The aim of the Research was to find out the effectiveness of the Anti-discrimination Law and necessity of improvement of the legislation and/or practice in this regard. So, in the framework of the Research the case law of national courts as well as the activities of the Ombudsman were examined. The Research covers the gaps, as well as some positive approaches and trends discovered in the practice. Based on them Recommendations for related institutions were prepared.
Local NGOs as well as international organizations and diplomatic missions were attended on the presentation of the Research.
The Research was conducted with the support of Konrad Adenauer Stiftung.
According to the Research following gaps in the case law of national courts were discovered:
National courts do not collect and systematize the data on discrimination cases. That hinders the possibility to receive the statistical data in this respect;
National courts often ignore the special rules set out for discrimination cases that aim to facilitate the legal proceedings for claimant;
National courts are splitting the case into two legal controversy- administrative case and discrimination case. That complicates the litigation for claimant;
There is no clear approach of application of the standard of proof set out for discrimination cases in the national courts;
There is an impression that the courts limit themselves and their power while examining the discretionary decisions made by administrative organs and thus leaves them beyond of judicial review.
Positive approaches discovered in the case law:
The court considered confirmation of the act of discrimination as the primary task that was sufficient for the court to invalidate individual administrative act in question and to satisfy other demands of claimant;
The court did not confirm the act of discrimination on the ground of political view in the case of the person who was dismissed from the post of the chairman of the commission in the Assembly (“Sakrebulo”). The Court ruled that decisions in the political organ are made based on political view and preferences and that could not be considered as discrimination.
While calculating the amount of moral damages the court took into account the fact that the claimant could restore all rights that made his situation easier. Thus, the court reduced the amount and additionally pointed out that moral damages only aim to facilitate the negative feelings of the victim of the discrimination.
The Gaps discovered in the activities of the Ombudsman:
Only administrative, local self-government and state bodies have the obligation to transfer all relevant materials to ombudsman for the pending case before him. Such obligation does not have private persons;
According to the information requested from the Ombudsman office Recommendations and/or General Proposals are not fulfilled mostly by the private persons
The Anti-discrimination law stipulates the basis for termination or suspension of the cases before the Ombudsman , that makes his work ineffective
The Ombudsman is inconsistent while examining the stereotypic statements that include gender-based hate speech
