MINELRES: ERT Work with Albanian NGOs Results in Adoption of a Strong Modern Equality Law

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Sat Feb 27 20:13:01 2010


Original sender: Equal Rights Trust <equalrightstrust1@response.pure360.com>


Albanian President Signs Comprehensive Anti-discrimination Law  
 
London, 25 February 2010  
 
On 24 February 2010, Albanian President Bamir Topi signed Law No. 10 221
“On Protection from Discrimination” adopted by the Albanian parliament
earlier this month. The entry into force of this law is a significant
step forward for the protection of equality and non-discrimination in
Albania.  

The new law puts in place a solid legal foundation guaranteeing the
rights to equality and non-discrimination. It also represents a
significant victory for Albanian civil society organisations who drafted
the original bill, following advice and guidance from The Equal Rights
Trust, and who have worked tirelessly to secure its adoption since it
was submitted to parliament on 11 November 2009. The draft submitted by
civil society was adopted by the parliament with only minor amendments. 

Below we set out the scope and some of the most noteworthy elements of
the new law. 

1. Purpose 

Article 2 states that the aim of the law is to ensure the right of every
person to equality before the law and to equal protection of the law. It
stresses the importance of promoting equality of opportunity and
ensuring that every person is able to fully participate in public life.
It states that the law seeks to ensure effective protection not only
from discrimination, but from every form of conduct that encourages
discrimination. 

2. Definitions 

2.1 Prohibited Grounds of Discrimination 

Article 1 prohibits discrimination based on gender, race, colour,
ethnicity, sexual orientation, gender identity, language, political
beliefs, religious beliefs, philosophical beliefs, economic status,
social status, education level, pregnancy, parentage, parental
responsibility, age, family or marital condition, civil status,
residence, health status, genetic predispositions, disability,
affiliation with a particular group or any other ground. 

2.2 Forms of Discrimination 

Article 5 sets out a general prohibition of discrimination on all of the
grounds listed in Article 1. It also provides that the denial of
adaptations and modifications for people with disabilities constitutes
discrimination. 

Article 3 provides detailed definitions of various forms of
discrimination which are prohibited under the law. The prohibited forms
of discrimination include direct and indirect discrimination,
discrimination by association, harassment, instruction to discriminate
and victimisation. 

The definitions of the various forms of discrimination contained in the
law appear to be largely consistent with European Union (EU) law.
However, the definition of direct discrimination under the law does not
explicitly permit the use of hypothetical comparators which is
explicitly permitted under the definition of direct discrimination under
European Union law -- for example, Article 2 (2)(a) of Council Directive
2000/43/EC (Racial Equality Directive). As such, a challenge remains for
the courts to progressively interpret Article 3(2) and permit the use of
hypothetical comparators to ensure that the law is consistent with EU
law. 

To its merit, the Albanian law extends the scope of protection from
discrimination beyond that provided under EU law in two important ways.
Firstly, it stresses that the denial of reasonable accommodation is
discrimination under Article 3(7). This approach is currently being
debated by EU member states in the negotiation for a new EU Equality
Directive. Secondly, Article 3(4) builds on the jurisprudence of the
European Court of Justice developed in Coleman v. Attridge Law and Steve
Law (Case C-303/06) by explicitly stating that “discrimination because
of association” is a prohibited form of discrimination. 

3. Areas in Which Discrimination is Prohibited 

The law is broad in scope: as stated above, Article 2 provides the
purpose of this law is to assure the right of every person to: a)
equality before the law and equal protection of the law; b) equality of
opportunities and possibilities to exercise rights, enjoy freedoms and
take part in public life; and c) effective protection from
discrimination and from every form of conduct that encourages
discrimination. This broad scope of application is complemented by a
focus on areas where discrimination is particularly prevalent, such as
employment, education, and the supply of goods and services (including
housing and health). 

Employment 

In respect to employment, Article 12 provides that any distinctions,
limitations or exclusions based on any of the protected grounds are
prohibited in the field of employment. This includes any adverse
treatment relating to job opportunities, the recruitment of staff and
the treatment of staff within the workplace. Article 12 (2) states that
all types of harassment – in particular sexual harassment – are
prohibited in the workplace. 

Article 13 places a range of positive obligations on employers to
encourage the principle of equality and facilitate its promotion within
the work place. The Article creates a duty on employers to investigate
any complaints of discrimination made by their employees within one
month of receiving them. 

Education 

Article 17 sets out the scope of the prohibition of discrimination in
relation to education. It provides that discrimination is prohibited in:
the creation of public or private educational institutions; the
financing of public education institutions; the content of principles
and criteria of educational activity, including teaching; and the
treatment of students or pupils, including admission, evaluation,
discipline or expulsion. The denial of access to an educational
establishment on the basis of a prohibited ground is also specifically
outlawed (Article 17(2)). 

Goods and Services 

Under Article 20, the prohibition of discrimination in respect to goods
and services includes housing, health services, banking, entertainment
facilities and transport. The Bill provides that people should not be
denied goods or services based on any of the grounds laid out in Article
1, nor should they be provided with goods or services in a different
manner to the way in which they are provided to the public in general.
The Bill applies to any natural or legal person who offers goods or
services to the public. 

4. Positive Action and Positive Duties 

Article 11 permits positive action, which it defines as a “particular
temporary measure that aims at speeding up the real establishment of
equality”.  The article states that this measure must be suspended on
achievement of the equality objective. 

In addition, Article 14 places particular positive duties on the Council
of Ministers, the Minister of Labour, Social Issues and Equal
Opportunities and the Interior Minister. Each Ministry has a general
duty to take measures of a positive nature in order to fight
discrimination in connection with the right to employment. Moreover, two
specific measures are prescribed in order to fulfil this general duty: 

• Raising consciousness about Law No. 10 221 with employees and
employers by,  among other things, providing information about it;
• Establishing special and temporary policies, on the basis of the
characteristics mentioned in Article 1, for the purpose of encouraging
equality, in particular between men and women as well as between fully
physically able persons and those who are of restricted ability. 

In respect to education, Articles 18 and 19 place specific duties on the
Minister of Education and Science and the directors of educational
establishments to combat discrimination by taking positive measures to
raise awareness about the law in the educational system. Article 18
further specifies that the Minister of Education and Science must, among
other things, take measures for: 

“Including concepts and actions against models of discriminatory
behaviour in teaching programmes; 

“Educating the entire population, in particular, by taking measures in
favour of women and girls, minorities, persons of restricted ability as
well as persons who are or have more possibility of being the object of
discrimination for the causes mentioned in Article 1 of this law; 

“Respecting and assuring the right to education in the languages of
minorities, as well as in appropriate manners for persons with
restricted ability.” 

5. Enforcement 

5.1 The Commissioner for Protection from Discrimination 

In line with Article 13 of the EU Council Directive 2000/43/EC (Racial
Equality Directive) which requires that states must designate a body or
bodies for the promotion of equal treatment, Articles 21 to 33 set out
the structure, mandate and powers of the Commissioner for Protection
from Discrimination (the Commissioner), an independent legal person,
subject only to the Constitution and the law. The Commissioner is
elected by the government assembly and has a five year mandate. 

The Commissioner is entrusted with monitoring the implementation of the
law and proposing the approval of new legislation or the amendment or
reform of existing legislation. The Commissioner is required to provide
information on equality law and to take an active role in monitoring the
implementation of such laws, as well as make recommendations for
legislative reform. The Commissioner is also entrusted with ensuring
that all persons and bodies are properly informed about their right to
protection from discrimination and the legal remedies available to them
in this regard. 

The Commissioner has the power to investigate complaints from persons,
or groups of persons, who allege they have been victims of
discrimination. If it is found that there has been a violation of the
law then the Commissioner has the power to impose administrative
sanctions on culpable persons and organisations. 

5.2 Enforcement through the Courts 

Under Article 34, cases of discrimination can be brought before the
civil courts, as an alternative to lodging a complaint with the
Commissioner. Such cases are subject to a limitation period of five
years from the time of the alleged discrimination, or three years from
the time the injured party had knowledge of the discrimination. 

The procedural requirements in relation to the burden of proof are
explained in Article 36(6) which states: 

“After the plaintiff submits the evidence on which he bases his claim
and on the basis of which the court may presume discriminating
behaviour, the defendant is obligated to prove that the facts do not
constitute discrimination according to this law.” 

It is unclear whether “evidence” in this case has the same meaning as
“facts”, which is the wording used in EU law and which would therefore
require a shift in the burden of proof to the alleged discriminator once
a prima facie case had been established. This is implied through the use
of the word “facts” in the latter part of Article 36(6). Nonetheless, it
will be necessary for Albanian courts to firmly establish that this is
the correct interpretation, as the burden of proof requirements have
been amongst the main barriers to combating discrimination through the
courts throughout Europe. 

If it is proven that discrimination has taken place, the court, under
Article 38, can order restorative measures aimed at ensuring that the
plaintiff is placed in the same position as they were prior to the
discrimination. They may also provide compensatory damages to the
injured party. 

6. ERT Comment 

The new Bill places Albania in a progressive position in the field of
equality legislation for a number of reasons.  Importantly, Albania is
now one of the few European countries which have officially prohibited
discrimination on the grounds of gender identity. The parliament of
Albania has also taken a positive step by prohibiting discrimination on
grounds of sexual orientation. This sends two clear messages. First, it
underlines that discrimination on grounds of sexual orientation and
gender identity is unacceptable and that sexual minorities have equal
rights in Albanian society. Second, it sets a positive example for
countries that have yet to adopt a comprehensive anti-discrimination
law. Unfortunately, however, the list of prohibited grounds does not
explicitly include “nationality” or “citizenship”, although the open
nature of the list of proscribed grounds means that there is no obstacle
to considering these grounds as covered. 

Albania now has a comprehensive anti-discrimination law which provides a
strong framework to combat discrimination and promote equality. This,
however, is only the first stage. The difficult second stage is to
ensure effective implementation. The appointment of a committed and well
resourced Commissioner is necessary for this second stage. Yet the
breadth of positive duties falling upon various Ministries means that
implementation is not, nor should it be, the exclusive responsibility of
the Commissioner. 

If equality laws are to be effective, a wide range of stakeholders have
a role to play. Civil society in Albania has already begun preparing for
this second stage with the drafting of an implementation strategy. It
will be important that state authorities also play an active role to
ensure that the law works in practice. 

You can read the English translation of Law No. 10 221 by clicking here:
http://www.equalrightstrust.org/ertdocumentbank/Microsoft%20Word%20-%20English%
20NDL.pdf