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2nd UPR session
Date of review: 15 May 2008
Date of report adoption: 3 June 2008
Document number: A/HRC/8/49
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SUMMARY SOGIESC issues during Romania’s 1st UPR review |
I. SOGIESC issues/recommendations identified by NGOs
Equality and non discrimination
12. According to ACCEPT, the International Gay and Lesbian Human Rights Commission and the European Region of the International Lesbian and Gay Association (ACCEPT, IGLHRC & ILGA) the non-discrimination grounds in the anti-discrimination law include sexual orientation but not gender identity and expression, and the law on equal opportunities between women and men does not cover transgender status. ACCEPT, IGLHRC & ILGA added that the Government should protect the right to work and take measures to combat discrimination – including on the basis of sexual orientation and gender identity and expression – against teachers and other individuals who work in the fields of education and health. ACCEPT, IGLHRC & ILGA also recommended that local and central Government officials undertake public education campaigns to combat prejudice underlying violence related to sexual orientation and gender identity and ensure that LGBT people can enjoy their rights in an environment that is not dominated by fear, violence, and homophobia.
Right to life, liberty and security of the person
20. ACCEPT, IGLHRC & ILGA noted that one of the submitting organisations, ACCEPT, has received several complaints from individuals in detention who are perceived to be gay or transgender and as such are subjected by other inmates to rape, physical assault, and degrading treatment. However, when such inmates complain, prison authorities rarely take immediate measures to ensure their safety or prosecute the perpetrators. ACCEPT, IGLHRC & ILGA recommended that the Ministry of Justice and the National Authority of Penitentiaries should prevent abuses in detention by systematically educating prison personnel about human rights, sexual orientation, and gender identity issues. The penitentiary should promptly follow up on complaints to secure the safety of inmates and prevent their further victimization, referring perpetrators to the prosecutor.
Right to privacy, marriage and family life
24. ACCEPT, IGLHRC & ILGA urged that legislation be adopted to recognize the relationship between two partners, irrespective of their sex.
Freedom of religion or belief, expression, association and peaceful assembly, and right to participate in public and political life
28. AI mentioned that the lesbian, gay, bisexual and transgender (LGBT) community in Romania continues to suffer identity-based discrimination. A parade called the Gayfest, organized every year in May/June by the LGBT community, has been opposed by the Orthodox Church and the local authorities on several occasions. Those participating in the parade have been attacked by counter-demonstrators throwing eggs, stones and plastic bottles at the marchers, necessitating police protection. According to ACCEPT, IGLHRC & ILGA, effective police protection at the march needs to be accompanied by police follow up to complaints about violence.
II. Excerpts on SOGIESC issues from the national report
B. Human rights institutional framework
3. National Council for Combating Discrimination
12. The situation of complaints filed at NCCD in the period 2002-2007 is as follows: 134 complaints in 2002, 473 complaints in 2003, 353 complaints in 2004, 382 complaints in 2005, 432 complaints in 2006 and 836 complaints in 2007. Out of the total number of complaints, those based on ethnic discrimination (against Roma minority) hold a significant share: 25 per cent – 2002; 14 per cent – 2003; 13 per cent – 2003; 24 per cent – 2005; 16 per cent – 2006; 10 per cent – 2007. Other more frequent discriminatory criteria are social status, beliefs, gender, sexual orientation, nationality, age, disability. 4. Other institutions and national agencies with related competencies
13. […] The National Council of the Audio-Visual (NCAV) is an autonomous public institution, under parliamentary control, which is authorized to adopt normative decisions, issue public summons and apply contraventional sanctions in support of its role to ensure, inter alia, the application of anti-discrimination policies in the field of audiovisual. Between 2002 and 2007, NCAV applied 15 sanctions for breaches of the legal provisions regarding discrimination based on nationality, race, religion, gender or sexual orientation and ethnicity (13 to TV stations and 2 to radio stations).
IV. PROTECTION AND PROMOTION OF HUMAN RIGHTS – CHALLENGES AND ACHIEVEMENTS
Equality and protection against any discrimination
16. In addition, a great number of ordinary normative acts contain anti-discrimination provisions. The Penal Code incriminates, in art. 317, the incitement to discrimination, defined as “any incitement to hatred on grounds of race, nationality, ethnic origin, language, religion, gender, sexual orientation, opinions, political affiliation, beliefs, wealth, social origin, age, disability, chronic non-infectious disease or HIV infection”. This offence is punishable by imprisonment between 6 months and 3 years or by fine. Also, in art.247, the Criminal Code incriminates the abuse of authority by restraining certain rights, stipulating that “the restriction, by a civil servant, of the use or exercise of a person’s rights or placing a person in a situation of inferiority based on race, nationality, ethnicity, language, religion, gender, sexual orientation, opinion, political affiliation, beliefs, wealth, social origin, age, disability, chronic non-contagious disease or HIV infection is punished by imprisonment for a term between 6 months and 5 years”. […] According to the Audio-Visual Law, it is forbidden to broadcast programs which contain any form of incitement to hatred on grounds of race, religion, nationality, gender or sexual orientation. […]
17. The Governmental Ordinance nr.137/2000 on the prevention and sanctioning of all forms of discrimination, as subsequently modified, represents the landmark piece of legislation in the field of anti-discrimination. The Ordinance offers a comprehensive definition of the concept of “discrimination” as any distinction, exclusion, restriction or preference based on race, nationality, ethnic origin, language, religion, social origin, beliefs, gender, sexual orientation, age, disability, chronic non-infectious disease, HIV infection, appurtenance to a disadvantaged category or any other criteria which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life. The Ordinance defines the principle of equality and non-discrimination among citizens, prohibits and sanctions discriminatory acts committed by natural and legal persons, in all their forms (direct discrimination, indirect discrimination, harassment, multiple discrimination, order to discriminate, and victimization). The national anti-discrimination act covers the following 5 main areas: i) equality in the economic activity in terms of employment and professional work; ii) access to legal, administrative and public health services, as well as to other services, goods and facilities; iii) access to education; iv) freedom of movement, choice of residence and access to public places; v) the right to personal dignity.
35. Article 200 of the Criminal Code, incriminating sexual relations between persons of the same sex, was repealed in 2002. Discrimination based on gender and sexual orientation is prohibited by law. LGBT communities have become more visible in recent years, including as result of events such as Bucharest’s annual “Gay Fest” parade and Cluj Napoca’s Gay Film Nights Festival. In the post-communist period, social attitudes in relation to sexual minorities have started to change and, after years of total silence, this topic is being openly discussed in the mass-media. Nevertheless, given an incriminatory past and the conservatory views existing in the society, sexual minorities are still vulnerable to prejudices and discriminatory attitudes.
Freedom of opinion and expression
47. […] Freedom of expression undergoes certain limitations, contained in the Constitution and the Criminal Code. In particular, Governmental Ordinance no. 137/2000 incriminates any public behavior with a nationalistic-chauvinist character, any incitement to racial or national hatred or any behavior aiming to prejudice a person’s dignity or to create an intimidating, hostile, degrading, humiliating or offending atmosphere against a person, a group of persons or a community on grounds of race, nationality, ethnic origin, religion, social category or underprivileged category, beliefs, gender or sexual orientation is sanctioned as a contravention, unless the act fall under the incidence of criminal law. […]
Rights of the persons belonging to national minorities
71. Law No. 304/2004 on the organizing of the judiciary, republished, stipulates that all the persons are equal before the law, with no privileges and no discrimination and that justice is carried out equally for all, with no distinction of race, nationality, ethnic origin, language, religion, sex or sexual orientation, opinion, political affiliation, fortune, social origin or status or any other such discriminating criteria. […]
VI. PERSPECTIVES
97. Increased attention will be devoted to countering the persistent negative attitude against groups such as HIV-infected people or sexual minorities. In this respect, special emphasis will be envisaged for awareness- raising activities and promoting a general climate of tolerance and openness for dialogue within the Romanian society.
III. Excerpts on SOGIESC issues by UN agencies
No references.
IV. References to SOGIESC issues during the Working Group review
12. As far as the situation of sexual minorities is concerned, the national legislation offers quite an advanced system of protection, and people have become more informed and, implicitly, more open and tolerant. She noted that this category is still vulnerable to discriminatory attitudes at the level of the Romanian society, in particular in more conservative areas, like rural areas.
21. [Canada] noted that Roma remain the most vulnerable ethnic minority and recommended that Romania take additional measures to fight discrimination against minorities, including the Roma population, homosexuals and persons living with HIV/AIDS.
35. The Czech Republic […] asked about measures adopted to eliminate negative societal attitudes and discrimination toward persons living with HIV/AIDS and persons of minority sexual orientation or gender identity. It recommended that Romania provide effective sanctions for discrimination against people living with HIV, that the Government ban mandatory HIV testing as a condition of employment and ensure that persons living with HIV are not arbitrarily prevented from working or attending vocational schools. It also recommended that Romania continue the adoption of measures, including awareness raising programmes, against negative prejudices and discrimination against persons living with HIV and sexual minorities. It recommended that awareness-raising programmes on the protection of the enjoyment of human rights by persons of minority sexual orientation and gender identity be launched, also for law enforcement personnel, as part of a wider comprehensive campaign to prevent and punish any acts of ill-treatment in detention against persons perceived as belonging to these groups.
36. Colombia noted with great interest the information provided by Romania in the national report on the issue of discrimination and the broad definition adopted within its legal and institutional context, which prohibits and combats any type of discrimination for reasons of race, religion, nationality, gender or sexual orientation. It asked Romania how it facilitates the participation of civil society in the implementation of the National Strategy for the Implementation of the Measures to Prevent and Combat Discrimination and asked whether there are any indicators envisaged to measure its impact.
39. Guatemala […] appreciated the Government’s initiatives in resolving this issue and the creation of the National Council for Combating Discrimination, and welcomed the fact that Romania continues its efforts, particularly in combating negative attitudes towards persons with HIV/AIDS and towards sexual minorities, through activities, awareness campaigns and open dialogue. It recommended Romania to apply the recommendation of the Special Rapporteur on the right to health as there are still obstacles to access to health services by marginal populations, and to address this problem through educational programmes on diversity, and to train professionals in the health sectors.
40. Finland […] noted the parade called the “GayFest” organized every year in May and June by the Lesbian, Gay, Bisexual and Transgender (LGBT) community and recommended that Romania investigate and prosecute those responsible for attacks on peaceful lesbian and gay activists and ensure that future LGBT gatherings, including the annual GayFests, are both permitted and protected by the Romanian authorities.
55. With regard to questions on efforts to address the issue of discrimination, it indicated that the aim of the national strategy is to prevent and combat discrimination and to develop an inclusive and inter-cultural society. This strategy is based on five main objectives oriented towards the groups more frequently affected by discrimination in different forms, which includes age, sex, religion, HIV infection, sexual orientation and disability. Romania cooperates with NGOs in all phases of the strategy, including in the planning, revision, implementation and monitoring phases, and vulnerable groups also participate in its implementation.
V. Conclusions and/or recommendations
Romania accepted the following recommendations:
58. 3. To launch an awareness raising programmes on protection of enjoyment of human rights by persons of minority sexual orientation and gender identity for law enforcement personnel as part of a wider comprehensive campaign to prevent and punish any acts of ill-treatment in detention against persons perceived as belonging to these groups (Czech Republic);
58. 4. To take additional measures to fight discrimination against minorities, including the Roma population, as well as homosexuals and persons living with HIV/AIDS (Canada);
58.4b To take additional measures to fight discrimination against minorities, including homosexuals and persons living with HIV/AIDS (France);
58.4c To continue the adoption of measures, including awareness raising programmes, against negative prejudices and discrimination against people living with HIV and sexual minorities (Czech Republic);
58.8 To investigate and prosecute those responsible for the attacks on peaceful lesbian and gay activists and ensure that future LGBT gatherings, including the annual GayFests, are both permitted and protected by the Romanian authorities (Finland).
VI. Further information
You will find all documents relating to Romania’s first review at UPR-Info and OHCHR’s websites.