Remedies and enforcement

• Author: Durbáková, Vanda
• Pages: 73-88

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6 REMEDIES AND ENFORCEMENT

6.1 Judicial and/or administrative procedures (Article 7 Directive 2000/43,

Article 9 Directive 2000/78)

a) Available procedures for enforcing the principle of equal treatment

In Slovakia, the following procedures exist for enforcing the principle of equal treatment:

judicial, administrative, alternative dispute resolution (in the form of mediation), and

internal complaint procedures (mainly in workplaces).

There are no different procedures for employment in the private and the public sectors.

- Civil judicial procedures

Under the Anti-discrimination Act, a natural person and/or legal entity who consider(s)

themselves wronged in relation to their rights and interests protected by law because the

principle of equal treatment has not been applied to them, may pursue their claim through

judicial proceeding before the civil court of the first instance (there are no special labour

courts in Slovakia). Persons discriminated against have the right to sue the perpetrator –

be it a natural person or a legal entity, a public or private body – and request a number of

remedies, including (the list is not exhaustive) that they be made to refrain from such

conduct and, where possible, rectify the illegal situation or provide adequate satisfaction.

If the adequate satisfaction is insufficient – generally if the violation of the principle of

equal treatment has considerably impaired the dignity, social status or social achievement

of the victim — they may also seek non-pecuniary damages in cash. The amount of the

non-pecuniary damages is determined by the court, which must take into account the

seriousness of the non-pecuniary damage and all underlying circumstances. Material

damages resulting from such treatment may also be claimed.318 There is no difference in

the procedure, whether a public or private entity is being sued. The procedure has legally

binding rules and the outcome is also legally binding.

Civil judicial proceedings under the Anti-discrimination Act follow the Civil Dispute Act,319

which contains some special provisions on anti-discrimination proceedings. The act is a

general civil dispute procedural code, with deviations for, among other things, proceedings

concerning alleged violations of the principle of equal treatment. The act introduces the

concept of ‘Disputes with Protection of a Weaker Party,’ where it departs from some of the

general rules contained in the act, with the aim of mitigating the power imbalance between

the parties to such proceedings. Consumer disputes, anti-discrimination disputes and

individual labour disputes (including disputes connected to violations of the principle of

equal treatment)320 are the three types of disputes that incur protection of a weaker

party.321 In the regulation of anti-discrimination disputes,322 the act refers to anti-

discrimination legislation (in practice mainly the Anti-discrimination Act),323 and stipulates

that the procedural provisions contained in anti-discrimination legislation (e.g. on the

burden of proof) take precedence over the Civil Dispute Act.324 Among the exemptions

from the general procedural rules contained in the act that apply to anti-discrimination

disputes are: a broader duty of the court to instruct the complainants on their rights;325

the ability of the court to seek evidence on its own initiative;326 the right of the complainant

to submit evidence until the decision on the merits is delivered (as compared to other

318 Anti-discrimination Act, 365/2004, Section 9.

319 Civil Dispute Act, 160/2015.

320 Civil Dispute Act, 160/2015, Section 316(2).

321 Civil Dispute Act, 160/2015, Sections 290-323.

322 Civil Dispute Act, 160/2015, Sections 307-315.

323 Civil Dispute Act, 160/2015, Section 307.

324 Civil Dispute Act, 160/2015, Section 315(2).

325 Civil Dispute Act, 160/2015, Section 309.

326 Civil Dispute Act, 160/2015, Section 311.

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proceedings where the period for submitting evidence is shorter);327 and the duty of courts

to conduct hearings in all anti-discrimination proceedings (except for when the complainant

agrees to omitting the hearing).328 The act also introduces a provision entitling NGOs and

the Slovak National Centre for Human Rights to represent complainants when referring an

extraordinary appeal to the Supreme Court (in disputes concerning violations of the

principle of equal treatment).329

- Administrative procedures

Since all public authorities are obliged to follow the principle of equal treatment, either

pursuant to the Anti-discrimination Act (if the scope of their activities falls under the

material scope of the act), or pursuant to the Constitution (or both), they are all subject

to administrative complaint proceedings. There is a special act on administrative complaint

proceedings that deals with complaints against unlawful conduct by public authorities

(discrimination falls under such conduct).330 Some public bodies have special complaint

mechanisms, which are regulated by laws. Generally speaking, the outcomes of these

procedures are binding, but they are not legally bindings for courts. Furthermore, the facts

stated in documents issued by public bodies within their powers and public documents are

considered to be truthful, if the opposite has not been proved to be the case.331

In some instances when public bodies/institutions are obliged to observe the principle of

equal treatment (such as a school, the State Social Insurance Company), decisions taken

by these institutions (e.g. negative decisions on admission to a school or granting of a

social insurance benefit) are subject to special administrative rules, and the decisions

themselves are subject to appeal, either by administrative bodies, or by courts. If the

appeal procedures are carried out by administrative bodies, the appellate decisions are

usually subject to judicial review. All decisions are, generally speaking, binding.

In some fields (e.g. employment, provision of goods and services), the performance of

entities operating in these fields (employers, service providers, etc.) are subject to

supervision through inspections. The inspections follow a type of administrative procedure.

However, no shift of the burden of proof applies to inspection legislation and moreover, in

most cases there is a lack of effective methodology for identifying discrimination (see

section 6.3 of this report for more information).

In recent years, the Slovak Trade Inspectorate has made certain progress in effectively

resolving complaints concerning discrimination. In some cases of discrimination against

Roma in access to services, the inspectorate even used situation testing to uncover

discrimination, in cooperation with the NGO. According to the statistics provided, in 2019,

the Slovak Trade Inspectorate received 27 complaints concerning discrimination, out of

which, discrimination was found in one case that concerned discrimination against Roma

women who were denied access to a restaurant. The inspectorate conducted its checks in

cooperation with the affected Roma women, using the situation testing method, and the

discrimination was proved. In another 15 complaints, discrimination was not found; 11

complaints are currently still being assessed by the inspectorate and the administrative

proceedings are pending. It should be noted that the NGO Centre for Civil and Human

Rights has filed as many as 13 complaints, which specifically address occurrence of racial

discrimination against Roma in access to public services. The number of complaints

received by the inspectorate from individuals who are discriminated against remains

generally very low.332

327 Civil Dispute Act, 160/2015, Section 312.

328 Civil Dispute Act, 160/2015, Section 314.

329 Civil Dispute Act, 160/2015, Section 429(2)(b).

330 Act No. 9/2010 on Complaints (zákon č. 9/2010 Z. z. o šažnostiach). Complaints against a public body are

usually dealt with by a higher public authority. The complaint should be processed within 60 days.

331 Civil Dispute Act, Sections 193 and 205.

332 Response of the Slovak Trade Inspectorate of 23 January 2020 to a request for information of 16 January

2020 (on file with the author).