Sensitive or controversial issues

• Author: Theodoridis, Athanasios
• Pages: 92-94

92

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national level

Greece belongs to the majority of EU Member States which, prior to the adoption of the

two directives, did not ha ve a special legislative framework establishing equal treatment

and prohibiting discrimination. There do not appear to have been any breaches, although

judicial interpretation is needed in relation to exceptions for employers with an ethos based

on religion (Article 4(3) Law 4443/2016 and Article 4(2) of Directive 2000/78). Given that

Law 4443/2016 was introduced prior to the CJEU decisions in Egenberger and IR v. JC, the

law is vague and needs to be clarified and brought into line with the findings in these cases.

Secondly, the sanctions as foreseen by Greek law cannot be considered to be effective,

dissuasive and proportionate, and are therefore in violation of the directives. As highlighted

by the Greek National Commission for Human Rights (GNCHR) in its observations on Law

4443/2016, in order for Article 11 of Law 4443/2016 (corresponding to Article 15 Directive

2000/43 and Article 17 Directive 2000/78) to be effective in cases of discrimination

perpetrated by public servants and workers for legal persons under public law, the relevant

provisions of the Code of Public Servants (namely Article 107(1) of Law 3528/2007) must

extend the scope of disciplinary sanctions in order to cover violations of the principle of

equal treatment.

Thirdly, as highlighted by the GNCHR in its observations on La w 4443/2016, the relevant

articles of the Code of Administrative Procedure before the Administrative Courts as well

as the legislation on the court procedure before the Greek Council of State have to be

amended in order to include a shift in the burden of proof for equal treatment violations.240

As they stand, these legal texts maintain that the burden of proof is on the side of the

applicant. If these provisions are not amended, judicial interpretation will be needed. This

means that the applicant will have to invoke the relevant article of Law 4443/2016 during

the written proceedings, reminding the judge that the burden of proof is shifted to the

respondent. The judge may not be aware of the exception and might apply the general

rule of burden of proof in administrative cases.

11.2 Other issues of concern

Before proceeding to the issue of implementation, it is first important to highlight the lack

of case law, which is a permanent problem in the Greek legal order, since victims are not

usually informed about their rights and civil society is weak compared with other Member

States. With regard to barriers to justice, on 30 January 2011, in accordance with

Ministerial Decision KYA 123827//23-12-2010, the fee which must be paid to the police in

order to register a criminal complaint was increased by 900 % (EUR 100 instead of

EUR 10), which seems to constitute a deterrent to seeking redress. Moreover, there are no

detailed statistics on the cases that reach the courts, since each court has to compile its

own data, without standardised criteria. Dealing with this issue is crucial for evaluating the

practical implementation of Law 4443/2016.

Identified issues regarding the text of Law 4443/2016

- The law has not been amended in order to improve the protection framework

(sanctions, damages and procedural aspects) – with the exception of some very

limited cases – and under no circumstances does it promote the consistency of the

various fields of protection. What is more, discrepancies in the Civil Code need to be

240 GNCHR, Observations on the Draft Law of the Ministry of Justice, Transparency, and Human Rights,

ΡApplication of the principle of equal treatment irrespective of race, colour, ethnicity or ethnic origin, creed,

religious or other beliefs, disability or chronic illness, age, family or social status, sexual orientation, gender

identity or characteristics, and other provisionsΣ, September 2016, available in Greek at:

http://www.nchr.gr/images/pdf/apofaseis/isothta_fullwn/EEDA_SxN_Isi_Metaxeirisi_2016.pdf.