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«THE EUROPEAN NETWORK OF LEGAL EXPERTS IN THE FIELD OF GENDER EQUALITY Multiple Discrimination in EU Law Opportunities for legal responses to ...»

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(3) Any person who in public either orally or through the press or by means of any documents or pictures or by any other means, expresses ideas insulting any person or group of persons by reason of their racial or ethnic origin or their religion is guilty of an offence and is liable to imprisonment not exceeding one year or to a fine not exceeding five hundred pounds or to both.

(4) Any person who supplies goods or services by profession and refuses such supply to another by reason of his racial or ethnic origin or his religion, or who makes such supply subject to a condition relating to the racial or ethnic origin or to the religion of a person is guilty of an offence and is liable to imprisonment not exceeding one year or to a fine not exceeding five hundred pounds or to both such punishments.’ This section was applied in criminal case No. 31330/99 dated 12 December 2001 and the accused was actually convicted under subsection (4), where a term of imprisonment was imposed.

Law on Persons with Disabilities No. 57(I)/2004 (31.03.2004). This law was subsequently amended in 2007 to introduce more favourable provisions for persons with disability and in order to rectify the wrong transposition of the reversal of the burden of proof No. 72(I)/2007, 102(I)/2007.

Equal Treatment in Employment and Occupation of 2004 No. 58(I)/2004 (31 March 2004). This law was subsequently amended in 2006 in order to rectify the wrong transposition of the reversal of the burden of proof.

The Equal Treatment (Racial or Ethnic Origin) Law No 59(I)/2004 (31 March 2004). This law was subsequently amended in 2006 in order to rectify the wrong transposition of the reversal of the burden of proof.

The combating of Racial and Some Other Forms of Discrimination (Commissioner) Law 42(I)/2004 19 March 2004 of the reversal of the burden of proof.

Multiple Discrimination in EU Law 37 The national anti-discrimination legislation is in line with the two EU Council Directives 2000/43/EC and 2000/78/EC, but it has not been based on the matter of multiple discrimination, which has very recently started to be a subject of debate in Cyprus. For this reason, current legislation does not define or deal with multiple discrimination.

On the basis of the above, I believe that the existing legal framework in Cyprus is very wide and can provide protection for multiple discrimination as well.

2. Case law There are no such cases before the courts and no complaints have been submitted to the Ombudsman (as ‘equality body’) for multiple discrimination. Only complaints related to single discrimination have been submitted and examined by the Ombudsman.

3. Any cases where gender-related discrimination is overlooked?

There are no such court cases. We do not have court decisions on civil actions for gender discrimination, not even related to single discrimination. We have decisions on gender discrimination, of the Supreme Court (as administrative court), before 2004, on the basis of Article 28 of the Constitution (Xinari v Republic of Cyprus 1962 3 CLR P.98).

The Ombudsman has published decisions on gender discrimination and other discrimination grounds after complaints related to single discrimination but they all refer to single discrimination. There are also decisions in criminal cases of sexual harassment.

4. Proof and procedural problems In cases of single discrimination there is no particular problem regarding proof. In my opinion, for possible cases of multiple discrimination there may be a problem of proof, depending on the law under which the case is argued and what each law provides on the subject of the burden of proof.

5. Description of a specific case As mentioned above, there are no decisions involving gender discrimination and one or more others grounds of discrimination. In Cyprus, the academic debate on multiple discrimination has recently started, mainly by the Ombudsman.

6. Effects of legislation and case law in practice There are no surveys and no case law. The Ministry of Justice and Public Order has stated that there are no plans for the adoption of law or regulations to deal with multiple discrimination.

7. Role of equality bodies The Law of the Commissioner for Administration (Amendment) Law 200410 and the Combating of Racism and other Discrimination (Commissioner) Law 2004. These laws deal with the subject of non-discrimination within the meaning of the two Directives (2004/43/EC and 2000/78/EE). The Law of the Commissioner for Administration (No. 42(I)/2004 (appointing the Ombudsman as Equality Body) is much wider in scope, as it covers areas beyond the five grounds prescribed by the above two Directives, covering all rights and freedoms covered by the constitution, 38 Multiple Discrimination in EU Law Protocol 12, the European Convention of Human Rights and Fundamental Freedoms as well as any rights contained in any treaty ratified by the Republic of Cyprus.

The decisions and recommendations of the Ombudsman to the appropriate authorities have, in many cases, helped to eliminate discrimination against the persons submitting complaints and/or to begin the process for amending relevant laws and regulations. As mentioned above, all complaints submitted up to now related to single discrimination. The Ombudsman informed me that her office has begun to examine and discuss the matter of multiple discrimination and that one of their Officers has recently attended a training seminar on tackling multiple discrimination.

8. Reinforcement of legal approach at EU level necessary?

The debate on multiple discrimination is underway in the EU. In Cyprus, multiple discrimination is a new concept and until now there has not been any dialogue between the social partners or NGOs.

Reinforcement of the legal approach aimed at combating multiple discrimination at EU and national level is necessary. New legislation should cover all grounds of discrimination and in all areas (not just within the employment and occupation fields) such as social protection, including social security and healthcare; social benefits;

education; and access to and supply of goods and services which are available to the public, including housing.

Multiple discrimination must be factored into all equality mainstreaming and impact assessment tools in EU policies, strategies, action plans and financial support must be provided for activities aimed at combating such discrimination.

The effects we expect from such reinforcement would be the elimination of such discrimination.

9. Community-law definition of multiple discrimination necessary?

Yes, a community-law definition of the term is necessary. EU anti-discrimination and equal treatment legislation does recognize that different protected grounds can intersect, but there is no explicit prohibition of multiple discrimination.

10. Available literature or research?

There is no literature or research in Cyprus on this matter. It is necessary to collect and analyze data and carry out studies in order to submit recommendations for any necessary legislative action.

11. Further research Yes, further research on multiple discrimination at EU level and/or national level is recommended. Multiple discrimination is a new concept and it must be analyzed and understood in all EU Member States, with the involvement of the social partners,

NGOs and equality bodies. Studies should address the following:

– The role of the media;

– The role of trade unions and employers’ organizations;

– The role of NGOs’ influence and capacity in the political process and legislation;

– The role of education;

– The role and influence of civil society in promoting equal treatment;

– National equality bodies;

– Groups vulnerable to multiple discrimination (especially female and migrant workers);

– The aspect of race as an aggravating element; and Multiple Discrimination in EU Law 39 – Legal questions to be addressed should include the burden of proof, assessment of damage and the definition (if possible) of multiple discrimination. Effective protection requires legislation that covers all spheres of life (not only employment).

–  –  –

1. Concept of multiple discrimination in legislation Multiple discrimination is not defined in Czech law at all. It is a concept still completely unknown in Czech legislation, including Czech legal practice. Nothing more can be said on this question.

2. Case law There have been no cases involving multiple discrimination, neither before a court nor before an equality body. Actually, a real equality body still does not exist in the Czech Republic. According to the still unapproved Antidiscrimination Act, this body should be the Czech ombudsman. However, this institution does not seem to be prepared to develop any new legal or theoretical approaches. This can be concluded from some real cases of multiple discrimination against Roma women. There have been some cases of involuntary sterilization of Roma women, which were handled by the Czech ombudsman. These cases, however, were seen as an unacceptable breach of these women’s fundamental rights to family life and to proper medical treatment based on informed consent. The possible aspect of multiple discrimination – the intersection of gender and race – was not mentioned at all in any of the position documents of the ombudsman.

3. Any cases where gender-related discrimination is overlooked?

The cases of involuntary sterilization of Roma women mentioned above could serve as a good example of overlooking gender-related discrimination, or rather, as overlooking the aspect of discrimination as such in general. The few cases that emerged and that have been decided by Czech courts regarding this issue were only addressed from the point of view of the breaching of rules of medical treatment and the breaching of a woman’s right to give informed consent before being sterilized. No informed consent, however, was given. In none of the decisions available, discrimination or multiple discrimination is mentioned.

4. Proof and procedural problems There are no procedural problems, since cases of multiple discrimination are not addressed as such in the Czech Republic.

5. Description of a specific case Involuntary sterilisations are carried out only on Roma women and only on women, although sterilization of men would have the same effect. Both discrimination on the grounds of race or ethnic origin and discrimination on the grounds of sex may thus be identified. Moreover, in these specific cases, the discrimination occurs twice. First of all, at the time of sterilisation, the women are discriminated against by the majority of society, represented by medical staff. Secondly, Roma women are consequently discriminated against in their own environment. Roma society is very traditional and patriarchal, and a woman who is no longer able to have children automatically assumes a very low position within her own community.

40 Multiple Discrimination in EU Law The profile of cases in the Czech Republic involves race-based targeting of Roma women for invasive and in most cases irreversible surgical procedures aimed at ending their ability to have children (and in most cases succeeding in that). The women concerned were often excluded from any form of dignified involvement in the decision to be sterilized. The very frequent profile of such cases is as follows: a Roma woman, frequently from a poor, marginalized family, is recommended to give birth by caesarean section. A form of caesarean section operation is performed (from among several available types of such procedure) which, if applied a second time, will cause a third pregnancy to be potentially life-threatening. There are other forms of caesarean section which would not cause any risk to the mother, but the doctors choose not to use them. During the second birth, also performed by this particular form of caesarean section, the woman concerned is sterilized. Despite ample opportunity during the pregnancy, the woman concerned is never informed that sterilization may even be a possibility during her second birth. And she is often given the consent form to sign only very shortly before the surgery.

6. Effects of legislation and case law in practice There is no such information available.

7. Role of equality bodies In the Czech Republic, the equality body does not play any role in tackling multiple discrimination. Currently, the equality body does not exist in practice and in the near future it is not expected that the ombudsman will handle such cases. On the other hand, he could help very much in starting the discussion on multiple discrimination, as, for example, the issue of involuntary discrimination of Roma women is an important one and could be a good start for such a theoretical legal discussion.

8. Reinforcement of legal approach at EU level necessary?

It would be useful to strengthen the legal approach aimed at combating multiple discrimination at the EU level. If a legal definition appears in EU law and if there is an obligation to introduce this concept into national law by prohibiting such discrimination, this would be very useful, especially from the Czech point of view. In my opinion, it is the only possible way of introducing multiple discrimination into the Czech legal system and of starting to think about it in practice and to penalize it when it occurs. The EU level is very important for Czech legislation. As can be seen from the terrible battle concerning the Antidiscrimination Act, the only force that can convince the Czech political representation in Parliament is that the Czech Republic has undertaken obligations through its membership in the EU and that it is necessary to observe these obligations, if we do not wish to be fined under ECJ rulings (as has already happened for non-implementation of the Occupational Pensions Directive).

9. Community-law definition of multiple discrimination necessary?

A community-law definition could be very useful, from the Czech point of view, for the sake of effectively facing multiple discrimination against Roma women; it could therefore be very important to have a legal definition of multiple discrimination. This could help at the national level to stress the problem and find a solution. A definition made at the EU level would be useful to define multiple discrimination at the national level.

Multiple Discrimination in EU Law 41

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