividual, it is found only in court and thus, we perceive justice as a phobia, werun away from it, we are afraid of it. For example, some drivers do not drivewithin the speed limit just because they want to comply with the law, but in orderto avoid the traffic police agents.

Regeneration of a nation depends on the parent – child relationship. Inorder that a parent may be a rectifier for his children, such parent needs to bebuilt on a main basis. In this way, we may say that we revolve in a vicious circle,yet there is a theoretical correction construct. Few nations can boast themselveswith stable constitution for hundreds of years. In most parts of the world,constitution is adjusted, contextualized, in other terms truth colour becomeschameleon.

In the very important Christian view, due to the fact that the Divinity has itsphilosophy for every culture, nation, ethnicity and even in groups excluding thesupernatural force, it is necessary that a parent be regenerated, in his turn, byGod - through spiritual relationship with Christ - as regards Christians.

Calibration of emotions leads to maturation and both cognitive andbehavioural human restructuration.

169

If it is "normal" that a parent is accused of having neglected the child'seducation, he was violent and he even abused the child, such behaviour pursuesthe child for a long period of his life. What is the child?! A biological,physiological and psychological accumulation of someone. That “someone” ismother and father to a small or large extent, but it really is. If I do not forgive myparents, it means that actually portions of me will remain unforgiven, to which Ihardly cohabit, the vicious circle is around me and I can’t get rid of it.

Our time has transferred the power from the family on the individual withmany economic and scientific results leaving us a bitter taste of a society in whichhuman alienated, emptied himself and is struggling to survive.

"A human previously emptied by his own history, lacking the memory of hisown past, and, therefore, subject to any of those subjects often referred to asinternational. Rather than a human being, he is someone’s shell, built only ofidola fori, devoid of an inner resort, of an unrelenting and inalienable “self” andcan not be revoked. (Adrian Neculau, 1996, p.398)

The text of Genesis 2:24, which says, "Therefore shall a man leave his fatherand mother and shall cleave unto his wife" (Bible, 2011), left = yaazav (Hebrew)to leave, by separation from parents, deliverance is made, which is justice and themeaning of “left” is the arrangement of what the child- parent relationshipmeans, from obedience to respect.

"Depending on the assignment of responsibility for the situation thatrequires a pro-social behavior, as well as the perception on the responsibility offinding a solution, P. Brikman distinguishes four models of helping:

1). moral model (in case of high responsibility, both as regards the situationand finding a solution);

2). Enlightenment model (who is in a critical situation has a highresponsibility for such situation, but has no or low responsibility in perceiving asolution for escaping from the crisis);

3). compensatory model (low responsibility for the critical position you findyourself, but high responsibility for solving the problem);

4). medical model (both in relation to the problematic situation theindividual has a low responsibility, as well as in relation to its overcoming)”.(Adrian Neculau, 1996, p.446)

The meaning of social justice becomes a goal to which the individual has nolonger access. Reason for which the social system is made up embedding theindividual and building it after its template. Such mechanisms drive the humanbeing so that this be converted into a conditioned reflex, by which the individualconcludes that the behaviour belongs to him, that he was born so. It is proper andjustice is judged according to the emotional meaning by which it was inserted intohis life.

We often approach to justify justice with moral principles. "Normative ethics- say positivists - is a fiction, a chimera that has nothing in common with reality.Ethics coverage may not be an abstract ideal world, woven from illusions anddreams, but the society itself, in its cruel reality: ethics should not express what itneeds to be, what is desirable, but to indicate what is actually reality”. (TiborHuszar, 1967, p.170.)

170

“Bibb Latané and John M. Darley explained the results of their experimentsby what they called "bystander effect" and "dissemination of responsibility."

It all started with a horrible crime. On March 13, 1964, a young woman, KittyGenovese was murdered in the street, under the sight of a number of 73 people.The killer, Winston Moseley, abused her for long, first. No one intervened, norphoned the police, although they were watching the scene from the windows oftheir apartments. Irrational, is not it? The responsibility dissemination theoryexplains the "inexplicable" by what has been called "the paradox of Orlson": leaveit better to the other one to intervene!

All "bystanders" think in this way and no one intervenes... Bystander effectcan be reduced if witnesses intercommunicate, if the situation is unambiguousand if access to social information is allowed”. (Adrian Neculau, 1996, p.454)

An important step in showing justice at the individual and national level wasthe observance of religious beliefs. Individual’s mental struggle is conductedbetween the observance of dogma to which it belongs and the laws of the statewhere he lives. There are laws that overlap and coexist with each other, whileothers are in opposition. Most of the time differences occur when the individualleaves the reference group and enters into another group or organization.

"Along with the adoption of international regulations, attitude of manycountries has changed significantly and the international climate began to bemore favourable to religious freedom." (Ben-Oni Ardelean, 2011, p. 195)

For the sake of peace, it has been agreed to dilute the principles of justice asa way of cohabitation. Interfaith and intergovernmental negotiations led toecumenical common grounds, that achieved the conflict flattening, althoughbehind the influence wars is also the side of religious differences that give rise topride and sacrifice.

We could say that religion, with everything it involves is necessary for theindividual, because it is part of the human being, which must be supervised in itsfavourable development and must be customized. If during childhood, thestandard for what is right and what is wrong was established by what the parentswould say, for whatever he wanted to do, anywhere he wanted to go, he had to askpermission from their parents, at this time, the argument of such authority is notso important anymore.

This fact leads, on the one hand, the tension in the relationship with theirparents or teachers, but which, on the other hand, is the sign of a normal coursein which the teens are seeking an authority superior to that they were submittedbefore, a final authority to guide them, given that they have to decide on theirown, as a responsible and independent person.

“Regardless of origin, culture or time, the way go through adolescence toadulthood is overwhelmingly influencing the set of values which will mark themout during their lifetime. In other words, adolescence may be compared to asurface on which fresh concrete has been poured. Any object that falls on suchsurface leaves its shape there, or remains there itself, unless someone intervenesto lift it and / or to reshape the surface". (Daniel Dută, 2011, p. 147)

"The right to religious freedom includes several aspects, such as: freedom ofthought and conscience, freedom to practice faith or religion, freedom to dispose

171

of religious property, freedom of changing faith, etc., they are manageddifferently by various states, due to the fact that governmental and institutionalarrangements of these states are essential in compliance with and guaranteeingthe religious freedoms." (Ben-Oni Ardelean, Bucharest, 2011, p. 195)

Interpolating the cardinal points of the earth, we see them reflected in thehuman being. Some are north-oriented, some others are south-oriented, some arewest-oriented and some others are east-oriented. Where you find yourself, youfeel that the truth is also present. The controversy in our being arises when wedesign them all and observe the justice in each of them. Whether you areobjective or subjective, it's good to be yourself, to make the choice. Sometimesthis choice costs you money, changing beliefs, maybe family, sometimes evenyour life. If you fail to reach this proximate point in your life, it is no shame, it isimportant to feel good about yourself and think you're right. No matter where youare, there will be others to judge you. Human judgment has its value andaccusation, but, as a Christian, I believe that the only valid judgment for eternityremains to God.

“Everyone has the right to freedom of thought, conscience and religion; thisright includes the freedom to change religion or belief, as well as freedom to showreligion or belief, either alone or in community with others, publicly andprivately, by religious or worship practical doctrines and ritual fulfilment." (Ben-Oni Ardelean, Bucharest, 2011, p.199)

Bibliography

Ardelean Ben-Oni, Libertate religioasă. O abordare normativă, Ed.Didactică şi Pedagogică, R.A., Bucharest, 2011.

Bible, 2011, translation by Cornilescu.Duţă Daniel, Sensibilitatea moral-religioasă a adolescenţei, Ed.

Universitară, Bucharest, 2011.Huszar Tibor, Morala şi societatea, Ed. Politică.Neculau Adrian, Psihologie socială aspecte contemporane, Ed. Polirom, Iaşi,

1996.

172

ACCESS TO EDUCATION FOR CHILDREN WITH DISABILITIESIN ROMANIA

Mădălina Turza,

Silviu Turza

Abstract: This article aims at mapping the issue of access to education for children withdisabilities in Romania, based on a social research whose purpose was to identify the level ofsatisfaction of the national education system’s final beneficiaries. From the perspective of theequality theory, the concepts of formal access and substantial access to education are beingintroduced as they are considered to be complementary and fundamental conditions of aneffective benefit of the right to education for children with disabilities. Results of the respectiveresearch highlight a constant breach of the right to education for children with disabilities bothfrom the formal and the substantial point of view. The conclusion of the research does not revealgaps or deficiencies of the education system, but rather indicates the absence of an educationsystem tailored to the specific needs of children with disabilities in Romania.

Keywords: disability rights, discrimination, access to education.

”...my twin boys, B and M, aged 11, both paraplegic and with severe handicap wereawarded this year first prize in the elementary special school, with maximum grades inSports, Mathematics, Chemistry and Literature...they are champions, but I just cannot

see that. They barely move and speak...This is the education system inRomania...empty... just on paper.”

A.P. fragment from an interview, April 2013

Access to education of children with disabilities remains one of the mainareas of concern both in theory and in law, in practice, monitoring andevaluation. The matter of access to education of the children with disabilities, aswell as the matter of disability itself, equally represents quite recent areas ofresearch and conceptual development, while the understanding of disability froma human rights perspective still constitutes to be a major challenge both in theoryand in practice.

The article aims at mapping the concept of access to education for childrenwith disabilities in Romania, based on a social research whose purpose was toidentify the level of satisfaction of the national education system’s indirect finalbeneficiaries1. On the one hand, the research grasps into the notion of access toeducation, and on the other hand it offers a diagnosis of the situation of childrenwith disabilities in relation to their right to education.

I. Conceptual frameworkThe equality principle represents one of the fundamental pillars of

democratic society and theory. At the same time, the link between equality and

PhD. Communication Sciences, Doctoral School of Communication Sciences –SNSPA, President of the European Center for the Rights of Children with Disabilities,madalina.turza@cedcd.ro

M.A. EU Law, Human rights expert, Director of Legal Department, EuropeanCenter for the Rights of Children with Disabilities, turza.silviu@cedcd.ro

1 Indirect final beneficiaries – parents/legal representatives of children with disabilities.

173

non-discrimination is subject to a wide specialty literature (Bayefsky 1990,Charlesworth, 2002 McGrudden 2004, Grant 2007 etc) that develops theancient concept of equality towards softer approaches derived from the liberal,neoliberal and libertarian paradigm.

The traditional approach of the equality concept or the formal equality isrooted in the classic philosophy, being often synthesized as „Things that are alikeshould be treated alike” (Aristotle, 1980). Although modern theory has developedvarious definitions and new approaches of equality, the issue of equality as formalequality constitutes the conceptual basis of the „direct discrimination” notion, asused by the European legislation, as well as in relation to the principle of „equalprotection of the laws” embedded in the US Constitution2. Formal equality isconceptually supported both by liberals and libertarians, who introduced the ideaof ”merit” (McCrudden, 1998), as well as the notion of „risk of arbitrariness”(Brest, 1976).

Critics against formal equality that consider an illusion the neutrality offormal equality (Fiss, 1976), and a source of confusion and uncertainty (Westen,1982), left room for reflections that imposed new definitions of equality.Therefore, the specialty literature has developed new concepts such as equalityof chances and equality of results that developed substantial understandingsof the equality concept. Both models of equality have been largely debated atacademic level, thus being often introduced in legal and public policy sector.

The academic debates on the equality concept have recently proposed a newperspective towards understanding of equality within the human rightsparadigm. This perspective is centered on the concept of dignity, in its humanrights understanding, human rights that are universal, indivisible andinterdependent. Therefore, the equality understood in the human rightsperspective, comes with the theoretical distinction between equal treatment ofpersons and treating persons as equals, within the meaning of equal rightto dignity and respect (Dworkin, 1977). Human rights equality is, by excellence, asubstantial approach of the concept, similar with the equality of chances andequality of results. However, it has the merit of passing over the socialist trait thathas been a major critique of the two models, of avoiding the political rhetoricgenerated by the two models and succeeded in laying the theoretical basis foreffective legal instruments and public policies aimed at combatingdiscrimination.

At conceptual level, in this article, we stand for the human right approach onequality. The debate on the access to education of the children with disabilities isrooted in this particular perspective on equality.

II. The access to educationThe access to education represents both a concept in itself and a mechanism

through which the right to education becomes effective. From a human rightsperspective, the principle of equality is a fundamental condition for ensuring theaccess to education. Even though it may seem an easy to define notion, the access

2 Section 1, Ammendment 14, US Constitution.

174

to education raises serious difficulties at conceptual level. Situated at thecrossroads of several complex concepts like equality, nondiscrimination,education, it requires a qualitative analysis of its meanings and effects. Ifoperationalized in the field of disability, the concept of access to education, offersthe necessary premises for being mapped both at theoretical and practical level,so as to be able to identify directions of actions in terms of legislation and publicpolicies. Presently, the understanding of the access to education in general and ofthe children with disabilities, in particular, both in terms of legislation andCourts’ practice refers to ensuring the absence of any form of restriction appliedto the child with disability At the same time, the access to education involves theexistence of a human and material infrastructure meant to ensure the educationalprocess.

Therefore, we may speak of a negative obligation – referring to theabsence of the restriction- and of a positive obligation – referring to thecreation of the necessary framework for the educational process. The obligation,in both aspects, lies with the state’s organisms.

Romanian legal framework in terms of access to education establishesmainly rules and measures with regard to the negative obligation and secondarilyto the positive obligation. If in the case of the negative obligation, referring to theabsence of any restriction, the legal framework and the Courts’ practice provideslegal remedies, when it comes to the positive obligation, of creating the necessaryframework for the education process, this proves to be more than problematicwith regard to the present Romanian social landscape and with the human rightsphilosophy.

In this respect mention should be made to the provisions of the art.7, 46, 47and 48 of the Law no. 272/2004 regarding the protection and promotion of thechildren rights, art.3, a, b, c, f, h, i, m si p, art.6.b, art.15, art.16, art.18 and art.19of the Law no. 448/2006 regarding the protection and promotion of the rights ofpersons with disabilities, as well as art.1 para.2, e, (v), art.2 para.1, 2, 4 and 5,art.3, d and art.11 of the GO 137/2000 regarding the prevention and sanctioningof all kind of discrimination.

The shortcomings in terms of respecting the positive obligation by the state’sinstitutions resides in the “equal treatment” approach of equality in relationwith the beneficiaries of the Romanian education system. This conceptual errorhas tremendous effects when it comes to the access to education of the childrenwith disabilities. Concretely, if a child with disabilities is granted the access toeducation by respecting the negative obligation, as the absence of any restriction,and the positive obligation by introducing him/her into an education systemwhere an equal treatment is applied, this approach leads to nothing else than anon-effective right to education. Placing a child with disabilities in aneducation unit and applying an equal treatment with the typicalchildren is equivalent with the restriction of the right to education.The particularities of a child with intellectual, physical, sensorial or psycho-socialdisability invalidates the premise of equal treatment. The equal treatment appliedto the children with disabilities and typical children turns to be an objective andinsurmountable limitation of their participation to the education process.

175

The “answer” of the Romanian institutions to this social reality, embedded inlegal norms and public policies”3 fits into the segregationist paradigm and it ismaterialized into the special education system. The quantitative and qualitativeanalysis of the special education system in Romania is not the subject of thisarticle, but the literature in the field, as well as the international legislation deniesand condemns the idea of segregation both at the level of principle and at thelevel of education practices.

After decades of segregated education for children with disabilities, the UNConvention on the Rights of Children with Disabilities4 opens a new perspectiveon the access to education and to social life of the children with disabilities. Themilestone of this new perspective is embedded in the concept of “adaptedenvironment”. The concept of adapted environment starts form the model ofequality of chances and provides for direct measures to eliminate the barriers andto create a universal design (UN CRPD, art.2) meant to ensure the inclusion ofthe children/persons with disabilities. Simultaneously, the concept of adaptedenvironment creates the necessary conceptual premise to ensure the effectivenessof the principle of equality understood in the human rights paradigm that istreating persons as equals.

Coming back to the concept of access to education we propose the notions of:formal and substantial access to education. By formal access to education weunderstand at conceptual level the fulfillment of the negative obligation of access,which from a legal perspective means the elimination of any direct or indirectrestriction and/or hindering applied to the child with disability and/or to hisparent/legal representative during the process of enrolling or moving the childfrom an education unit to another, irrespective it’s level or the type. Bysubstantial access to education we understand the fulfillment of the positiveobligation of access based on the principle of human rights equality. Basically, itrefers to ensuring all the material, structural, information, education and humanresource means so as to adapt the education environment to the needs andparticularities of the children with disabilities.

The double sided approach of the access to education (formal and substantial)creates the conceptual premises towards the development of an effective right toeducation for the children with disabilities. It also creates a new and exhaustiveinterpretation of the access to education concept further leading to effective legalremedies. From this perspective, a concrete example is represented by the possibilityof acknowledging an act of disability discrimination with regard to the access toeducation, not only in its formal understanding, as established by the presentjurisprudence, but also in its substantial understanding.

3 Legea 448/2006 cu modificările şi completările ulterioare, Legea Educaţiei Naţionale, actenormative secundare.

4 UN CRPD - http://www.un.org/disabilities/convention/conventionfull.shtml

176

III. The access to education of the children with disabilities inRomania

According to official statistics, in Romania live 700.736 persons withdisabilities5, out of which 72.777 are children6. These figures must be cautiouslyused in the analysis of the disability phenomenon in Romania due to the fact thatit refers solely to the number of children officially registered with the competentauthorities.

By this research we intended to identify to what extent the substantialaccess to education of the children with disabilities is ensured inRomania as a sine qua non condition of the right to education. In orderto reach the research objective, we have used both a quantitative and a qualitativeinstrument: the online questionnaire and the semi-structured face to faceinterview. The interview guide and the questionnaire were elaborated startingfrom the operationalization of two human rights concepts: the right to educationand the adapted environment. By that we succeeded to establish indicators thatgrounded the questions from the interview guide and the questionnaire. Theonline questionnaire was applied to 921 respondents and the interviews wereconducted with 20 parents of children with disabilities.

The first founding of the research that was carefully taken into considerationis that out of 921 respondents to the questionnaire, 33,5%, that is 308,are not parents of children with disabilities. This clarification is relevantin so far it reveals the difference of perspective between the two categories andopens the debate for possible intervention measures.

From the formal access to education perspective, the research showsthat 74,2% of the respondents consider that the access to mass education of thechildren with disabilities is not ensured, meaning that most of them are notgranted access to schools. The qualitative part of the research reveals the fact thatthe parents believe, based on their direct experience, that the teachers from thepublic schools are ”not trained” to manage the children with different types withdisabilities, ”indifferent” and not willing to supplementary teaching effort. 35% ofthe interviewed parents described the teachers and the management of the publicschools as being ”malevolent”.

When it comes to the substantial access to education, the researchshows that 78,7% of the respondents believe that the education curriculum is notadapted to the needs of the children with disabilities. Most of them use hardexpressions like:”mockery”,”they do not learn anything”. At the same time, theyconstantly underline the inefficiency of the special schools, as well as the isolationfeeling generated by these schools to themselves and their children. Theinterviews revealed traumatic experiences both of the parents and of the childrenin relation with the special schools.

Moreover, 66,5% of the respondents declared that they did not benefitedfrom and/or hared about the existence of the complementary/support teacher.28,1% of the respondents acknowledge the existence of this type of service that

5 MMFPSPV-DGPPH – martie 2013, http://www.anph.ro/tematica.php?idt=13&idss=416 DGPC – 2013, http://www.copii.ro/alte_categorii.html

177

they accessed it in a from time to time. The rest of 5,4% declared that they did notneed the service because their children are pre-scholars. At qualitative level, theparents consider the number of support teachers as being insufficient, as well asthe limited time frame of 1-2 hours/week. Furthermore, they believe that the typeof assistance provided by the support teachers is mostly non-pedagogic, beingbasically a type of guardianship. Over 60% of the respondents declared that theynever benefited from the services of a school psychologist. 25,3% declare thatthey discussed at least once with this kind of specialist, who met also the child,but the frequency of these meetings is insufficient. The rest of 8,2% claim thatthey access these kind of services in the private sector or in the rehabilitationcentres.

IV. ConclusionsEven though the social research designed was focused on a large range of

indicators in terms of substantial access to education, in this article, we decided,based on objective reasons, to present only a few of the fundamental aspects ofthe analysis that reflect the major tendencies of the Romanian system ofeducation in relation with the children with disabilities. Both the quantitative andqualitative social research provide evidences in favor of the conclusion that wemay not speak of gaps or shortcomings of the education system for the childrenwith disabilities, but actually we may speak about the lack of an education system.As a result, we consider that the massive restriction of the substantial access toeducation of the children with disabilities reveals a serious breach of the right toeducation foreseen by the national and international legislation. This type of largescale violation of a right raises serious questions about its effectiveness and theeffectiveness of the legal norms behind it. Taking into account all these, wepropose the two notions of access to education, formal and substantial, to beconsidered both at conceptual and legislative level.

Bibliography

Agabrian Mircea, Qualitative Research of Social. Design and Performance,Iaşi, Institutul European, 2004.

Aristotle, 3 Ethica Nicomachea, 112-117, 1131a-1131b, Ackrill, J. L. andUrmson J. O. (eds.), W. Ross translation, Oxford University Press, 1980.

Babbie Earl, The Practice of Social Research, Iaşi, Polirom, 2010.Bayefsky Ann F., The principle of Equality or Non-discrimination in

International Law, 11 Human Rights Quarterly, 1990.Brest Paul, In Defense of the Antidiscrimination Principle, Harvard Law

Review, Vol. 90, 1976, p.1.Charlesworth Hilary, Concept of Equality in International Law, Grant

Huscroft & Paul Rishworth (ed) Litigating Rights, 2002.Chelcea Septimiu, The Methodology of Social Research, Bucharest, Ed.

Economică, 2001.Chelcea Septimiu, First Steps in Social Research, Bucharest, Comunicare.ro.,

2004.

178

Dworkin Ronald, Taking Rights Seriously, London, Duckworth, 1977.Fiss Owen M., Groups and the Equal Protection Clause, Philosophy and

Public Affairs, Vol. 5, 1976.Grant Evadre, Dignity and Equality, Human Rights Law Review, Vol. 7,

No.2, 2007.Iluţ Petru, Qualitative Approach of Socio-human, Iaşi, Ed. Polirom, 1997.Mărginean Ioan, The Management of Social Research, Iaşi, Polirom, 1999.McCrudden Christopher, Equality and Non-Discrimination in Feldman,

David (ed.) “EnglishPublic Law”, Oxford University Press, Oxford, 2004, pp.581– 668.

McCrudden Christopher, Merit Principles, Oxford Journal of Legal Studies,Vol. 18, No 4, 1998, pp. 543– 579.

Moscovici Sergeşi Buschini, Fabrice, The Methodology of Socio-humanSciences, Iaşi, Polirom, 2007.

Peretz Henri, Methods in Sociology: The Observation, Iaşi, Ed. InstitutuluiEuropean, 2002.

Rotariu Traian (coord.), Statistical Applied Methods in Social Research, Iaşi,Ed. Polirom, 1999.

Rotariu Traian şi Iluţ Petru, Sociological Inquiry and Polls, Iaşi, Polirom,2006.

Westen Peter, The Empty Idea of Equality, Harvard Law Review, Vol. 95,No.3, 1982, p.537.

ONLINE RESURSES:

1. UN CRPD - http://www.un.org/disabilities/convention/conventionfull.shtml2. UN CRC - http://www.ohchr.org/en/professionalinterest/pages/crc.aspx3. ECHR - http://www.echr.coe.int/Documents/Convention_RON.pdf4. Law 448/2006 regarding the protection and promotion of the rights of

persons with disabilities-http://www.prestatiisociale.ro/legi/Legea_448zz_2006.pdf,

5. Law 272/2004 regarding the protection and promotion of the rights ofchildren http://www.pasapoarte.mai.gov.ro/LEGI/LEGE%20nr%20272.pdf

6. Law 1/2011 – National Education Lawhttp://www.pasapoarte.mai.gov.ro/LEGI/LEGE%20nr%20272.pdf

7. O.G. 137/2000 regarding the prevention and sanctioning of all kinds ofdiscrimination.http://www.mmuncii.ro/pub/imagemanager/images/file/Legislatie/ORDONANTE-DE-GUVERN/OG137-2000.pdf

8. Directive 2000/78/EC of 27 November 2000, establishing a generalframework for equal treatment in employment and occupation -http://europa.eu/legislation_summaries/employment_and_social_policy/employment_rights_and_work_organisation/c10823_en.ht

179

REGIONALISM AND REGIONALISATION

Ioan Mircea Zărie,

Cristina Cojocaru

Abstract: In the current social, economic and political realities, issues such as regionalismand regionalisation have proven to be very important and therefore it is no surprise that statesconsider them extremely serious when it comes to their internal organisation. In this article, wetry to outline the importance of this matter by some of the most relevant examples in ourgeographic area and by showing how are the states facing this issue.

Keywords: regionalism, regionalisation, state, adminsitrative organisation.

The third millennium has outlined significant changes in the social andeconomic life of states: the technological revolution, globalisation of culture,social and cultural homogenization of individuals due to new communicationtechnologies – the phenomenon of globalization, in a synthetic expression, whichinevitably leads to restructuring of existing structures and political institutions, areconstruction of the foundations of the current world political order. The historyis acknowledging a superior dynamic of social and economic life in parallel with aslower evolution, with a resistance of political structures and institutions.Currently, except for federal states (undeniably better adapted to globalizationstimulating the development of differences in an environment of equality), thenation states are facing a dual challenge: on the one hand from the outside, due tothe emergence of multinational corporations, global financial markets,supranational bodies and structures and, on the other hand their role hasdiminished by giving powers to supranational bodies or by the infra-nationalbodies. Simultaneously, they are having a domestic dispute, which is expressedthrough claims of some groups who assert their political and cultural identities.The national states were formed and developed by mixing different cultures andcreating of a single national-state culture. If the unitary state, based on thetrinomial people, territory and sovereignty, existing in an indivisible unity doesnot seem to be suitable to structure the new technological society, the questionarising is to what forms of organisation will the society go, especially Europe?

Currently, Europe reveals three overall levels of expression of the authority:national states, various supranational organisations of integration and differentsocial formations which proclaims their own political power. The existence andfunctioning of the European Union is based on certain values enshrined in thefounding deeds and the following treaties. Among these values we find therespect for cultural diversity, related to the interstate relations, as well as to therelations between different communities within Member States. Until theadoption of the Maastricht Treaty of 1992, the regions in Europe did not have anexistence officially recognised. This treaty enshrined in Article 198, letters A, B, C

Lecturer PhD., ”Dimitrie Cantemir” Christian University, mirceazar@gmail.com Assistant Lecturer PhD., Academy of Economic Studies in Bucharest,

cristinacojocaru5@gmail.com

180

the creation of the Committee of the Regions, an advisory body. By this treaty thecultural diversity has been also established, Article 149 stating that “in educationthe competences held by the Community must respect the cultural and linguisticdiversity of the Member States” and Article 151 has established that “theCommunity shall contribute to the flowering of culture of Member States, whilerespecting their national and regional diversity1”. The failure to adopt the Treatyon a Constitution for Europe makes difficult any prediction on the political futureof the European Union, allowing us to imagine three scenarios: thetransformation of current intergovernmental organisation into a federation;creation of a confederation or maintenance of a condominium based on the lackof barriers to exchange of goods, services, capital and persons and the existenceof joint bodies to regulate such trades.

Currently in Europe there are three models of territorial organisation: theGerman federal type, in which local communities have preserved, in a traditionalmanner, the right to make decisions of an administrative type but also political intheir own problems; the Anglo-Saxon type which is decentralized at local level,not regional (the British regions have enjoyed administrative autonomy, notpolitical one) and the French type (Napoleon model called), its specificityconsisting in a maximum centralization and the territorial division aims tostreamline the functioning of the state2. The regionalisation issue does not arisein federal states where the regions benefit from economic and political autonomybut in unitary states, which we will consider further on.

In unitary states the source of authority is at the center, the right is applieduniformly throughout the country and entire territory, while the administrativeunits have no autonomy of decision. Some theorists distinguish two types ofunitary states: the simple unitary states and the complex or regional unitarystates depending on their degree of decentralization. In principle, the unitarystate is not incompatible with recognition of autonomy in decision making, tobodies which manage its territorial subdivisions. The local autonomy and"hierarchical guardianship" are the criteria that distinguish the centralizedunitary states from decentralized unitary states. If the two criteria function withinreasonable limits we are in the presence of a decentralized unitary state. Anautonomy of the territorial subdivisions which is too large may signify the loss ofunitary character of the state, while a severe guardianship may signify theinexistence of decentralization3.

Decentralization may only signify the establishment of own local bodies,recognition of a limited self-management, recognition of a right to own decisionon issues of local interest or perhaps can mean a total decentralization, bringingthe federal state close to the unitary state.

1 Laura-Maria Crăciunean, ,,Diversitatea culturală şi ,,uniţi în diversitate": valorifundamentale ale dreptului UE înainte şi după Lisabona" în ,,Dreptul" nr.8/2013, pag. 227

2 Gurutz Jauregui - ,,Naţiunea şi statul naţional în perspectiva Uniunii Europene, in „Altera”.nr.9/1998, pag.73

3 P. Pactet: "Institutions politiques. Droit constitutionnel", 9e ed, Masson, Paris, Milan,Barcelona, Mexic, 1989, pag. 49

181

Depending on the degree of decentralization some authors distinguish thesimple unitary state from the complex or regional unitary state. Simple unitarystates are Romania, Greece, Ireland, Hungary, Bulgaria, and regional countriesare Italy, Spain, Portugal, Belgium (before 1980 when it became a federal state).

The regionalisation involves creating new administrative structures (a newlevel) in the territorial organisation of the state, the new institutions beingdifferent from those local and hovering over them4. The specialised literaturedistinguishes between two concepts of regionalism: on the one hand the regionmeans the geographical, political, administrative, linguistic position due to whichthe State chooses to blend the sovereign attributes of the centralized managementwith the assignment of autonomy to some regional groups (we will use thismeaning of the concept below) and, on the other hand "the political regionalism"when the powers of the region are beyond the administrative districts whichbenefits from local autonomy and political autonomy "(e.g. Spain, Italy).

The Council of Europe Convention on regional issues of 30 January - 2February 1978 defined the concept of region: "Different from one country toanother, the concept of region corresponds, generally, to a human communitylocated in the largest territorial entity within each nation. This community ischaracterised by historical or cultural, geographical or economic homogeneitywhich gives to people cohesion in following the common objectives andinterests”5.

The European Parliament, in a resolution of 18 November 1988, has adoptedthe Community Charter of Regionalisation that defined the region as a territoryor group of territories whose population possesses certain shared features, suchas language, culture and historical tradition6. The regions are based on theprinciple of subsidiarity, without threatening nation - states and without theirregional identities giving rise to neo-nationalism. Their role could be linked to thecreation of self-expression space for national minorities.

Some authors7 distinguish among European countries several types ofregionalisation, such as the regionalisation without creating a new regionallylevel, specific firstly to England, but also to Sweden. Sweden is a unitary state inwhich local government is organized on two levels: the village and county. Onlevel of the latter the interests of the central government (represented by agovernor) coexist with the local community interests.

Another type of regionalisation is the regional decentralization by creating anew local collectivity in the region. "The region has no higher legal status or of adifferent nature from that of the existing local collectivities, but it is defined bythe broader geographical area and by a basic economic vocation; it is part of theconstitutional order of a unitary state”8. Representative for this type ofregionalism is France, an unitary state in which territorial collectivities, according

4 M. Georgescu, and others: "Europa şi arhitectura de mâine" in "Revista de drept public",Serie nouă nr.1/1999, pag. 113

5 M. Georgescu, and others, op.cit., pag. 1306 Idem.7 Ibidem, pag.1138 M. Georgescu, and others, op.cit., pag. 116

182

to art. 72 of the Constitution are: the communes, departments and overseasterritories. The latter have special statutes established by organic laws. Thestatutes define especially the powers of their own institutions and are amendedby organic laws, after consulting the interested territorial assemblies. Theapplication of art 74 of the Constitution of the status of Corsica generated adispute: art. 1 of the draft Statute on Corsica provided that "the French Republicguarantees to the historical community - and cultural - which is the Corsicanpeople, part of the French people, rights to preserve its cultural identity anddefending specific economic and social interests. These rights to “insularity” areexercised in respecting the national unity, in the limits of the Constitution, thelaws of the Republic and this Statute". Against these provisions the ConstitutionalCouncil of Senators RPR - UDF was referred, which argued that in art. 74 of theFrench Constitution the maximum authorised for "overseas territories" is toconsider "their own interests within the all interests of the republic”. The petitionwas admitted by stating in the Decision no.91 - 290/9.05.1991 of theConstitutional Council: "There is only one people: the French people and it isindivisible”9. Robert Etien said that the Constitutional Council's decision is basedon the fact that for this court the concept of people is approaching the concept ofnation. He notes that according to some constitutional texts (art. 2,3,53 and thePreamble to the Constitution) the people are characterised by indivisibility anduniqueness: “in this idea, to speak about <Corsican people> as a part of theFrench people seems an aberration since there is only one people: the Frenchpeople”10. Along with the constitutional reform of 28 July 2008, Article 2 wasmaintained stipulating that the French language is the official language of therepublic but a text has been introduced by Article 75 (dealing with territoriesoverseas departments) according to which the regional languages belong to theFrance heritage.

In Portugal, the framework law of 1991, revised in 2005, has set the generalprovisions for the creation of administrative regions managed by an assemblyformed by representatives of communes and members directly elected by citizens.

The political regionalisation or "institutional regionalism" characterizesSpain and Italy11. The Constitution of the Italian Republic of 27 December 1947fixes the unitary character of the state providing in Article 5 that "the Republic,new and indivisible, recognizes and promotes local autonomies; it achieves thewider administrative decentralization in services that depend on state; it adaptsthe principles and models of its legislation to the requirements of autonomy anddecentralization".

The Republic of Italy is divided into regions, provinces and communes and,under art. 115 of the Constitution, the regions are established as autonomousbodies with special powers and functions. In Italy, the regional autonomy doesnot have the same characteristics as the local autonomy: the regions set theirstatus which must be approved by parliament and they have a legislative power inaccordance with their powers. In Italy there is heterogeneity due to the existence

9 R. Etien, "La Revue Administrative", 1991, pag. 23610 R. Etien, op.cit., pag. 23611 M. Georgescu, and others, op.cit., pag.117.

183

of regions with special status, regions which have more extensive competenciesand legislative power. According to art. 116 of the Constitution to “Sicily, Sardinia,Trentino-Alto Adige region, Priuli–Venice, Giulia and Valle d'Aosta” are assignedspecial forms and conditions of autonomy, based on the special statutes adoptedthrough constitutional laws".

Art. 117 of the Constitution describes the "legislative powers" of regionswhich “adopt legislative regulations within the fundamental principlesestablished by the laws of the state, provided that such regulations do not conflictwith the national interest or that of other regions", in the following matters: theregulation of services and administrative bodies dependent on the region;communal sectors, urban and rural local police, fairs and markets, etc.. Accordingto the final paragraph of this constitutional text, the laws of the Republic maydelegate to the regions the power to give instructions for their application.

For the regional unitary state, Spain is also representative. Art. 2 of theConstitution of 27 December 1978 establishes both the unitary nature of theSpanish state and the right to autonomy for the regions. Stating "the indissolubleunity of the Spanish nation, the common and indivisible homeland of allSpaniards ", the Constitution "recognises and guarantees the right to autonomy ofthe nationalities and regions that compose it and the solidarity among them".Under art.137 of the Constitution, regarding its territorial organisation, the Stateis divided in communes, provinces and autonomous communities to beestablished. All these entities enjoy autonomy to manage their interests. Title VIIIof the Constitution of Spain regulates widely the legislative and executive powersof the autonomous communities. In Spain there are several national entities,among which the most important are Catalonia (having the capital Barcelona)and the Basque Country (with its capital Bilbao). Article 148 of the Constitutiondescribes the matters where the autonomous communities may take oncompetences: the organisation of self-government institutions, amendment oflimits of the communes contained in their territory, territory planning, urbanismand housing; public works; railways and roads whose way is entirely within theautonomous community, etc.. Article 149 describe the matters where the Spanishstate enjoys exclusive regulation and executive competence: the regulation offundamental conditions which guarantee the equality of all Spaniards in theexercise of their rights and the fulfillment of constitutional duties; nationality,immigration, emigration, status of foreigners and asylum; international relations;defense and armed forces; the administration of justice; commercial criminal andpenitentiary legislation; procedural legislation, without discarding the necessarycharacteristic features, which, in this area, result from the particularities of thelaw specific to the autonomous community etc.. According to art.161 letter c of theConstitution, the conflicts of jurisdiction between the State and the autonomouscommunities and the conflicts of jurisdiction between different communities aresettled by the Constitutional Tribunal.

The Spanish regional system is not homogeneous, the autonomouscommunities differing by their historical experiences, their cultural identities,their aspirations, and as well by their level of development and social cohesion.

184

Belgium offers an interesting development: the linguistic laws of 1962-1963opened the state reform process. The idea of cultural autonomy led to severalrevisions of the Constitution which meant the decentralization of ethnical andlinguistic type... taken to the extreme point: Walloon and Flemish collectivitieshave a system close to self-government, similar to federalism.

Following the four revisions of the Constitution, there have been graduallyestablished three communities, three regions, and four linguistic communities.According to art 1 of the Constitution, Belgium is a federal state consisting ofcommunities and regions.

In Belgium there are three Regions: the Walloon region, with 3.2 millioninhabitants, the Flemish region with 5.7 million inhabitants and Brussels with 1million inhabitants; three communities: French which has 4.2 million inhabitants,Flemish which has 5.8 million inhabitants and German 0.06 million12.

According to article 4 of the Constitution, Belgium knows four linguisticregions: the French-speaking region, the Flemish speaking region, the bilingualregion of Brussels and the German-speaking region. Each commune of thecountry is part of a linguistic region.

Reviewing all the constitutional provisions of Belgium we may conclude thatthe Belgian state, although calling itself federal (in Article 1 of the Constitution)keeps features of a unitary state which delegates some powers in favor of"autonomous regions". Jean Pactet considers that the progressive structuralchanges of the Belgian state are a model of evolution from a centralized unitarystate of ethnically and linguistically type to a federal state13.

Analyzing the structure of the Belgian state in 1996, John Fitzmauricefederalism characterized it as a "unique federalism"14 and Kenneth D.Mc.Rae as afederalism of a "Byzantine complexity" (viewing the combination of geographicregions and cultural communities non-geographically defined)15.

The Republic of Moldova is, according to art. 1 of its Constitution adopted on 29July 1994 "a sovereign, and independent, unitary and indivisible state". Article 110 ofthe fundamental law describes the administrative-territorial organisation of thecountry, namely the division of the territory into districts, towns and villages.Although it is a state with a small population and area, in the Republic of Moldova,the Constitution allows, in art.111, the formation of "municipalities with special statusof autonomy": "The towns from the left side of Dniester, as well as to some from theSouth of the Republic of Moldova, may be attributed special form and conditions ofautonomy according to special statutory adopted by organic laws. The organic lawsgoverning the special municipalities statutes referred to in the first paragraph may beamended by a vote of three-fifths of the elected deputies".

Law no.51 of 23 December 1994 (published in Official Gazette of theRepublic of Moldova no. 3-4 of 14.01.1995) allows a special status to Gagauzia.

12 Charles - Ferdinand Nothomb: "Principes de democratie. Le modéle de la Belgique fédérale.La Constitution de 1994", Duculot and others, 1994, pag. 61- 62.

13 J. Pactet - "Droit constitutionnel et institutions politiques", Dalloz 10 edition, pag.51.14 J. Fitzmaurice: "The Politics of Belgium: A Unique Federalism", Boulder, Colo., Westview,

1996, citat de A. Lijphart, op.cit., pag.55.15 J. Pactet - "Droit constitutionnel et institutions politiques", Dalloz 10 edition, pag.51.

185

The preamble to the law states the reasons for granting the special status, amongothers "showing good will and aspiration to keep the good relations betweenpeople who have been forming for centuries, in order to meet national needs andpreserving the national identity of Gagauzian people, their fullest and multilateraldevelopment, the prosperity of language and culture..., given that the originalbearer of the status of Gagauzia (...) is the Gagauzian people les numerous, wholives compactly on the territory of the Republic of Moldova". Article 1 of the lawprovides that Gagauzia is an autonomous territorial unit with special statuswhich, being a form of self-determination of the Gagauzian people is part of theRepublic of Moldova.

The law provides to Gagauzia the opportunity to have their own legislativebody - the People's Assembly of Gagauzia - which, according to art. 12 paragraph2 of law, it may adopt laws in the followings fields: science, culture, education;local management and housing, urban development; heath protection, physicalculture and sports, budgetary-financial and regional tax activity; economy andecology; labour relations and social assistance.

According to art 14 of the law, the Governor of Gagauzia (the Bashkan) hasthe management of the activities of public administration authorities and bearsthe responsibility for exercising its competences vested by law. The permanentexecutive body of Gagauzia is the Executive Committee which is named by thePeople's Assembly in the first session, for the entire duration of its mandate.

Considering the above, we appreciate the special status of Gagauzia -province of the Republic of Moldova – it outlines a political regionalisation or an"institutionalised regionalism".

Given the complex situation in the Republic of Moldova where there is the"self-proclaimed Transnistrian republic with its capital in Tiraspol", someanalysts anticipate a "federalisation of the Republic of Moldova" on the idea ofcoexistence of two federal states in the country: Moldova and Transnistria.

The issue of local autonomy has generated much discussion in Romania incounties with predominant Hungarian population. The local autonomy of thoseadministrative-territorial units was frequently invoked in the political programsof the Democratic Union of Hungarians in Romania. According to one of theleaders of that political party, György Frunda, the local autonomy must be of twokinds: autonomy cultural or personal which "is ethnic autonomy and its purposeis preserving the national identity. This is manifested by its own culture that mustbe subsidised by the state in proportion to our share (of Hungarians - ouremphasis added – M.Z.), culture to be completely uncensored, to have ourcultural institutions, meaning radio, television, newspapers and so forth”16. Onthe other hand the author distinguishes "the territorial autonomy" that "yet it isnot based on ethnic criteria but on local territorial criteria and brings the decisioncloser to citizens. Within it should be solved the issues of the ethnic group livingwith the Romanian majority... bilingualism should be granted"17.

16 György Frunda, Elena Ştefoi: "Drept minoritar. Spaime naţionale", Ed. Kriterion, Bucureşti,1997, pag.78.

17 György Frunda, and others, op.cit., pag.78.

186

Hurst Hannum noticed that the issue of decentralization, of autonomy isbasically the expression of fight for sharing the attributes of power in statebetween central and local bodies, the existence of minorities not beingfundamental for claiming autonomy.

It should be noted that in international law the secession, the right to self-determination of national minorities is not allowed18.

Lee G. Buchhert tried a list of arguments against secession of differentgroups of population, including minorities: fear of balkanization, the dominotheory or Pandora's box spectrum, fear of infinite divisibility, because few statesare ethnically homogeneous; fear of the effects that such law would have on thedemocratic system, giving to a minority the possibility of constant blackmail, ofthreaten to secede if its wishes are not met; the danger that non-viable entitiesarise, very small, which would then be based exclusively on international aid, andso forth19.

ConclusionThe brief analysis on the structure of some European unitary states and on

the dynamics of state form allows us to conclude that currently, thedecentralization is a necessary process, in line with the economic development.The purpose of this process is to recognise and promote the local interest, whileits foundation must be double: political because it ensures the democratisation ofthe administration (European Charter of local autonomy considers thedecentralization as one of Europe's democratic principles) and administrativebecause it improves the quality of the administrative act at local level (it knowsthe local needs and manages better the local resources).

Strengthening the role of the regions will be imposed also if the Europeancountries will evolve to an organisation of federal type (the pattern that seemsnecessary in the context of economic and technological developments of stateswhich occupy large territories and have significant material and humanresources) but it is required as well in the current context.

18 See: Ion Diaconu - "Minorităţile şi autodeterminarea popoarelor", in Journal "Drepturileomului", nr.2/1996, pag.27 şi urm.

19 Lee G. Buchhert: "Secession: The Legitimacy of Self-Determination", New Haven, 1978,pag.20, quoted by I. Diaconu, op.cit., pag.33.

187

REGULATIONS AND INTERNATIONAL BODIES AIMED ATFIGHTING DISCRIMINATION

Ramona-Gabriela Paraschiv*

Abstract: Proclaimed in art. 1 of the Universal declaration of human rights, the principle ofnon-discrimination has its origins in the general postulate of the equal dignity of all humanbeings. In conformity with this principle, all individuals have to benefit from equality of treatmentin exercising the rights stipulated in the international instruments, as well as in the achievementof any other right stipulated by the law.

Keywords: regulations, international organizations, discrimination, human rights.

1. Introductive considerationsEven if in the domain of regulations meant to limit discrimination1,

remarkable progress was achieved; in the practical activity we may still observenumerous shortcomings.

Thus, for example, there are discriminations regarding the possibility ofexercising the right to work in other states than in those of origin (even inside theEuropean Union), by the protectionist measures disposed of the later, and theforeign person who succeed in obtaining a workplace in other countries and who,generally benefit of smaller retributions and harsher work conditions, thus themigration right of the work force may be applied only to a limited extent.

The woman still faces discrimination, as she is deprived of certain political,social, economic rights, as well as the access to education, in certain regions of theworld (especially in the Arabian or the African countries), as well as thepossibilities of being guaranteed certain rights officially acknowledged. Moreover,although this is the 21st century, barbarous acts of killing women without a propertrial are still registered, by violent acts or by burying them alive, as it is practicedin Pakistan2, where they are punished in this manner by the tribal councils onlyfor the “guilt” of having participated at decent parties or for other insignificantdeeds.

The discrimination of children is serious by imposing conducts which arenot in conformity with their aspirations and personality – sometimes evenagainst the law or of the rights officially consecrated for the protection of minors.Moreover, numerous acts of physical and mental violence are still committed, asit is mentioned in a report of the Special UNO Representative for Children andArmed Conflicts, from the month of June 2012, in which the situation resulted

* University Assistant PhD., Christian University „Dimitrie Cantemir”, Bucharest– Faculty of Law, ramonaparaschiv@rocketmail.com

1 Discrimination refers to the situations in which an individual or a group of persons is treatedless well than another group, for similar cases, without a reasonable explanation, although there isno norm that stipulates the possibility of such a treatment.

2 Pakistan is the country which occupies 3rd place in the world regarding the discrimination ofwomen, due to the religious rituals and the culture which are very harsh to women, as they includeattacks with acid, marriages or obligatory burdens, radical punishments or other types of abuses(Source http://www.9am.ro/top/International/213781/Topul-tarilor-in-care-e-mortal-sa-fii-femeie/3/Pakistan-tara-in-care-peste-1000-de-femei-sunt-ucise-in-lupte-de-onoare.html).

188

from an armed conflict from the 9th of March 2012 is related, in the village Aynl’Arouz in Syria, of some children who were tortured in detention, slaughtered orused as human shields. Some children even relate that they were beaten, tied attheir eyes and placed in tormenting positions, whipped with cables, burned withcigarettes or even electrocuted3.

Numerous children are still forced to follow, against their will, certain pathsin life, concerning the school education, profession, marriage, etc, which resultsin altering their personality, the right of choosing their own way in life inconformity with their aptitudes and aspirations – in numerous cases – to theiradoption of a refractory and anarchical behaviour which, sometimes, leads todelinquency.

The Roma community is presently still facing discriminatory manifestationsin multiple domains, such as: the access to a workplace, to housing places or theeducation system. Frequent positions of disdain still exist from the populationand brutalities committed by the police. In conformity to a report of theCommissioner of the Council of Europe for the Human Rights, published on thedate of 27th of February 2012, in many European countries, the Roma people arestill denied certain elementary human rights and are still suffering from thephenomenon of the brute racism.

Although, in the last period, the international bodies continued to increasinglyrealize the issues with which the Roma people are faced, that the precariousconditions in which they lived have not changed, and the racist discussions of certainleaders have brought them many prejudices, being understood as a form ofencouragement to the violent acts performed against them4.

2. Regulations and international bodies concerning the fightagainst discrimination

The international convention regarding the elimination of all forms ofracial discrimination5, clearly and completely affirms the principle of equalityamong various races6. The state parties have the obligation of ensuring anyperson submitted to their jurisdiction protection an effective forms of appeal(before national courts and other competent state bodies), against all acts ofracial discrimination7 which, contrary to the present Convention, would violate its

3 The sufferings incurred upon the children in Syria are unfamiliar, even for a conflict: “Weare truly shocked. Murdering and mutilating children in gunshot exchanges is a matter we arefighting against in many conflicts, however this torture of children in detention, children with agesunder 10 years, is something extraordinary, which we have not witnessed in other places", affirmedthe UNO representative, Radhika Coomaraswam (http://www.jurnalul.ro/externe/raport-onu-siria-copii-torturati-macelariti-615325.htm).

4 Source http://psdbelgia.eu/presa/consiliul-europei-condamna-discriminarea-romilor-in-primul-raport-realizat-pe-aceasta-tema/.

5 The International Convention regarding the elimination of all forms of racial discrimination,also adopted as to being signed by the General Assembly of UNO by the Resolution 2106 (XX) fromthe 21st of December 1965, which entered into force on the 4th of January 1969.

6 Thomas BURGENTHAL, Alexandre KISS, La protection internationale des droits del’homme, Editions N.P. Engel, Kehl.Strasbourg.Arlington, 1991, pp. 34 and foll.

7 Ramona-Gabriela Paraschiv, Modalităţi şi proceduri privind protecţia drepturilor omului încadrul Comitetului pentru eliminarea discriminării rasiale, Christian University „Dimitrie

189

individual rights and fundamental liberties. Similarly, the states must create thepossibility of obtaining the adequate damages as a result to the prejudiceproduced due to discrimination8.

In conformity with art. 8 from the Convention, a Committee for theElimination of Racial Discrimination has been established, composed of 18known experts who exercise their functions with an individual title and have beenchosen by the state parties from their citizens, taking into consideration anequitable geographic repartition and the presentation of the diverse forms ofcivilization, as well as the main legal systems.

By ratifying the international Convention regarding the elimination of allforms of racial discrimination, the state parties engaged to present the GeneralSecretariat of the United Nations Organization a periodic report concerning themeasures of a legislative, legal, administrative, etc order which were adopted andthat aim at applying the dispositions of the Convention, report which is thentransmitted for study to the Committee for the Elimination of RacialDiscrimination. The later, also drafts, at its turn, an annual report concerning theactivities developed and may recommend actions or make suggestions which arebased on the reports and information received from the state parties; the report isbrought to the knowledge of the UNO General Assembly, by means of the GeneralSecretary, the recommendations and suggestion of a general order beingaccompanies, if the case, by the observations of the state parties9.

In conformity with the European Convention of human rights, the stateparties have the assignment of adopting legislative and administrative measuresas to prevent and sanction the discrimination which intervened towards thepersons submitted to their jurisdiction10. Otherwise, the persons discriminatedhave the right of addressing the European Court of Human rights, which functionas a jurisdictional protection body of the human rights. Moreorer, Protocol no. 12of the Convention establishes a general interdiction of discrimination, reported tothe exercising of any right stipulated by the domestic law. The EuropeanCommission against Racism and Intolerance11 constitutes a monitoringmechanism of the manner in which the human rights are observed in Europe,thus focusing of fighting racism and intolerance, in conformity with the “Plan ofaction” by which the creation of a Committee of Governmental Experts, charged

Cantemir”, Faculty of Legal and Administrative Science– Annals of the University. Series Law, no.1/2011, year XV, Pro Universitaria Publishing House, Bucharest, 2011, pp.78 and foll.

8 Art. 6 from the International Convention regarding the elimination of all forms of racialdiscrimination.

9 Art. 9 par. 1 and 2 from the International Convention regarding the elimination of all formsof racial discrimination.

10 Radu Chiriţă, Convenţia europeană a drepturilor omului. Comentarii şi aplicaţii, vol. I, 2nd

edition, CH. Beck Publishing House, Bucharest, 2007, p. 609.11 Was created as a result of the decision adopted at the first head reunion of the chiefs of

states and governments of the member states of the European Council; by the Declaration in Viennafrom the 9th of October 1993, the representatives of the member states of the European Councildecided to initiate a battle policy against racism, xenophobia, anti-Semitism and intolerance, thusthey adopted a “Plan of action” in this sense, which is included in Annex III in the Declaration ofVienna.

190

to regularly present the reports to the Committee of Ministers of the EuropeanCouncil.

For the effectiveness of the activity, from the year 2002, the EuropeanCommission against Racism and for Tolerance adopted a new Statute, on the 13th

of June 2002, in conformity to which the Commission may resort to theexamination of the situation existent in each member state of the EuropeanCouncil, surveillance which also implies the performance of contact visits in therespective state, thus initializing a confidential dialogue with the authorities fromthat stat, which may present their comments regarding the conclusions of theCommission. Subsequent to the finalizing of the procedure, a report is draftedwhich contains, along with the analysis of the real situation, suggestions andproposals for the monitored state; the report is transmitted to the nationalauthorities and then published, except the case in which the state in caseexpressly opposes the publishing.

The Commission may, also, approach certain general themes, adoptingrecommendations, subsequent to the collection and dissemination of certainexamples of “good practices” in fighting racism, racial discrimination,xenophobia, anti-Semitism and intolerance. Moreover, it can be “grasped”directly by the non-governmental bodies for acts from its domain of activity,which they will examine.

In its activity, the Commission may resort to the assistance of reporters orconsultants in the domain of preventing or fighting racism, racial discrimination,xenophobia, anti-Semitism and intolerance, and may organize consultations.

3. The right to non-discrimination in RomaniaAccording to art. 16 from the Constitution of our country, the principle of

equality of citizens before the law and the public authorities is proclaimed,without privileges and discriminations, no individual being above the law.Moreover, art. 4 par. 2 stipulates that „Romania is a common and indivisiblecountry to all its citizens, regardless of the race, the nationality, of the ethnicorigin, of the language, religion, sex, opinion, political affiliation, fortune or socialorigins”.

As a guarantee of the observance of this right, in the Penal Code it isconsidered an offense, according to art. 247, the infraction of abuse inworkplaces by limiting certain rights, which sanction the restriction of rights, bya functionary of using or exercising the rights of a citizen, or the creation by thelater of situation of inferiority based on nationality differences, race, sex orreligion.

In conformity to an opinion survey performed in our country in the year2010, at the initiative of the National Council as to Fight Discrimination12, it hasbeen observed that, along with the persons infected with HIV/SIDA, homosexualsand the Roma people, the disabled are also considered as being the mostdiscriminated categories from our society. Similarly, in the month of June of

12http://www.cncd.org.ro/noutati/Comunicate-de-presa/Rezultatele-sondajului-de-opinie-Fenomenul-discriminarii-in-Romania-in-anul-2010-100.

191

2011, the Institute for Public Policies performed in Romania a national surveyregarding the perception on persons with intellectual disabilities and their placein society, which reveals the fact that 75% of the Romanian citizens consider thatthe persons with disabilities are discriminated.

4. ConclusionsThe facts regarding discrimination are the object of interdiction by universal

conventions with a general or specific character, which are obligatory for thestates which ratified them and which constitute control procedures regarding theobservance of these rights.

The phenomenon of discrimination – being based on motives of race,ethnicity, sex, disabilities etc. – is still widely spread in numerous parts of theworld, since the persons which are part of the categories discriminated can notbenefit from certain rights or liberties, in conditions similar to the non-discriminated population.

As a result, it is constantly imposed to perfect the international mechanismsof guaranteeing the right to non-discrimination, as all people are to be treated asequals.

Bibliography

Burgenthal Thomas, Kiss Alexandre, La protection internationale des droitsde l’homme, Editions N.P. Engel, Kehl. Strasbourg. Arlington, 1991.

Chiriţă, Radu, Convenţia europeană a drepturilor omului. Comentarii şiaplicaţii, vol. I, 2nd edition, CH. Beck Publishing House, Bucharest, 2007.

Paraschiv Ramona-Gabriela, Modalităţi şi proceduri privind protecţiadrepturilor omului în cadrul Comitetului pentru eliminarea discriminăriirasiale, Christian University „Dimitrie Cantemir”, Faculty of Legal andAdministrative Science– Annals of the University. Series Law, no. 1/2011, yearXV, Pro Universitaria Publishing House, Bucharest, 2011.

http://psdbelgia.eu/presa/consiliul-europei-condamna-discriminarea-romilor-in-primul-raport-realizat-pe-aceasta-tema/.

http://www.9am.ro/top/International/213781/Topul-tarilor-in-care-e-mortal-sa-fii-femeie/3/Pakistan-tara-in-care-peste-1000-de-femei-sunt-ucise-in-lupte-de-onoare.html

http://www.cncd.org.ro/noutati/Comunicate-de-presa/Rezultatele-sondajului-de-opinie-Fenomenul-discriminarii-in-Romania-in-anul-2010-100

http://www.jurnalul.ro/externe/raport-onu-siria-copii-torturati-macelariti-615325.htm

192

NATURAL PERSON - EQUALITY, NON-DISCRIMINATION ANDPRIVATE LIFE. PARTICULAR ASPECTS IN THE MATTER OF

NATURAL PERSON AND FAMILY LAW

Adrian-Relu Tănase

Abstract: According to Art.16 paragraph 1 from the Constitution of Romania, theRomanian citizens are equal before the law and public authorities, without any privilege ordiscrimination. At the same time, according to Art.26 paragraph 1 from the Constitution, thepublic authorities shall respect and protect the intimate, family and private life. The present studyradiographs the equality of rights, the non-discrimination and the right to private life of theRomanian citizens, from the viewpoint of the legislation of Romania versus the Europeanlegislation, especially the European Convention and the jurisprudence of the European Court ofHuman Rights. In connection with the matters dwelt on, we stress that it is a long way fromtheory to practice, the Romanian citizens having many “theoretical and illusory” rights instead ofthose “effective and concrete”.

I. Theoretical aspects. In accordance with Art.25 paragraph 1 from theCivil Code, natural persons and legal persons are subjects of civil law. Accordingto Art.25 paragraph 2 from the Civil Code, a natural person is a human being,regarded (considered) individually, entitled to civil rights and duties(obligations).

The equality before the law and the principle of non-discrimination areprinciples of constitutional rank, and also of legal rank, laid down by Art.16paragraph 1 fron the Constitution of Romania, the International Pact regardingthe civil and political rights, the European Convention on Human Rights, theCharter of the fundamental rights of the European Union, Art.30 from the CivilCode, the Government Ordinance No. 137/2000 on preventing and punishing(combating) all forms of discrimination, the Labour Code, Law No. 202/2002regarding equal opportunities and treatment for men and women, and someothers.

According to the doctrine, “the equality of rights is, by itself, an equality ofopportunities, which is granted by the Constitution to all the citizens”. Art.16paragraph 1 is correlated with Art.4 paragraph 2, which states the criteria of non-discrimination i.e. race, nationality, ethnic origin, language, religion, sex,opinion, political adherence, property or social origin. Equality is a complexconstitutional principle. It is defined not only as against the opposite notion ofdiscrimination, but also as against the complementary notion of difference; thusequality tends to include difference. Equality is no more synonymous withuniformity, but it comes near (it tends to) proportionality. The complexity of thisprinciple, its wide field of practical application has lead to the identification, inthe jurisprudence of the Constitutional Court, of a right to difference1 as an

Translated by Dan Iacob, Counsellor, Department for Personal Records, Buzău. Deputy Executive Director, Department for Personal Records, Buzău.1 The principle of equality does not mean uniformity, thus if for equal situations the treatment

must be equal, for different situations the juridical treatment must be different. In this respect seealso the jurisdictional practice of the Court, as resulting from Decisions No. 70/1993, No. 74/1994and No. 85/1994, in accordance with the constitutional practice from other countries, as well as

193

expression of the equality of the citizens before the law, incompatible withuniformity2.

II. Equality and non-discrimination as reflected by thejurisprudence of the Constitutional Court of Romania.

1. According to Decision3 No. 107 / November 1st 1995 of the ConstitutionalCourt, it has been laid down that “there is a violation of the principle of equalityand non-discrimination when there is a differentiated treatment for equal cases,without an objective and reasonable motivation, or when there is a disproportionbetween the aim pursued using unequal treatment and the means used”.

2. In accordance with Decision4 No. 782 / May 12th 2009 of theConstitutional Court, “it would be contrary (opposed) to Art.16 paragraph 1 fromthe Constitution that uniformity should be required where there are clear andobjective differences of situation or, according to the case, differences ofapplicable juridical regime”.

3. In compliance with Decision5 No. 834 / May 26th 2009 of theConstitutional Court, “the legislator has the prerogative to put in order certaindeficiencies of a normative act resulted from the application of the law, withoutinfringing (by the said putting in order) the equality of rights of the citizens. Inspite of that, the legislator, in the case of a positive discrimination, must notrespond with legislative measures that should establish other positivediscriminations; the legislator may respond only with normative acts that shouldbring back on the normal “path” a situation that has produced positivediscriminations”.

4. According to Decision6 No. 545 / April 28th 2011 of the ConstitutionalCourt, the Court found out that the animadverted upon purviews do not infringethe principle of equality before the law, established by Art. 16 from theConstitution, because, as it was constantly laid down by the Constitutional Courtin its jurisprudence, this constitutional principle implies the institution of anequal treatment for situations which, depending on the aim pursued, are notdifferent. That is why it does not exclude, but, on the contrary, implies different

with the practice of the European Court of Human Rights. In general, it is considered that there is aviolation of the principle of equality and non-discrimination when there is a differentiatedtreatment for equal cases, without an objective and reasonable motivation, or when there is adisproportion between the aim pursued using unequal treatment and the means used. In otherwords, the principle of equality does not forbid specific rules when there is a difference ofsituations. The formal equality would lead to the same rule, in spite of the difference of situations;the real inequality, resulting from this difference, may justify the existence of distinct rules,depending on the aim of the law that contains them. That is why the principle of equality leads toemphasizing the existence of a fundamental right, the right to difference, and in so far as equality isnot natural, the fact of imposing it would stand for the institution of a discrimination. See DecisionNo. 107/1995 of the Constitutional Court (the Official Gazette No. 85 / April 26th 1996).

2 I. Muraru, in Constitution of Romania, commentary article by article, C.H. Beck PublishingHouse, 2008, p.151

3 Published in the Official Gazette No. 85 / April 26th 1996.4 Published in the Official Gazette No. 406 / June 15th 2009.5 Published in the Official Gazette No. 501 / July 21st 2009.6 Published in the Official Gazette No. 473 / July 6th 2011.

194

solutions for different situations. (See Decision No. 1/February 8th 1994,published in the Official Gazette of Romania, Part I, No. 69/March 16th 1994). Atthe same time, the European Court of Human Rights, in the Decision dated April6th 2000, pronounced in the Cause Thlimmenos versus Greece, laid down that theright to non-discrimination, guaranteed by the Convention, is violated not onlywhen the states treat differently persons placed in analogous situations, withoutobjective and reasonable justifications (see, for example, the Decision datedOctober 28th 1987, pronounced in the Cause Inze versus Austria), but also whenthe states omit to treat differently persons placed in different situations, withoutobjective and reasonable justifications, too.

5. In accordance with Decision7 No. 454 / September 20th 2005 of theConstitutional Court, “The principle of equality stipulated by the Constitution forcitizens may not receive, by extension of the sense, the significance of an equalitybetween the citizens and the public authorities. As stipulated by theconstitutional provisions of Art. 16, the Romanian citizens enjoy the rightsstipulated in the Constitution and in the laws, being equal before them and beforethe public authorities, whereas the public authorities shall exercise theirprerogatives stipulated by law in accordance with their competence, for theaccomplishment of the functions wherefore they have been set up”.

6. According to Decision8 No. 217/April 20th 2005 of the ConstitutionalCourt, “The Court retains that the animadverted upon law text, referring to theconditions wherein the Romanian citizens who have reached the age of 18 areallowed to go abroad, is unconstitutional because it excludes the minor womanwho has got married, thus becoming a major person, from the category of thenatural persons with full exercise capacity (legally competent). Thus the principleof equality is violated, by applying a different juridical treatment for equalsituations. The equality of the citizens before the law, without any privilege ordiscrimination is established as a fundamental right by the provisions of Art. 16paragraph (1) from the Constitution, but, regarding the spouses, in addition, theConstitution lays down a special guaranty of the equality by the provisions of Art.48 paragraph (1), which stipulate that "The family is founded on the freelyconsented marriage of the spouses, their full equality [...]". Taking account ofthese constitutional guaranties, the restriction of the exercise of the rights of theminor woman who has got married may determine an inequality of juridicalstatus as compared to the husband, inequality which is not objectively andrationally justified by the provisions of Art. 53 from the Constitution, whichstipulate that the restriction on the exercise of certain rights or freedoms isnecessary "for the defence of national security, of public order, health or morals,of the citizens' rights and freedoms, conducting a criminal investigation,preventing the consequences of a disaster or an extremely severe catastrophe”.

7 Published in the Official Gazette No. 946 / October 25th 2005.8 Published in the Official Gazette No. 417 / May 18th 2005.

195

III. Equality and non-discrimination as reflected by the doctrineand jurisprudence of the European Court of Human Rights.

According to Art.14 from the European Convention on Human Rightsreferring to prohibition of discrimination, the enjoyment of the rights andfreedoms set forth in this Convention shall be secured without discrimination onany ground such as sex, race, colour, language, religion, political or other opinion,national or social origin, association with a national minority, property, birth orother status. In accordance with Art.1 from the Protocol9 No. 12 of the EuropeanConvention on Human Rights, the enjoyment of any right set forth by law shall besecured without discrimination on any ground such as sex, race, colour,language, religion, political or other opinion, national or social origin, associationwith a national minority, property, birth or other status.

According to the doctrine, in compliance with the decisions of the EuropeanCourt of Human Rights, to distinguish does not mean to discriminate. On theother hand, in order to speak about discrimination, the situations in questionmust be comparable. Thus, the former Commission decided that when thecontested state measure refers to the procedure for the approval of theinterruption (termination) of pregnancy, stipulated by the national law, the defacto situation in question is different for the potential father and for theexpectant mother10; similarly, there is no discrimination based on the situation ofthe employer, when the national law stipulates that the sanctions for exceedingthe authorized overtime are applied to the employer, and not to the employees.

The difference of treatment becomes discrimination, as per Art. 14 fromthe Convention, only when the state authorities introduce distinctions betweenanalogous and comparable situations without having a reasonable and objectivejustification as a basis for the above-mentioned distinctions. The contractingstates dispose of a certain margin of assessment in order to determine whetherand to what extent the differences between analogous or comparable situationsmay justify the applied distinctions of juridical treatment.

There is an infringement of Art. 14 when it clearly appears that there isnot a reasonable proportion between the means used and the aim pursued.

Taking into account the provisions of Art. 8 from the Convention, theEuropean court laid down there is not an objective and reasonable justificationfor the difference of treatment between: mother and father regarding theentrusting of the minor child, the latter being given to the mother only because ofthe sexual orientation of the father; the children born in wedlock and the childrenborn out of wedlock (in successional matters); the preference given by thenational supreme court to the father in entrusting, after the divorce, the childrenborn in wedlock (with the taking into account of the psychological tension thatthe children may feel as a result of this entrusting), because of the affiliation ofthe mother to the religious movement Jehovah's Witnesses which do not permitthe effectuation of blood transfusions in case of necessity. The Court consideredthat all these discriminations operated by the national authorities in the domain

9 Romania ratified this protocol by Law No. 103/2006 (the Official Gazette No. 375 / May 2nd

2006) and entered into force on November 1st 2006.10 Commission, May 19th 1992 No. 17004/1990.

196

of Art. 8 pursued a legitimate aim, but the means used were considereddisproportionate as against the aim pursued, so that the said discriminationsinfringed the provisions of Art. 14 from the Convention11.

According to the jurisprudence of the European Court of Human Rights, anadmissible differentiation of treatment must pursue a legitimate aim and mustimply a reasonable proportion between the means used and the aim pursued12.

In its jurisprundence ECHR has dismissed some justifications, consideringthem discriminatory: Art.7 paragraph 3 from the Law dated August 2nd 1963 wasconsidered not conformable to the exigencies of Art.14 from the Conventionbecause it did not allow some children to have access to the French-languageschools situated in six communes from the outskirts of Brussels, (these sixcommunes had their own status), taking into account only the residence of theirparents13; a difference of treatment based on religion, which lead to withdrawingcustody of the children from their mother on religious grounds (the religiousideas of the mother) – the above-mentioned difference of treatment may havehad a legitimate aim, but did not imply a reasonable proportion between themeans used and the aim pursued14; the obligation imposed to a married woman,in the name of family unity, to bear the family name of her husband, even thoughthe said family name may have been preceded by her maiden name; the above-mentioned obligation had not an objective and reasonable justification15; thedifference of treatment between natives and foreigners regarding the granting ofcertain social assistance under the form of “emergency allowances16”; also, takinginto consideration the provisions of Art. 8 from the Convention, the Europeancourt laid down there was not an objective and reasonable justification for thedifference of treatment between: mother and father regarding the entrusting(custody) of the minor child, the latter being given to the mother because of thesexual orientation of the father17; the children born in wedlock and the childrenborn out of wedlock (in successional matters)18; although these discriminationspursued a legitimate aim, the Court considered them disproportionate as againstthe aim pursued, infringing the provisions of Art.14 from the Convention19.

11 Corneliu Bîrsan, The European Convention on Human Rights, commentary article byarticle, C.H. Beck Publishing House, 2008, p.962

12 ECHR, Marckx v. Belgium, mentioned in J.F.Renucci, p.152, foot note no. 288.13 ECHR, July 23rd 1968, the Belgian linguistic case. This type of discrimination, based on the

exclusive criterion of domicile/residence may be found even today in Romania in connection withthe children's enrolment in the preparatory group, taking into consideration the domicile orresidence of the parents, fact that has generated many problems in practice, connected with thefictitious taking of the parents in the dwelling space, in order to formally comply with the legalprovisions. This matter has also been tackled by the press; see also the article “The anomalies of thezero (o) class. The bad luck of being born in a wrong street” published on April 2nd 2013 in the localnewspaper “Opinia”; http://www.opiniabuzau.ro/index.php/educatie/20924-anomaliile-clasei-zero-ghinionul-de-a-te-naste-pe-strada-gresita.

14 ECHR, June 23rd 1993 Hoffman v. Austria15 ECHR, July 24th 2004, Sidabras and Dziautas v. Lithuania, no. 55480/00.16 ECHR, September 16th 1996 mentioned in Corneliu Bîrsan, in ibid., p.96917 ECHR, December 21st 1999.18 ECHR, June 13th 1979 and October 28th 1987.19 Corneliu Bîrsan, in ibid., p.969

197

In the jurisprudence of the European Court the following facts wereconsidered as discriminatory: the placement, without justification, of somechildren of Roma origin in special classes, in an annexe to the main building of aprimary school20; difference between sexes as against the names of the spouses21;difference of treatment regarding the custody of a child22; difference between thejuridical treatment of the homosexual married couples and the juridicaltreatment of the heteroexual married couples23; the interdiction of adoption bylesbian couples24; the interdiction of getting married for the persons who have noreligious affiliation25; the refusal to recognize the adoption effected abroad26;discrimination on the ground of sex27 or social origin28.

IV. Equality, non-discrimination and private life. Principlesobserved in Romania.

The full equality of treatment between citizens, their non-discrimintionwithout the existence of an objective and reasonable difference, and the fullrespect for private and family life are guaranteed, in abstracto, by theConstitution of Romania, the European Convention, as well as by numerousnormative acts passed until now. The problem regarding the necessity for the

20 Cause Sampanis and others v. Greece, Decision dated June 5th 2008.21 The Court concluded that the rules in force in Switzerland gave rise to discrimination

between binational couples accorging to whether the man or the woman had Swiss nationality, andthat there had therefore been a violation of Art. 14 read in conjunction with Art.8 from theConvention. See Cause Losonci Rose and Rose v. Switzerland, Decision dated November 9th 2010.

22 The Court stressed that only a couple of sound arguments may hinder the father to exercisehis parental authority. Cause Zavrel v. the Czech Republic, Decision dated January 18th 2007.

23 According to the Court, the exclusion from the right to succesion on the sole ground of thesexual orientation was not proportionate to the necessity of protecting the familiy; the Court foundout a violation of Art. 14 read in conjunction with Art.8 from the Convention. Cause Kozak v.Poland, Decision dated March 2nd 2010.

24 The Court considered that E.B. was subject to a difference in treatment. Particularlyconvincing ang weighty reasons had to be made out in order to justify such a difference intreatment. There were no such reasons in the case because French law allowed single persons toadopt a child, thereby opening up the possibility of adoption by a single homosexual. Cause E.B. v.France, Decision dated January 22nd 2008.

25 Cause O Donoghue and others v. the United Kingdom, Decision dated December 14th 2010.26 Cause Negrepontis-Giannisis v.Greece, Decision dated May 3rd 2011.27 In the cause Karlheinz Schmidt v. Germany the object of the notification was “the obligation

for the men in Baden-Württemberg, but not for women, to serve in the fire brigade or pay afinancial contribution in lieu of such service”. The Court approved the request and found out thatthere was a discrimination on the ground of sex.

28 The discrimination on the ground of social origin was raised in the cause Olsson v. Sweden.The applicants stated that the taking into care and the ulterior placement of their children in fosterhomes, by an administrative decision of the Social District Council in Gotebord, based on a reportcompiled by the social administration, which concluded that the children's development was indanger since they were living in an environment which was unsatisfactory, violated the right torespect for private and family life (Art. 8 from the European Convention on Human Rights).According to the Court, the measures taken in the implementation of the administrative decisionregarding the separation of the children from their parents and the restrictions imposed on theparents' visits, were not supported by sufficient reasons justifying them as proportionate to thelegitimate aim pursued and could not be regarded as necessary in a democratic society. The Courtfound out only a violation of Art.8 from the European Convention on Human Rights

198

public authorities to refrain from infringing the fundamental human rights,especially those concerning the respect for equality, non-discrimination and theright to private life, implies several levels.

Firstly there is an aspect referring to the knowledge and observance of thefundamental human rights29, of the normative acts which regulate these rights andthe correlative obligations of the public or private authorities, according to the case.Although there are some permanent themes for debates and discussions, such as thecivil servants' obligation to do their best with the view of improving their professionaltraining, the principle of professionalism, the equality of treatment of the citizensbefore the public authorities and institutions30, the loyalty to the Constitution and tothe national laws31, in the everyday ambience of nowaday Romania things are farfrom approaching this desideratum, i.e. many public office workers (civil servants)from various public authorities or institutions ignore, do not know or do not applythe compulsory legal provisions. It is surprising that the law is not applied accordingto the elementary and fundamental principle of hierarchy (that is to say the acts fromthe top of the pyramid – the Constitution, the European Convention – must havepriority), but, on the contrary, the superior normative acts are ignored, importancebeing given to the implementing rules, methodological definitions, circulars,precious indications or, simply, to the customs, having their origin, in most cases, inthe verbal orders of the direct superiors, whose appointment in the respectiveposition was often made on political criteria or according to the Romanianmanagerial principle, however stupid a man may (might) be, his mind comes to himaccording to the post (position). Even though a civil servant (public office worker) isprofessionally well trained, having as a background the Faculty of law or of publicadministration, there are two factors which may undermine, while exercising civilservice, his/her stock of knowledge. On the one side, the legislator lays himself out tomodify, complete or abrogate, in a very short time – by means of emergencyordinances or laws, government decisions, ministers' orders, instructions forimplementation etc. – the normative acts which must be known and applied by thepublic office workers, so that the infringement of the fundamental human rightsoccurs by negligence, in good faith, the public office workers being convinced thatthe law text applied by them is the text in force at the date of its application.

On the other side, both the direct superior and the whole system whichcoordinates methodologically the respective public institution, often transmitcontradictory and incoherent methodological dispositions, which make additionsto the law text or even they are contra legem, so that the public office worker isupset, incoherent and sometimes abusive, swaying between the order of thesuperior (order that sometimes may be obviously illegal), which he/she carriesout so as not to endanger (jeopardize) his/her job, and his/her own professionalconscience, which feels that such an application in concreto of the law isexcessive, extreme, and may endanger the fundamental rights of the citizens (yet

29 See Mădălina Tomescu, Knowledge of civil liberties and civil rights under the law, in“Monitorul cultural-educativ” nr. 2/2008, MAI, ISSN: 1583-6126, p. 119 - 126

30 See Mădălina Tomescu, Ethics of public servants, Pro Universitaria Publishing House,Bucharest, 2012, p. 98

31 See Law No. 7 / 2004 regarding the Code of conduct of public office workers (civil servants)

199

the public office worker is supposed to be in the service of the citizens). TheRomanian principle better bend than break, applied in the zone of publicauthorities or institutions, principle that is the basis of the philosophy ofprofessional life for many32 public office workers, corroborated with he who doesnot work neither shall he make mistakes and may be promoted, may bringdisservices for the citizens, whose legitimate rights and interests ought to beobserved and not ignored or violated.

The excess of rigour shown by some of the superiors of certain publicinstitutions, turned into managers overnight, without proving that they possessthe necessary qualities and the required knowledge, lead to an abusive behaviour,which was adequately punished. Thus, although the European Court laid down,some years ago, that the video surveillance of the employees, in their offices, bythe employer, infringes the right to private life33, in 2012, at the CountyDepartment for Personal Records – Argeş, video cameras were installed in theemployees' offices; the employees were monitored without their prior consentand without prior notification to the National Supervisory Authority for PersonalData Processing; for these reasons the head of the County Department forPersonal Records received a civil sanction34. The ignorance of the provisions ofArt.8 from the European Convention and of the Romanian legislation35 madepossible the above-mentioned infringement of the right to private life. Nothingwas to be learnt from that negative experience in Argeş, which is odd; for instancerecently the mayor's office of the Snagov commune has requested the installationof a system of surveillance of the employees, in their offices; the request hasreceived a negative advice from the Supervisory Authority36.

In the same field, of the protection of personal data and private life, in manypublic or private institutions there is the custom (beyond the legal framework) ofrequesting copies of the identity documents with a view of carrying out services;these identity documents contain the personal numeric code, whose processingshall be done strictly under the law; with the exceptions stipulated by the law, theprocessing of the personal numeric code is forbidden37. Recently, the NationalSupervisory Authority for Personal Data Processing has ordered that theBucharest Autonomous Public Transport Company should be punished forhaving made copies of the identity documents of the pupils and students whohave requested low price season tickets. This deed represents a contravention of

32 We apologize to those who are curageous, dignified, who refuse on principle to carry outobviously illegal orders and we grant them our entire admiration. In principle, we admit that anygeneralization is subjective and risky.

33 ECHR, cause Kopke v.Germany34htp://www.dataprotection.ro/?page=Comunicat_de_presa_privind_investigatia_la_Dir

ectia_Judeteana_pentru_Evidenta_Persoanelor_Arges&lang=ro)35 Law No. 677/2001 regarding personal data processing and Decision No. 52/2012 of the

National Supervisory Authority regarding personal data processing by using means of videosurveillance.

36http://www.dataprotection.ro/?page=Comunicat%20de%20presa%2022.08.2013&lang=ro.37 According to Art.6 from Decision No. 132/2011 of the National Supervisory Authority for

Personal Data Processing.

200

“illegal personal data processing”, stipulated by Art. 33 from the Law No.677/200138.

In the field of the fundamental right to identity and identification of thenatural persons, we find it necessary to present two aspects of interest. First of allthere is the aspect regarding the non-taking into consideration of somedocuments proving identity, last name, first name, domicile or personal numericcode. Thus, according to the legal provisions, the Romanian citizens may identifythemselves on the territory of Romania with identity cards or provisional identitycards. These provisional identity cards are not taken into consideration by certainpublic or private institutions (banks, exchange offices, supermarkets, shops etc.),which causes astonishment, irritation and anger on the part of the owners, whoselegitimate rights are violated. In a relatively recent case, a person has beenrefused at the booking office at a football match on the “Ilie Oană” arena inPloieşti, under the pretext of having a provisional identity, proved with aprovisional identity card. This deed was punished by the Decision No. 203 / July4th 2012 of the National Council for Combating Discrimination, beingconsidered, with good reason, discriminatory.

Secondly, an inherited phenomenon in the system of the services of personalrecords refers to the persons who have requested the issuance of their firstidentity document after they have reached the age of 18 (after the age of 14 theidentity document is compulsory); in such cases their fingerprints should betaken. Having as a basis the provisions of a methodological norm which has beenabusive from the date of its issuance – the year 2006 – (it is abusive because itmakes additions to the text of the primary normative act – EGO 97/2005) – theofficers demand that every citizen from the above-mentioned category shouldaccept, willingly and forced by circumstances, that his/her fingerprints shouldbe taken, if he/she wishes to have an identity document, although he/she has notcommitted any crime or he/she is not suspected of having committed a crime,being a beneficiary of the presumption of innocence, whose effects do not ceasewhen attaining his/her majority, but on the date when the sentence regarding theconviction of that person has remained final. The fingerprints are stocked sine diein the AFIS 2000 criminological database, side by side with the fingerprints of thepersons convicted for committing crimes; according to ECHR jurisprudence39, itis just this stocking which infringes the right to private life. The non-taking intoconsideration of the ECHR jurisprudence (extremely clear in this respect) by theofficers, but also by the state, which is compelled to harmonize its legislation withthe European one, makes possible this abuse, whose notification will be

38 According to the press release posted on the site of the National Supervisory Authority forPersonal Data Processing, “at the same time, taking account of the risks on the private life of asignificant number of persons, the National Supervisory Authority for Personal Data Processing hasordered that the Bucharest Autonomous Public Transport Company should stop requesting copiesof the identity documents and should erase the already set up database, within 10 days from thedate of issuing (of the) Decision No. 68 / July 31st 2013.

http://www.dataprotection.ro/?page=stire_06062013&lang=ro39 See ECHR, cause S and Marper v. the United Kingdom, from December 4th 2012. More

recently, on the same matter, cause M.K v. France from April 18th 2013, published online athttp://asdcdo.org/blog/?p=1367

201

drastically punished by the European Court, based on its already mentionedjurisprudence. This methodological norm is also discriminatory, since it refers totaking fingerprints from certain persons exclusively on the ground of age – onlythose who have reached the age of 18 and have not requested yet their firstidentity document. The National Council for Combating Discrimination willprobably take notice regarding this aspect and invite the qualified institutions totake the necessary steps, urgently, for the abrogation of the provisions of Art.55letter b from the Government Decision 1375/2006. As a result of our proposal,which has been stated for years in various works or articles, the abrogation of theabove-mentioned provisions is planned, at the same time as the methodologicalnorms for applying the law will be modified.

Starting from the problems occurred after the National Referendum held onthe 29th of July 2012, regarding the real number of inhabitants in Romania, theissue regarding the large number of persons received fictitiously in the dwellingspace by the professional hosts – determined the Ministry of Internal Affairs topropose a draft law intended to give solutions to all these problems. The draftlaw, which has been subject to public debate40 for more than one year, containsmany provisions nearly abusive, the most important one being the sending to“history”/ “passive” of the address of domicile of the person who was notidentified at the domicile by the police41, this suspension, for an indefinite period,of the right to domicile (a personal, non-property right, which has universality,obligatoriness and erga omnes opposability), prejudicing in its substance theright to identification of the natural persons, and, as a derived consequence, allthe other rights stipulated by the Constitution and the Romanian laws [the rightto vote, the right to work (the right to get a job), the right to the protection ofhealth etc., all these rights being connected with the presentation of a valididentity document]. In the absence of a valid identity document, the persons willbe discriminated, i.e. any legitimate right will be suspended for them by theofficers from various public or private institutions, until the solution of thisproblem and the obtaining of an identity document.

The private life is a vast and complex concept; this concept, according to thejurisprudence of the European Court, covers not only the intimate sphere of thepersonal relations, but also "the right of the person to enter and to developrelations with the other human beings"; all these because "it would be toorestrictive to limit the notion of private life to an inner circle where the personlives his/her personal life as he/she thinks right". Therefore, according to thejurisprudence of the European Court, the characteristic element of the right tointimate, familial and private life refers to the sphere of interhuman relations42.

40http://www.mai.gov.ro/Documente/Transparenta%20decizionala/Proiect%20Lege%2097_2005%20.pdf

41 The mere report of verification “on the ground” is not a final decision; this report may becontested and annulled by the court; it is easy to prove that the person was not at home at that time,being on holiday, in a hospital or made use of his/her right of free movement within the nationalterritory or abroad; in a rule-of-law state, member of the European Union, a person who is notsubmitted to criminal investigation, is not compelled to stay all the time at home, as he/she is notunder house arrest.

42 ECHR, cause Niemetz v. Germany, 1992.

202

The notion of private life includes information regarding health43, family andhome life, physical and moral integrity, honour and reputation, the fact of non-being presented in a false light, non-disclosure of common or embarrasing facts,publishing without permission of private photographs, protection againstespionage, against unjustified or inadmissible indiscretions, protection againstthe abusive utilizing of private communications, protection against disclosure ofinformation confidentially communicated or received by a private individual44,damages caused to the environment, sexual freedom, right to image, protection ofpersonal data, video surveillance, interception of telephone conversations.

Regarding the natural person and family law, the European Court of HumanRights has clarified certain aspects concerning adoption45, relations betweenhomosexual couples46, family relations47, right to marriage, right to domicile48,protection of family name and first name49, determination of paternity, change ofsex50.

In Romania, till 200751, a certain provision regarding the marriageable agecould have been considered as dicriminatory; it refers to the different age at themoment of marriage (16 years old or even 15 years old in certain circumstances –for women and 18 years old for men).

There is a special situation in the domain of affiliation; the new civil codepermits the initiation of an action denying paternity for the pretended biologicalfather, too, whenever during his lifetime (Art.432 N.C.C.), in contrast with theaction denying paternity, which may be prescribed within 3 years if it has beeninitiated by the husband of the mother or by the mother (Art.430 and 431 fromthe N.C.C.). Siding with other authors52, we think that the imprescriptibility of theright to an action denying paternity for the pretended biological father, incomparison with the prescriptibility of the same right in the case of the mother

43 ECHR, Z v. Finland, February 25th 1997.44 J.F.Renucci, Treatise on the European Law of Human Rights, Hamangiu Publishing

House, 2009, p.23945 “Adoption means finding a family for a child, and not a child for a family”; ECHR, cause

Frette v. France46 The former Commission decided that the relations within the scope of a homosexual couple

do not belong to the right to respect for family life; they belong to the right to respect for private lifeof persons. See Commission, May 14th 1986, S. v. The United Kingdom.

47 The personal relations between a parent and his child represent a fundamental element ofthe family life, even though the relation between the parents has broken, and the internal measureswhich could hinder such relations represent a violation (infringement) of the right to respect forfamily life, protected by Art.8 from the Convention; see ECHR, mentioned in Corneliu Bîrsan, inibid., p.648

48 ECHR, Demades v. Turkey, July 31st 2003.49 ECHR, cause Johansson v. Finland, Decision dated September 6th 2007. The notion of

“domicile”, regarded with all its nuances comprises, also, a trailer – used as dwelling by a nomadperson. See ECHR, Buckley v.the United Kingdom (September 25th 1996); Chapman v.the UnitedKingdom (January 18th 2001).

50 ECHR, cause L v.Lithuania, Decision dated September 11th 2007.51 When the Family Code was modified, by Law No. 288/2007. De lege lata, both the woman

and the man may marry beginning with the age of 18 (as a rule) and beginning with the age of 16 (asan exception), according to Art. 272 from the Civil Code.

52 Florian Emesse, Family Law, 4th edition, C.H.Beck Publishing House, 2011, p. 193

203

and of the husband of the mother, is excessive, and may affect, as long thepretended biological father lives, the security of the legal relationships regardingthe affiliation for the child born in wedlock. De lege ferenda, we suggest that thetime limit for bringing an action denying paternity by the pretended biologicalfather should be prescriptible (3 years from the date of birth of the child or fromthe date when he heard about the birth of the child).

V. ConclusionsThe observance of the fundamental principles of equality before the law,

non-discrimination and respect for private life of the Romanian citizens, althoughprotected by normative acts of European and national rank, is far fromrepresenting a certainty of the contemporary Romanian society. There are manycauses for discrimination, the present article making reference, chiefly, to theignorance of the normative acts by the civil servants (public office workers) whomust apply the law, the ignorance of the fundamental rights by many Romaniancitizens, the non-claiming oh these rights at the moment when an abuse has beencommitted53, the non-adaptation of the Romanian legislation to the democraticrequirements, of European origin; the bringing of the normative acts into unisonwith the jurisprudence of the European Court requires, on the part of all the civilservants, a serious effort to acquire a perfect knowledge of the standards of theEuropean Convention regarding the fundamental human rights and a bettercommunication between the superior echelon and the inferior, executive one,regarding the coherence of the interpretation and of the application in concreto ofthe law. These are only a few aspects which would have as an effect a realprotection of the fundamental human rights (equality and non-discriminationbeing only two of these), which would become, according to the constantexpression of the European Court, “effective and concrete”, and not only“theoretical and illusory”.

53 Much too often certain civil servants hide behind the vague expression«according to law»,without indicating, in concreto, which normative act they make reference to. A simple request onthe part of the citizens, that the civil servant should indicate the article, the normative act and theOfficial Gazette where the respective normative act would have been published, would temper agreat part of the élan of “extreme legality” of many civil servants, correcting their behaviour andforcing them to limit themselves to the law text, non-improved by a personal, originalinterpretation.

204

MEDIATION – THE REASON OF DISPUTE AFTERLEGISLATIVE CHANGES IN THE FIELD

Mihaela Docan

Abstract: Who is mediation in accordance with current legal framework? Why lawyersand notaries public may wish to be mediators of right? Equality of opportunity for all those whochose mediation as a profession.There is any discrimination between professions (lawyers andmediators)? Mediation – opening to a new approach to disputes can be resolved throughalternative dispute resolution.Promoting mediation without discrimination, in the sense thatmediation is based on professionalism, vocation, dedication, persuasion, confidence, and not theleast success.

Keywords: mediation, profession, legislation.

Who is informing on the advantages of mediation discussed inaccordance with current legislative framework?

We are living in a century where conflicts are every time, in all of the areas ofactivity, starting with the family, the school, up to major conflicts between states,cultures, religions, etc. However, based on the fact that, for over two thousandyears ago, we trying to forgive, to love unconditionally, to go back and the othercheek when we are hurt, when all of these have been forgotten or it hasn't beentaken into account these principles, Christian otherwise, mankind has beeninvaded by wars and conflicts, which they have been brought to the negotiationtable, people to account trained, they realized that without dialog,communication and above all else, setting priorities and common interests ofparties involved in the dispute, it cannot be others peaceful and humanity cannotprogress. Those who have developed the concept of mediation have beenAmericans, who at the end of the 1950s first centers have been set up by themediation aimed at supporting settling conflicts between neighbors, co-workers,parents and children, students and teachers, tenants-owner. Success at the levelof the Community the concept of mediation, a part of the people that in the USCongress to issue in 1980 act for the settlement of disputes (dispute ResolutionAct) in which it was mentioned that all national programs for ADR to beadministered by the Ministry of Justice. Further in Europe states like France,Italy, Switzerland, the Netherlands, the United Kingdom took over mediatingconcept and they have adapted to the needs unique to each country. So, at thestart of the 2000s most European countries have implemented mediation as analternative to settling disputes outside the court rooms. Of course that eachmember has adopted and adapted mediation in accordance with their ownrequirements of society and especially with its needs. With the adoption of thenew Constitution of the great European family (although the law 192/2006 wasadopted before 2007, Romania's accession to the European Union), has beencarried out and the benefits which it produces mediation in resolving conflicts.Thus, taking into account the necessity to the adoption of rules of such aprocedure, the Parliament passed the law 192/2006 as amended by the law

Mediator.

205

115/2012 and decree No 90/2012. This Regulation specifies the place which itoccupies mediation in current legal system, taking birth a new profession, stand-alone, which allows access into the profession to any person with educationconfirmed by the diploma of license, seniority of at least 3 years as well ascumulative meeting the conditions contained in Article 7 of the law referred toabove, on mediation and the organization of the profession conciliator.

Here we are at the point at which, according to the applicable law, Article (21)clearly states that: "evidence of the participation of the meeting to provideinformation on the advantages discussed shall be made by means of a certificatefor the provision of information issued by the mediator who has carried outinformation." Paradoxically, at the time that the law have to be put in practice,there have been different voices who said information on mediation and itsadvantages, they can do that and the judge who is to judge the dispute) and thelawyer (which is his defender one of the parties involved in the dispute) and thenotary public as well as legal adviser (with the same powers that the lawyer). Howthis can be done? Nobody knows about it, too, because all categories professionallegal training (other than mediators) is located in a conflict of interests andcreates confusion in the company, although the law is as clear in this respect.

Why lawyers and notaries public may wish to be mediators ofright?

When legislator has drawn up the law 192/2006 concerning mediation andthe organization of the profession mediator, he took into account a number ofcriteria on the way in which they can practice this profession (new). Why is itnecessary length of service? Just to highlight that, you'll need certain qualitiesand skills on which you can give only working with people in all fields of activity,in order to be able to exercise the profession. Well, but the lawyers and notariespublic have as a basis of work the man with his rights springing from the ability touse and exercise capacity of the person, as they are covered by the specific law.But, with the rights we know where we stand, but what happens with the interestsand needs of person? Here you can see the difference, in the direction in whichthe mediator shall be impartial and neutral, something which a lawyer (if itremains a lawyer) it cannot achieve without specific courses profession asmediator. From the outside it seems easy, but a lawyer who has chosen to bemediator as a result of training course for contested mediators, he knows how todo the difference and at the same time will make the conflict of interest in whichif he wishes to be, at the same time, the lawyer and mediator. More than that aremany mediators, without legal training, but which satisfy the conditions imposedby the law 192/2006 concerning mediation and the organization of the professionmediator, practicing for some time successfully, and which would bedisappointed to find that a particular category professional, he wants you to donot respect the right to equal access to a new profession, of all those who havehigher education, whatever their field of which they are nationals who wish to getinvolved in this activity. "Attitude as mediator of lawyer raised some ethics anddeontology, and creates difficulties for approach and positioning in relation to theparties involved in the dispute". Same comments and the notaries public who

206

know exactly who they are the powers and practicing based on legal rules clear,certifying legality of acts issued and signed by them. So, in this battle of liberalprofessions, looked that, both lawyers and notaries public with mediators they area team aimed to achieve a full mediation. Always, the parties submitting themediator, will need a lawyer, where this is required, and the notary public forlegalization of the mediation agreement.

Equality of opportunity for all those who choose mediation as aprofession.

Mediation as a profession stand-alone, is based on certain conditionscumulative imposed by Article 71 of Law 192/2006 concerning mediation and theorganization of the profession mediator, so that:

May become mediator person who satisfies both of the following conditions:(a) has full capacity of exercise;(b) has higher education;(c) has a retirement of at least 3 years;d) there is no impediment, medically, in the pursuit of that;(e) enjoys a good reputation and was not condemned outright for

committing a criminal offense intentional, of a nature to prejudice to prestigeprofession;

(f) graduated from training courses for mediators, in accordance with theprovisions of the law, or program level postuniversitar master in the field,accredited in accordance with the law and approved by the Board of mediation;

(g) has been authorized as mediator, under the provisions of this law.We have presented as clearly as possible circumstances under which any

person who meets these conditions, it may practice this profession withoutdiscrimination. Better promotion information regarding the benefits of theprocedure discussed, will create the conditions necessary integrating into theprofession. Occupation of mediator is compatible with any other occupation (inthe direction in which you are charged separately, without creatingincompatibilities), except in the case of which professions special legislationprovides otherwise.

There is no discrimination between occupations (lawyers andmediators)?

This question, normally, it should not create suspicion. Both lawyers andmediators have well delimited how to exercise the profession as well as differentrules, only that, due to the fact that the lawyer can also be mediator (the mediatormay not be a lawyer), the impression was given that there would bediscrimination between these occupations. The desire of some lawyers to becomemediators (right) has led to a considerable misunderstanding and animositybetween these two occupational categories. But as in any profession there areprofessionals and non-professional, meet lawyers who are interested to cooperatewith the mediator, in this way ensuring and the customer by the professionalism,and there are lawyers who are afraid of mediator, as a potential competitor in oftheir profession. There is no discrimination between these professions, there is

207

misinformation and bad faith on the part of those who leave place variousinterpretations. Taking into account Article 36 of Law No 192/2006, whichemphasizes that "the mediator may not represent or assist any part in a judicialproceedings or arbitration proceedings having as its object the conflict subject tomediating", it can be seen as a different kind of approach of this Article in the law,it would lead to a conflict of interest and by default the violation of the law. So, inorder to remove any suspicion of discrimination between a lawyer and mediator(for those who do not know the law), I will make reference to Article 21 (4) and (5)of Law No 192/2006 concerning mediation and the organization of the professionmediator, stating that:

(4) occupation of mediator shall be exercised only by the person who hasacquired the authority of mediator authorized, under the provisions of this law.

(5) practice of the profession of mediator by persons who have acquired theauthority of mediator authorized under the provisions of this law, it is an offenseand is punishable under criminal law.

Mediation - opening toward a new approach of disputes whichmay be resolved by alternative dispute resolution

Mediation, according to the law, it is a way of resolving conflicts amicably,using a third person in the case of specialist mediator, in conditions of neutrality,impartiality, confidentiality and having freely agreed between the parties.Moreover Directive 2008/52/EC specifies in Article 3, paragraph (a) "mediationmeans a process structured, irrespective of how it is called or how reference ismade to it, in which two or more of the parties to a dispute is trying, on its owninitiative, to come to an agreement as to settle the dispute between them, with theassistance of a conciliator. This process can be initiated by the parties,recommended or imposed by the court or provided for by the law of a MemberState.' mediation is part of alternative methods, the extra-judicial settlement ofdisputes, which comes will lessen courts of those accusations which may beamicably settle through negotiation assisted in which the facilitator helps theparties to find solutions to ensure victory to the parties equally. Final solution willbe one of win-win, so that the parties involved in the dispute shall remain inamicable relations. Also, mediation is based on the confidence that the parties agrant mediator, in order to facilitate negotiations between them. Mediation is aprocedure which involves browsing through several stages, in which thefacilitator will use methods and techniques that will have to serve only legitimateinterests and objectives of the parties to the dispute. The voluntary nature of themediation procedure, clearly show that the parties involved in the dispute choosewillingly this procedure, access to justice is not restricted. Mediation remains analternative method of resolving conflicts (ADR - Alternative dispute Resolution),which shall ensure that the parties, with interests and positions on the contrary,to make concessions with a view to reaching an agreement mutuallyadvantageous, dialog and communication is facilitated by mediator. A betterknowledge and promotion of this method for resolving conflicts among thegeneral population, can bring advantages and win at the level of the enterprise. Itis important to know that certain conflicts and disputes they can resolve and

208

otherwise than by a decision of the court. The advantages of mediation which areknown to be at hand to everyone who wants to have recourse to this method: costmuch less than the time of the settlement much shorter ( 2 hours to up to 6months and in relation to time limits in court, it is very quickly), final solutionbelongs to Parties and shall always win-win, a climate of trust between the partiesand mediator which will influence favorably reaching an agreement in anamicable settlement.

Promoting mediating without discrimination, in the sense inwhich mediation is based on professionalism, vocation, dedication,persuasion, confidence and ultimately, success.

Mediation as a profession new located in the beginning (for the Romaniansociety) worth of full confidence and a promotion as far as prodigious, whichprovide people to know the benefits that offer this. Promoting mediating withoutdiscrimination, it is to be given the opportunity to be able to take ombudsmaninformation on the advantages and the procedure discussed, so that, in this way,the person concerned may decide to acknowledge the question, which path willfollow to find solution to conflict. At the moment, information regarding thebenefits discussed, the judge in the court room (where the atmosphere is tenseand rigid process through the prism, in a total public exposure), the lawyer(whose interest is to stretch himself as far as the process), the notary public (forwhich this is not only a formality), so that the facilitator remains to be waiting forsomeone to be curious how a mediator and what he knows to do. At the moment,with renewed curiosity, that someone walks in the office a mediator authorized topractice the profession in accordance with the law 192/2006, it will remainpleasant impressed to ascertain its problems by opening of the mediator's duties,to find a pleasant atmosphere which cause him to be relaxed and to see in adifferent light, having a problem. Such a person will recommend it to usemediation to anyone will be interested in resolving a dispute with final solutionwin-win, in maintaining cordial relations even where it was difficult to imaginesuch a result. But, just like any profession, that is practiced with professionalism,vocation (not everyone can communicate open and inspire confidence),dedication (to love people and to wish to help solve their problems), persuasion(to persuade with your soul, using communication techniques persuasive),confident that will come a day when, mediation will be preferred court ruling inthe case, where it is used, and success will not bound to arise for all those whointend to comply with the code of ethics and deontology of professionalmediators.

Probably, that we would have much to be said about this subject, but I willstop here with the conviction that I was able to reach all those points necessary topromote non-discrimination and equality of opportunity in contemporary societyconditions that promote mediation as an alternative dispute resolution.

"If there is a secret of success, it consists in the ability to understand thepoint of view of the other person and to see things from both the angle, as well asfrom at our own." (Henry Ford)

209

Bibliography

Dr. av. Gorghiu Alina (coordinator), dr. Stanescu Nicolae, dr.av. SirbuManuela, Munteanu Mihai, Dedu Ion, Frandes Ciprian, Mediation - oxygen for amodern society, Universul Juridic, Bucharest, 2013;

Hogan Kevin, Psychology persuasion, ANTET, 1996;Lisman Fanuta, Mediation in civil trial, University Publishing House,

Bucharest, 2011;Sirbu Manuela, Gorghiu Alina, Croitoru-Anghel Diana Monica, Mediating

domestic Conflicts, Universul Juridic, Bucharest, 2013;Zeno Sustac, Danilet Cristi, Ignatiu Claudiu, The mediating -standards and

procedures, University Publishing House, Bucharest, 2009.

210

BRIEF CONSIDERATIONS REGARDING THE RIGHT TO NON-DISCRIMINATION

Elena Tudor

Abstract: Besides equality of rights, non-discrimination represents one of the greatestprinciples of international law governing human rights as they are the guarantee of humandignity. Thus, the two principles postulate the right to exercise all the recognized rights and theensuring of the protection of each person against possible abuses and injustices. This article aimsto make a brief analysis of the right to non-discrimination and of some instruments of defense andpromotion of this right.

Besides equality of rights, non-discrimination is one of the greatest principles ofinternational law governing human rights as they are the guarantee of humandignity1. Thus, the two principles postulate the right to exercise all the recognizedrights and the ensuring of the protection of each person against possible abuses andinjustices. On the contrary, inequality and discrimination represent a denial offundamental rights and freedoms of the human being.2 “If discrimination and itsmost undeniably flagrant manifestation - racism- shall continue, it is shown in adocument of United Nations, we could not hope to edify an international societybased on dignity and the value of the human kind.”3 This objective is related to thegoals of the United Nations whose charter states this triptych: equality – non-discrimination - dignity4 in more of its articles. Even in the Preamble of the Charter,the people of United Nations are decided to restate:

“Faith in fundamental human rights, in the dignity and the value of thehuman being, in equal rights of men and women as well as in small and largenations.”5

The transposition in life of these principles represented one of the majorconcerns of the worldwide forum in New York and of several specializedinstitutions in its system, finding its materialization both in the diplomatic andlegal instruments as well as in diverse statements and resolutions6. In theirsynthetic formula, they are found in the Universal Declaration of Human Rightsof 10th of December 1948 which states in its first article: “All human beings areborn free and equal in dignity and rights. They are endowed with reason and

PhD. Student, Police Academy ”Al. I. Cuza”.1 Tomescu Mădălina, Drepturile omului. Human Rights. Trends and contemporary

orientations, Pro Universitaria Publishing House, Bucharest, 2013, p. 36.2 Cloşcă Ionel, Suceavă Ion, Human Rights Treaty, Bucharest, 2006- p. 79.3 Programme of Action for the Second Decade to Combat Racism and Racial Discrimination

(Programme d’action pour la deuxieme decennie de la lutte contre le racism et la discriminationraciale) Worldwide consultation regarding racism and racial discrimination held in from 3rd to 6th ofOctober 1988, United Nations, “Information Sheet” no. 5, p.3.

4 See Mădălina Tomescu, Liliana Trofin, The idea of human dignity in Geopolitics, Historyand International Relations, Volume 4(2), 2012, ISSN (printed): 1948-9145, Addleton AcademicPublisher, New York, (class A), p.119 -124.

5 Cloşcă Ionel, Suceavă Ion, op.cit., p. 79.6 Tomescu Mădălina, Legal protection of the human rights, Pro Universitaria Publishing

House, Bucharest, 2009, p. 31.

211

conscience and should act towards one another in a spirit of brotherhood.” Also,art. 2 provides that:

“Everyone is entitled to all the rights and freedoms set forth in thisDeclaration, without distinction of any kind, such as race, color, sex, language,religion, political or other opinion, national or social origin, property, birth orother status.

Furthermore, no distinction shall be made on the basis of the political,jurisdictional or international status of the country or territory to which aperson belongs, whether it be independent, trust, non-self-governing or underany other limitation of sovereignty.”

That’s why, the main directions undertaken by O.N.U. were:1. Eradication of racism and racial discrimination2. Removing discrimination between man and woman3. Combating prejudice and intolerance.

With respect to the principle of equality of rights, it is stated that all peopleare equal before the law, having the right to equal legal protection against anydiscrimination, such as race, color, sex, language, religion, political opinions orany other opinion, national or social origin, fortune, birth or based on any othercircumstances7.

“In those States in which ethnic, religious or linguistic minoritiesexist, persons belonging to such minorities shall not be denied theright in community with the other members of their group, to enjoytheir own culture, to profess and practice their own religion, or touse their own language“8.

Related to this issue, UN Committee for Human Rights9 states that therights of people belonging to national minorities are individual rights,but, however, there are rights that depend of the capacity of theminority group to maintain its culture, language or religion.Consequently, it is estimated that some positive measures might be necessary forthe protection of minority identity and of the rights of the members of this groupto enjoy and to develop their own language and culture, as well as to practice itsown religion, jointly with other members of the group. Thus, the Committeeconsiders that the State parties have an obligation to protect these rights toensure the survival and the continuous development of the social, religious and

7 Art. 26, The International Covenant regarding Civil and Political Rights; loc.cit. “All citizenshave free access to political positions and offices. National origin, religious beliefs, social originetc. are not relevant in promoting a citizen in the most important public responsibilities.Community is able to decide – through the free vote expressed by its members – if a candidate to apublic position has the necessary competency to occupy that office. The complete equality in rightswas consecrated in all international reference documents and it is recognized in the fundamentallaws of the States – as an expression of rules and principles extension for the democraticmanagement of the society.”

8 See art. 27 in The International Covenant regarding Civil and Political Rights.9 I.R.D.O., The Main International Instruments on Human Rights in which Romania is Part

vol. I, Bucharest, 1997, p. 49-53.

212

cultural identity of the respective minorities, in other words to enrich thestructure of the society as a whole.

The fundamental law in Romania states that „citizens are equal before thelaw and public authorities without any privileges or discrimination"10. Thisconstitutional consecration has in view the conclusions of international debatesin the field during which the attention was drawn upon the fact that “neither theattempts of the majority population or those of the minority” to impose“privileged rights cannot be accepted”. Accepting „positive” discrimination isconsidered by some authors inacceptable because it can lead to opposite results.11

Despite all these, we consider that, in some cases, positive measures arenecessary but without being exacerbated.

According to all domestic and international documents, discriminationrepresents the differential treatment applied to one person due to thatperson’s belonging, real or alleged, to a certain social group.Discrimination is an individual action, but if the members of the samegroup are treated systematically in a similar way this constitutes a socialpattern of aggregated behaviour12. In social sciences, the term refers to, ingeneral, a prejudicing treatment having negative effects on the concerned person.

The conducted research identified the existence of several types ofdiscrimination. In general, it is operated the distinction between direct andindirect discrimination (Michael Banton, 1998). The first type occurs when thedifferential treatment is intentionally generated, while the second type occurswhen this treatment is based on an inequitable decision previously made. Forexample, direct discrimination is present when two people with equal educationand a similar job are differently paid because one of them belongs to a certainethnic group. Indirect discrimination occurs when two people are differently paidbecause they were hired on two different positions although they had the sameeducation. Kirshna Mallick (1995) proposes two other typologies based on thedistinction between intended and conscious discrimination and unintendeddiscrimination, as well as between the discrimination practiced by individualsand groups and the one practiced by institutions.

While discrimination represents a form of behavioral manifestation,prejudice represents a negative attitude against each individual member of agroup which is motivated only by the individual's belonging to the group13. Thediscrimination is related to stereotypes that represent the negative component ofthe prejudice14. These represent a stable cognitive and relatively rigid structureand help to maintain the negative attitude and to perpetuate the differentialbehaviors based on them. Another phenomenon related to the discrimination is

10 Năstase Adrian, The rights of people belonging to national minorities, AutonomousAdministration – Official Gazette, Bucharest, 1998, p.14.

11 Mazilu Dumitru, Human rights. Concepts. Exigencies and contemporary realities, LuminaLex Publishing House, Bucharest, 2008, p. 99.

12 Michael Banton, 1998.13 Gordon Allport, 1958.14 Dora Copozzo, Chiara Volpato, 1996.

213

the one of stigma, the stigmatized becoming easier the target of differentiatedtreatment15.

One of the fields where discrimination is commonly present is the area ofpublic social services (for example, social assistance services, health services,educational services, institutions designed to maintain public order).Discrimination is present here because of the discretionary power that the clerksof these institutions dispose of (Michael Lipsky, 1980).

In the analysis he makes on the relationships between the clerks of publicinstitutions and their clients, Michael Lipsky identifies a series of situationswhere differential treatments might occur to the address of clients and certaingroups of clients that are potentially favored. Thus, clerks will be tempted to favorin the distribution of resources those clients that seem to have more chances ofeligibility according to bureaucratic criteria. Also, bureaucrats will have thetendency to favor those from the interaction by which a certain gratification maybe obtained. In this case, there are those similar on a dimension or another to therespective clerks (e.g. ethnic or racial). The differential treatment occursespecially when there are many applicants for the respective resources and thereis no control over the way they were allocated as well as in the situation in whichclerks must decide if some clients respond better to the treatment than others.Since the work of public clerks involves a high degree of stress, they will appeal tostereotypes to simplify their work and they will act according to them.

The most subjected groups to discrimination and those on which most of thestudies focused are: ethnic, racial, religious minorities, the group of immigrants16.There was a particular concern for the discrimination practiced against women.Lately, a special interest was given to surveys referring to the discrimination of sexualminorities, of people having special abilities, as well as old people. The fields ofmanifestation of the most investigated discrimination were the educational system,the labor market and housing. These vulnerable groups from a social point of viewbecame vulnerable from an economic point of view too (S.M. Miller, 1996). Thosewho are the target of prejudice and discrimination in a particular society will facedifficulties to enter the labor market (and shall not find working placescorresponding to their education or they will be paid at an inferior level than thosebelonging to favored groups), they will have difficulties in obtaining public benefits.All these make them vulnerable from an economic point of view and include them inthe category of the groups having a high risk of poverty.

A number of strategies were developed to reduce discrimination meant toensure the equality of chances in the areas in which they were systematically

15 See Mădălina Tomescu, Liliana Trofin, Discrimination on religious criteria, communicationheld during the International Conference on Non-discrimination and Equal Opportunities –NEDES 2012, Bucharest, 21st – 23rd of November 2012 and published in the volume "Exercising theright of non-discrimination and equality of opportunities in contemporary society”, ProUniversitaria Publishing House, Bucharest, 2012, ISBN: 978-606-647-532-7, p. 76-80.

16 See Mădălina Tomescu, Cristian Tomescu, Criteria of discrimination in contemporary society,–communication held during the International Conference on Non-discrimination and EqualOpportunities – NEDES 2012, Bucharest, 21st -23rd November 2012 and published in the volume"Exercising the right of non-discrimination and equality of opportunities in contemporary society”, ProUniversitaria Publishing House, Bucharest, 2012, ISBN: 978-606-647-532-7, p. 134-137.

214

misrepresented, of the people being part of groups traditionally subjected todiscrimination. In the United States these strategies have the name of AffirmativeAction, while in Great Britain they are known under the name of PositiveDiscrimination. These strategies do not suppose an „inverse discrimination”, butthey are meant to ensure the equality of chances for all citizens, indifferently of thegroup they belong to. Positive Discrimination and Affirmative Action suppose on oneside the recognition of disadvantages accumulated by the respective groups, as wellas the development of politics and practices that help overcoming the difficulties(Neil Thompson, 1997). The main fields on which the actions of strategies toeliminate discrimination focused on are labor market, education and housing.

In the Romanian law, according to Government Ordinance OG 137/2000regarding the prevention and sanctioning of all forms of discrimination, withsubsequent amendments and completions, discriminations is defined as being„any differentiation, exclusion, restriction or preference, based on race,nationality, ethnicity, language, religion, social category, beliefs, gender, sexualorientation, age, disability, non contagious chronic disease, HIV infection orbelonging to a disadvantaged category that has as purpose or effect the restrictionor the removal of the recognition, the use or exercise in terms of equality, humanrights and the fundamental liberties or rights recognized by the law, in the social,economical, political field or in any other fields of the public area”.

The right to non-discrimination is a fundamental right all people shouldhave without any exception, a right that protects them of different abuses andincorrectness. Despite all these, we meet so often with the phenomenon ofdiscrimination that we hardly notice it. Whether we refer to children amongwhich some teachers make differences due to their parents’ fortune, whether wespeak about women receiving a smaller salary for a work similar to the oneperformed by a male or whether we refer to a person with disabilities that hasdifficulties to walk which it is not employed because nobody wants to bother withhim/her, or the persons that have a certain age and in the opinion of some shouldleave the organization (without taking into account the criteria of ability),discrimination is met all around.

Although at the level of the European Union exists a tradition in respectinghuman rights, including the right to non-discrimination, in Romania, substantialefforts still need to be made for the creation of a new mentality of Romaniancitizens with respect to recognizing and respecting all civil rights. ”It seems thatdespite the existence of a legislation and some institutions to fight againstdiscrimination, involving non-governmental organizations, Romania needssomething else too. It is possible to need time in order to change mentalities. Or itshould exist a "legal aid" system to provide free legal advice for certaindisadvantaged categories among which one can found the victims ofdiscrimination. Lawyers seem to avoid this part of law because it is not lucrative."We know a reduced number of discrimination cases promoted to law court orbefore CNCD, which compared to the existing intolerance indicators demonstratean ignorance and, why shouldn’t we admit, a certain disinterest of the lawpractitioners in the field of human right defense which compared to other fieldssuch as commercial, civil and even penal law is perceived as not bringing

215

satisfactory financial benefits", declares with a lot of sadness a member of a non-governmental organization in Romania”17.

At present, it can be said that there is an appropriate legislative frameworkand an institution, the National Council for Combating Discrimination thatensures the respecting of the right to non-discrimination, but it is ascertainedthat at the level of the mentality a series of actions need to be undertaken meantto raise the educational level in the field of human rights. In this purpose, CNCD18

organizes round tables, meetings, educational programs, including in theuniversity field, having as goal the preparing of the population in the field ofhuman rights at the level requested by the European Union.

Another desiderate of CNCD in this stage it is represented by theimprovement of the professional training of employees of the institution so thatthe legal aspects related to discrimination to be solved with efficiency andcompetence. The elimination of discrimination or even their mitigation is one ofthe necessary conditions to build an equitable society, this supposing theinvolvement of the state authorities, modifications in the mentality of employers,but of each person in part too.

The reduction or the elimination of discriminatory manifestations cannot betouched only by sanctioning discriminatory behaviors or by establishing someaffirmative action or some special measures but also through a concentratedeffort at the same on behaviors, attitudes and law.

Considering the above mentioned, one can state that in Romania, importantsteps were made in order to ensure the legal and institutional frameworknecessary to respect the principle of non-discrimination, but these actionsmust be continued in order to broaden the concerns in this directionboth of the civil society as well as of state institutions, the followedobjective being the reduction of educational and mentality disparitiesexisting in relation to the European Union.

General bibliography

BooksCloşcă, Ionel, Suceavă, Ion, Human Rights treaty, Bucharest, 2006.I.R.D.O., The Main International Instruments on Human Rights in which

Romania is Part,- vol. I, Bucharest, 1997.Mazilu Dumitru, Human rights. Concepts. Exigencies and contemporary

realities, Lumina Lex Publishing House, Bucharest, 2008.Năstase, Adrian, The rights of people belonging to national minorities,

Autonomous Administration – Official Gazette, Bucharest, 1998.Programme of Action for the Second Decade to Combat Racism and Racial

Discrimination (Programme d’action pour la deuxieme decennie de la lutte contrele racism et la discrimination racial). Worldwide consultation regarding racism

17See:http://www.avocatnet.ro/content/articles/id_6477/Discriminarea/-/un/tabu/pentru/societate.html#ixzz1ISRq8BHT

18 The National Council for Combating Discrimination

216

and the racial discrimination held in Geneve from 3rd to 6th of October 1988,United Nations, “Information sheet” no. 5.

Tomescu Mădălina, Human rights. Trends and contemporary orientations,Pro Universitaria Publishing House, Bucharest, 2013.

Tomescu Mădălina, Legal protection of the human rights, Pro UniversitariaPublishing House, Bucharest, 2009.

Articles

1. Tomescu Mădălina, Tomescu, Cristian, Criteria of discrimination incontemporary society, communication held during the International Conferenceon Non-discrimination and Equal Opportunities– NEDES 2012, Bucharest, 21st -23rd November 2012 and published in the volume "Exercising the right of non-discrimination and equality of opportunities in contemporary society”, ProUniversitaria Publishing House, Bucharest, 2012, ISBN: 978-606-647-532-7, p.134-137

2. Tomescu Mădălina, Trofin Liliana, Discrimination on religious criteria,communication held during the International Conference on Non-discriminationand Equal Opportunities – NEDES 2012, Bucharest, 21st -23rd November 2012and published in the volume "Exercising the right of non-discrimination andequality of opportunities in contemporary society”, Pro Universitaria PublishingHouse, Bucharest, 2012, ISBN: 978-606-647-532-7, p. 76-80

3. Tomescu Mădălina, Trofin Liliana, The idea of human dignity in Geopolitics,History and International Relations, Volume 4(2), 2012, ISSN (printed): 1948-9145,Addleton Academic Publisher, New York, (class A), p.119 -124

Internet addresses1. http://www.avocatnet.ro/content/articles/id_6477/Discriminarea/-

/un/tabu/pentru/societate.html#ixzz1ISRq8BHT

217

NATIONAL GENDER EQUALITY BODIES IN THE EU

Cătălina-Adriana Ivănuş

Abstract: The equal treatment between women and men is a fundamental human right,part of the general principles of EU law. Respect for human rights is one of the general principlesof EU law, the observance of which the Court has a duty to ensure. Therefore the Court has a dutyto ensure the observance of equal treatment between women and men at EU level. For a betterapplication of principle of equal treatment between women and men in the Member States wasdeemed necessary introduction of national body or bodies for the promotion, analysis, monitoringand support of equal treatment of all persons without discrimination. EU directives only setguidelines and the member states should establish specific responsibilities of national bodies. Thisled to a variety in terms of structure, functions and powers.

Keywords: Equality Body, discrimination, gender, European Union.

IntroductionThe equal treatment between women and men is a fundamental human

right, part of the general principles of EU law. Respect for human rights is one ofthe general principles of EU law, the observance of which the Court has a duty toensure. Therefore the Court has a duty to ensure the observance of equaltreatment between women and men at EU level. For a better application ofprinciple of treatment between women and men in the Member States wasdeemed necessary introduction of national body or bodies for the promotion,analysis, monitoring and support of equal treatment of all persons withoutdiscrimination.

EQUALITY BODIES IN EU MEMBERS STATES

EU regulationsDirective 2000/43/EC implementing the principle of equal treatment

between persons irrespective of racial or ethnic origin were the first EUregulation that establishes the setting up of a specialised equality body. Directive2000/78/EC establishing a general framework for equal treatment inemployment and occupation, does not have a similar provision. Directive2002/73/EC amending Directive 76/207/EEC on the implementation of theprinciple of equal treatment for men and women as regards access toemployment, vocational training and promotion, and working conditions containa provision that establishes the setting up of a specialised gender equality body.

Recital 25 of Directive 2004/113/EC implementing the principle of equaltreatment between men and women in the access to and supply of goods andservices it is state that protection against discrimination based on sex shoulditself be strengthened by the existence of a body or bodies in each Member State,with competence to analyse the problems involved, to study possible solutionsand to provide concrete assistance for the victims.

PhD. Applicant, The Bucharest University Economic Study, the LawDepartment catalinaivanus@gmail.com

218

Article 20 of Directive 2006/54/EC on the implementation of the principleof equal opportunities and equal treatment of men and women in matters ofemployment and occupation (recast) states that Member States shall designate abody or bodies for the promotion, analysis, monitoring and support of equaltreatment of all persons without discrimination on grounds of sex. These bodiesmay form part of agencies with responsibility at national level for the defence ofhuman rights or the safeguard of individuals' rights.

According to article 20 of Directive 2006/54/EC Member States shall ensurethat the competences of these bodies include:

(a) providing independent assistance to victims of discrimination inpursuing their complaints about discrimination;

(b) conducting independent surveys concerning discrimination;(c) publishing independent reports and making recommendations on any

issue relating to such discrimination;(d) at the appropriate level exchanging available information with

corresponding European bodies such as any future European Institute for GenderEquality.

Member States should establish the rights and obligations of the nationalstructures for promoting equality. National legislation includes the structure,functions and powers of equality bodies.

According to a European Commission study on Equality Bodies1 there aretwo categories of equality bodies: predominantly tribunal-type equality bodiesand predominantly promotion-type equality bodies. The predominantly tribunal-type equality bodies are impartial institutions which spend the bulk of their timeand resources hearing, investigating and deciding on individual instances ofdiscrimination brought before them. The predominantly promotion-type equalitybodies spend the bulk of their time and resources on a broader mix of activitiesthat include supporting good practice in organisations, raising awareness ofrights, developing a knowledge base on equality and non-discrimination, andproviding legal advice and assistance to individual victims of discrimination.

National gender bodiesIn Austria the equality body is Ombud for Equal Treatment2. This includes a

gender equality body: Ombud for Equal Treatment between Women and Men inEmployment and Occupation.

In 16 December 2002 Belgium established the Institute for Equality betweenMen and Women [8]. The Institute has the mission to guarantee and promote theequality between of women and men and to fight against any form ofdiscrimination and inequality based on gender in all aspects of life. The Institutehas the role to combat the discrimination on grounds of gender, includingtransgender in employment, education, housing, social protection and goods andservices.

1 Margit Ammer, M., Crowley, N., Liegl, B., Holzleithner, E., Wladasch, K., Yesilkagit, K.(2010). Study on Equality bodies set up under Directives 2000/43/EC, 2004/113/EC and2006/54/EC, Synthesis Report. pp. 43-44

2 www.gleichbehandlungsanwaltschaft.at

219

In Bulgaria the Commission for Protection against Discrimination wasestablished in 20053. The Commission provides protection on 19 groundsincluding sex in all fields and have preventive and awareness-raising functions onequality and tolerance issues.

From 2003 the Cypriot Office of the Commissioner for Administration’s(Ombudsman)4 mandate was extended to combat all forms and grounds ofdiscrimination forbidden by EU Directives. The Ombudsman has a department -Equality Authority – which only deals with discrimination on any grounds in thefield of employment and occupation and with gender discrimination in all fields.

The Office of the Public Defender of Rights5 is the Czech Equality Body since2009. The Defender covers, inter alia, the discrimination on grounds of gender infields such as employment, education, housing, social protection, Goods andservices, health service, membership in political parties and associations,insurance and state governance.

In Denmark the Board of Equal Treatment6 was established on 1 January2009 and deals only with concrete complaints related to discrimination. Withinthe labour market the Board deals with complaints related to discrimination onany grounds, but outside the labour market, the Board deals with complaintsrelated to discrimination based on race, ethnic origin or gender.

In Estonia the Gender Equality and Equal Treatment Commissioner7 is anindependent and impartial expert who acts independently, monitors compliancewith the requirements of the Gender Equality Act and Equal Treatment Act.

The Finnish Ombudsman for Equality8 is an independent authority whosemain duty is to supervise compliance with the Act on Equality between Womenand Men. The Ombudsman has powers on matters related to gender and genderminorities (transgender and intersex people) in all fields. The powers of theOmbudsman consist of both combating discrimination and promoting equality.

The Defender of Rights of France9 is an independent administrative entitythat has competences in gender discrimination in all fields.

In Germany the Federal Anti-Discrimination Agency and the competentFederal Government Commissioner and Parliamentary Commissioner of theGerman Bundestag co-operate in cases of discrimination.10

In Great Britain the Equality and Human Rights Commission (EHRC)11 is anindependent statutory body established in 2006 under the Equality Act andlaunched in 2007. It has a statutory remit to promote and monitor human rightsand to protect, enforce and promote equality on more grounds including gender,pregnancy and maternity and gender reassignment. The fields that are covered bythe Commission are employment, education, housing, social protection, goods

3 www.kzd-nondiscrimination.com4 www.no-discrimination.gov.cy5 www.ochrance.cz6 http://www.ligebehandlingsnaevnet.dk7 www.svv.ee8 http://www.tasa-arvo.fi9 www.defenseurdesdroits.fr10 www.antidiskriminierungsstelle.de11 www.equalityhumanrights.com

220

and services, associations clubs or societies, criminal and civil justice systems,local government, parliaments, politicians and political parties and transport andtravel. In Northern Ireland responsibilities similar to those of the EHRC fallwithin the remit of the Equality Commission for Northern Ireland.12

The Greek Ombudsman13 is responsible for monitoring the implementationof the principle of equal treatment between men and women in all fields.

The Hungarian Equal Treatment Authority14 is an independentadministrative body which safeguards the values embraced by the EU Directives.The Authority has the power to assist and advise victims, to investigatecomplaints against alleged discriminations and to impose binding decisions, tofile actions before courts on their own initiative. It also makes recommendationsand publishes reports on discrimination.

The Equality Authority of Ireland15 works to promote equality of opportunityand to eliminate discrimination in relation to employment, the provision of goodsand services, of accommodation and by educational establishments on severalgrounds including gender. The Equality Authority also covers the discriminatoryadvertising.

In Italy the Commission for Equal Opportunities between Men and Women16

were set up in 2004. This is the political responsibility of the Minister for EqualOpportunities.

The Office of the Ombudsman of the Republic of Latvia17 is an independentinstitution that promotes the equality between of women and men in all fields.

The Office of the Equal Opportunities Ombudsperson of Lithuania18

monitors the implementation of the Law of the Republic of Lithuania on EqualOpportunities of Women and Men and the Law of the Republic of Lithuania onEqual Treatment.

The Centre for Equal Treatment of Luxembourg19 was established in 2006and is operational since 2007. The purpose of the Centre for Equal Treatment isto promote, analyse and monitor equal treatment between all persons withoutdiscrimination on the basis of race or ethnic origin, sex, sexual orientation,religion or beliefs, handicap or age.

In Malta the National Commission for the Promotion of Equality20 workstowards the elimination of discrimination on the grounds of gender by raisingawareness, monitoring national laws and EU Directives, implementing policies,networking with different stakeholders, investigating complaints and providingassistance to the general public. It deals with gender equality gender and familyresponsibilities in employment, and racial or ethnic origin and gender in theprovision of goods and services and their supply.

12 www.equalityni.org13 www.synigoros.gr14 www.egyenlobanasmod.hu15 www.equality.ie16 http://www.pariopportunita.gov.it17 http://www.tiesibsargs.lv18 www.lygybe.lt19 www.cet.lu20 www.equality.gov.mt

221

The Netherlands Institute for Human Rights21 was established in October2012. The Institute provides expert opinions in matters of alleged discrimination,explains monitors and protects human rights, promotes respect for human rights(including equal treatment) in practice, policy and legislation, and increases theawareness of human rights in the Netherlands.

The Human Rights Defender22 is the polish constitutional authority for legalcontrol and protection. The Defender shall safeguard the freedoms and rights ofpersons and citizens, including safeguarding the implementation of the principleof equal treatment.

The Commission for Citizenship and Gender Equality in Portugal23 is an officialdepartment of the Presidency of the Council of Ministers and constitutes theGovernment’s mechanism for the promotion of citizenship and gender equality.

Romanian National Council for Combating Discrimination24 was establishedin 2001 and covers all forms of discrimination. The Council is the autonomousstate authority, under parliamentary control, which performs its activity in thefield of discrimination. The powers of the Council include mediating between theparties, providing support for the victims of discrimination, investigatingdiscrimination cases, and adopting administrative sanctions.

The Slovak National Centre for Human Rights (SNSLP)25 fulfils its role in thefield of fundamental rights and freedoms and is an equality body for alldiscrimination grounds. The Anti-discrimination Law established the SNSLP asthe only institution assessing the principle of equality in the Slovak Republic.

In Slovenia the Advocate of the Principle of Equality26 is a special post withinthe Ministry of Labour, Family and Social Affairs designed to prevent andeliminate discrimination predominately by hearing cases and offering assistanceto victims of discrimination. The Advocate has responsibilities in areas such asemployment, education, housing, social protection, goods and services, socialsecurity and health care, social benefits and public administration.

In Spain the Institute for Women27, an independent organisation which isattached to the Ministry of Health, Social Services and Equality seeks to promotethe conditions that allow gender equality.

Swedish Equality Ombudsman28 is an independent Government agencyestablished on 1 January 2009. The Equality Ombudsman shall and supervise thecompliance of the Discrimination Act and shall promote equal rights andopportunities regardless of sex, transgender identity or expression and othergrounds in areas like education, housing, social protection, goods and services,national military service and civilian service.

21 http://www.mensenrechten.nl22 www.rpo.gov.pl23 www.cig.gov.pt24 www.cncd.org.ro25 www.snslp.sk26 www.zagovornik.net27 http://www.inmujer.es28 www.do.se

222

ConclusionsMember States can sets out the structure and the functions and this leads to

a diversity of national structures for promoting equality across the memberstates. There are commissions, ombud institutions, National Human RightsInstitutions, quasi-judicial bodies or a combination. Only Belgium and Estoniahave separate gender equality body.

The grounds of discrimination covered by national legislation vary. SomeMember States have a broader list of grounds than EU Directives. For example inBelgium, Finland and Sweden the list of grounds protected include genderminorities (transgender and intersex people). The fields also vary across EU fromemployment, education, housing, social protection and goods and services to allaspects of life.

References

Directive 2000/43/EC implementing the principle of equal treatmentbetween persons irrespective of racial or ethnic origin

Directive 2000/78/EC establishing a general framework for equal treatmentin employment and occupation.

Directive 2002/73/EC amending Directive 76/207/EEC on theimplementation of the principle of equal treatment for men and women asregards access to employment, vocational training and promotion, and workingconditions

Directive 2004/113/EC implementing the principle of equal treatmentbetween men and women in the access to and supply of goods and services

Directive 2006/54/EC on the implementation of the principle of equalopportunities and equal treatment of men and women in matters of employmentand occupation (recast)

Margit Ammer, M., Crowley, N., Liegl, B., Holzleithner, E., Wladasch, K.,Yesilkagit, K., (2010), Study on Equality bodies set up under Directives2000/43/EC, 2004/113/EC and 2006/54/EC, Synthesis Report. pp. 43-44.

Austria - www.gleichbehandlungsanwaltschaft.atBelgium – http://igvm-iefh.belgium.be/Bulgaria - www.kzd-nondiscrimination.comCyprus - www.no-discrimination.gov.cyCzech Republic - www.ochrance.czDenmark - http://www.ligebehandlingsnaevnet.dkEstonia - www.svv.eeFinland - http://www.tasa-arvo.fiFrance - www.defenseurdesdroits.frGermany - www.antidiskriminierungsstelle.deGreat Britain - www.equalityhumanrights.comNorthern Ireland - www.equalityni.orgGreece - www.synigoros.grHungary - www.egyenlobanasmod.huIreland - www.equality.ie

223

Italy - http://www.pariopportunita.gov.itLatvia - http://www.tiesibsargs.lvLithuania - www.lygybe.ltLuxembourg - www.cet.luMalta - www.equality.gov.mtNetherlands - http://www.mensenrechten.nlPoland - www.rpo.gov.plPortugal - www.cig.gov.ptRomania - www.cncd.org.roSlovakia - www.snslp.skSlovenia - www.zagovornik.netSpain - http://www.inmujer.esSweden - www.do.se

224

CONSIDERING THE BEST INTERESTS OF CHILDREN INPRISON SENTENCE OF CAREGIVERS AND THE

IMPLEMENTATION OF RIGHT TO EQUALITY

Jim Nzonguma Mayua

Abstract: Before, difference was perceived by gender equality scholars as a means for mento exclude women from public life or market life. Thus any tentative of recognition of differencebetween men and women was taxed of promoting injustices that harmed women. Thus, a neutralequality paradigm allowed men and women to equally competing in society. Thus for instance,men are considered as primary caregivers in the same levels as are women. Such an approachgives men an opportunity to be caregivers and women not to be stigmatized as mothers who stayat home and looking after their children, without the possibility to compete at public life.Nevertheless, feminist legal scholars have recently developed a new approach to address issuesrelated to gender equality. Today, difference is perceived by feminist legal scholars as a means tofacilitate affirmative action. A neutral equality theory is considered as a barrier preventingaffirmative action to address women’s inequities in society. In series, of recent cases the SouthAfrican constitutional court has commented on the prison sentence of female primary caregiver.Adopting difference based approach; the court held that female caregiver should benefitdifferential treatment in the prison sentence. In order words, female caregiver should benefit ofreduction of their penalty or being release from the prison to look after their children. However,the male caregiver does not receive the same treatment as female. This article explores theimplication of the right to non-discrimination in the justice system in the best interests of childrentheory.

1. IntroductionIt is very intricate the question of equality and difference or between the

right to receive the same treatment as everybody else and the right to bedifferently treated. On one side, different treatment on the ground such as race,gender, sexual orientation, disability, religion, culture and language frequentlyresults in material disadvantage to members of those groups that are treateddifferently, the continuation of harmful stigmatization of certain groups. On theother side, considering everybody the same regardless to the difference amongpeople may equally result in disadvantage to and the marginalization of certaingroups.

This leads to what Martha Minow calls “the dilemma of difference”. Thestigma of difference may be recreated both by ignoring and by focusing on it.1 Inher book, Martha Minow had suggested “the dilemma of difference was not anaccidental problem in American society”.2 She held that the dilemma of differencestemmed from the manner in which society assigns individuals to a certaingroups, on that basis, decide whom to include and whom to exclude from politicaleconomic and social activities.3 Furthermore, she supported that the dilemma ofdifference becomes visible when the society tries to remedy the historicalexclusion, by proclaiming that the former disadvantaged group is now a basis for

LLB University of Kinshasa, LLM University of Cape Town, Candidate AdvancedMaster in Governance and Development (University of Antwerpen).

1 Minow Martha “all the difference: inclusion, exclusion, and American law” (1990) 25-482 Ibid, pp. 21.3 Ibid.

225

inclusion.4 Lastly, she supported that the dilemma continues to exist when legalarguments “not only deploys a categorical approaches to reduce a complexsituation”, but also consider those categories as natural and inevitable.5

Dilemma of difference as expressed by Minow may be visible in SouthAfrican constitutional court approach regarding the balance between equalityright and the protection of child primary caregiver offender.6 In Hugo case7, theapplicant challenged the president pardon on the basis that it had constitutedunfair discrimination on ground of gender. On one hand, the president’s decisionto pardon mothers only can make sense if we consider that in African contextmothers are still considered as primary care givers. On the other, it can be heldthat such a decision prevents men of the opportunity to be care givers, andstigmatizes women as mothers who stay at home and looking after their children,without the possibility to compete at public life.

Feminist legal scholars have advocated for the total emancipation of womenin public life. However, there is now a trend towards considering womenlawbreakers as another side of inequality.8 According to theses scholars theadoption of gender-neutral sentencing guidelines disadvantages womenoffenders.9 This new trend raises thus certain question in criminal law, such as“whether gender equality requires acknowledgement of biological differences thatinfluence women’s criminality or ignoring them”.10 Whether gender equalityrequires preferential treatment of female offenders based on their familyresponsibility or gender-neutral sentencing that imposes the same punishmenton female and male offenders.11

While South African Constitution describes itself as ‘supreme law,12 providesthat “South African as sovereign State founded on the …value of human dignity,the achievement of equality and the advancement of human rights andfreedom,non racialism and non-sexism.13 As such, ‘the achievement of equality’ isclassified as second value.14 The article 7(1) (the first provision of the Bill ofRights) states that the Bill, among other things, affirms the ‘democratic value ofequality.15 Non-sexism as mentioned in the Constitution means that men andwomen have right to equal opportunity and protection under the law.

The purpose of this paper is to consider impacts of best interest of childprinciple in the sentencing parents or caregivers. Shall the best interest principle

4 Ibid.5 Ibid.6 President of Republic of SA v Hugo 1997 (4) SA 1 (CC); see also M v The State 2007 SA (CC).7 Ibid.8 Roberts, Dorothy “Foreword: the meaning of gender equality in criminal law” (1994) 85 No 1

The Journal of Criminal Law and Criminology 1-14.9 Ibid, pp. 2.10 Ibid.11 Ibid.12 The Preamble of the Constitution of Republic of South Africa Act 108 of 1996 [Hereinafter

the Constitution].13 Section 1 of the Constitution14 Venter Francois “Equality in the Constitution” Paper delivered at the conference ‘A Code of

Good Practices for Affirmative Action”, Pretoria, 5 November 2005.15 Ibid.

226

be considered as covering only female offender or shall be applied also to maleoffender? If it covers only female offender, does this differential treatmentamount to unfair discrimination. May mitigating women’s sentences perpetuatefemale stereotype? This paper holds that the principle of child interests coupledwith the equality right give both male and female the same opportunity in justice.Furthermore, this paper argues that in Hugo case, as the best interests16 ofchildren was the primary justification of President pardon, the court should havetaken into consideration the interest of Hugo’ son. The best interest of childdirects courts as upper guardian of all minors to promote the interest of childrenrather than focus on rights and entitlements of parents.17 Thus the correctsolution would have probably been the finding of a balance providing for the bestinterests of every child in the circumstances to be accepted to the fullest extentpossible.18 Such a decision would have probably eradicated the traditionalconceptions of women as exclusive primary caregivers and give men opportunityto be caregivers.

2. Brief analysis of the Best interests of child principle

2.1. Legal foundationThe legal foundation of the best interests’ principle is set out in Article 3(1) of

the Convention on Rights of Children 19 which provides: “In all actions concerningchildren, whether undertaken by public or private social welfare institutions,courts of law, administrative authorities or legislative bodies, the best interests ofthe child shall be a primary consideration”. But the best interest’s principle wasnot in itself novel when the UN Convention on the Rights of the Child (CRC) wasbeing drafted.20 It was previously included in a number of other internationalhuman rights instruments, most notably the 1959 Declaration on the Rights ofthe Child and the 1979 Convention on the Elimination of All Forms ofDiscrimination against Women.21 However, it may be held that the CRCinnovated by extending the scope of the principle to an obligation on States toensure that children’s interests are placed at the heart of government and of alldecision-making which impact has s on children.22

The concept of the ‘best interests’ broadly describes the well-being of achild.23 As each case is unique, a general definition of what is in the best interests

16 Hugo Para 37 the president pardon for special remission of mothers with small children wasgranted on the basis that it would serve the interests of children.

17 Currie and De Waal, the bill of rights Handbook (2005) 618.18 Visser PJ “some ideas of best interest of child’s principle in the context of schooling” (2007)

Journal of contemporary roman Dutch.19 The Convention on Rights of Child of 20TH November 1989.20 Logan, Emily “The child’s best interest: a generally applicable principle” Janus Korczak

Lecture, organized by Thomas Hammarberf Commissioner for Human Rights Sockholm, 9September 2008.

21 Ibid.22 Ibid.23 The best interests of child: General principles set by the convention on rights of child.

Children –protection and care information sheet June 2007.

227

of the child cannot be given. Therefore, the ‘best interests’ of the child needs to beexamined on an individual basis, taking into account the specific features of eachcase.24 There is no precise definition of best interests’ principle. In Mario case25,the Australian High court admitted that “the CRC does not explicitly define achild's best interest”. The term is 'imprecise, but no more so than the "welfare ofthe child" and many other concepts with which the courts must grapple.26

In South Africa, the best interests of child’s principle was already recognized,before the advent of new Constitution, it was most of time applied in cases ofcustody and access generally27. This principle has led the Supreme Court, as theguardian of all minors to promote the interests of children, rather than focusingon the rights and the interests of parents.28 The provision of article 28 (2) ofcurrent South African constitution provides: “a child’s best interests are ofparamount importance in every matter concerning the child.29” The concern wasto conform to its international obligation as a State member of United Nationsconvention on the rights of child (CRC). Generally an “interest” means anadvantage, benefit or concern. The reference to the “best interests” in section28(2) should mean that whenever necessary, all the relevant interests in a givensituation must be ascertained on the basis of evidence, Including naturally theinterests of the child, and a judgment made on what the child’s “best” interests ina given situation are – in other words, the child’s most advantageous positionpractically possible and desirable in view of the relevant law.30 The best interestof a child clearly depends on a proper evaluation of the facts of every case.

2.2. Application of best interests’ principleThe “best interests of the child”, or the “welfare of the child” principle as we

know it, has been central to legal decision-making about children for the whole ofthis century.31 As it is provided in article 3 of the CRC that: “In all actionsconcerning children, whether undertaken by public or private social welfareinstitutions, courts of law, administrative authorities or legislative bodies, thebest interests of the child shall be a primary consideration”.

It is noteworthy that the best interests’ principle is a primary considerationof a child. In any case the best interest principle concerns or protects one of childparents. The basic premise of the CRC, taken as whole, is the application of itsprovisions with the best interests of the child constantly in mind. In addition toArticle 3, the best interests’ provision is set out in other articles of the CRC. Inthese contexts, the best interests’ principle is expressed in stronger terms - as anecessary requirement or as the paramount consideration:

24 Ibid.25 Best interest of child Human Rights Brief No.1.26 Ibid.27 Visser Opc it pp 459.28 Ibid .29 Section 28 of the Constitution.30 Visser “some ideas of best interest of child’s principle in the context of schooling” 2007

Journal of contemporary roman Dutch.31 Henaghan Mark “Above and Beyond the Best Interest of the Child”.

228

The best interests’ principle comprises a procedural rule; it governs how wego about decision-making with regard to children. It is a legally binding rule thatStates must follow.32 However, the rule does not state that children’s interestsalways come first. Nevertheless, the aim of the rule is not to encroach on therights of others, but to facilitate an examination of the interests of a vulnerablegroup.33 A child’s best interests should be considered in relation to all actionsconcerning them, that is when the action directly affects them or regards ortouches them. It is important to note that Article 3.1 applies widely to all actionsconcerning children. It is not confined to actions and decisions concerning therights and freedoms set out in the CRC. An action 'concerns' children not onlywhen it is directly about them, or in reference or relation to them, but also whenit regards or touches them.34 Even if the child is not the object of the decision, theprinciple applies if the decision affects her or him.

In South Africa, the scope of section 28 (2) cannot be subject of limitationsto the ambit of fundamental rights included in section 28 (1).35 Section 28 (2)applies, in addition, to a specific child as well as to children collectively, whetheras defined group or merely as children in general.36 In the advent where thecompeting rights or interest of two or more children have to be considered in agiven situation, is section 28 (2) applicable? The correct approach wouldprobably be the finding of balance providing for the best interest of every child inthe circumstances to be accepted of fullest extent possible.37

The provision of section 28 applies to “every matter concerning child”. Thusit is obvious that a wide interpretation should be accepted. It would be quitenatural for the interests of child in criminal justice context to be covered as well(in addition to all the well-documented and classical instances where it has beenapplied already).

However there must be certain situation where the best interest principle islimited. For instance article 3.1 of convention of child provides for a child’sinterest to be among the first interest consideration rather than requiring them tobe the first considered of favored. There are circumstances in which thecommunity or other parties might have equal or even superior interests so thatchild’s interests’ principle may not prevail.38 In M Case, the minority judgmentheld that “in a situation where the children will not suffer hardship, a primarycaregiver may have to be incarcerated if there are aggravating factors justifyingsuch an eventuality”39. Futhermore, the minority judgment added that while thebest interests of children may be paramount, they should not be overridingconsideration in determining whether or not a primary caregiver should be sentto prison”.40

32 Logan Emily (footnote 28)>33 Ibid.34 Best interest of Child Human Rights Brief No. 1.35 Minister for Welfare and Population Development v Fitzpatrick 2000 7 BCLR 713 (CC) 17.36 Visser PJ, op.cit., 460.37 Ibid.38 Ibid.39 Ibid Para 107.40 Ibid.

229

3. A brief analysis of gender equality in South Africa context

3.1 The formal equalityThe concept of ‘equality’ appears in the founding provisions of the 1996

Constitution (article 1), the Bill of Rights and further also in connection with theCommission for the Promotion and Protection of the Rights of Cultural, Religiousand Language Communities and the Commission for Gender Equality.41

The constitutional equality provision is article 9. Sub articles (1) and (2) readas follows:

(1) Everyone is equal before the law and has the right to equal protection andbenefit of the law.

(2) Equality includes the full and equal enjoyment of all rights and freedoms.To promote the achievement of equality, legislative and other measures designedto protect or advance persons, or categories of persons, disadvantaged by unfairdiscrimination, may be taken.

Thus the Constitution of South Africa deals with the concept of equality as avalue.42 In article 1(a) it is stated that the South African state is ‘founded’ oncertain values, of which the second that is mentioned is ‘the achievement ofequality’. In article 7(1) (the first provision of the Bill of Rights) it is stated thatthe Bill, among other things, affirms the ‘democratic value of equality’. It is notstrange that the Constitution does not work with a right to equality, or ‘a right tobe equal’ in view of the fact that it is not realistically possible to create somethingthat is non-existent. Inequality is a natural given, which cannot be undone by thecreation of a legal claim not to be unequal.43 What is in fact possible, and what isdone in article 9(1) of the Constitution, is to create a right to equal protection andbenefit of the law.

Formal equality implies the sameness treatment meaning that the law mustconsiders individuals in the same ways, without taking into account theirdifferences. In order words, formal equality requires ‘that all persons are equalbearers of rights. On this view, inequality is an aberration that can be eliminatedby extending the same rights and entitlements to all in accordance with the sameneutral norm or standard of measurement.’44

According to the formal equality orthodoxy, there is no separate legal basisin the difference of treatment in the exercise or enjoyment of a recognized rightbetween men and women. Thus, for instance in the case of the imprisonment,both men and women would receive the same treatment45. All legal aspectsapplicable to imprisonment of men also apply to women46. And section 9 (1) ofthe constitution provides that “everyone is equal before the law and has the rightto equal protection and benefit of the law”. More, on a formal equality idea,

41 Venter Fancois, op.cit., pp 1.42 Henk Botha “Equality, dignity, and the politics of interpretation” (2004) 19 SAPR/PL; See

also Albertyn Cathi and Goldblatt Beth op.cit.43 Venter, op.cit.44 Ian Currie and Johan De Waal “The Bill of Rights” Handbook, 5th Edition, pp 232-234.45 Luyt W.F “imprisoned mothers in SA prisons and children outside of the institution” (2008)

16, 3 European Journal of Crime, Criminal Law and Criminal Justice 307.46 Ibid.

230

equality is achieved if all children are educated according to the same educationprogramme. Substantive equality, however, would require equality of outcome. Ifchildren with disability (deaf children, for instance) attend the same schoolcurriculum as other children they may very well end up receiving an educationthat is inadequate for their special needs. The equality right of such children isachieved when it may be necessary to treat them differently. Furthermore, aformal conception of equality is achieved, when men and women are similarlyconsidered, when it comes to the ability to perform military services. Substantiveequality, on the other hand, would tend to separate men and women, in militarytraining sessions, because me tend to be physically stronger than women.

Though formal equality tends to establish a perfect equality in society, it isconsidered to be too formalistic and ignores “the actual social and economicdisparities between groups and individual into account.”47 For feminist scholars,it has gaps. They have stressed out “that when the aim is to give women the samerights as men, the frame of reference is still masculine.”48 They have based theirarguments on the physiologic difference between men and women. Furthermore,they have underlined that formal equality had failed to resolve inequality basedon diverse combination of identities.49

3.2 The substantive equalityThe South African constitutional court, in numerous of its decisions, has

adopted substantive equality that takes into account disparity among people50.The purpose of this approach is to transform the South African society that wascharacterized by racist and sexist inequality. The South African Constitutionalapproach was justified by the fact that “the many cases of inequality inheritedfrom the past means that the constitutional involvement to equality cannotsimply be understood as a commitment to formal equality.”51 It would not beenough simply to remove racist and sexist laws from books and to ensure thatsimilar laws could not be enacted in the future. That would result in a society thatwould formally be equal but that could be unequal in every other way. The needto confront this legacy is recognized in the equality clause in the Bill of Rights,particularly in s 9 (2) which permit measures “designed to protect or advancepersons, or categories of persons disadvantaged by unfair discrimination.”52

However, it should be important to note that the neither the equalityprovisions in he section (9) nor in the Equality Act,53expressly use the term“substantive equality”. The matter was hotly debated in the ad hoc joint portfolio

47 Ian and Johan De Waal, op.cit., 44.48 Alexander Timmer “Toward an Anti-Stereotyping Approach for the European Court of

Human Rights” (2011) Human Rights Law Review 11:4, pp 5.49 Alexander time, op.cit., para 48.50 Alberth Cathi and Goldblatt Beth “Facing the meaning of transformation : development of

an indigenous jurisprudence of equality” (1998) 14 South African Journal on Human Rights, 248,at 249.

51 Ian Currie and Johan De Waal, op.cit., pp 232.52 Ibid.53 The Promotion of Equality and the Prevention of Unfair Discrimination of Act of 2000 (Act

NO 4 of 2000).

231

committee in parliament. Some opposition party parties, especially thedemocratic parties maintained that had never come across the term that the termwas foreign and was therefore not suitable for South Africa legal system.54 Thequest of substantive equality, the adequate corrective response to substantivediscrimination and the impact thereof, recognized but at the same time goesbeyond discriminatory prejudices and stereotypes.55 The substantive equalityapproach looks into law, policies and practices and how theses operate in asystemic manner that may or may not causes or leads to unequal and harmfulimpact on individual or groups of persons. Furthermore, it addresses thediscriminatory results produced by the manner in which institution operate,whether they have knowledge of it or not, or whether they intend the results ornot or whether it is direct or indirect.

In Harksen v Lane NO56, The South African Constitutional court hasenumerated the stapes of an inquiry into the infringement of the equality clauseas follow

1. Does the challenged law or conduct differentiate between people orcategories of people? If so, does the differentiation bear a rational connection to alegitimate government purpose? If it does not, then there is a violation of s 9 (1).Even if it does bear rational connection, it might nevertheless amount todiscrimination

2. Does the differentiation amount to unfair discrimination? This requiresa two-stage analysis:

i) Firstly, does the differentiation amount to “discrimination?” If it is on aspecified ground, then discrimination will have been established. If it is not on aspecified ground, then whether or not there is discrimination will depend uponwhether, objectively, the ground is based on attributes and characteristics thathave the potential to impair the fundamental human dignity of persons as humanbeings or to affect them adversely in a comparably serious manner.

ii) If the differentiation amounts to “discrimination’’, does it amount to“unfair discrimination”? If it has been found to have been on a specified ground,then unfairness will be presumed. If on an unspecified ground, unfairness willhave to be established by the complainant. The test of unfairness focusesprimarily on the impact of the discrimination on the complainant and others inhis or her situation. If, at the end of this stage of the enquiry, the differentiation isfound not to be unfair, then there will be no violation of s 9 (3) and (4).

iii) If the discrimination is found to be unfair then a determination will haveto be made as to whether the provision can be justified under the limitationclause.

The test of enquiry such as tabulated by the South African constitution courthas adopted a substantive equality based approach. Such an approach requiresthe implementation of process that will transform the entire society. As AlbertCathi and Goldblatt Berth, had underlined:

54 Shadrack B.Gutto Equality and non-discrimination in South Africa: The political economyof law and law-making (2001) pp. 126.

55 Ibid 128.56 Harkse n v Lane NO 1998 (1) SA 300 (CC) para53.

232

We understand the transformation to require a complete restructuring of thestate and society, including redistribution of power and resources alongegalitarian lines. The challenge of achieving equality within this transformationproject involves the eradication of systematic forms of domination and materialdisadvantages based on race, gender, class and other grounds of inequality. Italso entails the development of opportunity which allows people to realize theirfull human potential within positive social relationships.57

In one of the first cases dealing with equality under the South AfricanConstitution, Brink v Kitshoff (1996), Judge O’Regan described the right toequality in the following terms:

“The policy of apartheid, in law and in fact, systematically discriminatedagainst black people in all aspects of social life. Black people were prevented frombecoming owners of property or even residing in areas classified as ‘white, whichconstituted nearly ninety percent of the landmass of South Africa; senior jobs andaccess to schools and universities were denied to them; civic amenities, includingtransport systems, public parks, libraries and many shops were also closed toblack people. Instead, separate and inferior facilities were provided. The deepscars of this appalling programme are still visible in our society. It is in light ofthat history and the enduring legacy that it bequeathed that the equality clauseneeds to be interpreted.58

In the case of City Council of Pretoria v Walker59 among several separatelocal councils, amalgamated in terms of the LGTA into the Pretoria City Councilwere two formerly black areas, Mamelodi and Atteridgeville and formerly whitesuburbs, referred to as old Pretoria. Residents of Mamelodi and Atteridgevillepaid for their electricity on the basis of a “flat rate”, which is a fixed amount,based on the average usage of electricity in their area. Residents of old Pretoriapaid for their electricity on a “metered rate”, an individual amount based on theactual usage of electricity by the consumer. The metered rate was higher than theflat rate. The council had started to install meters in Mamelodi and Atteridgevillebut continued to use the flat rate in those areas until all the meters were installed.

In terms of the recovery of arrears, legal action was instituted againstresidents of old Pretoria only, whereas the municipality endorsed acompassionate attitude towards the residents of Mamelodi and Atteridgeville,which resulted in them not being sued to enforce payment of arrears in thoseareas.60 Walker, a resident of old Pretoria was sued for arrears in respect ofcharges for electricity provided by the municipality. He challenged theconstitutionality of the municipality’s actions in respect to its policy on thedelivery of electricity services. He was of the opinion that the council hadinfringed his right to equality and that he was being discriminated against.

In this case the courts looked at whether the imposition of a flat rate formunicipal services in the former black townships, as opposed to a consumption-based rate in areas previously reserved for whites, amounted to unfair

57 Ibid.58 Brink v Kitshoff NO 1996 (4) SA 197 (CC) para 40.59 City Council of Pretoriav Walker 1998 (2) SA 363 9 (CC).60 Ibid para 4.

233

discrimination. The majority of the Court held that the council differentiatedbetween Walker and other residents of old Pretoria and those of Atteridgevilleand Mamelodi by levying charges on a differential basis and by selectively suingnon-paying residents of old Pretoria alone. This differentiation was held toamount to indirect discrimination on the basis of race. What then needed to bedetermined was whether the discrimination was unfair. This required anexamination of the impact of the discrimination on Walker.

With regard to the cross-subsidisation and council’s failure to apply meteredrates uniformly, the Court concluded that the discrimination was not unfair.61 Inrelation to selective recovery of debts, the majority held that as the impact of thepolicy affected Walker in a manner comparably serious to an invasion of hisdignity the discrimination was unfair. In adopting a substantive approach toequality, the CC looked at the evidence presented, the history involved and theunique transitional context of local government.

The substantive equality approach, as though it seeks to resolve inequality bytaking into account the reality. This approach is not immune to criticisms. Certainscholars consider it to be more focusing on the effects of a particular rule; therebythe underlying structural causes of exclusion are not necessarily addressed andare often left untouched.62 The struggle against structural forms of discriminationis referred to as transformative equality by certain authors. Furthermore, Minowfor instance believes that while mandating special treatment marks the plaintiffas "different" and may perpetuate the presumptions of difference that led to theinequality. Minow argues that the dilemma of difference is not necessary ornatural, but rather proceeds from legal--and popular--conceptions. Individuals orgroups raising civil rights issues are treated by the legal system as if they were"different," and these differences nearly always carry a stigma.

The challenge is to find a way to analyze "difference" in a way that will notresult in this dilemma. This requires understanding the characteristics thatdifferentiate a class without freezing the group in the classification or marking itoff as a deviation that must somehow be "dealt with." The answer, Minowsuggests, is what she calls the "social relations" approach, which does notconcentrate on the rights at stake but instead on how the interests of all partiescould be made to intersect at the point of controversy.

4. President of the Republic of South Africa v Hugo caseHugo was imprisoned during a time which the former President, Nelson

Mandela (in the Presidential Act 17 of 1994) pardoned certain categories ofprisoners. One of these categories was all mothers in prison on 10 May 1994 withminor children under the age 12 years. Hugo a widower and the father of a sonunder the age of 12, applied for an order declaring the president Actunconstitutional on the grounds that it discriminated unfairly against him on thebasis of gender. The majority in the constitutional Court supported that there wasreasonable discrimination against Hugo, but it was not unfair.63 The court held

61 Ibid Para 63.62 Alexander time pp 712.63 Hugo para 41.

234

also that in the instant case the pardon was not to an individual to correct amiscarriage of justice but to a group to confer an advantage upon them as act ofmercy. The court emphasized that in many cases equality will amount to differenttreatment and that all forms of different treatment do not amount to unfairdiscrimination. Mokgoro found that the President’s pardon did amount to unfairdiscrimination against Hugo, but that it could not be justified in terms of section33, limitation clause of the interim constitution. The court found that the primaryjustification for the president pardon was the “interests of children”. To supportthus, the judgment relied upon the evidence of Ms Starke that mothers are,generally speaking, responsible for the care of small children in our society.64 In adissenting judgment, Kriegler held that Hugo had indeed suffered unfairdiscrimination. According to him, the relevant section of the presidential pardonwas inconsistent with the prohibition against gender or sex discrimination and,because it had not been shown to be fair, it was invalid.65 In his view the notionrelied upon by the president, namely that women are to be regarded as theprimary care givers of young children, is a root cause of women’s inequality.66 Hefocused on the fact that the president relied on an “inherently objectionablegeneralization” for the benefit of particular group of women prisoners, andargued that there was no suggestion in the presidential act of compensation forwrongs of the past or an attempt to compensate for past discrimination againstwomen. He identified two criteria. In terms of the first, he argued that women asa group do not benefit by the perpetuation of the stereotype and in terms ofsecond he noted that the fact that women suffered discrimination generally doesnot mean that they suffered in the penal context. It is crucial that categorizationsare seen as expression of hierarchies, assertions of power. When characteristicssuch as race and sex are used to categorize people, they do not simply distinguishindividuals, but are manifested and understood hierarchically. The court in Hugoshowed that they supported the president in releasing a group of women’sprisoners, but in effects they also supported a certain view of sex and genderdivision.67

The court accepted that the President had acted in good faith and did notintend to discriminate unfairly and had in mind the benefit of children. The bestinterest of children was thus the primary concern of the court approach. Thus, inthe best interest of children, the first question one can ask is whether thepresidential pardon differentiates between children? In this case yes, as thepresident pardon was intended to protect only children whose parents are female.The presidential pardon did not covered children under 13 years, like Hugo ‘sonwhose parents are male. The second question is whether such a differentiationbears a rational connection to a legitimate governmental purpose? None, as thelegitimate governmental purpose was to protect all children within the territory ofSouth Africa regardless the gender of their parents. The third question is whether

64 Hugo Para 3765 Van Marle Karin “Equality: an ethical interpretation” (2000) THRHR 595-607 pp59866 Ibid67 Van Marle Karin “in support of revival of utopian thinking, the imaginary domain and

ethical interpretation” TSA 2002 3

235

such a differentiation amount to discrimination and in which ground? Yes thedifferentiation amounts to discrimination on the ground of gender of parents? Inthe case of Joseph Griesmar v. Ministre de l’Economie, des Finances et del’Industrie, Ministre de la Fonction publique, de la Réforme de l’Etat et de laDémocratisation,68 dealt with the issue of service credit for children beingawarded only to female civil servants in accordance with the French civil andmilitary retirement pension scheme. In its judgment, the European Court ofJustice (ECJ) observed that the grant of that credit was not linked to maternityleave or to the disadvantages which a female civil servant incurred in her careeras a result of being absent from work during the period following the birth of achild. This credit was linked to a separate period, namely that devoted to bringingup the children. In this connection, the ECJ found that the situations of a malecivil servant and a female civil servant were comparable as regard the bringing-upof children. In particular, the fact that female civil servants were more affected bythe occupational disadvantages entailed in bringing up children, because this wasa task generally carried out by women, did not prevent their situation from beingcomparable to that of a male civil servant who had assumed the task of bringingup his children and had thereby been exposed to the same career-relateddisadvantages.

The last question one can ask is whether such discrimination amounts tounfair discrimination. As it is mention earlier, the test of unfairness is focused onprimarily on the impact of the discrimination on the complainant and others inhis or her situation. The presidential pardon not only prevents the son of MrHugo to the right parental care, but also but prevents Mr Hugo the right to becare giver. The court in Hugo case had demonstrated that men in South Africansociety can compete against women, when it comes to the right to parental care.Furthermore, the court decision had confirmed women as care giver in Africancontext. In the case of Konstantin Markin v Russia,69 the applicant complained ofthe domestic authorities’ refusal to grant him parental leave because he belongedto the male sex. Briefly, in this case, the applicant’s wife, Ms Z., gave birth to theirthird child. On the same day a court granted her petition for divorce. Theapplicant and Ms Z. entered into an agreement under which their three childrenwould live with the applicant and Ms Z. would pay maintenance for them. Theagreement was certified by a notary. In, this case European Court of humanrights (ECHR) had found that the the fact that only a woman whose status wasthat of an employed person could take that leave, whereas a man with the samestatus could not, was liable to perpetuate a traditional distribution of the roles ofmen and women by keeping men in a role subsidiary to that of women in relationto the exercise of their parental duties. The Chamber was not convinced by theGovernment’s argument that the extension of the parental leave entitlement toservicemen, where servicewomen already had such entitlement, would have anegative effect on the fighting power and operational effectiveness of the armedforces. Indeed, there was no expert study or statistical research on the number of

68 Konstantin Markin v Russia Application No 30078/06, Merits, 7 October 2010, at para 65.69 Konstantin Markin v Russia, op.cit.

236

servicemen who would be in a position to take three years’ parental leave at anygiven time and who would be willing to do so. The Court concludes from theabove that the reference to the traditional distribution of gender roles in societycannot justify the exclusion of men, including servicemen, from the entitlementto parental leave. The Court agrees with the Chamber that gender stereotypes,such as the perception of women as primary child-carers and men as primarybreadwinners, cannot, by themselves, be considered to amount to sufficientjustification for a difference in treatment, any more than similar stereotypesbased on race, origin, colour or sexual orientation.

In Hugo case, the argument was that the release of male care givers ofchildren under 12 would permit the release of lot of prisoners out of prison.However, no statistics had proved such a declaration. I argue that interpretationof president pardon based on interest of children would have leaded the court torelease Mr. Hugo who was the only caregiver of his son. Thus the denial of thebenefit of best interest of children principle on Hugo’s on had discriminated.Thereby I argue that Hugo had indeed suffered unfair discrimination on groundof gender.

Concluding remarksThe South Constitutional Court had adapted a substantive based equality to

address any issue related to inequality.70 This article has a purpose to raise thequestion on how far a State may address the issue of past inequality. In orderwords, what are limitations for such remedial measures? To avoid to answer suchquestion, will lead the state to what Martha Minow had called ‘’dilemma ofdifference”. The continuing implementation of measures to address the pastinjustices may create new discrimination and enforce stereotype. In Hugo case,the Constitutional court had failed to focus their arguments on the presidentialpardon purposes- that were to protect the best interest of children. In focusing inthe historical context of South African society on the role of caregiver, the courthad not only prevented male the possibility of being caregivers, but alsostigmatised women as housewives.

I argue that considering the best interests of children as primary justificationof president pardon, the court would have seen the suffering of Hugo’sondeprived of his only parent. Failure to consider such an approach, led the court tosupport a certain view of inequality among children of ground of gender of theircaregiver. Naturally, the law must be relevant for the society and the time andremedial equality must accordingly be pursued, without fashion and prevailingideology introducing one-sided emphasis that would allow elements of inequalityto infiltrate into the struggle for equality.71 A limitation of the constitutionalconcept of equality to remedial equality, whether as a value, core right or as adescription of social ideals, leads to an unjustifiable impoverishment, and thuspartial neutralization, of the constitutional text.72

70 See Hugo case;see also Minister of finance v Van Heerden 2004 (11) bclr 1125 (cc),M vstate,Pretoria City Council v Walker 1998 (2) SA 363 (CC)

71 Ibid72 Ibid

237

Bibliography

Articles

1. Alberth Cathi and Goldblatt Beth “Facing the meaning of transformation:development of an indigenous jurisprudence of equality” 1998 South AfricaJournal of Human Rights 248-276

2. Dorothy, Roberts “Foreword: the meaning of gender equality in criminallaw” The journal of criminal law and criminology (1973) Vol.85 No 1 (Summer1994), pp 1-14

3. Venter Francois “Equality in the Constitution” Paper delivered at theconference ‘A Code of Good Practices for Affirmative Action”, Pretoria, 5November 2005

4. Henaghan Mark “Above and beyond the best interests of child” ChapterTen, Access 11 September 2013

http://www.massey.ac.nz/~wwcppe/papers/cppeip04/cppeip4j.pdf5. Henk Botha “Equality, dignity, and the politics of interpretation” 3 (2004)

19 South Africa Public Law: Public law in transformation.6. Logan, Emily “The child’s best interest: a generally applicable principle”

Janus Korczak Lecture, organized by Thomas Hammarberf Commissioner forHuman Rights Sockholm, 9 September 2008.

7. The best interests of child: General principles set by the convention onrights of child. Children –protection and care information sheet June 2007

8. Best interest of child Human Rights Brief No.19. Timmer, Alexander “Toward an Anti-Stereotyping Approach for the

European Court of Human Rights” (2011) Human Rights Law Review 11:4.10. Van Marle Karin “Equality: an ethical interpretation” 2000 THRHR 595-

60711.Van Marle Karin “in support of revival of utopian thinking, the imaginary

domain and ethical interpretation” 3 TSA 2002.12. Visser “some ideas of best interest of child’s principle in the context of

schooling” PJ 2007 Journal of contemporary roman Dutch

Books1. Currie and De Waal, the bill of rights Handbook (2005)2. Van Heerden et al Boberg’s Law of Person and the Family 2 ed (Juta and

Co Ltd,Kenwyn 1999) at 502-3.3. Luyt W.F “imprisoned mothers in SA prisons and children outside of the

institution” European Journal of Crime, criminal law and criminal justice. Pp 307Volume 16 Issues 3 2008 Martinus NUHOFF Publishers

Cases1. Brink v Kitshoff NO 1996 (4) SA 197 (CC)2. Konstantin Markin v Russia Application No 30078/063. M v The State 2007 SA (CC)4. Minister of finance v Van Heerden 2004 (11) bclr 1125 (cc),

238

5. President of Republic of SA v Hugo 1997 (4) SA 1 (CC)6. Pretoria City Council v Walker 1998 (2) SA 363 (CC)7. Fletcher v Fletcher 1948 1 SA 130 (A);8. Townsend-turner v Morrow 2004 2 SA 32 (C)

Legislation1. Constitution of Republic of South Africa Act 108 of 1996 hereinafter

referred as the Constitution2. Constitution of Republic of South Africa Act 200 of 1993 referred as the

Interim Constitution3. Convention on Rights of Child of 20 November 19894. The Promotion of Equality and the Prevention of Unfair Discrimination of

Act of 2000 (Act NO 4 of 2000

239

PROTECTION OF PRESS FREEDOM VS. THE RIGHT TOPRIVACY

Margareta Gabriela Medeleanu

Abstract: While during communism journalists were obliged to highlight the qualities ofCeausescu, nowadays they have to write in a way they can sell the information in the best possibleway, increase ratings, and sometimes this information is easily changed. Also, every journalisttries to capture special images, or come with something new without respecting the privacy ofindividuals or think about their reputation.

Keywords: Democracy, human rights, the interests of society, rule of low, abuses.

While during communism journalists were obliged to highlight the qualities ofCeausescu, nowadays they have to write in a way they can sell the information in thebest possible way, increase ratings, and sometimes this information is easilychanged. Also, every journalist tries to capture special images, or come withsomething new without respecting the privacy of individuals or think about theirreputation.

Social problems are part of the society. Unfortunately people do not see them asserious enough to fight against them or they are not aware of it. It is the duty of theauthorities to identify, monitor and remove them in order to prevent social conflicts.

A social problem is defined as a situation, condition, factor, process etc.considered undesirable by a large segment of the population for whose change theintervention, the action of individuals is necessary1.

Regarding justice, the press became the watchdog of democracy which has tobe vigilant and inform, and even exaggerations are allowed. However whathappens when instead of informing, the professional journalist misinforms thepublic? Many people are unaware of this and create a case without a priorverification, they consider only the statements of the party who comes to thenewspaper or the documents brought by it with the purpose to publicize theirown version. Equality of rights is a guarantee of the exercise of fundamentalrights stipulated by the Constitution, and of any other subjective rights and dutiesestablished by other regulations. It includes all areas of activity in which a personhas the guaranteed right to exercise legal freedoms in order to achieve his/herlegitimate interests2. A newspaper that publishes an article based only on arecount made by the party that has lost a trial, without a journalisticinvestigation, without prior verification of at least two reliable sources, is like ajudge who has read the statement of claim and an accepts it without a trial,without even asking the other party, without evidence.

Master’s Student: Facultatea de Asistenţă Socială şi Sociologie, UniversitateaBucureşti.

1 Gabriela Neagu, The Social Perception on the State of the Society, the Institute for Researchon Life, Romanian Academy, p.3

2 David Bogdan, Domestic and ECHR legal aspects relative to the non-discriminationprinciple and equal opportunities, Proceedings of the fifth conference of non-discrimination andequal opportunities - NEDES 2011 Pro Universitaria Publishing House, Bucharest, p.237.

240

Criminal proceedings should not be confused with criminal justice, as only thelatter is the subject matter of the judiciary bodies3. The rights and freedoms definedby international and national legal instruments are highlighted before justice4.

The power of the word is very strong when it is used by a skilful orator beforea crowd of people who have personal reasons of hatred. In today's society, mass-media play a crucial role in social life, becoming, over time, a growing and vitalpower, with a strong influence on the segments of society. Their active presencecan be felt in the financial-banking life, in the development of the industry, in theevolution of technology, in politics, and in daily life, building in turn their ownindustry. In a democratic state, they are designed to inform, comment andcriticize, being considered "the vital centre of public life.5"

In 1981, during an exhibition of contemporary art, Mr. Muller has paintedand exhibited three large format paintings that showed scenes of bestiality,sodomy, masturbation and homosexuality. The exhibition was accessible free ofcharge and no age limits were set. Swiss courts have sentenced Mr. Muller andthe exhibition organizers to pay a fine and confiscated the paintings, which weresubsequently handed over to a museum for preservation6. In Muller’s7 case theinvolvement of the national authorities in the exercise of the freedom ofexpression was considered by the Court as reasonable and necessary for theprotection of morals in a democratic society.

The concept of human dignity can be found in all democratic constitutionalsystems, and it is integrated, protected and recognized by international systems.With regard to the dignity of a people, every nation has a national wealth, whichdetermines its identity and its national dignity; this dignity is related to thenational feeling, to ancestral traditions, to the love of nation, of country, tocultural heritage, etc.

The use of the principle of human dignity in positive law in France isconsidered relatively recent8. The principle is consecrated in the preamble of the1946 Constitution, but the French Constitutional Council was the one whoadmitted in a 1994 decision9 the constitutional value of the recognition andprotection of human dignity, relating it at the same time, to the principle of non-discrimination. From the consecration, the principle of human dignity hasquickly become one of the most invoked principles of French positive law, servingas the foundation for criminal law, bioethics, civil law etc10.

3 David Bogdan, Criminal Procedure, Pro Universitaria Publishing House, 2013, p.254 Nicolae Purdă, Nicoleta Diaconu, Legal Protection of Human Rights, 2nd edition, Universul

Juridic Publishing House, Bucharest, p.1665 Coman, Mihai, Introduction to Media, Polirom Publishing House, Bucharest, 1999, p. 626 Monica Macovei, Freedom of expression-Guidebook on the implementation of Article 10 of

the European Convention on Human Rights, Published in the Republic of Moldova, 2003, p.557 Muller v. Switzerland, 1998.8 See B. Mathieu, M. Verpeaux, Contentieux constitutionnel des droits fondamentaux, LGDJ,

Paris, 2002, p. 506.9 D. Rousseau, Les libertes individuelles et la dignite de la personne humaine, Montchrestien,

Paris, 1998, p. 62-6310 J. Robert, Le principe de dignite de la personee humaine. In: Commission europeenne pour la

democratie par le droit, Le principe du respect de la dignite de la personne humaine, op.cit., p.50-51.

241

In Germany11, the principle of human dignity appears on the frontispiece ofthe Fundamental Law: "Human dignity is inviolable. All public authorities arebound to respect and protect it" (Art. 1 paragraph1).

Obviously the constitutional text is one of principle since it does not definethe concept of human dignity. The Constitutional Court was assigned to interpretthat, but it did not provide a general definition; it preferred to protect humandignity in respect to each case. However, for the German people12 human dignitybecame an accurate constitutional value, qualified by the Constitutional Court.

Human dignity has become one of the principles of European philosophy ofhuman rights protection, human dignity divided between the idea of humandignity associated with freedom, recognized as "the very essence of theConvention13" and the protection of the dignity and reputation of the person aspart of the right to privacy.

Privacy refers to life which is not dedicated to a public activity and to whichthird parties have no access in principle. Journalists are among the directrecipients of the regulation in respect to private life, as they represent animportant part of those operating data processing and who must sometimes keepsecrets when they refer to the personal sphere.

The good faith that the journalists must show involves: "the legitimacy of theaim pursued, the absence of personal animosity, objectivity, measurement anddecency in speech, the respect of the principle of innocence.14" The press is free todisclose any information regarding the privacy of individuals when they or theirrelatives, in case of the deceased, give consent for publication.

11 Bianca Selejan – Guţan, European Area of Human Rights, C.H.B. Publishing House,Bucharest, 2008, p.132.

12 Postwar Germany is among the “founding fathers”, of the European Convention on HumanRights, which was signed on November 4, 1950. The Convention was then approved by theparliament on August 7, 1952 in the form of a law and published in ,,Gazeta federală de legislaţie”.See Titus Corlăţean, Enforcement of the European Court of Human Rights, Universul JuridicPublishing House, Bucharest, 2011, p. 130.

13 CDO Court, Prettz c RU 2002.14 O. Ungureanu, The Right to Honour and the Right to Dignity, Pandactele României,

no.2/2006, p.134.

242

THE HIDDEN DISCRIMINATION WITHIN INTERNATIONALCOOPERATION A CASE STUDY: THE EUROPEAN AGREEMENT

CONCERNING THE INTERNATIONAL CARRIAGE OFDANGEROUS GOODS BY ROAD (ADR)

Monica Diana Stanciu

Abstract: The current paper aims to highlight the fact that the action or lack of action of thestates which are contracting parties or of the international organisations in the amendment or thein corpora acceptance of the dispositions in international agreements concluded in internationalcooperation can hide or introduce discriminatory criteria.

Keywords: Discrimination, international cooperation, agreement, directive, officiallanguages.

BackgroundThe beginning of the 21st century is powerfully marked by the effects of

globalization, which was defined by one of the Nobel Prize Economy winners as“...the closer integration of the countries and peoples of the world which has beenbrought about by the enormous reduction of costs of transportation andcommunication, and the breaking down of artificial barriers to the free flow ofgoods, services, capital, knowledge and (to a lesser extent) people acrossborders.”1

In the context of the „transport revolution”2 which is determined notnecessarily by the reduction of the costs of this activity, but by the substantialincrease in industrial productivity and by the offer of goods and services atcompetitive prices on the market, which are supplied by the countries with adeveloping economy due to lower price of labour.

One of the industries which had the most dynamic development during thepast 50 years, chemical industry is the source of approximately 90% of the goodsthat are regulated under the European Agreement concerning theInternational Carriage of Dangerous Goods by Road (ADR). Thisindustrial sector will face major changes in terms of the relocation of productivefacilities, in the years to come, due to globalization and the political decisions inrespect of the environmental protection taken in developed countries. Thus,many of the countries of manufacture will be outside Europe, and transportroutes of these products will change radically.

Moreover, “in the contemporary era, huge and complex business, which aredeveloped on a large time scale, are shaping the real dimension of international

PhD. Candidate, The Police Academy “Alexandru Ioan Cuza”,monica_d_stanciu@yahoo.com1 J. Stiglitz, Globalization and its Discontents (2002:9-10), in Jennifer A. Westaway,

Globalisation, Transnational Corporations and Human Rights - A New Paradigm (August 16,2011). Available at SSRN: http://ssrn.com/abstract=1910465 or

http://dx.doi.org/10.2139/ssrn.1910465, accessed 08.09.20132 Mario G. Losano, Marile sisteme juridice. Introducere în dreptul european şi

extraeuropean, translation and edition coordintation Prof. univ. dr. Mihail-Constantin Eremia, AllBeck Publishing House, Bucharest, 2005, p. 1

243

commerce”3 and I think it is the duty of the lawyer involved in regulation to act inorder to eliminate the distance between real economy and the law4, especially toavoid the introduction of disturbances and discriminating elements (e.g.: a non-discriminative regime for the access to the market.”

I have described briefly the economic and political context in which theproduction and transport of dangerous goods are performed, and I would like tomention that after the Second World War, in the 1950’s, under the auspices of theUnited Nations, a series of activities were put in place in order to draft internationalagreements that govern international carriage of dangerous goods by road and inlandwaterways. These efforts materialized in 1957 in the conclusion, at Geneva, of theEuropean Agreement concerning the International Carriage ofDangerous Goods by Road (ADR). I will not present in this paper the technicaland legal details with regard to the ADR Agreement, but I will highlight only the factthat we are facing a crucial moment, from the point of view of its evolution: theredrafting of the history of this agreement by means of the deletion of the word“EUROPEAN” from its title, which is present there due to the fact that “at the time ofdrafting ADR (...), international transport operations outside Europe were notenvisaged either for political reasons (cold war, colonies) or simply for geographicalreasons since Europe was not linked by road to all other continents”5, and thisresulted in serious consequences for the facilitation of international commerce withdangerous goods.

Currently, the number of Contracting Parties to the ADR reached 486, due tosuccessive accessions, and these countries represent three continents. Thus, itwould seem natural that the term „European” be deleted from its title.

Nevertheless, the agreement is still entitled „European” due to theopposition of Germany, which was noted in the report of the UN InlandTransport Committee – ECE/TRANS/221, para. 857, as follows: "As regards thediscussion that took place at the last session in relation to the legal procedures tobe followed for removing the word "European" from the title of ADR (…), theCommittee noted that the Chair of the Working Party on the Transport of

3 Dumitru Mazilu, Dreptul comerţului internaţional. Partea generală, 6th edition, Cours,Lumina Lex Publishing House, Bucharest, 2007, p.33

4 Mario G. Losano, Marile sisteme juridice. Introducere în dreptul european şiextraeuropean, translation and edition coordintation Prof. univ. dr. Mihail-Constantin Eremia, AllBeck Publishing House, Bucharest, 2005, p.20

5 INF. 8, Deletion of the word „European” from the title of ADR, Transmitted by theInternational Road Transport Union (IRU), Geneva, 18 october 2013,

http://www.unece.org/fileadmin/DAM/trans/doc/2013/dgwp15/ECE-TRANS-WP15-95-inf8e.pdf

6 The ADR Contracting Parties are Albania, Andorra, Austria, Azerbaijan, Belarus, Belgium,Bosnia and Herzegovina, Bulgaria, Croatia, Cyprus, Czech Republic, Denmark, Estonia, Finland,France, Germany, Greece, Hungary, Iceland, Ireland, Italy, Kazakhstan, Latvia, Liechtenstein,Lithuania, Luxembourg, Malta, Montenegro, Morocco, Netherlands, Norway, Poland, Portugal, theRepublic of Moldova, Romania, Russian Federation, Serbia, Slovakia, Slovenia, Spain, Sweden,Switzerland, Tajikistan, the former Yugoslav Republic of Macedonia, Tunisia, Turkey, Ukraine andUnited Kingdom.

7 ECE/TRANS/221, Report of the Inland Transport Committee on its seventy-third session,Geneva, 1–3 March 2011, para. 85, p. 18, Available at

http://www.unece.org/fileadmin/DAM/trans/doc/2011/itc/ECE-TRANS-221e.pdf

244

Dangerous Goods (WP.15), in the light of the objection raised by Germany,concluded that the non-objection acceptance method for the amendment of ADRcould not be applied, as it presupposed that there would be a consensus amongthe Contracting Parties". The German objection was raised without adding toomuch detail on the motifs that generated this decision, regardless of the fact thatADR is an open agreement, to which all UN member states could accede and notthose in the Economic Commission for Europe.

I think that the reader or the auditor is already questioning the link betweenthe above mentioned aspects, non-discrimination and equal opportunities. Beforegoing into the details of something that I consider to be a well reasoned position,I will wander in my speech.

I presented in a previous study8 the arguments in favour of the idea that thesyntagm „international cooperation” was never defined in international law,though the economic relations between states are an important field, like all thefields of activity9. From my point of view, „discrimination” also falls in thecategory of the impossible-to-be-defined terms without restricting in anunfortunate and, implicitly, discriminative manner their conceptual field. By allmeans, the Convention for the Protection of Human Rights and FundamentalFreedoms10, in article 14, Prohibition of discrimination, enumerates the criteriathat are most common in the occurrence of discrimination: „sex, race, colour,language, religion, political or other opinion, national or social origin, associationwith a national minority, property, birth or other status”. The suppletive normenumerates some of the criteria which proved to be mostly common in history,and extends it by the syntagm „other status”, which leaves an open door for thosewho consider themselves damaged by the actions and inactions of a state or of alegal or physical person to ask for effective remedy before a national authority.

In this context, the actions or inactions of an economic or political nature ofa state within an international organisation or during negotiations ofinternational agreements can trigger discrimination and unequal economic,social and professional treatment in contemporary society and can be consideredunder the syntagm „other status”, in art. 14 of the above mentioned Convention.

A case study - the European Agreement concerning theInternational Carriage of Dangerous Goods by Road (ADR)

I would like to mention the fact that the Peoples Republic of China and theArab League states are some of the non-European countries which asked for thedeletion of the word „European” from the title of the Agreement in order toaccede to the ADR. I think that the German opposition to this projectdiscriminates both the non-European and European citizens due to the reasonsthat I will present further on.

8 M.D. Stanciu, International cooperation in the dangerous goods transport regulations,„Dimitrie Cantemir” Christian University, Annals of Law and Administration no. 2/2013, ProUniversitaria Publishing House, Bucharest, p. 112.

9 See also L. Dragne, Rolul Consiliului de Securitate în menţinerea păcii şi securităţiiinternaţionale, Pro Universitaria Publishing House, Bucharest, 2008, p. 189.

10 Convention for the Protection of Human Rights and Fundamental Freedoms,http://www.echr.coe.int/Documents/Convention_ENG.pdf

245

Chinese products, which include dangerous goods (e.g. Fireworks), representa considerable weigh in European commerce.

The moment a type of fireworks is produced in China, in order to be carriedto an ADR Contracting Party, they will be classified according to the UN ModelRegulations under one of the following UN numbers – 0333, 0334, 0335, 0336and 0337. All these UN numbers have the same name and description, but aredifferentiated by means of other technical details (e.g. classification code, labels,packing instructions etc.). Due to the limited space of this paper, I will not gofurther on this aspect. As stipulated in section 5.4.1.2.1, when fireworks of UNNos. 0333, 0334, 0335, 0336 and 0337 are carried, the transport document11

shall bear the inscription: "Classification of fireworks by the competent authorityof XX with the firework reference XX/YYZZZZ". One of the footnotes explainsthat: The classification reference(s) shall consist of the ADR Contracting Partyin which the classification code according to special provision 645 of 3.3.1 wasapproved, indicated by the distinguishing sign for motor vehicles ininternational traffic (XX)12, the competent authority identification (YY) and aunique serial reference (ZZZZ)13. In other words, any manufacturer from an ADRnon-contracting party – China, as previously mentioned, has to be granted aclassification approval certificate by the competent authority of a ContractingParty, before his goods are carried on the territory of the 48 contracting parties towhich we referred previously. Even though classification is unique in the UNsystem! There is another paradox further on: the classification approvalcertificate need not be carried with the consignment, but shall be made availableby the consignor to the carrier or the competent authorities for control purposes.In this case, ADR requirements are discriminatory for Chinese manufacturers asthey are forced to ask for supplementary documents, which mean a considerableamount of time lost and supplementary costs.

Moreover, according to section 4.1.1.17 in ADR “Packagings, including IBCs(intermediate bulk containers) and large packagings, marked in accordance with6.1.3, 6.2.2.7, 6.2.2.8, 6.3.1, 6.5.2 or 6.6.3 but which were approved in a State which isnot a Contracting Party to ADR may nevertheless be used for carriage under ADR.”,which means that Chinese products can be contained in such packagings.

But the marking itself does not necessarily confirm that the respectivepackaging can be used for any substance and in all possible conditions and doesnot always offer complete details with regard to testing results (e.g. leakproofnes,drop test resistance etc.). In comparison with these packagings, the packagingsmanufactured in ADR countries, have to comply with ADR dispositions, includingthose which refer to use, characteristics and materials, which means that thecosts for European manufacturers will be higher and they are, thus, collectively

11 The transport document is any printed document which has to provide all informationregarding any dangerous substance or article carried (UN no., official shiping name, the address ofthe consignee and of the consignor etc.). This document could be the bill of lading, air waybill orCMR/CIM consignment note etc.

12 Distinguishing sign for motor vehicles in international traffic prescribed in the ViennaConvention on Road Traffic (1968).

13 Examples of such classification references are: GB/HSE123456, D/BAM1234.

246

discriminated. Plus, these packagings that comply solely with the markingrequirements can result in negative effects during dangerous goods transportactivities on the people involved and on the environment, which means that theEuropean citizen is not protected by the member states in terms of safety andsecurity during handling and road carriage of dangerous goods, and this can leadsometimes to considerable consequences for his life and goods. From the abovementioned examples we can notice that both the authorisation and non-authorisation of the activities related to road carriage of dangerous goods whichcome from ADR non-Contracting Parties creates the same problems.

These are the arguments needed to prove that a word, which has beensuperfluous for a long time, can hinder the expansion of internationalcooperation by accession to ADR of more non-European states.

A particular case of discrimination against Romanian citizen is the onegenerated by the adoption of the Directive 2008/68/EC of the European Parliamentand of the Council of 24 September 2008 on the inland transport of dangerousgoods14 which takes on board the annexes to RID, ADR and ADN in European Unionlegislation. By the transposition of the Directive, these agreements are applied also tonational transport which is performed on the territory of the 28 member states andthe transport performed in between their territories. Nevertheless, there is noderogatory disposition with regard to the use of official languages in the transportdocument we referred to previously. To be more specific, when any type of dangerousgoods is carried, in the transport document (bill of lading or CMR/CIM consignmentnote etc.) the following information has to be written: UN number and officialshipping name, and, then, a series of technical detail which are codified (usingnumbers and letters) and the addresses of the consignor and the consignee.According to section 5.4.1.4.1 in ADR, the particulars to be entered in the documentshall be drafted in an official language of the forwarding country, and also, if thatlanguage is not English, French, or German, in English, French or German, unlessinternational road carriage tariffs, if any, or agreements concluded between thecountries concerned in the transport operation, provide otherwise.

I think that, in this case, Romanian citizen are discriminated by the fact thatthey have to fill in supplementary data in the transport document, which is notthe case of English, French or German. Regulation no. 1/195815, as amended,establishes the official languages in the former European Economic Community,nowadays - EU, and Romanian is one of the official EU languages. Moreover, art.4 of this Regulation stipulates: Regulations and other documents of generalapplication shall be drafted in the official languages.

I would like to mention that I did not go further than these examples, althoughthere would be some more dispositions in this Directive that generate discrimination,because the intention was to only raise this problem, hoping the European Union, onits own will or at the proposal made by Member States will solve it throughderogations from the dispositions which are liable to discriminate.

14 JO L 260, 30.9.2008, p. 13-5915 Regulation No 1 determining the languages to be used by the European Economic

Community, Official Journal 017, 06/10/1958 P. 0385 – 0386, as amended.

247

Thus, I hope I have succeeded to argue that sometimes it will suffice to beheadstrong and want to keep a word which has been inappropriate for years, like„European” or to accept in Directives dispositions from international agreements,without adapting them to the EU fundamental principles, in order to generatediscrimination in our contemporary society.

Bibliography

Dragne L., Rolul Consiliului de Securitate în menţinerea păcii şi securităţiiinternaţionale, Pro Umiversitaria Publishing House, Bucharest, 2008, p. 189.

Losano M.G., Marile sisteme juridice. Introducere în dreptul european şiextraeuropean, translation and edition coordination Prof. univ. dr. Mihail-Constantin Eremia, All Beck Publishing House, Bucharest, 2005

Mazilu D., Dreptul comerţului internaţional. Partea generală, 6th Edition,Cours, Lumina Lex Publishing House, Bucureşti, 2007

Stanciu M.D., International cooperation in the dangerous goods transportregulations, „Dimitrie Cantemir” Christian University, Annals of Law andAdministration no. 2/2013, Pro Universitaria Publishing House, Bucharest

Westaway J.A., Globalisation, Transnational Corporations and HumanRights - A New Paradigm (August 16, 2011). Available at SSRN:http://ssrn.com/abstract=1910465 or http://dx.doi.org/10.2139/ssrn.1910465,accessed 08.09.2013

Convention for the Protection of Human Rights and Fundamental Freedoms,http://www.echr.coe.int/Documents/Convention_ENG.pdf

Directive 2008/68/EC of the European Parliament and of the Council of 24September 2008 on the inland transport of dangerous goods, JO L 260,30.9.2008, p. 13-59

Law no. 31 of 18 May 1994 for the accession of Romanian to the EuropeanAgreement concerning the International Carriage of Dangerous Goods by Road(A.D.R.), done in Geneva at 30 September 1957, published in Monitorul Oficial,Part I, no. 136 of 31 May 1994, as amended

INF. 8, Deletion of the word „European” from the title of ADR, Transmittedby the International Road Transport Union (IRU), Geneva, 18 October 2013,http://www.unece.org/fileadmin/DAM/trans/doc/2013/dgwp15/ECE-TRANS-WP15-95-inf8e.pdf

ECE/TRANS/221, Report of the Inland Transport Committee on its seventy-third session, Geneva, 1–3 March 2011,

http://www.unece.org/fileadmin/DAM/trans/doc/2011/itc/ECE-TRANS-221e.pdf

Regulation No 1 determining the languages to be used by the EuropeanEconomic Community, Official Journal 017, 06/10/1958 P. 0385 – 0386, asamended.

248

DISCRIMINATION IN THE ROMANIAN SCHOOL SYSTEM

Nadia Olivia Bărbieru,

Ionelia Staicu

Abstract: The main factor for discrimination amongst the students in Romania are varioussocial phenomenons that grew in impact and could not be controlled anymore. Some commonsituations are: ethnic differences, parents who abandoned their children to work abroad, childrenwith disabilities, and HIV-positive children. The school system is trying to grant equal access toeducation by developing various programs to eliminate this problem.

In democratic countries, the equality of chances is guaranteed by theConstintution, and there are laws against discrimination. We can definediscrimination as poor treatment of a person as opposed to another in the samesituation. Discrimination can occur due to differences in: race, etnicity,nationality, social class, religion, sex, sexual orientation, or a combination ofdifferent factors.

The priciple of non-discrimination is found in international legislationregarding human rights, but in spite of all this, the marginalisation of somepersons or groups persists under different forms around the world.

Discrimination can be encountered in different forms:1. Direct discrimination refers to the exclusion of a certain person or group

of people from some form of benefits based on a personal characteristic. One cangive the example of a job ad directed specifically to male candidates.

2. Indirect discrimination refers to the exclusion of a certain person or groupof people from some form of benefits based an apparently neutral criteria. A goodexample is the requirement a of BAC degree for a job add. This condition could bethe cause of discrimination for a gipsy child or someone coming from a smallvilage who was deprived of good education.

3. Structural discrimination refers to the weak representation of a certaincategory of people in different domains. An example of this tipe of discriminationis the small number of minorities representatives in the judiciary system.

Although the first two forms of discrimination are sanctioned by law(according to the Ordonance 137/2000 regarding the prevention and sanctioningof all forms of discrimination), the third type need some special measures ofprevention. Among these measures we can point out the number of open spots inhighschool and university admission for the gipsy minority.

In many cases the starting point of discrimination is prejudice. We cand findprejudice regarding gipsy, HIV positive, or handicaped children. These prejudicesare often based on rumors started by the children or their parents, and the onlysolution is communication. Using communication the teachers can determine ifthe charges made are true or false and try to remedy the problem. Many pupilscan’t accept oher children which are different, and violence – may it be verbal orphysical – is just a step away.

Prof. Şcoală Gimnazială Nr. 150 Prof. Şcoală Gimnazială Nr. 143

249

The school system has refused until recently to recognise gipsyes as acultural minority with different needs and interests, thus refusing them fairaccess to quality education.

In Romania, a large number of gipsy parents register their children into theschool system at a late age (between 7 and 9 years old). This is not a product ofRromany culture, rather a consequence of poverty and poor educational level.Data shows that gipsy children represent 80% of uneducated clidren in Romania,and that they spend in average 6,8 years in the school system as opposed to thenational average of 11,2.

In today’s school rromany and romanian children are learning side by side,thus reducing discrimination and acceleration their integration process.

Another category of discriminated students are the ones with physical,mental, or sensorial disabilities which require special protective measures tosupport recovery and social reintegration.

The integration of as many disabled children as possible into the romanianeducational system has become a big priority. The school is considered the mainplace where a challenged child can form bond and gain self confidence so he/shecan easily integrate into the society later on.

These being said, the difficulties the HIV-positive children and their familiesface remain a problem. They have to constantly deal with prejudice, discrimination,and stigmatization. These issues are mainly attributed to the lack of properinformation of the majority of people. Without positive measures the progresstowards equality, equity, and human rights enforcement will be very slow andinsignificant, depriving thousands of people of a better and happier life. In thiscontext, it is of high importance for our country to follow the best internationalpractices in this field, and create development opportunities for those who,throughout the centuries, have been forgotten, disadvantaged, and discriminated.

Today, the Romanian school system has managed to integrate a big part of thediscriminated children transforming a survival challenge into a cohabitation one.

Although we live in a confused world, we don’t have to allow ourselves to beled by prejudice, suspicion, and rejection. Children education is, and will remainthe main priority for human evolution.

Bibliography

Mihaela Jigău, Program pilot de interventie prin sistemul Zone Prioritarede Educaţie, Ed. Alpha MDN, Bucureşti 2006

Maria Robu, Empatia în educaţie: necesităşi pedgogice moderne, Didacticapublishing house 2008

Planul Naţional de Acţiune al Deceniului de Incluziune a Romilor înDomeniul Educaţiei, agenţia Naţională pentru Romi, 2007

www.ziare.comwww.incsmps.rowww.scoalarosu.roRo.wikipedia.org

250

THE NONDISCRIMINATION PRINCIPLE AND THE PUBLICMINISTRY’S ROLE IN APPLYING IT

Ruxandra Mitică

Abstract: Due the fact that respecting the nondiscrimination principle is a sine qua noncondition for the rule of law and in the context in which the Universal Human Rights Declarationpromotes that: “All are equal before the law and are entitled without any discrimination to equalprotection of the law. All are entitled to equal protection against any discrimination in violation ofthis Declaration and against any incitement to such discrimination”1, the general objective of thearticle is to present the relevant legislation in the area of nondiscrimination at the level ofcommunity law and to present the adopted United Nation’s Conventions in the area of equal andnondiscriminatory protection of all citizens before the law, as well as to identify the role of thePublic Ministry in the implementation and guaranteeing of the nondiscrimination principle.

Keywords: nondiscrimination principle, Public Ministry, international instruments,human rights, rule of law.

The nondiscrimination principle:In achieving the general objective of the current article, we consider that it is

very important to define what it means to respect the nondiscrimination principle.At the level of national legislation, Government Ordinance no. 137/2000guarantees the principle of equality and exclusion of privileges and discriminationamong citizens in the exercise of their rights before the courts or before of anyjurisdictional organism. According to Government Ordinance, we will understandthat discrimination means any distinction, exclusion, restriction or preferencebased on race, nationality, ethnicity, language, religion, social status, creed, sex,sexual orientation, age, disability, contagious chronic disease, HIV infection,belonging to a disadvantaged category, and any other criteria that has the purposeor effect the restriction, the removal of recognition or exercising, in conditions ofequality, of human rights and fundamental freedoms or of legal rights in thepolitical, economic, social and cultural area, or in any other area of public life.

Also, according to the Government Ordinance are discriminatory the criteria orpractices which are apparently neutral, which disadvantage certain persons, based onthe criteria mentioned above, unless these provisions, criteria and practices areobjectively justified by a legitimate aim, and if the methods used to achieving the aimare adequate and necessary. Any active or passive behavior that, through the effects itgenerates, favors or disadvantages without any justification, or subjects a person, agroup of persons or a community to an unjust or degrading treatment compared toother persons, groups of persons or communities, attracts lawful accountabilityaccording to the present Ordinance, if they do not fall under penal law.2

PhD. Candidate, National School of Political and Administrative Studies,danielaruxandra@yahoo.com.

1 The Universal Declaration on Human Rights, United Nations - General Assembly - 10December 1948, art. 7, http://www.un.org/en/documents/udhr/index.shtml, acesat la data de 9octombrie 2013

2 Article 1, paragraph 2 (a), Article 2, paragraphs 1, 3 and 4 of Government Ordinance no.137/2000 regarding the prevention and sanctioning of all forms of discrimination, published in theRomanian Oficial Monitor, Part I, no. 626, 20th of July 2006,

251

According to article 16 of the Romanian Fundamental Law, all the citizens areequal before the law, without privileges and discriminations: “Citizens are equalbefore the law and public authorities, without privileges and discriminations.”3 Intheir relations with judicial authorities, they have the fallowing rigths:

The right to have free access to justice: “Any person can appeal to justice toprotect his rights, freedoms and legitimate interests. No law may restrict theexercise of this right. Parties have the right to a fair trial and the right to solvetheir cases in a reasonable time.”4

The right to defense: “The right to defense is guaranteed. During the trialparties have the right to be assisted by a lawyer, appointed or named ex officio.”5

It is also very important to emphasize that Romania states in itsFundamental Law that the citizens’ rights and freedoms will be interpreted andapplied in accordance with the Universal Declaration of Human Rights, withpacts and treaties to which Romania is a party, and in the case in which there areconflicts between the pacts and treaties regarding the human fundamental rightsin which Romania is a party and internal laws, the international regulations shallprevail, unless the Constitution or laws comprise more favorable provisions.6

Respecting the nondiscrimination principle ensures equal and equitableaccess perspectives to the opportunities available in society, requires that personsin similar circumstances should receive similar treatment and should not betreated less favorably because of certain "protected" features they hold, andprovides that those individuals who are in different situations have to be treateddifferently in so far as it is necessary to allow them to take advantage of certainopportunities in the same way as other people.7

Relevant legislation to which Romania is a party and ensuringcompliance with non-discriminatory and equal protection before thelaw for all citizens:

The establishment of the principle of non-discrimination in the UniversalDeclaration of Human Rights, 1948. The Universal Declaration of Human Rights,adopted by the UN General Assembly on 10 September 1948, to end massiveviolations of fundamental rights and freedoms of human rights,8 is an extremelyimportant document in history that arises from serious harm to basic human

3 Article 16, paragraph 1, Romanian Costitution, Published in the Official Monitor, Part I, no.767/31st of October 2003

4 Article 21, paragraph 1, 2 and 3, Romanian Costitution, Published in the Official Monitor,Part I, no. 767/31st of October 2003

5 Article 24, paragraph 1 and 2, Romanian Costitution, Published in Official Monitor, Part I,no. 767/31st of October 2003, See Association for Human Rights in Romania - the HelsinkiCommittee, Civil Rights Handbook, 2008, http://www.drepturicivile.ro/manual-DO-proof.pdf,accessed on 9 October 2013

6 Article 20, paragraph 1 and 2, Romanian Costitution, Published in Official Monitor, Part I,no. 767/31st of October 2003

7 Fundamental Rights Agency of the European Union, Council of Europe, European non-discrimination law textbooks, 2010, http://fra.europa.eu/sites/default/files/fra_uploads/1510-FRA_CASE_LAW_HANDBOOK_RO.pdf, accessed on 9 October 2013

8 United Nations, http://www.un.org/en/documents/udhr/history.shtml, accesat la data de 9octombrie 2013

252

rights and freedoms during the Second World War, a document "of exceptionalsignificance, designed to establish a common ideal of all nations, foundation onwhich the edifice of human rights rose and continues to rise.”9

The text of the Universal Declaration of Human Rights brings to ourattention a number of rights to be respected in order not to prejudice theprinciple of non-discrimination before the law:

Starting from the consideration that disregard and contempt for human rightsare the main causes of acts of barbarism in society, the Universal Declaration ofHuman Rights consacrates the right of citizens to be entitled to all the rights andfreedoms stipulated in this Declaration, without discrimination: “Everyone is entitledto all rights and freedoms set forth in this Declaration, without distinction of anykind, such as race, color, sex, language, religion, political or other opinion, nationalor social origin, property, birth or other status” and also, “All are equal before the lawand are entitled without any discrimination to equal protection of the law. All areentitled to equal protection against any discrimination in violation of this Declarationand against any incitement to such discrimination.”10

Taking into consideration the consacration of the right of the citizen to beentitled to all the rights and freedoms stipulated in this Declaration, withoutdiscrimination, and to enjoy his right to equal and non-discriminatory protectionbefore the law, we notice that in accordance with the provisions of this Declaration,citizens have the right in relation to the judicial authorities to enjoy the right toequality and non-discrimination in the defense of their fundamental rights that havebeen violated: “Everyone has the right to an effective remedy by the competentnational tribunals for acts violating the fundamental rights granted him by theconstitution or by law” and also in the hearing process: “Everyone is entitled in fullequality to a fair and public hearing by an independent and impartial tribunal, in thedetermination of his rights and obligations and of any criminal charge against him.The presumption of innocence shall be applied equally and without discriminationfor all citizens: “Everyone charged with a penal offence has the right to be presumedinnocent until proved guilty according to law in a public trial at which he has had allthe guarantees necessary for his defense. No one shall be held guilty of any penaloffence on account of any act or omission which did not constitute a penal offence,under national or international law, at the time when it was committed. Nor shall aheavier penalty be imposed than the one that was applicable at the time the penaloffence was committed.”11

The establishment of the principle of non-discrimination under theEuropean Convention of Human Rights, 1950.12 The European Convention ofHuman Rights, adopted in 1950 by Council of Europe, was meant to create a

9 Irina Moroianu Zlătescu, Drepturile Omului – un sistem în evoluţie, Ed. Institutul Românpentru Drepturile Omului, Bucureşti, 2008, pg. 79

10 Article 2 and 7, The Universal Declaration on Human Rights, United Nations - GeneralAssembly - 10 Decembrie 1948, http://www.un.org/en/documents/udhr/index.shtml

11 Article 8, 10 and 11, The Universal Declaration on Human Rights, United Nations - GeneralAssembly - 10 Decembrie 1948, http://www.un.org/en/documents/udhr/index.shtml

12 Convention for the Protection of Human Rights and Fundamental Freedoms, Council ofEurope, 1950, http://www.echr.coe.int/Documents/Convention_RON.pdf, accessed on 9th ofOctomber 2013

253

greater unity between its members through the defense and development ofhuman rights and fundamental freedoms, and the deep commitment to thefundamental freedoms that are the foundation of justice and peace in the world.In article 14 of the Convention we find the purposeful consecration of theprinciple of non-discrimination, under which citizens can exercise their rightsand fundamental freedoms without discrimination: „The enjoyment of the rightsand freedoms set forth in this Convention shall be secured without discriminationon any ground such as sex, race, colour, language, religion, political orotheropinion, national or social origin, association with a national minority,property, birth or other status.” In accordance with Article 14 of the Convention,the citizens shall have the following rights regarding their relation to the judicialauthorities:13

The right to request the examination of a conviction or sentence at two levelsof jurisdiction in criminal matters without discrimination: „Everyone convicted ofa criminal offence by a tribunal shall have the right to have his conviction orsentence reviewed by a higher tribunal. The exercise of this right, including thegrounds on which it may be exercised, shall be governed by law.” The right toseek compensation for miscarriage of justice without discrimination: “When aperson has by a final decision been convicted of a criminal offence and whensubsequently his conviction has been reversed, or he has been pardoned, on theground that a new or newly discovered fact shows conclusively that there hasbeen a miscarriage of justice, the person who has suffered punishment as a resultof such conviction shall be compensated according to the law or the practice ofthe State concerned, unless it is proved that the non--disclosure of the unknownfact in time is wholly or partly attributable to him.”

Also, Article 1 of Protocol no. 12 of the 2000 Convention prohibitsdiscrimination: ”The enjoyment of any right set forth by law shall be securedwithout discrimination on any ground such as sex, race, colour, language,religion, political or other opinion, national or social origin, association with anational minority, property, birth or other status. No one shall be discriminatedagainst by any public authority on any ground such as those mentioned inparagraph 1.”

The establishment of the principle of non-discrimination under theInternational Covenant on Civil and Political Rights, 1966.14 The InternationalConvention on Civil and Political Rights, adopted by the UN General Assembly on16 December 1966, provides in article 2 para. 1 the state’s commitment to respectand guarantee the rights recognized by the Convention without violating the non-discrimination principle: “Each State Party to the present Covenant undertakes torespect and to ensure to all individuals within its territory and subject to its

13 Article 2 and 3, Protocol no 7, Convention for the Protection of Human Rights andFundamental Freedoms, Council of Europe, 1950,

http://www.echr.coe.int/Documents/Convention_RON.pdf, accessed on 9th of Octomber2013

14Article 2, 9, 14 and 26, International Covenant on Civil and Political Rights, Adopted byGeneral Assembly, 16th of December 1966,

http://www.onuinfo.ro/documente_fundamentale/instrumente_internationale/conventie_drepturi_civile_politice/, accessed on the 9th of October 2013

254

jurisdiction the rights recognized in the present Covenant, without distinction ofany kind, such as race, color, sex, language, religion, political or other opinion,national or social origin, property, birth or other status.” In accordance witharticle 9 of the Convention, the citizens shall have the following rights regardingtheir relation to the judicial authorities:

The right to be informed in case of arrest, of the reasons and allegationsmade without discrimination: “Everyone has the right to liberty and security ofperson. No one shall be subjected to arbitrary arrest or detention. No one shall bedeprived of his liberty except on such grounds and in accordance with suchprocedure as are established by law. Anyone who is arrested shall be informed, atthe time of arrest, of the reasons for his arrest and shall be promptly informed ofany charges against him.”

The right to be tried within a reasonable time or to be released without beingdiscriminated against: „Anyone arrested or detained on a criminal charge shall bebrought promptly before a judge or other officer authorized by law to exercisejudicial power and shall be entitled to trial within a reasonable time or to release.It shall not be the general rule that persons awaiting trial shall be detained incustody, but release may be subject to guarantees to appear for trial, at any otherstage of the judicial proceedings, and, should occasion arise, for execution of thesentence.”

The right to appeal, without being discriminated against: „Anyone who isdeprived of his liberty by arrest or detention shall be entitled to take proceedingsbefore a court, in order that that court may decide without delay on thelawfulness of his detention and order his release if the detention is not lawful.”

The right to compensation for damages, without being discriminated against:„Anyone who has been the victim of unlawful arrest or detention shall have

an enforceable right to compensation.”Acording to article 14 promotes of the Convention the citizens shall have the

following rights: The right of citizens to be equal before the courts and courts ofjustice and to have their disputes examined in fairly and publicly withoutdiscrimination: „All persons shall be equal before the courts and tribunals. In thedetermination of any criminal charge against him, or of his rights and obligationsin a suit at law, everyone shall be entitled to a fair and public hearing by acompetent, independent and impartial tribunal established by law. The press andthe public may be excluded from all or part of a trial for reasons of morals, publicorder (ordre public) or national security in a democratic society, or when theinterest of the private lives of the parties so requires, or to the extent strictlynecessary in the opinion of the court in special circumstances where publicitywould prejudice the interests of justice; but any judgement rendered in a criminalcase or in a suit at law shall be made public except where the interest of juvenilepersons otherwise requires or the proceedings concern matrimonial disputes orthe guardianship of children.”

The right for the presumption of innocence to be applied indiscriminately tothem: „Everyone charged with a criminal offence shall have the right to bepresumed innocent until proved guilty according to law.”

255

The right to benefit of the following guarantees in a non-discriminatory manner,if the person is under accusation: „In the determination of any criminal chargeagainst him, everyone shall be entitled to the following minimum guarantees, in fullequality: to be informed promptly and in detail in a language which he understandsof the nature and cause of the charge against him; to have adequate time andfacilities for the preparation of his defence and to communicate with counsel of hisown choosing; to be tried without undue delay; to be tried in his presence, and todefend himself in person or through legal assistance of his own choosing; to beinformed, if he does not have legal assistance, of this right; and to have legalassistance assigned to him, in any case where the interests of justice so require, andwithout payment by him in any such case if he does not have sufficient means to payfor it; to examine, or have examined, the witnesses against him and to obtain theattendance and examination of witnesses on his behalf under the same conditions aswitnesses against him; to have the free assistance of an interpreter if he cannotunderstand or speak the language used in court; not to be compelled to testify againsthimself or to confess guilt.”

However, the citizen's right to equality and non-discrimination before thelaw is established by the Convention under article 26 - prohibition ofdiscrimination of all people before the law: „All persons are equal before the lawand are entitled without any discrimination to the equal protection of the law. Inthis respect, the law shall prohibit any discrimination and guarantee to allpersons equal and effective protection against discrimination on any ground suchas race, colour, sex, language, religion, political or other opinion, national orsocial origin, property, birth or other status.”

The establishment the principle of non-discrimination at the InternationalConvention on the Elimination of All Forms of Racial Discrimination, 1965.15

According to the International Convention to eliminate all forms of RacialDiscrimination, adopted by the United Nations General Assembly on 21December 1965, in relation to the judicial authorities, citizens have the right toreceive „equal treatment before the tribunals and all other organs administeringjustice” as well as non-discrimnatory treatment: ”The right to equal treatmentbefore the tribunals and all other organs administering justice.” According to thetext of the Convention, by the term "racial discrimination" will be understood anydistinction, exclusion, restriction or preference based on race, color, descent, ornational or ethnic origin which has the purpose or effect of nullifying or impairingthe recognition, enjoyment or exercise, on an equal footing, of human rights andfundamental freedoms in the political, economic, social, cultural or any otherfield of public life.”

Conclusions:Taking into account the Public Ministry’ role, that of representing the

general interests of the society and to protect the rule of law and the citizen’s

15 Article 1 and 5 of International Convention on the Elimination of All Forms of RacialDiscrimination, Adopted by General Assembly of 21 December 1965

http://www.onuinfo.ro/documente_fundamentale/instrumente_internationale/conventie_eliminare_discriminare_rasiala/, accesed on the 9 th of October 2013

256

rights and freedoms,16 it is very important in fullfiling its role to accomplish thenondiscrimination principle, to ensure the application and enforcement of therules in the field of non-discrimination in judicial practice. The Public Ministryhas the role to develop measures for informing and educating the citizensregarding the existence of the citizens’s rights and freedoms. Respecting thenondiscrimination principle is a sine qua non condition for the rule of law, and itis a fundamental principle which underlines that all other fundamental citizen’srights and freedoms are respected. The role of the Public Ministry is to intervenewhenever the citizen’s rights are injured by violation of the nondiscriminationprinciple, through efficent action which guarantees the fundamental citizen’srights and freedoms and which stops the nondiscrimination practices. The PublicMinistry’s actions to prevent infrigements of the nondiscrimination principle andto ensure remedies for that situation in which the citizen’s rights are violated,represent the essence of democracy, of the rule of law. The Public Ministry’sresponsability is to promote compliance with the rules regarding thenondiscrimination principle, as imperatives of ensuring respect for the rights andfreedoms of citizens, as imperatives of the rule of law.

Bibliografie

ONU documents:1. Universal Declaration of Human Rights adopted and proclaimed by

General Assembly of the ONU (1948),http://www.un.org/en/documents/udhr/index.shtml;2. International Convention on the Elimination of All Forms of Racial

Discrimination, Adopted by General Assembly of the ONU (1965),3. http://www.onuinfo.ro/documente_fundamentale/instrumente_internati

onale/conventie_eliminare_discriminare_rasiala/, accesed on the 9 th ofOctober 2013.

4. International Convention on Civil and Political Rights adopted by GeneralAssembly of the ONU (1966),

http://www.onuinfo.ro/documente_fundamentale/instrumente_internationale/conventie_drepturi_civile_politice/;

Council of Europe documents:1. Convention for the Protection of Human Rights and Fundamental

Freedoms, Council of Europe (1950),http://www.echr.coe.int/Documents/Convention_RON.pdf;

National documents:1. Romanian Costitution, Published in the Official Monitor, Part I, no.

767/31st of October 2003;

16 Article 131, paragraph 1, Title III, Romanian Costitution, Published in Official Monitor, PartI, no. 767/31st of October 2003

257

2. Government Ordinance no. 137/2000 regarding the prevention andsanctioning of all forms of discrimination, published in the Romanian OficialMonitor, Part I, no. 626, 20th of July 2006;

Other sources:1. Association for Human Rights in Romania - the Helsinki Committee, Civil

Rights Handbook, 2008, http://www.drepturicivile.ro/manual-DO-proof.pdf;2. Fundamental Rights Agency of the European Union, Council of Europe,

European non-discrimination law textbooks, 2010,http://fra.europa.eu/sites/default/files/fra_uploads/1510-FRA_CASE_LAW_HANDBOOK_RO.pdf;3. Irina Moroianu Zlătescu, Drepturile Omului – un sistem în evoluţie, Ed.

Institutul Român pentru Drepturile Omului, Bucureşti, 2008

258

CHARACTERS THAT CAN STOP DISCRIMINATION INCONTEMPORARY LIFE

Dana Căilean

Abstract: In our modern society, the fight against discrimination is in full bloom, the bestexample being the great personalities of the social life who highlight more and more the peopleequality in front of the law, regardless their social origins.

Keywords: stop; discrimination; characters; contemporary life.

The principle of nondiscrimination and of the fundamental social equalityright can be seen in the first article of the Constitution: “(1)Citizens are equals infront of law and public authorities, without privileges or discrimination.(2)Romania is the is the idivisible and the commune homeland of all it’s citzens,regardles their race, nationality, ethnic origins, language, religion, sex, opinion,political affiliation, wealth or social origin”

Romanian explanatory dictionary gives the next definition in what concernsthe word discrimination: “policy through which a state or a category of citizens ofa state are deprived of certain rights, based on unfounded grounds”

On the other side, in Monitorul Oficial Law no. 324/2006 definesdiscrimination as being: “any distinction, exclusion, restriction or preference, basedon race, nationality, ethnicity, sexual orientation, age, handicap, language,uncontagious chronic desease, HIV infection, belonging to a disadvantager categoryof people, as well as any other criteria whose goal is restriction, removal of therecognition, usage or exercise, on equality of the human rights, of the fundamentalfreedom or any rights aknoledged by law in the political field, economical field, socialfield, cultural field or in any other domain of the pubilc life.

From the educational point of view, in what concerns the educationalsystem, we could sadly say that we encounter discrimination too often.

The teacher has an important role in front of the students, he being the onewho has to mention about equality to everyone. From my experience with theyounger ones, I have remarked the importance of a teacher’s behavior in hisrelations with his students and especially the attention who he gives to everyone.Is something normal to care for some students, more than for others, but thisthing must not be pointed out (even some are smarter than others)

Also, unfortunately, there is discrimination during the classes too, especiallywhen the teacher asks about the previous lesion and gives the chance to answeronly to a few, thing which affects some of them, hence showing the contradictionsbetween the teacher and his students parents.

Looking from another point of view, namely the results evaluation, we cansee another way of discrimination. Unfortunately some teachers are doingnegative appreciation towards the tests results, thing which must be avoided (it istrue that he must work harder, but with a negative appreciation, that child willnever be motivated to exceed his level). Another discrimination type I’ve seen is

Student, Faculty of Political Sciences, ”Dimitrie Cantemir” Christian University.

259

the one kinship one. It is humanly to help your kind, but not in the scholarinstitution. The evaluations must be objective, not subjective, as do some.

Speaking about the educational system, it is noted that in some classes thereare some children with disabilities whom are in need of help, and in thissituation, the teacher is the primary element that can inspire the others the will tohelp and look at everyone as equal.

Unfortunately, another type of discrimination can be found when someteachers are favoring the children that they are meditating outside the classes,thing which is not allowed, it is not right pedagogically speaking, same as findingabout the test patterns before others.

Even if we are apparently equals, there is discrimination even at theadmission in other schools (when there are oral problems) and in the first classeswhen some teachers underestimate the capacities of the children came from theprovince.

In final grades we find an involuntarily discrimination in what concerns thestudents. The final exam passing rate is growing each year, thing whichdisadvantages many students. If the pass rate keeps on dropping, then is not onlythe students fault but the teachers too, who are not giving importance to their job,thing which otherwise could improve the condition of many students.

Therefore, even if there are countless laws in which is spoken aboutindiscrimination and the equality of everyone in front of law, the discriminationexists and it will be countered only when the change will begin with US!

Bibliography

Constituţia, Titlul II, Articolul 16, primul aliniat.Constituţia, Titlul I, Articolul 4, aliniatul 2.DEX, Ed. Univers Enciclopedic, 2009Monitorul OficialConstantin Cucoş, Pedagogie, Ed. Polirom, Iaşi, 1996Ursula Şchiopu, Emil Verza, Psihologia vârstelor, E.D.P., Bucureşti, 1985