Protection from discrimination
The case law of the national bodies working on the protection from discrimination, the Commission for Protection against Discrimination and the courts, expanded and developed in 2009. Both the practices of the Commission and those of the courts were marked by achievements. At the same time, there were also deficiencies.
Hate speech
The case law of the Commission for Protection Against Discrimination (CPAD) on hate speech developed in a positive direction over the year. On several occasions, the CPAD ruled in line with the international standards that stereotypical negative statements against minorities are a violation of human dignity and create a hostile and abusive environment in contradiction with the law. The CPAD is consistent in advocating that freedom of expression is not absolute and that instilling intolerance goes beyond its boundaries. The commission ruled against hate speech in a series of printed and electronic media, qualifying it as abuse. It obliged these media to introduce specific and effective self-control means in order not to allow publications disseminating prejudice. In some cases the CPAD explicitly stated that the measures taken by the media to prevent discrimination are “formalistic and declarative.” In one case it obliged a newspaper to join the Media Code of Ethics. It obliges the responsible persons to publish at their expense its convicting decisions, as well as apologies for their statements. In cases of negative general statements about the Roma, CPAD obliges the media not to mention the ethnic origin when this is not pertinent to the meaning of the information. The CPAD obliges the media to report within a specific deadline what measures it has implemented to ensure compliance with the body’s decisions.
There were some positive practices of the Supreme Administrative Court (SAC) as well. In December, it found a Sofia municipal mayor guilty of abuse of Roma. The court held that the mayor anti-Roma statements on a radio station – “the cows will be less in the way than a Gypsy neighbourhood,” “such a Roma community is ten times more dangerous when located close to residential areas than a landfill” – constitute a violation of the dignity of all Roma and create an abusive environment for them. The court also held that it did not matter whether it was the mayor’s intention to humiliate the Roma, it was sufficient that this was the result of his actions. The CPAD penalised the mayor with a fine in the amount of 1 000 BGN (513 EUR), a ban to similar statements in the future and an obligation to apologise on the same radio station, as well as to publish at his expense the CPAD decision in a national daily. The mayor complied. The SAC final verdict confirmed that the mayor’s hate speech against the Roma, including the statement that “the Roma have to gradually cultivate, to develop normal hygienic habits because the other people suffer from their lack of basic hygiene” is a breach of the law. This is the first case, in which an official has been sentenced to publicly apologize for hate speech and to publish the verdict at his expense.
In July, the SAC ruled against a television station, which aired a stereotypical anti-Roma broadcast. The court held that such broadcasts create a hostile environment among the public. The court confirmed the CPAD decision to oblige the media to adopt internal mechanisms for the prevention of all forms of discrimination.
On the other hand, the CPAD consistently refuses to acknowledge that apart from being harassment, hate speech is also incitement to discrimination. In one case, the CPAD refused to accept that the open incitement to discrimination against a minority religious group by an employee of the Bulgarian Orthodox Church is hate speech. In another case, the CPAD refused to accept that the statement of an employer to an employee with a mental disability that she “has to retire” because “she has depreciated as a car” constitutes harassment. The CPAD also refused to accept that a television journalist had committed harassment against a group of young people with developmental disabilities in a specialised institution by calling them “the crazy ones” in their presence. The CPAD did not acknowledge that television journalists had engaged in harassment of people with mental disabilities by behaving aggressively and filming them against their will in their home, accompanying their coverage with stigmatizing comments.
The civil courts did not generate much case law with regard to hate speech in 2009. In December, the Supreme Court of Cassation repealed a decision of the Sofia City Court, in which the politician Volen Siderov, leader of the nationalist Ataka party, was found guilty of anti-Turkish propaganda. The court acquitted Siderov with regard to some of his statements, while invoking the freedom of speech considerations for others. In September, the Sofia City Court refused to accept that Siderov’s homophobic propaganda constitutes discrimination.
Discrimination against women
The CPAD penalised a company for paying unequal remuneration to a female employee due to her sex/pregnancy. The body held that the principle of equal pay irrespective of the sex of the employee is imperative and restricts the freedom of contracting.
The SAC penalised an employer for not taking measures to terminate sexual abuse at the workplace. However, in July, the same court refused to accept that the gender quotas for student admission to a military university, which in some cases either completely exclude women or bring them down to a quarter of all students, constitute gender discrimination.
In November, an informal women’s group protested against the psychological and physical violence exerted by medical staff on women during labour. The protesters called for respect of the will of the mothers, including with regard to the medical interventions, and for birth free of abuse.[1]
Discrimination against children
In two cases the CPAD established that the ban imposed on children below the age of seven to visit a department store constitutes discrimination by age. The CPAD fined the trader and obliged him to eliminate the illegal restriction. In another case the CPAD ruled that the physical violence exercised by a teacher against a student, regardless of its extent, humiliates the child’s human dignity and constitutes discrimination. It fined the teacher and prescribed him to abstain from such ill-treatment.
In several decisions the CPAD confirmed the right of children with disabilities to study together with other children. It announced that integrated education is the rule and that a transfer to special schools is only allowed when all other options for integrated education have been exhausted. The CPAD held that children with disabilities have the right to special, different care, as their access to education is apriori unequal. The body held that the failure to provide a supporting environment, as well as the lack of measures to ensure elimination of the abuse of children with disabilities by their classmates, constitute abuse. The CPAD obliged teachers and principals to take effective measures to provide integrated education and support to children with disabilities and to prevent and eliminate all forms of discrimination at school.
In October, the CPAD found the minister of education guilty of not undertaking special measures to provide effective and equal access to school for children with disabilities. The commission held that the legislation itself is discriminatory, as it does not regulate the production of the special programmes and materials necessary to adapt the education to such children. These children cannot choose a school and a specialty, as the state defines the specialties they study. For them secondary education is mandatorily vocational, and only in certain professions. The education of the students at special schools ends at the age of 16. The children are segregated. The Ministry deprives children with disabilities of a supporting environment and customised education. The CPAD recommended the minister to initiate legislative reforms, including special measures to ensure education adapted to the specific needs of each child, regardless of their age.
In another case, the CPAD also held that the compulsory school age of 16 discriminates children with disabilities as it is inconsistent with their rate of learning, and recommended legislative amendments.
In one case, the CPAD approved an agreement between a mother of a child with disabilities and the principal of a mainstream school, according to which the child was not to study at class but on the basis of an individual curriculum. The CPAD accepted this refusal of integrated education without establishing that such an education is objectively impossible in this case, due to reasons beyond the control of school authorities. Contrary to what the CPAD believes, such a withdrawal does not correspond to the purpose of the Protection Against Discrimination Act.
Discrimination against people with disabilities and patients
In May, the SAC found the Social Assistance Agency guilty of lack of access to its territorial offices. The court confirmed the CPAD decision to fine the institution and to oblige it to provide access for people with disabilities. In June, the same court found the Municipality of Plovdiv guilty of inaction in adapting the city environment to the needs of the people with disabilities. The court awarded compensation to a woman in a wheelchair because of the abusive and humiliating inaccessibility.
In August, the SAC found the National Health Insurance Fund (NHIF) guilty of discrimination against children under seven who suffer from phenylketonuria, due to the refusal to reimburse the special dietary food they need. In June, the CPAD established that the exclusion of mucoviscidosis from the list of diseases, for which the NHIF pays the treatment of persons over the age of 18, constitutes discrimination. It instructed the minister of health to amend the respective ordinance by including the disease.
The CPAD held that a utility company is discriminating the parents of children in wheelchairs and people with disabilities by not ensuring them unhindered access to its payment offices in Sofia. The body obliged the company to ensure free access by constructing the necessary enhancements, and fined it.
Discrimination against ethnic minorities
With regard to a complaint of police violence and abuse of Roma, the CPAD obliged the Veliko Tarnovo Regional Police Directorate to conduct annual trainings of its staff on discrimination, racism and ethnic profiling.
The SAC adopted a final decision against the discrimination by an employer who refused to allow a Roma to a job interview. The lower instance, the Sofia City Court, had awarded the plaintiff compensation in the amount of 600 BGN (300 EUR), stating explicitly that a higher compensation should be paid for such a violation.
In one case the CPAD accepted, in line with international law, that the ethnic origin is a matter of self-identification and not subject to being proven. The body held harassment on the grounds of ethnic origin against a Bulgarian Turk whom the municipality issued an untrue certificate that he was born with his Bulgarian names, while these were forcefully given to him by the state. The CPAD decided that this action was humiliating and created an abusive environment for the person, contrary to his right under the Framework Convention for the Protection of National Minorities to have his minority name and identity officially recognised. It confirmed Bulgaria’s confession in the country’s first report under the Framework Convention for the Protection of National Minorities that the so-called “revival process” is the most severe violation of minority rights over the period.
At the end of 2009, the government sent a strong anti-minority message. The prime minister stood openly behind the populist and xenophobic demand of the Ataka party that a referendum be held on the news in Turkish on Bulgarian National Television. By doing this the government expressed its support for the nationalist attack against the public presence of minorities. Although the prime minister later gave up the initiative on the grounds that it will have negative reactions in the EU, he did not change in principle his position on the rights of minorities and their (in)dependence of the will of the majority.
In February, the European Commission against Racism and Intolerance (ECRI) published its Fourth Monitoring Report on Bulgaria. In terms of the progress achieved since the previous report (2004), ECRI notes the Protection Against Discrimination Act and the protection it provides the Roma; the creation of the Ministry of Education and Science’s Centre for Educational Integration of Children and Students from Ethnic Minorities; the country’s participation in the Decade of Roma Inclusion 2005-2015 and the programmes aimed at solving the educational, housing, labour and other problems of the Roma; the integration of the Turks in the political life and at governmental positions; the adoption of the Legal Assistance Act and the creation of the National Bureau for Legal Assistance; the adoption of the Media Code of Ethics, which prohibits the unjustified announcement of race, religion or ethnos; the adoption of the National Programme for Refugee Integration; the new and stricter regulations for the use of firearms by the police under the Ministry of Interior Act.
In terms of deficiencies, ECRI noted the failure to apply the Penal Code provisions on racist crimes; the insufficient effectiveness and funding of Roma programmes; the lack of a policy on the reduction of the number of Roma children sent unjustly to institutions for children with disabilities; the lack of dialogue on the problems of the Macedonians; the impunity of racist talk in the media; the lack of a sufficient number of centres for people applying for refugee status; the inadequate persecution of racist actions by the police; and the lack of a system for collection of ethnic data.
ECRI recommended that Bulgaria should immediately ratify Protocol 12 to the European Convention on Human Rights, which protects against discrimination; to provide the Commissions for Protection Against Discrimination with sufficient human and financial resources; to not impede the freedom of association of any community; to effectively integrate the Roma children in the schools; to train the Electronic Media Council on fighting racism; to penalise politicians for hate speech; to prevent racial profiling and the excessive use of force by the police.
Discrimination on the grounds of age and political affiliation
The CPAD convicted an employer for discrimination on the grounds of age in a competition. It accepted that the public announcement of the age restriction by itself constitutes discrimination. The body fined the company and instructed it to abstain from such violations in the future.
The CPAD established discrimination on the grounds of political affiliation with regard to the termination of a contract between commercial companies concerning the broadcasting of a cable TV program. The company providing the service refused to deliver because managers of the other company ran for elections on behalf of the Movement for Rights and Freedoms.
At the time when the CPAD has established itself as the most important body in the fight against inequality, in October 2009 the National Assembly did not approve the Commission’s annual report. The members of parliament from GERB and Ataka called it “a weapon of the Movement for Rights and Freedoms” and raised the question whether such a body should even exist in Bulgaria.[2] Human rights non-governmental organisations expressed their support for the commission in a special declaration [3] and firmly opposed “any attempt to undermine the fight for equality by suppressing, restricting or destabilising the commission.” Nevertheless, the political attack against the commission continued. At the end of October, the ministers of finance and of transport, information technology and communications included the commission in a report “Optimization of the Members of Independent Regulatory Bodies.” The members of parliament proposed that the total number of CPAD commissioners be reduced from nine to five. It places different bodies in the same category of “regulatory bodies” and proposes a “single” and restrictive regulation for them. The report is not based on a study of the body’s capacity and does not take into consideration its contribution to non-discrimination and the public support to the commission. Human rights NGOs once again voiced their support for the CPAD in a protest letter to the prime minister.[4] They reiterated that Bulgaria is obliged under EU law to ensure the effective functioning of an independent equality body and that the public will bear huge financial losses, incomparable with the savings from the salaries of the four commissioners. In November 2009, the Council of Ministers approved the report and decided the legislative changes to be prepared by 15 December 2009. In a decision of 21 December 2009, the Council of Ministers extended the deadline to 15 February 2010, adding that the specific features of each regulatory body should be taken into account during the formulation of the legislative changes.
[1] For more details, see: http://nenanasilieto.wordpress.com/.
[2] For the transcripts of the National Assembly plenary sessions on October 21-22, 2009, see http://www.parliament.bg/?page=plSt&lng=bg&SType=show&id=623 and http://www.parliament.bg/?page=plSt&lng=bg&SType=show&id=624.
[3] For more details, see http://www.bghelsinki.org/index.php?module=news&lg=bg&id=2785.
[4] For more details, see http://bghelsinki.org/index.php?module=news&id=2801.
