Enforcing the law
Litigation is hardly ever used by the most vulnerable of victims for various reasons: low awareness of the anti-discrimination laws amongst victims and legal circles, the high cost of litigation and the length of time involved. From the body of decisions emerging in recent years, it appears that the more vulnerable the groups the less access they have to judicial or equality body proceedings. Thus most Court cases in 2011 dealt with claims from civil servants regarding pensions and retirement ages. There are few decisions concerning the claims of Turkish Cypriots to their properties in the south or to state grants but no cases involving migrants or Roma claiming violation of the equality acquis.
The equality body may complete its investigation and publish a report in a few months or sometimes with a delay of three years, depending on the subject investigated and the complications involved. No binding decision was ever issued by the Equality Body and no sanction was ever imposed; in the majority of cases, the equality body prefers to use its mediation function, as sanctions are too low to act as a deterrent.
The national laws transpose verbatim the Directives’ provisions regarding the right of organisations to engage in procedures on behalf of victims. Thus, victims may address complaints directly to the equality body, where the procedure is cost-free, simple and flexible, or to NGOs or trade unions, who may then submit complaints to the equality body on their behalf. However, there are few NGOs available to file complaints on behalf of vulnerable groups and even fewer trade unions, who tend to view the equality body with suspicion. In general, more complaints are submitted by individuals rather than by organisations acting on their behalf. In the case of sexual orientation, most victims are ‘closeted’ and unwilling to submit complaints so as not to make their sexual orientation known to the public.
Equality body decisions are more often reported in the media than in previous years. In 2010 using PROGRESS funds the equality body set up its own websites where all its reports and other publications are now uploaded.
There is no mention in the legislation or in case law, or in any equality body decision on the use of situation testing and statistical data. If an argument in favour of admitting such evidence is used in Court, it is likely to be allowed if it is shown that it was deemed admissible in other EU jurisdictions. The general rules of evidence for criminal and civil procedure apply. The admissibility of situation testing as a method of proving discrimination in courts will presumably be subjected to the general test of ‘relevance’ and ‘the best evidence rule’. However, it is not possible to state with certainty whether the courts will consider this as admissible evidence in order to prove discrimination.
Although in 2004, upon transposition of the two Directives, the burden of proof provision was incorrectly transposed, amending legislation was introduced in 2006 and 2007 that brought national law in line with the Directives. The burden of proof is only reversed in judicial proceedings and not in procedures before the equality body, since the latter’s mandate includes the right to carry out investigations to establish facts.
The sanctions which Courts can impose against physical persons guilty of discrimination cannot exceed € 6,835.27 and/or imprisonment of up to six months. For legal persons the maximum penalty is €1,196.72. If the offence has been committed out of gross negligence, the fine for physical persons is up to €3,417.63. For legal persons the fine is again up to €3,417.63 for the managing director, chairman, director, secretary or other officer if it can be proven that the offence was committed with his/her consent plus an additional fine of up to € 6,835.27 for the company or organisation.
The aforesaid fines, however, can only be imposed by the Courts; the Equality Body can only impose small fines which cannot exceed € 598. The Equality body does not have the power to award compensation to victims of discrimination, but its decisions may be relied upon to seek damages for unlawful discrimination in a district Court or a labour tribunal.