Sensitive or controversial issues

• Author: Kogovsek Salamon, Neza
• Pages: 92-93

92

11 SENSITIVE OR CONTROVERSIAL ISSUES

11.1 Potential breaches of the directives at the national level

- There is no clear legal basis for persons with disabilities to be able to claim

reasonable accommodation in employment. Reasonable accommodation rights in

employment are not legally defined in respect of pe rsons who do not have the

official status of disability. This is probl ematic with regard to Article 5 of Directive

2000/78/EC.

- Apart f rom defin ing the exception relating to a genuine occupational r equirement,

the law does not include a complete prohibition of direct discrimination on the

grounds of ethnicity beyond employment as required by Directive 2000/43/EC.

- The sanctions (fines for misdemeanours or minor offences) prescribed in a range

from a maximum to a minimu m are in fact p rescribed only at the minimum end of

the range. The Protection Against Discrimination Act does not contain explicit

authorisation for the in spectorates to impose fines higher than the minimum, which

means that, unless the law changes, legal persons will never have to pay mo re than

EUR 3 000 in fines for discrimination, while natural persons will not need to pay

more than EUR 250 or EUR 500, depending on the gravity and type of offence. This

indicates that the fines cannot be regarded a s effective and dissuasive (Article 17 of

Directive 2000/78/EC; Article 15 of Directive 2000/43/EC) .

- With the provi sions on the standing of NGOs and the Advocate, which are now

explicitly allowed to represent victims in judicial proceedings and act on their

behalf, a new problem has emerged. Namely, the conditions for representation are

now stricter for judicial cases of discrimination that are dealt with by county courts

than for any other ju dicial case. According to the Civil Procedure Act, anyone with

legal c apacity ma y represent a party before the county courts , while according to

the Protection Against Discrimination Act , an individual must have pa ssed the state

legal exam (bar exam) to represent a complainant. The conditions are therefore

stricter for cases of discrimination, which makes access to justice more difficult.

This is problematic with regard to Article 13(2) of Directive 2000/43/EC and might

be in violation of the principle of equivalence.

- On a related matter, it is not clear whether the ceiling for compensation, which is

set at EUR 5 000, is in place only for compensation that is claimed solely due to

exposure to discrimination or for c ompensation in cases of discrimination in

general. The verbatim interpretation supports the former position. If the f ormer is

true, the sanctions could not be consid ered dissuasive, as this would mean that

compensation in cases of discrimination can never exceed EUR 5 000 , even if the

actual damages were much higher. This is problematic with regard to Articles 7(1)

and 15 of Directive 2000/43/EC and 9(1) of Directive 2000/78/EC.

11.2 Other issues of concern

- It is not clear whether the Protection Against Discrimination Act provisions on

remedies that can be claimed before courts in cases of discrimination (termination

of the discrimination, compensation and publication of the judgment in the media)

now apply in addition t o the general tort law provisions or whether these provisions

have replaced the general tort law rules.

- There is no national action plan or strategy concerning discrimination. The situation

of the Roma, for which the Government Office for Nati onal Minorities is competent,

is often not dealt with as a discrimination issue. Disability issues are entirely left to

the Office for People with Disabilities within the Ministry of Labour, Family and

Social Affairs.

- Hate speech as a form of discrimination is rarely prosecuted.

- There is a lack of equality data, due to a strict interpretation of the Personal Data

Protection Act.