COMPLAINT (article 26) - 1989 - ROMANIA - C111

REPORT OF THE COMMISSION OF INQUIRY appointed under article 26 of the Constitution of the International Labour Organisation to examine the observance by Romania of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111)

1. Report of the Commission of Inquiry in PDF (1991)

Complaint Procedure

1. TITLE I
2. PRELIMINARY QUESTIONS
3. CHAPTER 1
4. FILING OF THE COMPLAINT AND ESTABLISHMENT OF THE COMMISSION
5. Filing of the complaint
6. 1. On 27 June 1989 the Director-General of the ILO received a communication dated 26 June 1989 in which Messrs. N. Adiko, J. Baker, M. Bonmati, L. Cal, F. Chiluba, J.J. Delpino, Mrs. R. Dreifuss, Messrs. Y. Maruyama, R. Mercier, J. Morton, B. Mourgues, G. Muhr, J. Svenningsen, Workers' delegates respectively of Côte d'Ivoire, United States, Spain, Italy, Zambia, Venezuela, Switzerland, Japan, Canada, United Kingdom, France, Federal Republic of Germany and Denmark, to the 76th Session of the International Labour Conference, stated that they were filing a complaint against the Government of Romania under article 26 of the Constitution of the International Labour Organisation, in the following terms:
7. The undersigned Workers' delegates to the 76th Session (1989) of the International Labour Conference file with the International Labour Office, under the provisions of article 26 of the Constitution of the International Labour Organisation, a complaint against the Government of Romania for non-observance of Convention No. 111.
8. The complaint is based upon the following facts:
9. 1. A significant minority of Romanian citizens of Hungarian origin (more than 2 million persons, or 9.5 per cent of the population) are subjected to particular discrimination in the political, cultural, social and employment spheres.
10. 2. Members of ethnic minorities, in particular the Hungarian minority, are currently being forcibly dispersed from their places of birth and assigned by the authorities to employment not of their own choosing. Population transfers are carried out as a rule without previous notice and without informing those concerned where they are being sent. Persons of Hungarian origin are barred from a number of cities.
11. 3. The programme of rural systematisation gives rise to considerable damage in cultural as well as social terms; villages are destroyed only to be replaced by agro-industrial centres; Transylvania has been particularly affected by this process. Citizens are forced to destroy their own houses and are resettled elsewhere with their families in crowded, low-quality buildings.
12. 4. Restrictions are deliberately imposed in the field of Hungarian language education; access to higher education and training is restricted. The prohibition of the Hungarian language in public life goes hand in hand with the gradual elimination of Hungarian cultural institutions.
13. 5. Youth of the Hungarian ethnic minority as well as those of other minorities (Germans, South Slavs, Slovaks, Ukrainians, Jews and Gypsies) are discriminated against in education, training and employment. Young people who request to leave the country are conscripted into the army and sent to unhealthy forced labour camps.
14. 6. The Hungarian minority, among which there are more than 300,000 unemployed, is affected by suppressions of jobs or whole enterprises, and restrictions on employment through the use of a numerus clausus. Moreover, and as a result of economic difficulties, wages are paid only in part, and Hungarian nationals do not benefit from special premiums paid by way of compensation in enterprises.
15. In view of the foregoing, the undersigned Workers' delegates to the 76th Session of the International Labour Conference file, under article 26 of the Constitution of the ILO, a complaint with the International Labour Office and request the appointment of a Commission of Inquiry in order to ensure the effective observance by the Government of Romania of Convention No. 111, which it has ratified; They reserve the right to supply at a later stage further elements in support of this request.
16. Provisions of the Constitution of the International Labour Office concerning complaints respecting the application of ratified Conventions
17. 2. Article 26 of the Constitution of the International Labour Organisation which is mentioned by the complainants in their communication, reads as follows:
18. 1. Any of the Members shall have the right to file a complaint with the International Labour Office if it is not satisfied that any other Member is securing the effective observance of any Convention which both have ratified in accordance with the foregoing articles.
19. 2. The Governing Body may, if it thinks fit, before referring such a complaint to a Commission of Inquiry, as hereinafter provided for, communicate with the government in question in the manner described in article 24.
20. 3. If the Governing Body does not think it is necessary to communicate the complaint of the government in question, or if, when it has made such communication, no statement in reply has been received within a reasonable time which the Governing Body considers to be satisfactory, the Governing Body may appoint a Commission of Inquiry to consider the complaint and to report thereon.
21. 4. The Governing Body may adopt the same procedure either of its own motion or on receipt of a complaint from a delegate to the Conference.
22. 5. When any matter arising out of article 25 or 26 is being considered by the Governing Body, the Government in question shall, if not already represented thereon, be entitled to send a representative to take part in the proceedings of the Governing Body while the matter is under consideration. Adequate notice of the date on which the matter will be considered shall be given to the government in question.
23. 3. The following articles of the Constitution apply to the subsequent stages of the procedure which may be initiated on the basis of article 26:
24. Article 27
25. The Members agree that, in the event of the reference of the complaint to a Commission of Inquiry under article 26, they will each, whether directly concerned in the complaint or not, place at the disposal of the Commission all the information in their possession which bears upon the subject-matter of the complaint.
26. Article 28
27. When the Commission of Inquiry has fully considered the complaint, it shall prepare a report embodying its findings on all questions of fact relevant to determining the issue between the parties and containing such recommendations as it may think proper as to the steps which should be taken to meet the complaint and the time within which they should be taken.
28. Article 29
29. 1. The Director-General of the International Labour Office shall communicate the report of the Commission of Inquiry to the Governing Body and to each of the governments concerned in the complaint, and shall cause it to be published.
30. 2. Each of these governments shall within three months inform the Director-General of the International Labour Office whether or not it accepts the recommendations contained in the report of the Commission; and, if not, whether it proposes to refer the complaint to the International Court of Justice.
31. .................................................................
32. Article 31
33. The decision of the International Court of Justice in regard to a complaint or matter which has been referred to it in pursuance of article 29 shall be final.
34. Article 32
35. The International Court of Justice may affirm, vary or reverse any of the findings or recommendations of the Commission of Inquiry, if any.
36. Article 33
37. In the event of any Member failing to carry out within the time specified the recommendations, if any, contained in the report of the Commission of Inquiry, or in the decision of the International Court of Justice, as the case may be, the Governing Body may recommend to the Conference such action as it may deem wise and expedient to secure compliance therewith.
38. Article 34
39. The defaulting government may at any time inform the Governing Body that it has taken the steps necessary to comply with the recommendations of the Commission of Inquiry or with those in the decision of the International Court of Justice, as the case may be, and may request it to constitute a Commission of Inquiry to verify its contention. In this case, the provisions of articles 27, 28, 29, 31 and 32 shall apply, and if the report of the Commission of Inquiry or the decision of the International Court of Justice is in favour of the defaulting government, the Governing Body shall forthwith recommend the discontinuance of any action taken in pursuance of article 33.
40. Measures taken by the Governing Body following the filing of the complaint
41. 4. The Governing Body was informed of the complaint at its 243rd Session (June 1989) in a report by the Officers of the Governing Body. (Endnote 1) In their report, the Officers recalled that Romania has ratified the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and that this Convention came into force in this country on 6 June 1974. The Officers also pointed out that the 13 complainants were, on the date of filing the complaint, Workers' delegates of their countries to the 76th Session of the International Labour Conference and accordingly had the right to file a complaint under article 26, paragraph 4, of the Constitution, if they were not satisified that Romania was securing the effective observance of this Convention. The Governing Body approved the report of its Officers, which contained the following passages:
42. 5. No discussion on the merits of the complaint is admissible at the present stage. It would indeed be inconsistent with the judicial nature of the procedure provided for in article 26 and the following article of the Constitution that there should be any discussion in the Governing Body on the merits of a complaint until the Governing Body has before it the contentions of the government against which the complaint is filed, together with an objective evaluation of these contentions by an impartial body. Nor would such discussion be appropriate while a proposal to refer the complaint to a Commission of Inquiry is pending before the Governing Body or while the complaint is sub-judice before a Commission of Inquiry. If there is to be a Commission of Inquiry - which it is for the Governing Body to decide under article 26, parargraph 4, of the Constitution - it is when the Commission of Inquiry has reported on the merits of the complaint that the Governing Body may be called upon to take action in the matter.
43. 6. The Officers therefore recommend that the Governing Body take the following decisions at its present session:
44. (a) the Government of Romania should be requested by the Director-General to communicate its observations on the complaint so as to reach him not later than 1 October 1989;
45. (b) in accordance with article 26, paragraph 5, of the Constitution, the Governing Body shall invite the Government of Romania to send a representative to take part in the proceedings of the Governing Body concerning this matter at its future sessions. When so inviting the Government of Romania, the Director-General should inform it that the Governing Body intends to continue its discussion of this case at its 244th Session which will take place in Geneva in November 1989.
46. 7. The Officers envisage that in the event of a Commission of Inquiry being appointed, the members of the Commission will be designated in accordance with the same criteria, and would serve in the same conditions, as the members of commissions previously appointed under article 26 of the Constitution. They would serve as individuals in their personal capacity, would be chosen for their impartiality, integrity and standing and would undertake by a solemn declaration to carry out their tasks and exercise their powers as members of the Commission "honourably, faithfully, impartially and conscientiously". A solemn declaration in these terms would correspond to that made by judges of the International Court of Justice. The Officers will make proposals concerning other arrangements at the appropriate stage.
47. 5. In a letter dated 20 July 1989, the Director-General informed the Government of Romania of the decisions of the Governing Body and requested it to communicate its observations on the complaint not later than 1 October 1989. He also recalled the invitation made to the Government to appoint a delegate to participate in the discussions of the Governing Body on this matter at its 244th Session (November 1989).
48. 6. The observations of the Government of Romania were transmitted in a letter from the Chargé d'affaires ad interim of the Permanent Mission of the Socialist Republic of Romania in Geneva dated 7 October 1989 and received on 9 October 1989. The text of these observations is contained in Annex I of this report.
49. 7. At its 244th Session (November 1989), the Governing Body, which had before it the report of its Officers, noted that:
50. contradictions exist between the facts presented in these allegations and those set out in the observations of the Romanian Government. It would, however, not be appropriate to enter into a discussion of the substance if it is envisaged to set up a Commission of Inquiry under article 26, paragraph 4 of the Constitution in order to make an objective assessment of the situation. As was pointed out in the report of the Officers of the Governing Body at the latter's 243rd Session, it would be incompatible with the judicial nature of the procedure thus instituted to open up such a discussion before the Commission of Inquiry submits it conclusions. (Endnote 2)
51. Thus the Governing Body decided that the question should be referred back without any further discussion to a Commission of Inquiry appointed in accordance with article 26 of the Constitution. The Governing Body ratified the following recommendations made by its Officers:
52. (a) the members of the Commission should be nominated in accordance with the same criteria, and would serve in the same conditions, as the members of commissions previously appointed under article 26 of the Constitution. They would serve as individuals in their personal capacity, would be chosen for their impartiality, integrity and standing, and would undertake by solemn declaration to carry out their tasks and exercise their powers as members of the Commission honourably, faithfully, impartially and conscientiously.
53. A solemn declaration in these terms would correspond to that made by judges of the International Court of Justice;
54. (b) the Commission should establish its own procedure in accordance with the provisions of the Constitution.
55. Composition of the Commission
56. 8. At its 244th Session (November 1989) the Governing Body adopted the proposals made by the Director-General (Endnote 3) concerning the composition of the Commission:
57. Chairman: Mr. Jules Deschênes (Canada), Chief Justice, Superior Court of Quebec. Lecturer in private international law, University of Montreal. Former expert of the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the United Nations Commission on Human Rights.
58. Members: Mr. Francesco Capotorti (Italy), professor of international law at the Law Faculty of the University of Rome (La Sapienza). Former expert on the Sub-Commission on Prevention of Discrimination and Protection of Minorities of the United Nations Commission on Human Rights, and former judge and advocate general at the Court of Justice of the European Communities (CJEC).
59. Mr. Budislav Vukas (Yugoslavia), professor of public international law and Director of the Institute of Comparative Law at the Law Faculty of the University of Zagreb. Member of the Permanent Court of Arbitration. Member of the ILO Committee of Experts on the Application of Conventions and Recommendations.
60. CHAPTER 2
61. PREVIOUS EXAMINATION OF THE SITUATION BY THE SUPERVISORY BODIES OF THE INTERNATIONAL LABOUR ORGANISATION
62. 9. The questions which the Commission had before it were previously examined by the bodies responsible for monitoring the application of ratified Conventions, the Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Conventions and Recommendations.
63. 10. Following the examination of the first report communicated under article 22 of the Constitution of the International Labour Organisation by the Government on the application of the Convention, in 1976, the Committee of Experts, in a direct request to the Government, raised the matter of the absence of any reference to discrimination based on political opinion and social origin in the Constitution and in the Labour Code. It asked the Government to provide information on the measures taken or envisaged to ensure that the application of the provisions of section 29 of the Constitution ("The freedom of speech ... shall not be used for purposes hostile to the socialist system") and section 20, paragraph 2(h) of the Labour Code (respect "of the socialist norms of conduct") is not contrary to the provisions of the Convention as regards the elimination of discrimination based on political opinion in respect of employment. In the absence of information from the Government on these matters, the request was renewed in 1977.
64. 11. In the report due for the period ending 30 June 1978, the Government of the Socialist Republic of Romania stated that "Romanian legislation contains no regulations prohibiting or limiting in any form the admission to employment of persons based on nationality, religion or political conditions" and that a contract of employment may not be terminated on these grounds. As regards section 29 of the Constitution, the Government stated that this article refers "to propaganda and associations of a fascist or anti-democratic nature which, since they are detrimental to both the State and citizens, are punished by the law". The Government recalled that such prohibitions have also been adopted by non-socialist States.
65. 12. In 1979, the Committee of Experts took note of the statements made in the report from the Government. However, it reiterated its earlier request and emphasised that failure to respect "the norms of socialist conduct" could give rise to disciplinary sanctions, including the termination of a contract of employment. The Committee of Experts expressed the hope that amendments would be made to the Labour Code in any subsequent revision with a view to establishing satisfactory guarantees against discrimination in employment based on political opinions. It repeated this request in 1981, 1983 and 1985. The Government pointed out in its reports that there was no discrimination in employment. In 1987, the Committee of Experts, after referring to pending matters, raised the question of the compatibility with the Convention of sections 1 and 2 of Decree No. 413/1979 approving the conditions of service of civil aviation staff (boundless devotion to the implementation of the Communist Party and high political awareness) and 62(s) of Act No. 5/1978, as amended by Act No. 24/1981, on the organisation and management of state socialist units (taking into account of political training for the promotion of executive staff).
66. 13. This matter was taken up again in an observation made in 1989. As regards Decree No. 413/1979 quoted above, the Government provided a translation which did not include the phrase concerning endless devotion to the implementation of the policy of the Communist Party. In a reference to section 23 of this Decree (political/ideological training, proof of attachment to the socialist system etc.), the Committee of Experts requested the Government to indicate what measures had been taken to repeal the provisions of sections 1, 2 and 23, in accordance with article 3(c) of the Convention. A similar request was made as regards section 62(s) of Act No. 5/1978 quoted above.
67. 14. Furthermore, the Committee of Experts had before it a communication from the General Confederation of Labour "Force Ouvrière" drawing attention to the "Report on the situation of the Hungarian minority" in Romania prepared for the Hungarian Democratical Forum in Budapest in 1988 and resolution No. 1989 on the human rights situation in Romania adopted by the United Nations Commission on Human Rights at its 45th Session in March 1989. The Committee noted the information contained in the document on the situation of the Magyar minority concerning the observation of the Convention: the forced assignation of Magyar intellectuals and technicians outside Transylvania, restrictions in employment, the designation of cities "closed" to Magyars, the threatened destruction of villages under the systematisation programme, discrimination in access to the University, high proportion of Magyars amongst the 300,000 to 400,000 unemployed persons in Transylvania, restrictions on the employment of members of minority groups in certain branches of activities or administrations, restrictions on teaching and training in minority languages etc. The Committee of Experts requested the Government to give a detailed answer "including information on measures taken or envisaged to give effect to the Convention with regard to equality of opportunity and treatment in employment and occupation, including access to training, for members of national minorities", for the period ending 30 June 1989. The text of the observation concerning this matter is annexed to this report (Appendix II).
68. 15. The Committee on the Application of Conventions and Recommendations (76th Session of the International Labour Conference, 1989) decided to examine the application by Romania of this Convention. The Government of the Socialist Republic of Romania communicated information which was reproduced in the report of the Committee on Application. (Endnote 4) At the end of its examination of this case, the Committee on the Application of Standards, noted in the paragraphs of its report dealing with special cases "noted with great concern that the Committee of Experts' observations noted the assistance of serious divergencies between, on the one hand, the law in practice and, on the other hand, the provisions of the Convention particularly as concerns political opinion and social origin. The Committee also noted the worrying allegations and information on the situation regarding national extraction. It expressed the firm hope that the Government would take, in the very near future, all the measures necessary to ensure full respect for the Convention and that these measures would take into account the Committee of Experts' observations. The Committee requested the Government to accept a study mission to establish the facts and report back to the Committee of Experts". (Endnote 5)
69. 16. The Government representative of Romania on the Committee on the Application of Standards stated that "the conclusions, and especially the proposal of a special paragraph, were ... unacceptable" and he rejected these decisions "along with the ... idea of an inquiry and of a review which was proposed in this case, which is totally unjustified". (Endnote 6)
70. 17. The Committee of Experts on the Application of Conventions and Recommendations and the Conference Committee on the Application of Conventions and Recommendations have for a number of years examined the observation of the Forced Labour Convention, 1930 (No. 29), by Romania. The Commission of Inquiry will refer to their work in as far as the application of Convention No. 29 has effects on the respective Convention No. 111.
71. CHAPTER 3
72. THE REQUIREMENTS OF THE DISCRIMINATION (ENVIRONMENT AND OCCUPATION) CONVENTION, 1958 (NO. 111)
73. 18. Recognition of the fundamental principle of the equality of rights of all human beings has been basic to the activities of the International Labour Organisation since its creation. The Declaration of Philadelphia, (Endnote 7) which defines the aims and objectives of the International Labour Organisation, affirms that the attainment of the conditions ensuring equal opportunity and treatment is one of the central aims of national and international policy and adds:
74. All national and international policies and measures, in particular those of an economic and financial character, should be judged in this light and accepted only in so far as they may be held to promote and not to hinder the achievement of this fundamental objective.
75. 19. Following the adoption of the Universal Declaration of Human Rights in 1948, the United Nations and more specifically the Commission on Human Rights and its Sub-Commission on Prevention of Discrimination and Protection of Minorities undertook a programme designed to implement the Declaration. Within this framework, the Economic and Social Council adopted a resolution in 1954 which invited the International Labour Organisation to undertake a study of discrimination in the fields of employment and occupation. After considering this study, the Governing Body decided in 1955 to place the subject on the agenda of the 40th (1957) Session of the International Labour Conference. The Governing Body expressed the view that the documents to be submitted to the Conference should deal with discrimination on all grounds listed in Article 2(1) of the Universal Declaration of Human Rights according to which:
76. Everyone is entitled to all the rights and freedom set forth in this Declaration, without any distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.
77. 20. The Discrimination (Employment and Occupation) Convention, 1958 (No. 111) was the first instrument adopted by the International Labour Conference which was specifically concerned with discrimination in employment and occupation, with a very general scope. No employment or occupation in the widest sense of the term is excluded from the scope of the Convention which applies to all workers. The Convention covers access to training, employment and the different occupations, as well as conditions of employment as a whole. The instrument thus reinforces the application, in all spheres of work, of the general principles of equality, dignity and freedom set forth in the Universal Declaration of Human Rights. The Convention has so far been ratified by 111 States and is thus among the most widely ratified ILO Conventions.
78. 21. The Commission considered it appropriate to examine the provisions of Convention No. 111 in relation to protection against discrimination in the light of certain indications contained in the preparatory work leading to the adoption of the Convention and the views expressed by the ILO supervisory bodies.
79. Article 1, paragraph 1, of the Convention (definition)
80. 22. According to Article 1, paragraph 1, of the Convention,
81. the term "discrimination" includes any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation.
82. Concept of discrimination
83. 23. The purely descriptive definition set forth in the Convention contains three elements:
84. - a factual element (the existence of a distinction, an exclusion or a preference) which constitutes a difference in treatment;
85. - a criterion which results in the difference of treatment;
86. - and the objective result of this difference of treatment (the destruction or alteration of equal opportunity and treatment).
87. 24. By means of this broad definition, the Convention covers all the situations which may affect equality of opportunity and treatment: discrimination whether intentional or not, direct or indirect, etc. As regards the sources of discrimination, the Committee of Experts has always stressed that the distinctions, exclusions or preferences may arise from legislation but also and above all from practice, whether it is a question of acts by private individuals, public officials in the exercise of their functions and even court decisions. (Endnote 8) The Committee of Experts emphasised in its General Survey on equality in employment and occupation in 1988 that:
88. Discriminatory treatment may consist both of the adoption of general impersonal standards that establish distinctions based on forbidden grounds, and in the specific attitude of a public authority or a private individual that lead to persons or members of a group being treated unequally when they should enjoy the same rights and benefits as others. (Endnote 9)
89. Grounds of discrimination
90. 25. Article 1, paragraph 1, of the Convention refers to seven grounds of discrimination: race, colour, sex, religion, political opinion, national extraction and social origin. The Committee of Experts noted:
91. In practice, the distinction between various grounds of discrimination may be a fine one in view of the fact that an individual may be subject to discrimination based on several grounds. (Endnote 10)
92. 26. The discriminations affecting ethnic, linguistic or religious minorities are covered by different grounds set forth in Article 1, paragraph 1(a), of the Convention. The Committee was led, during its examination of the measures adopted in various countries to promote equal opportunity and treatment of minority members, to refer to grounds such as race, religion or national extraction, on the basis of the objective information at its disposal. Although the Convention does not seek to protect ethnic, religious or linguistic minorities as such, it protects the members of these minorities against discrimination to which they might be subject as members of these minorities with certain ethnic or national characteristics or holding certain religious beliefs or political opinions. As regards Article 4 of the Convention, whereby measures affecting an individual on account of activities he or she is justifiably suspected or proven to have undertaken, are not to be deemed discriminatory, the Committee pointed out that this provision of the Convention
93. excludes (...) any measures taken not because of individual activities but by reason of membership of a particular group or community; such measures could not be other than discriminatory. (Endnote 11)
94. 27. Whereas the grounds of race and religion do not give rise to delicate problems of interpretation, this is not the case as regards the ground of national extraction, a concept adopted by the International Labour Conference in place of the concept of national origin contained in the Universal Declaration of Human Rights.
95. National extraction
96. 28. The preliminary report presented by the Office under article 39, paragraph 1, of the Standing Orders of the Conference refers to the concept of national origin, in accordance with the indications of the Governing Body that "the documents submitted to the Conference should deal with discrimination on all the grounds listed in Article 2(1) of the Universal Declaration of Human Rights", (Endnote 12) an article which referred to the concept of national origin. (Endnote 13) According to the report of the Office, the concept of national origin comprises two elements: "one is the natural distinction of foreign ancestry, the other is the juridical distinction of nationality". (Endnote 14) The persons specifically affected by this ground of discrimination are migrant workers and their descendants: the report refers to paragraph 16(2) of the Migration for Employment Recommendation (Revised), 1949 (No. 86) which prescribes that the restrictions imposed on access by migrants and their families should be lifted in certain conditions. The Office emphasised that this standard was applied in only a small number of countries. Furthermore it recalled that the distinctions were discriminatory and thus prohibited only in as far as they were based on individual characteristics independent of the will of the person themselves, which is the case with citizenship. It is clear, in the light of the preliminary report, that the Office envisaged that the future instrument should cover equal opportunity and treatment of foreign workers and their families and that nationality, through the ground of national origin, should be considered as a prohibited ground for discrimination.
97. 29. The report used the concept of foreign ancestry without giving further details on the definition of this concept, although it was noted that it can affect the position of individuals through the operation of prejudice against a given group on the part of private individuals.
98. 30. The questionnaire annexed to the original report (question 3(1)) proposed a list of grounds of discrimination including the ambiguous concept of national origin in the Office text. Governments were asked to comment on measures to be taken with a view to promoting the acceptance and application of this policy and, in particular, on the regulations limiting the employment to which non-nationals may have access after a certain period of time and the practice of restricting to nationals access to certain posts in public employment (question 7).
99. 31. Several countries stated in their reply to question 3(1) that the possession of nationality is a condition for the exercise of certain occupations, in particular in the public service, and for access to employment. (Endnote 15) Most governments believed that the grounds proposed, including national origin, were acceptable although they made no explicit comment on this ground. However, as regards question 7, most governments believed that the limitations placed on the employment of non-nationals, in particular in the public service, were justified. Logically this reply tended to exclude national origin in the sense of citizenship from the grounds of discrimination to be included in the future instrument. As a result, in the light of the replies from governments, the Office noted that the ground of national origin had not been as widely accepted as the other grounds of discrimination. In order to remove nationality from the grounds of discrimination covered by the future instrument, the concept of national origin was replaced by the concept of national extraction. This sui generis expression took its first term from the concept of (foreign) extraction and the second from that of national (origin).
100. 32. During the work of the Committee on Discrimination at the 40th Session of the Conference, the workers' members presented an amendment to restore the concept of national origin which was rejected by 158 votes to 157, with 62 abstentions. The same way, a proposal by a government member to insert the word "citizenship" in the list of grounds was rejected by 198 votes to 158, with 28 abstentions. (Endnote 16) During the discussion preceding the adoption of the Committee's report, a delegate drew attention to the differences in interpretation which could arise by referring to the exact sense of the expression "national extraction". (Endnote 17)
101. 33. The change in wording did not resolve all the difficulties. Thus a number of governments in their replies made in accordance with article 39 of the Standing Orders, emphasised the ambiguity of the concept. Several asked for the term to be clarified in the text of the Convention. In the final report, the Office pointed out that "it will be recalled that these words had been used in preference to "national origin" in order to make it clear that nationality was not covered. It is therefore obvious that it was not intended in this paragraph to deal with nationality, and it will be for the Conference to decide if there is any ambiguity in the phrase that requires clarification". (Endnote 18)
102. 34. This point was the subject of long discussion and several amendments in the Committee on Discrimination at the 41st Session of the Conference. Finally, without amending the text referring to national extraction, the Committee approved a note prepared by the drafting committee entrusted with drawing up an appropriate definition whereby: "the Committee agreed that distinctions, exclusions or preferences made on the basis of national extraction meant distinctions between nationals of the ratifying countries made on the ground of foreign ancestry or foreign birth". (Endnote 19) The Conference adopted Article 1 of the Convention without amendment.
103. 35. The Committee of Experts on the Application of Conventions and Recommendations has had the opportunity to examine the meaning of this concept and to clarify its content in the three General Surveys which it has to date devoted to the Discrimination (Employment and Occupation) Convention, 1958 (No. 111) and Recommendation.
104. 36. In 1963, the Committee, in referring to the preparatory work, recalled that the concept of national extraction refers to distinctions made in a country between nationals of that country on the ground of foreign ancestry or foreign birth. (Endnote 20) This concept does not concern persons of foreign nationality as such. The Committee gave some examples of persons who could be the subject of discriminations based on national extraction, such as persons who, while nationals of the country in question:
105. - have acquired that nationality through naturalisation;
106. or
107. - are descended from foreign immigrants;
108. or
109. - belong to groups of different national extraction living together in the same State.
110. The Committee pointed out that "problems may arise both with regard to persons of a particular national extraction and in respect of all national extraction different from the main national stock".
111. 37. In its General Survey of 1971, the Committee refers to the conclusions which it had reached in 1963, although it pointed out that discriminations based on national extraction could be considered as discriminations based on race ("as regards distinctions on the basis of race and other ethnic classifications (whether they are defined in terms of race, national extraction or even religion or other characteristics)"). (Endnote 21)
112. 38. In its 1988 Survey, the Committee pointed out that "the term "race" is frequently used erroneously to refer to population groups which could more accurately be described as linguistic communities or minority groups whose identity is based on cultural or religious characteristics, or as nations". (Endnote 22) Recalling the definition contained in Article 1 of the International Convention on the Elimination of All Forms of Racial Discrimination, the Committee noted that any discrimination against ethnic minorities is considered as racial discrimination, although it recognised that differences may occur in the forms of discrimination according to the nature of the minority group considered: minorities composed of immigrants or the descendants of immigrants, population groups absorbed by larger groups as a result of a conflict, indigenous or tribal populations, etc. After recalling the remarks contained in its previous General Surveys, the Committee emphasised that the ground of national extraction has been defined in a number of countries to include related grounds for discrimination: language, place of birth, ethnic origin, but also nationality, "in the meaning that the term can take to designate membership in one of several ethnic communities comprising the citizens of the country". (Endnote 23)
113. Political opinion
114. 39. As regards discrimination on the basis of political opinion, the Committee of Experts on the Application of Conventions and Recommendations pointed out in its General Survey in 1988:
115. (I)n protecting workers against discrimination with regard to employment and occupation on the basis of political opinion, the Convention implies that this protection shall be afforded to them in respect of activities expressing or demonstrating opposition to the established political principles - since the protection of opinions which are neither expressed nor demonstrated would be pointless. Regarding the nature of the opinions expressed, the Committee noted that "the protection afforded by the Convention is not limited to differences of opinion within the framework of established principles. Therefore, even if certain doctrines are aimed at fundamental changes in the institutions of the State, this does not constitute a reason for considering their propagation beyond the protection of the Convention, in the absence of the use or advocacy of violent methods to bring about that result. (Endnote 24)
116. The Committee of Experts also recalled the opinion expressed by a previous Commission of Inquiry set up under article 26 of the Constitution of the ILO that:
117. The protection of freedom of expression is aimed not merely at the individual's intellectual satisfaction at being able to speak his mind, but rather - and especially as regards the expression of political opinions - at giving him an opportunity to seek to influence decisions in the political, economic and social life of his society. For his political views to have an impact, the individual generally acts in conjunction with others. Political organisation and parties constitute a framework within which the members seek to secure wider acceptance of their opinions. To be meaningful, the protection of political opinions must therefore extend to their collective advocacy within such entities. (Endnote 25)
118. Finally, the Committee of Experts recalled that in those cases in which political opinion is taken in account as part of the conditions required for a job, an objective reappraisal should be made in order to determine whether these prerequisites are really justified by the requirements of the job.
119. Social origin
120. 40. The concept of social origin has been conceived principally in terms of social mobility, defined as the possibility for a person to move from one class to another. The Committee of Experts pointed out that the problem of discrimination based on social origin arises when the membership of an individual in a socio-occupational class or category conditions his occupational future by denying him access to training or certain kinds of jobs. (Endnote 26)
121. Article 1, paragraph 3 (access to training, employment and occupation, conditions of work)
122. 41. Article 1, paragraph 3, of the Convention stipulates that:
123. The terms "employment" and "occupation" include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.
124. The protection provided by the Convention is not limited to the treatment granted to a person or a group of persons who have already gained access to employment or an occupation, but is expressly extended to opportunities for access to employment or occupation. It also covers access to training without which in any real opportunity for access to employment or occupation would be meaningless. Finally the protection covers conditions of employment. This concept is defined in paragraph 2(b) of the Discrimination (Employment and Occupation) Recommendation, 1958 (No. 111) which lists the following areas: advancement in accordance with individual character, experience, ability and diligence; security of tenure of employment; remuneration for work of equal value; and conditions of work,
125. including hours of work, rest periods, annual holidays with pay, occupational safety and occupational health measures as well as social security measures and welfare facilities and benefits provided in connection with employment.
126. 42. The Committee of Experts noted that paramount importance attaches to vocational training and guidance on which actual prospects of access to employment and occupation depend. It has constantly recalled that since the Convention covers all forms of employment and occupations,
127. the words "vocational training" should by no means be interpreted exclusively in a narrow sense such as apprenticeship and technical education (...). In so far as the completion of certain studies (...) is necessary to obtain access to any given employment or occupation, or to some specialised form of vocational training, the problems relating thereto should not be overlooked in the application of the (Convention). (Endnote 27)
128. These observations are confirmed by the definitions included in certain international instruments adopted by the Conference. Thus, as used in paragraph 2 of the Human Resources Development Recommendation, 1975 (No. 150),
129. the qualification of the terms "guidance" and "training" by the term "vocational" means that guidance and training are directed to identifying and developing human capabilities for a productive and satisfying working life and, in conjunction with the different forms of education, to improve the ability of the individual to understand and, individually or collectively, to influence working conditions in the social environment. The definition (...) applies to guidance, to initial and further training, and to retraining, whatever the way in which they are provided and whatever the level of skill and responsibility.
130. The Vocational Training Recommendation, 1962, (No. 117) includes in its scope any training designed to prepare or retrain any person for initial or later employment in any branch of economic activity, including such general, vocational and technical education as may be necessary to that end.
131. Article 2 (formulation and application of an equal opportunity and treatment policy)
132. 43. Under the provisions of Article 2 of the Convention:
133. Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
134. National policy to establish equality of opportunity and treatment must first be expressed explicitly, which implies that programmes in the widest sense of the term should be or have been promulgated. Secondly, the policy must be applied, which presupposes the implementation by the State concerned of appropriate measures, the principles of which are listed in Article 3 of the Convention. In order to safeguard the flexibility indispensable to its application, the Convention does not give any specific indications regarding the content of the measures which could be adopted for the effective promotion of equality of opportunity and treatment in employment and occupation. It allows the ratifying States to determine the content of these measures in the light of the objectives of the Convention.
135. 44. However, the content of the national policy must be based on the principles of the Convention: promotion of equality of opportunity and treatment by the elimination of all distinctions, exclusions or preferences in law and practice; the application to all the discriminatory grounds expressly covered (race, colour, sex, religion, political opinion, national extraction and social origin); implementation of the principle of equality in the various aspects of employment and occupation. The provisions respecting the implementation of the principle of the Convention offer a very wide flexibility and numerous opportunities for adaptation to national circumstances and practices. An equal opportunity policy consists of offering everyone, without discrimination based on race, national extraction, political opinion, religion or social origin, comparable means and opportunities for training and employment, whereas an equal treatment policy can be limited to the formulation and application of the principle of equality before the law, in the general sense of the term. In the cases in which equality has been altered concerning one of the grounds covered by the Convention, the situation of the person(s) affected by this alteration should be corrected or put right according to the principle of equality of opportunity. Article 2 of the Convention makes provision for the combination of these two aspects of a single equal opportunity and treatment policy. Beyond the form taken by the measures of application (inclusion in the text of the Constitution, adoption of specific legislation, declarations of general policy, etc.) the criterion of the application of the Convention must be that of the unequivocal results obtained in the pursuit of equal opportunity and treatment in employment and occupation without any unlawful discrimination.
136. 45. The incorporation in national legislation of the principle of equal opportunity and treatment without discrimination based on race, colour, sex, religion, political opinion, national extraction or social origin is a fundamental and important stage of its implementation. The Committee of Experts noted that the large number of constitutional, legislative or contractual provisions should not be allowed to mask the difficulties which can arise as concerns their application and the effects which this legislation must have in practice for the promotion of equality of opportunity and treatment. In this connection the Committee pointed out:
137. While the affirmation of the principle of equality before the law may be an element of such a policy, it cannot in itself constitute a policy within the meaning of Article 2 of the Convention. (...) The absence of laws and administrative measures expressly introducing inequalities is not sufficient to meet the requirement of the Convention for the elimination of all forms of discrimination. Certain forms of discrimination based on race, national or social origin, (...) are not, on the whole, caused by an intention to discriminate or by provisions of legislation or regulations but are rather the result of behaviour, attitudes or an expression of prejudice, in respect of which measures should be adopted for the implementation of national policy. (Endnote 28)
138. Article 3 (measures to ensure the application of a national equality of opportunity and treatment policy)
139. 46. Article 3 of the Convention stipulates the areas which must be covered by the national policy to promote equality of opportunity and treatment and the measures to be implemented. Under this article each State which ratifies the Convention undertakes, by methods appropriate to national conditions and practice, to comply with various kinds of obligations. These include the obligation to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy (Article 3(c)); to pursue the policy in respect of employment under the direct control of a national authority (Article 3(d)) and in the activities of vocational guidance, vocational training and placement services under the direction of a national authority (Article 3(e)). The obligations are the means encumbent on the State as regards the promulgation of legislation and educational programmes calculated to secure the acceptance and observance of the policy (Article 3(b)) and the co-operation of employers' and workers' organisations in promoting the acceptance and observance of this policy (Article 3(a)). Subparagraphs (a), (c), (d) and (e) have raised difficulties of application which have been the subject of examination by the supervisory bodies of the International Labour Organisation.
140. Repeal of provisions or amendment of practices inconsistent with a national policy of equality
141. 47. The Committee of Experts had previously pointed out that the obligation of formulating and applying a national policy in accordance with the objectives of the Convention has as its corollary the duty to repeal statutory provisions and modify administrative practices which are inconsistent with this policy. It emphasised on the same occasion that:
142. While this absolute and universal obligation is a necessary condition for the application (of the Convention), it should be borne in mind that it is only one aspect of their implementation, which also implies the adoption of affirmative action measures to correct the de facto inequalities in all fields concerning employment and occupation, whether or not governed by law or by administrative action. (Endnote 29)
143. Application of the principle of the Convention to sectors subjected to the direct control of the authorities
144. 48. The responsibility of the State in the pursuit of an equality of opportunity and treatment policy as regards employment or the activities of the training, vocational guidance and placement services under its control, is of particular importance to the application of the Convention. The extent of this responsibility is even greater in as far as the State exercises a direct control over all or almost all jobs. The use of the means for the direct application of a national policy of equality at the disposal of the State is one the most elementary obligations under this Convention, and has been frequently recalled by the Committee of Experts.
145. Collaboration of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and application of the national policy
146. 49. Article 3(a) of the Convention emphasises in particular the requirement to seek the active co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of the principle of equal opportunity and treatment. This co-operation must be sought in the preparation and control of the application of measures adopted within the framework of national policy, covered by Article 2 of the Convention. By using the term "co-operation" which evokes the idea of work performed jointly, the Convention goes beyond the requirement of consultation of employers' and workers' organisations or other appropriate bodies. The Committee pointed out in its General Survey of 1988 that collaboration
147. must allow for the positions of the various parties in respect of the areas covered by the Convention (guidelines and options for schooling and vocational training, rules and operation of placement services, discrimination-free active employment policy, etc.) to be taken into consideration. This co-operation may proceed from the representation of employers and workers on various bodies responsible for preventing discrimination, and for the promotion, application and enforcement of the policy of equality of opportunity and treatment (...). Bodies of this kind also provide an opportunity for government, employers and workers to co-operate with other bodies such as those which represent the interest of certain categories of persons defined by characteristics such as race, colour, sex, religion, etc. or civil organisations for the defence of Human Rights. (Endnote 30)
148. CHAPTER 4
149. PROCEDURE FOLLOWED BY THE COMMISSION
150. First Session of the Commission
151. 50. The Commission held its First Session in Geneva between 5 and 9 January 1990.
152. 51. At the beginning of its First Session, on 5 January 1990, each of the members of the Commission made a solemn declaration, in the presence of Mr. Michel Hansenne, Director-General of the International Labour Office. In inviting the members of the Commission to make this declaration, the Director-General made the following remarks:
153. You have been appointed by the Governing Body of the ILO to form a Commission of Inquiry under article 26 of the Constitution of the International Labour Organisation. This Commission is to examine the complaint lodged by 13 Workers' delegates to the 76th Session of the Conference, in June 1989, against the Government of Romania concerning the observance by Romania of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
154. The Governing Body decided that the members of the Commission should serve as individuals in their personal capacity and that the Commission should establish its own procedure in accordance with the provisions of the Constitution. However, the Commission may, in fixing its own procedure, take account of the rules adopted by the previous Commissions set up under article 26 of the Constitution. One of these basic rules is that the role of a Commission of Inquiry is not limited to an examination of information provided by the parties but that furthermore the Commission should take all the necessary measures to obtain as much information as possible on the questions under examination.
155. The task entrusted to you is to establish the facts without fear or bias and in complete independence.
156. Given the nature of the function assigned to the Commission you are called upon to make a solemn declaration corresponding to that made by judges of the International Court of Justice, whereby you undertake to carry out your tasks and exercise your powers honourably, faithfully, impartially and conscientiously.
157. I therefore invite you in turn to make this solemn declaration.
158. Each of the members of the Commission then made the following declaration:
159. I declare that I shall carry out my tasks and excercise my powers honourably, faithfully, impartially and conscientiously as a member of the Commission of Inquiry set up by the Governing Body of the International Labour Organisation at its 244th Session (November 1989) under article 26 of the Constitution of the International Labour Organisation to examine the observance by Romania of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111).
160. 52. The Commission examined the allegations made by complainants (Endnote 31) and the documents presented to the Governing Body at its 244th Session. It noted that the text of the complaint refers to a number of acts of discrimination in employment and occupation, although no details are given in support of these allegations. It also took account of the events which occurred after the filing of the complaint and in particular the change of regime which occurred in December 1989.
161. 53. The Commission requested the complainants to furnish, by 15 March 1990, any supplementary information or observations including any relevant information on developments occurring after the date of the complaint. It invited the Government of Romania to communicate before 15 May 1990 any written statement which it wanted to make. The complainants and the Government were informed that all this information would be communicated to them.
162. 54. Referring to article 27 of the ILO Constitution whereby all member States are bound to place at the disposal of a Commission of Inquiry all information in their possession which bears upon the subject-matter of an inquiry, the Commission decided to invite in particular the governments of the signatory States of the Final Act of the Conference on Security and Cooperation in Europe (Helsinki) and Members of the ILO to furnish any information in their possession concerning the points raised by the complaint against Romania, including any information on developments occurring after the date of the complaint. (Endnote 32)
163. 55. A similar invitation to communicate information to the Commission was addressed to the United Nations Organisation and the United Nations High Commission for Refugees, to several organisations having consultative status with the ILO (Endnote 33) and a number of non-governmental organisations operating in the legal and humanitarian spheres. (Endnote 34)
164. 56. The governments and the organisations mentioned in the two previous paragraphs were invited to furnish information before 15 March 1990 and they were informed that their communications would be transmitted to the complainants and to the Government of Romania. The non-governmental organisations were informed that the function of the Commission was to establish the facts concerning the allegations made in the complaint and thus any information which they provided should be limited to the questions raised in these allegations. The Commission pointed out that although a reasonable latitude would be given regarding the communication of factual information, it would not accept information or statements not relevant to the issues referred to it by the Governing Body.
165. 57. The Commission, taking account of the information in its possession on the situation in Romania, believed that it was advisable to await the establishment of employers' and workers' organisations following the announcement made by the new Romanian authorities to restore freedom of association and organisation. The Commission decided that requests for information similar to those made to international employers' and workers' organisations would be sent to the new national organisations as soon as possible. Upon instructions from the President of the Commission, the requests and information were sent on 19 April 1990 to the Chamber of Commerce and Industry, the Provisional National Committee for the Organisation of Free Trade Unions in Romania and the Central Trade Union "Fratia".
166. 58. The Commission decided to hold a session in Geneva in the first two weeks of the month of July when it would proceed to the hearing of witnesses. It adopted rules for the hearing of witnesses which were communicated to the parties.
167. 59. These rules are reproduced in Appendix IV.
168. 60. The Commission invited the complainants and the Government of Romania to communicate before 15 May 1990 the names and descriptions of any witnesses whom they wished the Commission to hear, together with a brief indication of the matters on which each of them would provide evidence. The Commission indicated that it would decide, on the basis of these indications, and in accordance with article 1 of the rules respecting the hearing of witnesses, whether to hear the witnesses in question. The Commission decided to meet in Geneva on 21 and 22 May 1990 at which time the list of witnesses which it would hear would be drawn up.
169. 61. The Commission requested the Government of Romania to ensure that no obstacle would prevent the attendance before it of persons whom it was proposed to present as witnesses or whom the Commission wished to hear. It also asked the Government for an assurance that all persons appearing before it as witnesses would enjoy full protection against any sanction or prejudice on account of their attendance or evidence before the Commission.
170. 62. The Commission authorised its Chairman to deal on its behalf with any questions of procedure that might arise between sessions, with the possibility of consulting the other members whenever he might consider this necessary.
171. Communications received and sent by the Commission following its First Session
172. Communications from member States under article 27 of the Constitution
173. 63. In letters dated 13 February and 2 April 1990, the Government of the United States communicated to the Commission an extract from the Department of State's Country Reports on human rights practices in 1989 (Endnote 35) concerning Romania. The Government points out that the report does not contain any information on the recent events which have occurred in Romania under the responsibility of the new Government. References to questions raised in the complaint could be found in the report and, in particular, in section 5 concerning discrimination based on race, sex, religion, language or social situation. The Government stated that it firmly supports the supervisory machinery of the International Labour Organisation and that it is always willing to co-operate fully with these bodies.
174. 64. The Governments of Austria (letter dated 20 March 1990), Denmark (letter dated 15 February 1990), Finland (letter dated 19 March 1990), Cyprus (letter dated 9 March 1990), the German Democratic Republic (letter dated 16 February 1990) and Switzerland (letter dated 16 March 1990) informed the Commission that they did not have any particular information on the matters before the Commission. The Government of the German Democratic Republic added that in the light of the current events in Romania, it believed that it was important to examine the reason for continuing the inquiry concerning the complaint against this country by the competent bodies of the International Labour Organisation.
175. 65. The Permanent Mission of Hungary to the United Nations and Specialised Organisations in Geneva communicated, in a letter dated 14 March 1990, a message signed by two workers' organisations from Hungary assuring the Commission of their co-operation.
176. 66. The Government of the Federal Republic of Germany, in a letter dated 15 March 1990, recalled its commitment to the defence of human rights throughout the world. The Government states that the Government which had been overthrown was responsible for violations of human rights to which the complaint refers and that in this connection it has no other information than that contained in the complaint or already at the disposal of the ILO. The Government also states that the new situation resulting from the overthrow of the Ceaucescu Government gives reason to hope for positive change. Thus, the statements made by the Romanian Government indicate that the rural systematisation programme has been abandoned and that the rights of the minorities will be protected. It hopes that these changes will occur rapidly. The Government does not at present have any reliable information on recent developments in the situation.
177. 67. In a letter dated 24 April 1990, the Italian Government provided information on the matters raised in the complaint. The Government points out that the situation which gave rise to the complaint has undergone a profound change and that the commitment to respect the civil and political rights of all citizens has been reaffirmed many times by the new leaders who have cancelled the restrictions on freedom of movement, association, and contact with foreigners which had been imposed by the previous regime. The rural systematisation programme and the obligatory assignment of members of minority groups have been discontinued. As regards employment, the Government notes that the production system is still in a transitional phase and that radical changes cannot be made until after the elections of 20 May 1990, but that measures of harassment regarding employment are a thing of the past. As regards the question of the education of Romanian pupils of Hungarian mother tongue the Government that after the serious ethnic incidents which occured in Transylvania, the Romanian Government announced on 23 March 1990 a series of measures such as the reorganisation of Hungarian language educational institutions at all levels, the transmission of Hungarian language radio and television programmes in the regions of Transylvania which do not yet receive them and the circulation of foreign publications in languages of the minorities with the exception of those which have a "hostile, national and chauvinistic" character.
178. Communication of information by international organisations
179. 68. In a letter dated 8 March 1990, the Secretary-General of the United Nations pointed out that all the relevant information concerning the complaint available to the United Nations would be communicated by the Under-Secretary-General for Human Rights, Mr. J. Martenson. The Commission received reports on the situation of human rights in Romania presented by Mr. Joseph Voyame, Special Rapporteur appointed in accordance with resolution 1989/75 of the Commission on Human Rights. (Endnote 36)
180. 69. The United Nations High Commissioner's Office for Refugees, in letters dated 1 March 1990 and 25 June 1990, communicated information to the Commission which emphasised the strictly humanitarian nature of the mandate of the High Commissioner's Office which prohibits the disclosure of information which could be interpreted as a value judgement concerning any government or country, all the more so since this information generally comes from nationals who have become refugees. The UNHCR also pointed out that "the protection of individuals and any member of the family of a person requesting asylum who may have remained in the country of origin is the priority concern of the UNHCR and the principle of confidentiality must be respected at all cost". The information communicated by the UNHCR on the situation of persons requesting exile was consonant with this principle.
181. 70. The Secretary-General of the International Organisation of Employers (IOE), in a letter dated 24 January 1990, emphasised that the International Organisation of Employers fully shares the concerns expressed by the complainants as regards the rights of certain Romanian citizens and hopes that the events of December 1989 in this country have improved the situation of its citizens.
182. 71. The International Confederation of Free Trade Unions (ICFTU), whose Secretary-General represented 13 complainants, communicated the information at its disposal on behalf of the complainants. The Commission took due note of this information and refers to it in the appropriate chapters of this report.
183. Information communicated by non-governmental organisations
184. 72. In a letter dated 22 January 1990, the Minority Rights Group communicated to the Commission a copy of a report entitled "The Hungarians of Romania" (Endnote 37) and pointed out that this report was being updated and would be communicated to the Commission. The new report entitled "Romania's ethnic Hungarians" (Endnote 38) was sent to the Commission in May 1990.
185. 73. Amnesty International, in a letter dated 2 May 1990, drew the attention of the Commission to the fact that the provisions of the Convention fall to a very large extent outside the sphere of competence of this organisation. Amnesty International communicated two reports containing information on cases in which discriminations in employment allegedly affected members of ethnic or religious minorities: "Amnesty International briefing: Romania" (Endnote 39) and "Romania - Human rights violations in the eighties". (Endnote 40) Amnesty International pointed out that all the cases described in the documents sent to the Commission had been solved at the time of, or following, the change of Government in Romania in December 1989.
186. 74. In a dispatch received by the Office on 23 May 1990, Helsinki Watch communicated several documents: "News from Romania", "Trials in Romania - A rush to appease ... and to conceal", "Ethnic conflict in Tirgu-Mures", "Election report" (Endnote 41) and a work entitled "Destroying ethnic identity - The Hungarians of Romania". (Endnote 42) On 6 August 1990, the Commission received another document on the events of 13-15 June 1990 in Bucharest entitled "Violent events of 13-15 June". These documents and reports were used by the Commission in the corresponding parts of its report whenever they contained information on the allegations made.
187. Communications with the Government of Romania and with the complainants
188. 75. All the documents received by the Commission were transmitted as soon as possible to the Romanian authorities in accordance with the procedures established for communications between the Government of Romania and the International Labour Office. The same procedure was used as regards communications with the representative of the complainants.
189. 76. In a letter addressed to the President of the Commission, received on 17 May 1990, the Government of Romania acknowledged receipt of the additional information communicated by the Secretary of the International Confederation of Free Trade Unions, on behalf of the complainants, and requested the Commission to extend the deadline set for the observations of the Government. The Government also invited the Commission and its secretariat to visit Romania "to see for themselves how the provisions of the Convention are being respected". It informed the Commission of its intention not to present witnesses. Finally, the Government stated that it was ready "to respect the procedural standards required for the Committee to carry out its work as well as the status and rights of persons involved in the inquiry". The President of the Commission, in accordance with the mandate with which he was entrusted at the First Session to examine the questions of procedure which might arise between the sessions, accepted the offer of the Government of Romania and took note of the indications contained in the letter.
190. 77. The Government of Romania communicated its observations to the Commission on 20 June 1990. The Government repeated the invitation made to the Commission to visit the country and reaffirmed its determination to respect the status and rights of the persons involved in the inquiry. Mr. Ion Pacuraru, Minister-Counsellor at the Permanent Mission of Romania in Geneva, was appointed as representative of the Government to the Commission.
191. 78. In an annex to the above-mentioned communication from the Government of Romania, the Government enclosed a document presented by the delegation of Romania to the Conference on Security and Cooperation in Europe held in Copenhagen in May 1990, entitled "White Paper concerning the actions taken for promoting fundamental human rights in Romania".
192. 79. In a letter dated 29 June 1990, the Secretary-General of the International Confederation of Free Trade Unions informed the Commission that he had appointed Mr. Eddy Laurijssen, Director of the Office of the International Confederation of Free Trade Unions in Geneva, as his representative at the meeting of 4 July 1990 and to act on his behalf.
193. Second Session of the Commission
194. 80. The Commission held its Second Session in Geneva from 3-4 July 1990.
195. 81. The Commission examined the development of the situation in Romania since its first meeting and the effect given to the decisions taken at that time. It decided to ask the Permanent Mission of Hungary to the United Nations and other International Organisations in Geneva to inform the two trade union organisations whose offers of co-operation it had transmitted (see paragraph 65) that the Commission would visit Romania at the beginning of October and that as a result they could present to the Commission the names and ranks of persons which they had proposed to communicate, with an indication of how they were to be contacted.
196. 82. The Commission took note of the observations of the Government communicated on 20 June 1990. It decided to ask for further details concerning the methods of application and the results of the measures announced in the observations of the Government, as well as additional information on a number of points. A request to this effect was communicated to the representative of the Government.
197. 83. The Commission accepted the principle of hearing of witnesses in Geneva on 2-3 October 1990 and in Bucharest on 5, 6 and 8 October 1990. It decided to hear the seven witnesses presented by the International Confederation of Free Trade Unions in its communciation dated 29 June 1990. Furthermore, the Commission asked its secretariat to meet several persons whose evidence it wished to hear. In the light of the report prepared by the secretariat on the meetings with the persons presented, the Commission decided to invite persons whom it believed should be asked to give evidence.
198. 84. The Commission decided to accept the invitation from the Government for it and its secretariat to visit Romania. The visit will be followed immediately by the hearing of witnesses so as not to delay the procedure.
199. 85. On 4 July 1990, the Commission held a meeting in the presence of the representative of the Government of Romania and the representative of the complainants to inform them of the decisions which it had taken and to hear their views on matters of procedure raised by the hearing of witnesses. (Endnote 43) It recalled to the representative of the Government of Romania and to the complainants the principles of autonomy and independence which would guide it in this visit. The Commission decided that it would take into account the additional information which might be communicated to it by the complainants or the representative.
200. Communication of additional information
201. 86. In a letter dated 14 September 1990, the Government of Romania provided the clarifications and additional information requested by the Commission.
202. 87. In a letter dated 14 September 1990, the representative of the complainants communicated further information and made a request for the hearing of five new witnesses.
203. Third Session of the Commission
204. 88. The Commission held its Third Session in Geneva on 2-3 October and in Bucharest from 4-13 October 1990. This session was preceded by a mission by the Chief of the secretariat of the Commission to Bucharest from 27-31 August 1990 to prepare the necessary material arrangements for the hearing of witnesses and the part of the programme of on-the-spot visits organised by the Government in collaboration with officials of the Ministry of Labour.
205. Hearing of witnesses
206. 89. During this session the Commission held nine meetings devoted to the hearing of witnesses. The first three meetings took place in Geneva after which the Commission travelled to Romania where it held six meetings dealing with the hearing of witnesses. The Government of Romania was represented at the hearings in Geneva by Mr. Ion Pacuraru, Minister-Counsellor at the Permanent Mission of Romania in Geneva. In a communication dated 3 October 1990, the Permanent Mission of Romania informed the Commission that Mr. Dimitru Negrea, Counsellor at the Ministry of Justice, would represent the Government of Romania at the hearings in Bucharest and would be assisted by Mr. Bodica, Chief of the Legal Service of the Ministry of Labour and by Mr. Gavrilescu, Counsellor at the Ministry of Foreign Affairs. Mr. Pacuraru also attended the hearing of witnesses in Bucharest on 8 October 1990. The Secretary-General of the International Confederation of Free Trade Unions, in a letter dated 26 September 1990, appointed their representative at the Third Session, Mr. Eddy Laurijssen, assisted by Mr. Janek Kuczkiewicz, of the Department of Political and Social Economy of the International Confederation of Free Trade Unions.
207. 90. The Commission heard the following witnesses presented by the complainants: Mrs. Poly-Planche, Mr. Berindei, Mr. Frauendorfer, Mr. Horvarth, Mr. Craciun, Mr. Rosu, Mr. Pusca, Mr. Camarasan, Mr. Iuhas, Mr. Manucu, Mr. Sevaciuc, Mr. Foca and Mr. Preoteasa. Furthermore, the Commission had invited six persons to give evidence before it. Five of these witnesses took the stand: Messrs. Barsan, Gheorghe, Andreescu, Professor Pfaff and Professor Coja. Mr. Karoly Kiraly, who was invited to give evidence, did not appear.
208. 91. Before hearing each witness, the President introduced the members of the Commission, reminded the witness of the content of the complaint and asked each witness to read the solemn declaration for which provision is made in the rules adopted by the Commission. The witnesses were invited by the President to make a general statement before being questioned by the representatives of the parties and by the members of the Commission. Two copies of the report of the hearing of the witnesses were deposited in the ILO library.
209. On-the-spot visits
210. 92. On arriving in Bucharest on 4 October, the Commission was received at the Ministry of Labour by the Minister, Mr. Catalin Zamfir, the Secretary of State for Labour, Mr. Octavian Partenie, Mr. Alexandru Athanasiu, Counsellor at the Ministry, Mr. Gheorgiu Bodica, Chief of the Legal Service of the Ministry of Labour, Mr. Coriolan Atanasiu, Mr. Dumitru Negrea, Counsellor at the Ministry of Justice, and Mr. Gacvrilescu, Counsellor at the Ministry of Foreign Affairs. The Commission raised a number of matters concerning certain provisions of legislation and regulations in force, in particular Decree No. 153/1970 which provides for penalties in the case of certain offences against the rules of communal life and public law and order and which is better known as the decree on parasitism.
211. 93. On 8 October, the Commission was received in Parliament by nine members of the Assembly of Deputies, including the President of the Committee on Human Rights, Religion and Minorities, Mr. Ion Oancea, the President of the Committee on Labour, Health, Social Protection and the Status of Women, Mr. Ferenc Baranyi, the Vice-President of the Committee responsible for the drafting of the Constitution, Mr Ion Les, deputies representing the Magyar minority, Messrs. Peter Kovacs Eskstein and Imre Andras, and the Greek minority, Mr. Anton Nicolau, as well as other deputies, Mrs. Ana Florica Dimitriescu and Smarands Ionescu and Mr. Vasile Salagean.
212. 94. On 9 October, the Commission held a meeting with Mr. Papahaghi, Secretary of State for Higher Education at the Ministry of Education. Mr. Papahaghi gave a general outline of the system of higher education in Romania and emphasised a number of measures adopted recently by the Government, in particular as regards the members of minority groups. The Secretary of State referred to discriminatory measures which were widely used against teachers and students under the previous regime and emphasised the spheres in which new changes would be both necessary and desirable. The Commission was also received by the Secretary of State for Justice, Mr. Stingu, accompanied by Mr. Dumitru Negrea, Counsellor. The Secretary of State informed the Commission of the proposed amendments under discussion by Parliament and emphasised in particular the bill respecting administrative disputes and appeals procedures available to citizens. Finally, the Commission held a meeting with the First Deputy of the Attorney-General, Mr. Cochinescu, who described the organisation and role of the Procurature in the Romanian legal system.
213. 95. On 10-11 October 1990, the three members of the Commission followed a separate programme. The President of the Commission visited the region of Cluj where he held meetings with the local authorities (County Prefect's Office, City Hall of Cluj, Directorate of Labour) and with representatives of the Democratic Union of Magyars of Romania, Mr. Sandor Balasz, President of the UDMR in Cluj and Mr. Karoly Vekov, National Secretary of the UDMR and the trade unionists. Professor Capotorti visited Timisoara where, in addition to the representatives of the local authorities, he met representatives of the A1liance for the Proclamantion of Timisoara, the Democratic Union of Magyars of Romania and members of the German and Serb minorities. Professor Vukas visited Brasov and Sibiu where he held meetings with the local authorities. He also met in Brasov members of the "22nd December" Trade Union, the "15th of November 1987" Movement, representatives of the Democratic Union of Magyars of Romania and a member of the Action Committee for the Democratisation of the Army (CADA), Major Viorel Tocan. In Sibiu, he also had a meeting with Mr. Ion Ciobá, Vice-President of the Organisation of Roma of Romania and the President of the Union of Drivers of the county of Sibiu.
214. 96. On their return to Bucharest, the members of the Commission had an exchange of views on the results of their visits in the regions and made a preliminary examination of the conclusions to be drawn from the information at their disposal.
215. 97. On 12 October, the Commission was received by the Secretary of State for Labour, Mr. Octavian Partenie.
216. 98. On returning to Geneva, the Commission sent a request for supplementary information to the Government of Romania in a letter dated 16 October 1990. Some of the information requested was communicated to the secretariat of the Commisssion by the representative of Romania at the Governing Body at its 248th (November 1990) Session and the 249th (February-March 1991) Session of the Governing Body.
217. Fourth Session of the Commission
218. 99. The Committee held its Fourth Session in Geneva between 25 and 28 March 1991. The session was devoted to discussions on matters of substance and the preparation of the Commission's report.
219. TITLE II
220. NATIONAL POLICY IN RESPECT OF EQUALITY OF OPPORTUNITY AND TREATMENT PRIOR TO THE FILING OF THE COMPLAINT
221. (26 June 1989)
222. 100. The Committee has considered that the examination with which it has been entrusted relates, first of all, to the situation during the period preceding the lodging of the complaint on 26 June 1989. Ratification by Romania of the Discrimination (Employment and Occupation) Convention, 1958, was registered on 6 June 1973. The Convention therefore came into force for Romania on 6 June 1974. Consequently, bearing in mind that the facts alleged by the complainants took place over a long period, the Committee examined the application of the Convention between 6 June 1974 and 26 June 1989, when the complaint was lodged. In addition, it considered it necessary, in order to see subsequent developments in a perspective that would enable them to be understood, to mention in some cases certain events or facts that took place after the ratification of the Convention by Romania. In so doing, it has refrained from expressing an opinion on these events and facts in so far as they had ceased to have any effect or consequence on the date of ratification of the Convention.
223. 101. In view of the broad scope of the allegations made by the complainants at the different stages in the procedure, the Committee considered that it should examine the entire national policy of the Socialist Republic of Romania aimed at promoting, by methods adapted to national circumstances and customs, equality of opportunity and treatment in respect of employment and occupation so as to eliminate any discrimination based on any of the seven criteria listed in Article 1, paragraph 1(a) of the Convention. In accordance with Article 2, a member State ratifying the Convention undertakes to declare and pursue such a policy. This title analyses, first of all, the legal and conceptual framework of the national policy of equality as it appears in the legislation in force at the time the complaint was lodged and in the statements made by the authorities. The Commision examined the situation of members of minority groups in the framework of this national policy on equality pursued by the Romanian authorities. Secondly, the application of this policy as regards education and training, access to employment, conditions of employment, employment promotion and security, and unemployment, will be examined. The Committee also examined other questions on which allegations were made which may have a bearing on the application of the Convention: the question of recourse against measures taken in respect of employment and occupation and the effects of the policy of systematisation.
224. CHAPTER 5
225. LEGAL AND CONCEPTUAL FRAMEWORK OF THE NATIONAL POLICY ON EQUALITY
226. 102. In addition to the general framework of the national policy on equality, applicable to all citizens, there is a more specific framework in respect of the members of recognised national minorities. To describe these minorities, the authorities have drawn on the notion of "cohabiting nationalities" which signifies an ethnically distinct social group, numerically less than the Romanian nation, with its own cultural, linguistic, historical and religious characteristics. According to one author the notion of national minority would be considered as discriminatory for those who form a numerical minority and that this no doubt led, in an attempt to avoid such discrimination, to the adoption of the idea of "cohabiting minorities". (Endnote 44)
227. Equality before the law
228. 103. For the period considered in this chapter, the general framework of the policy of equality of opportunity and treatment, within the meaning of Convention No. 111, is contained mainly in the Constitution and the Labour Code. In its reports on the application of the Discrimination (Employment and Occupation) Convention, 1958, submitted under article 22 of the ILO Constitution, the Government has always referred in this connection to the relevant provisions of the Constitution and the Labour Code.
229. General provisions applicable to employment and occupation
230. 104. On the subject of equality of rights, the 1965 Constitution (Endnote 45) repeats the provisions of the Constitutions of 13 April 1948 and 24 September 1952. Under article 17 of the 1965 Constitution:
231. Citizens of the Socialist Republic of Romania, irrespective of their nationality, race, sex or religion, shall have equal rights in all fields of economic, political, legal, social and cultural life.
232. The State shall guarantee the equal rights of citizens. No restriction of such rights and no difference in their exercise on grounds of nationality, race, sex or religion shall be lawful.
233. Any act designed to establish such restrictions, any nationalist-chauvinist propaganda or any incitement to racial or national hatred shall be punishable by law.
234. 105. The provisions that should make it possible to give effect to the third paragraph of section 17, cited above, are contained in three sections of the Penal Code. Section 247, which deals with a situation in which an official restricts the enjoyment or exercise of the rights of any citizen or creates for any citizen a situation of inferiority based on nationality, race, sex or religion, provides for a penalty of six months to five years imprisonment. This section refers to the creation of "situations of inferiority" and not to the hypothesis of advantages granted to a person on the basis of nationality. Section 317 penalises nationalist-chauvinist propaganda and incitement to racial or national hatred, which incur the same penalty as that of section 247, and section 357 punishes acts committed with a view to the complete or partial destruction of a collectivity or national, ethnic, racial or religious group, those responsible being subject either to the death penalty or to between 15 and 19 years' imprisonment and confiscation of all their property. In a report due under the International Convention on the Elimination of All Forms of Racial Discrimination, the Government has stated on the subject of these sections of the Penal Code: "it is particularly significant that legal practice in Romania has never had to deal with offences of the kind referred to ...". (Endnote 46)
235. 106. The Government has stated that although the laws governing certain matters referred to in article 5 of the International Convention on the Elimination of All Forms of Racial Discrimination do not include express provisions concerning the prohibition of all racial discrimination, they are subject to the principles set forth in article 17 of the Constitution and are to be interpreted and applied exclusively in the context and the spirit of those principles. (Endnote 47)
236. 107. The Government has also stated that under section 18 of Act No. 57/1968 concerning the organisation and operation of people's councils (local organs of state power), the latter "co-ordinate all economic and social development activities of districts, municipalities, towns and communes, (...) organising the direct participation of all citizens, without distinction as to nationality, as owners, producers and beneficiaries, in implementing party and state policy relating to the harmonious and multilateral development of all districts and localities." (Endnote 48) Section 4 of the same Act provides that:
237. the people's councils base their activities on the principles of socialist democracy, organising the direct participation of all citizens, without distinction as to nationality, race, sex or religion, in discussions on state and public affairs at the local level and the implementation of decisions and measures".
238. Provisions in respect of education and training
239. 108. The relevant provisions on training are to be found in the set of texts on education. Article 21 of the Constitution provides that citizens have the right to education ensured by compulsory general schooling, by the fact that education at all levels is provided free and by the system of state scholarships.
240. 109. Prior to 1973, vocational and technical education which were organised by Decision No. 91/1955 of the Central Committee of the Romanian Communist Party and Decisions Nos. 247/1955 and 6/1957 of the Council of Ministers, were separate from the general education provided in secondary schools. Legislative Decree No. 278/1973 profoundly changed the pattern of education by bringing secondary education and technical and vocational training to the fore. The general character of secondary education thus gave way to more specialised teaching, following a trend that had already become apparent in the second half of the 1960s when technical high schools were set up in which technical specialisation predominated (Act No. 2/1966). The distinction between general and vocational education was considerably reduced, even to the point of disappearing completely. The trend was confirmed several times over by Communist Party authorities, (Endnote 49) as well as by the Science and Education Congress, at its first meeting in November 1985.
241. 110. Act No. 28/1978 on education and training established the overall framework for the education system: by virtue of section 188 the scope of the Act extends to teaching institutions organised by the other ministries, particularly the Ministry of Labour. The general provisions of the Act apply therefore to all teaching activities. According to section 2, subsection 1, citizens "have the right to education, without distinction as to nationality, race, sex or religion and without any other restriction that might lead to discrimination". The nature of the restrictions referred to in this section is not specified. According to section 23, teaching is organised on the following basis: nursery school, primary school (four years), gymnasium (four years), first-stage secondary (two years) and second-stage secondary (two years), vocational teaching and training for foremen, higher education, courses leading to qualifications in agronomy and animal husbandry as well as out-reach courses in the same subjects, postgraduate education and other forms of training and further training. Compulsory schooling covers the first ten years (primary schooling, gymnasium and the first stage of secondary schooling).
242. 111. The content of the education is heavily impregnated with ideology. In the nursery school, for instance, activities devoted specifically "to developing the feeling of love for the fatherland, the people and the Romanian Communist Party" represented 10 per cent of daily activity for the youngest children, 7 per cent for the next group and 13 per cent for the older children. (Endnote 50) These specific activities are dropped from primary teaching and the gymnasium, on the understanding that all subjects taught include the aim of "educating pupils in a spirit of socialist patriotism, of love for the Party and for the people" (Endnote 51) or enable pupils "to assimilate the standards of socialist ethics and equity". Subjects dealing with the history of the Romanian Communist Party or socio-political science are reintroduced in the final year of compulsory schooling (tenth year) and in the syllabus for the entrance examination for the second stage of secondary education. Under section 148 of the aforementioned Act, it is the duty of pupils and students:
243. (b) to assimilate the ideology and policy of the Party and its views on the world and on life, (...) to act in a spirit of fraternity and friendship with young people, regardless of their national origin, with the working class of the country, and to behave as active militants in carrying out the programme to build a multilaterally developed socialist society and promote the progress of Romania towards Communism;
244. (c) to devote themselves to the fatherland, the Party and the people (...);
245. (e) to observe the principles of socialist morality and equity (...) and at all times to comply with socialist rules of social behaviour; (...)
246. (i) to work, after obtaining their qualifications, in the job assigned to them.
247. 112. Teachers have similar obligations as regards ideology to those of the pupils and students. The preamble to Act No. 6/1969, respecting the status of teaching staff in the Socialist Republic of Romania emphasises the close links that must exist between teaching activities and the socio-political and cultural life of the country. Section 1 of the Statute provides that "teaching personnel shall apply the policy of the Romanian Communist Party and of the Romanian State in the field of education". Teachers must constantly strive to raise their level of ideological knowledge and that of their pupils.
248. Provisions on employment
249. 113. The preamble to Act No. 24/1976 respecting the recruitment and allocation of manpower affirms that "in the Socialist Republic of Romania, the right to work is guaranteed by the Constitution, without any discrimination". The reference to the Constitution, which lists four types of discrimination that are prohibited - race, sex, nationality and religion - reduces the scope of the affirmation in this preamble. Discrimination based on criteria such as political opinion or social origin, which are expressly prohibited by Article 1, paragraph 1(a) of the Convention, are not mentioned in the Constitution whereas other criteria that might come within Article 1, paragraph 1(b) of the Convention, such as language or degree of culture, referred to respectively in Act No. 86 of 7 February 1945 on the Nationalities Statute (Endnote 52) or in the Constitution of 13 April 1948, have not been included in the Constitution of 1965.
250. 114. The legislation concerning labour relations, occupation and training are drafted in similar terms. Political opinion and social origin are not included among the prohibited forms of discrimination. Section 2 of the 1972 Labour Code provides that all citizens of the Republic are guaranteed the right to work -
251. without restriction or distinction of sex, nationality, race or religion ... with the possibility of carrying on an occupation in the economic, technical-scientific, social or cultural field suited to the aptitudes, vocational training and aspirations of each, in accordance with the needs of the whole society. (Endnote 53)
252. Taking account of the needs of society, only the aptitudes, vocational training and aspirations of the person concerned should be taken into consideration for filling a job, to the exclusion of any other consideration based on personal characteristics.
253. Specific provisions on the protection of intellectual rights
254. 115. The texts dealing with the protection of intellectual rights (Decree No. 321/1956 in respect of copyright, Act No. 28/1967 in respect of trade and service marks, Act No. 62/1974 in respect of inventions and innovations) make no provision for specific protection against discrimination within the meaning of Convention No. 111. The State has the right to make use of inventions and the authors of inventions that are used are compensated mainly by exceptional promotion to different functions in accordance with section 37 of the above-mentioned Act No. 62/1974. The Government has stated that "Romanian legislation guarantees full and genuine protection of intellectual rights without discrimination". (Endnote 54)
255. Equality of opportunity and treatment of the members of national minorities
256. 116. The Committee recalls that the Convention does not accord special protection to national, religious, ethnic or linguistic minorities (see Chapter III above) but aims at protecting the members of minority groups, just like any other persons, against discrimination based on race, national origin, religion or political opinion and at ensuring that they enjoy equality of opportunity and treatment in employment and occupation. In its reports on the application of the Convention, submitted to the International Labour Organisation in accordance with constitutional procedures, the Government has referred to the Romanian constitutional and legislative provisions governing minorities and their members, presenting them as an element in its national policy of equality of opportunity and treatment in employment and occupation. (Endnote 55)
257. Legal Statute of Nationalities
258. 117. The place of the national minorities in Romania has been established by various international treaties. Under Article 47 of the Treaty of Trianon, 4 June 1920, Romania agreed to accept, in exchange for the territories of the former Austro-Hungarian Monarchy to which Romania was entitled by virtue of Article 45, the embodiment in a treaty of "such provisions as may be deemed necessary (...) to protect the interests of inhabitants of that State who differ from the majority of the population in race, language or religion". (Endnote 56) The parties to the Treaty of Paris, signed on 9 December 1919, referred to the link between the "large accessions of territory (which) are being and will be made" to Romania and the desire of Romania "to give full guarantees of liberty and justice to all inhabitants both of the old Kingdom of Romania and of the territory added thereto, to whatever race, language or religion they may belong". Apart from the general clauses concerning equality of rights without distinction of birth, nationality, language, race or religion, the text of the treaty contained provisions relating to the rights of Romanian nationals belonging to ethnic, religious or linguistic minorities, notably the right to use their language in all circumstances of public life and, as a corollary to this, the right to instruction in their own language, although the teaching of the Romanian language remained obligatory. It was also established that "differences of religion, creed or confession shall not prejudice any Romanian national (...) as for instance admission to public employments, functions and honours, or the exercise of professions and industries". Lastly, the treaty contained a clause providing for the recognition of Romanian nationality to Jews inhabiting Romanian territory (Article 7) and another article on the local autonomy to be accorded to the communities of the Saxons and Czecklers (sic) in Transylvania in regard to scholastic and religious matters, subject to the control of the State (Article 11). (Endnote 57) Some of the provisions of the 1919 Treaty of Paris were to be a direct source of inspiration to the 1945 Nationalities Statute.
259. 118. The Treaty of Peace with Romania, signed at Paris on 10 February 1947, which established the present frontiers of Romania, does not refer explicitly to minorities but provides for the necessary measures to be taken by the Government of Romania "to secure to all persons under Romanian jurisdiction, without distinction as to race, sex, language or religion, the enjoyment of human rights" and provides that "the laws in force in Romania shall not, either in their content or in their application, discriminate or entail any discrimination (whether direct or indirect) between persons of Romanian nationality on the ground of their race, sex, language or religion, whether in reference to their persons, property, business, professional or financial interests, status, political or civil rights or any other matter". (Endnote 58)
260. 119. In addition to the provisions of article 17 of the Constitution, referring to the equal rights of citizens without distinction based on nationality, article 22 lays down special provisions for the members of minority groups, recognising the use of minority languages and teaching in these languages at all levels:
261. In the Socialist Republic of Romania the constituent nationalities shall be entitled to the free use of their mother tongue and to books, papers, magazines, theatres and education at all levels in their own language. In districts which are also inhabited by a population of non-Romanian nationality all bodies and institutions shall use the language of the respective nationality in speech and writing and appoint officials from its ranks or from the ranks of other citizens who know the language and way of life of the local population.
262. The use of the mother tongue of members of minority groups is an essential element of the legislative provisions and regulations concerning minorities in force at the time the complaint was lodged: apprenticeship and teaching in the mother tongue, use of the mother tongue in economic activity, in the law courts and in general public usage.
263. 120. Some aspects of this text have a direct relation to the Convention while others have only an indirect one. For example, the use of the mother tongue in the law courts is covered by the Convention only in so far as it concerns appeals that may be lodged by a person to secure recognition of his or her demands in respect of employment and occupation; public use of the language, within the framework of the mass media drafted in minority languages, concerns the Convention in so far as this usage and the existence of these media afford the members of the minority groups employment opportunities.
264. 121. According to an official Romanian Government document, an Act No. 86 of 7 February 1945 on the Nationalities Statute was still in force on 1 January 1989. (Endnote 59) However, the Government does not refer to these provisions in its reports to the various United Nations bodies. Further, some authorities consider that the Statute has fallen into abeyance. (Endnote 60) The Committee considers, however, that this Nationalities Statute was part of the internal legal order of the Socialist Republic of Romania at the time the complaint was lodged in so far as it was included among the list of the laws of the Socialist Republic of Romania in force on 1 January 1989. On the other hand, Act No. 630 of 6 August 1945, to determine and penalise certain infringements of the Act respecting the Nationalities Statute, was rescinded. Some of its provisions were incorporated into the Penal Code but others have disappeared, such as the offence against the equality of citizens characterised by the establishment of "direct or indirect privileges for citizens either by establishing special conditions for the recruitment or appointment of personnel, or by differential treatment or by any other means of discrimination based on race, religion or nationality" (section 4(2)). The same is true of the offence "of abuse in respect of the establishment of nationality or language" which corresponds to the act of preventing a citizen from freely establishing his or her nationality or mother tongue "by arbitrarily modifying the information given by such person or by asking him or her to provide certain information".
265. 122. According to section 3 of the Nationalities Statute, Act No. 86 of 7 February 1945 (Endnote 61) "differences of language, religion, race or nationality cannot form an obstacle for a Romanian citizen (...) to his admittance to state offices or to his exercising a profession". It is the right of citizens alone to decide on their nationality or mother tongue, official bodies being obliged to accept the declaration made by the citizen (section 5); investigation of the racial origin of Romanian citizens, with a view to establishing their juridical situation, is forbidden (section 2).
266. 123. As regards the use of language, section 7 provides that in private relations and in industry and commerce, "Romanian citizens may freely, and without restrictions, use any language". Use of the mother tongue in the law courts is specified in section 8 of the above-mentioned Act. In legal sectors where at least 30 per cent of the inhabitants have the same mother tongue, other than the Romanian language, the courts are obliged to accept documents presented in the mother tongue without requiring a translation into the official language. They are also obliged to hand down decisions in the case in the same language and to allow the parties to address the court in their own language. Under section 10, communal and district authorities in charge of an administrative sector in which 30 per cent of the population belong to a minority group are obliged to accept any documents presented in the mother tongue without requiring a translation into the official language of the State, to give decisions in respect of these documents in the same language and to give applicants a hearing in their mother tongue. According to the same section, the de facto and de jure members of the nationality forming the 30 per cent must be allowed to address communal or district councils in their own language. These provisions imply that magistrates and officials working in these judicial or administrative areas must be familiar with the language of the respective nationalities (section 10). In newspapers and periodicals published in a language other than Romanian, place names may be given in the language used (section 13). According to section 14 it is forbidden to change the form or spelling of citizens' family names in state registers and documents. In towns and communities where more than 30 per cent of the inhabitants belong to a national minority, street names must also be indicated in the language of the respective nationalities (section 15).
267. 124. The Nationalities Statute also includes provisions on teaching. Section 14 prescribes that the State will organise education for minority nationalities in their mother tongue "if the number of pupil applicants is sufficiently large". The relevant number is not specified. According to section 20, students who have been taught in a language other than Romanian are to be examined in the same language unless they decide otherwise. Lastly, section 20 provides that the Faculty of Law and the Faculty of Arts and Philosophy at Cluj University will organise courses in Hungarian and German as the need arises.
268. 125. The provisions that were subsequently adopted on the rights of cohabiting nationalities followed the general pattern of the Nationalities Statute, dropping certain specific points such as the quotas in respect of court proceedings and introducing others such as the minimum number of pupils required for classes to be organised in languages other than Romanian.
269. Provisions on education and training
270. 126. On the subject of training, the free use of their mother tongue by members of minority groups, as provided for in article 22 of the Constitution, has given rise to a number of provisions regulating the practical aspects of teaching national minorities. Section 2 of Act No. 28/1978 on education and training provides that citizens have the right to education without any discrimination based on nationality. This general protective provision is consolidated by section 4 of the same Act which states that "the cohabiting nationalities are assured free use of their mother tongue at all levels of education and learning and thorough knowledge of the mother tongue of each nationality", specifying that teaching at all levels will take place in the Romanian language to ensure a sound study and knowledge of this language. The coexistence of these two propositions - education in the Romanian language at all levels and the free use of the mother tongue in education, is a source of ambiguity which allows for the law to be interpreted in completely opposite ways and, in fact, means that application depends solely on the good will of the authority responsible for interpreting and implementing it. Furthermore, free use of the mother tongue in education covers two quite different situations: teaching at all levels in the language of the minority groups and teaching of the language of the national minorities. The two are connected: mathematics, geography or any other subject in the syllabus cannot be taught in the languages of the minority groups without a sound knowledge of these languages and, consequently, unless the languages are taught. Teaching in the language of the minorities or of the language of the minorities involves very different means. There is no discrepancy between teaching of the language of the minorities and the statement that teaching at all levels takes place in Romanian, but there may be a discrepancy as regards teaching in the language of the minorities. Since the content of the teaching is not specified, fair implementation is called for if disputes are to be avoided.
271. 127. Chapter III of the Act deals with education in the languages of the cohabiting nationalities. The members of minority groups are guaranteed the possibility, under equal conditions, of access to any form of education and to any job in accordance with the needs of the economy and of social life, as well as of their training and aptitudes (section 105). In administrative areas where there are nationalities other than Romanian, teaching units, classes or groups in which teaching is given also in the languages of the minorities are to be organised "in accordance with the structural norms" (section 106). The content of the "structural norms" is not specified in the Act. According to the same section, the teaching activities of vocational schools, training for foremen, and courses in agronomy and animal husbandry may be given in the languages of the cohabiting minorities.
272. 128. Teaching in the Romanian language is dispensed to young persons belonging to the cohabiting minorities so that they may play an active part in the full political, economic and socio-cultural life of the country; to this end, "in primary and secondary teaching units (gymnasium and secondary school), which teach in the languages of the cohabiting minorities, the Romanian language shall be studied while certain subjects, included in the syllabus, may be taught in the Romanian language" (section 107). The parents or the pupils belonging to the cohabiting minorities may choose between enrolling in a teaching unit that uses the language of the minority or in one using the Romanian language. In the latter case they may be taught their mother tongue at their request and under the conditions stipulated by law. These conditions are not established in the present legal text.
273. 129. Candidates taking entrance examinations "organised in accordance with the law" have the right to use the language in which they have studied (section 109). Under section 110 of the Act, the Ministry of Education is responsible for the training and advanced training of the teaching staff as well as for textbooks and other requisite teaching materials in mother tongues other than Romanian. In units where the teaching is given in the languages of the cohabiting minorities, textbooks adapted to the language of these minorities are provided for the subjects taught in Romanian.
274. Participation in decisions concerning employment and occupation
275. 130. In a report submitted to the Committee on the Elimination of Racial Discrimination (Endnote 62) the Government stated that "Direct participation by citizens of non-Romanian national origin in the political, economic, social and cultural life of the country is also guaranteed by a series of provisions in Act No. 57/1968 concerning the organisation and operation of people's councils. Since the activities of the people's councils are deployed throughout the national territory and in all spheres of economic, social and cultural life, these provisions are particularly important for the realisation of participative democracy, involving all citizens, without any discrimination as to national origin." According to section 8, subsection 2, of the above-mentioned Act, in the territorial administrative units inhabited by a non-Romanian population "the local organs use the language of the nationality concerned orally and in writing and appoint to official posts persons of that nationality or other citizens who know the language and way of life of the local population". National committees of Magyar and German workers, together with regional councils of Serbian workers (Timis district) and Ukrainian workers (Suceava district) have been set up. Use of the mother tongue of minorities must be promoted for discussions, and important decisions reached by the people's councils or executive committees must be brought to the knowledge of citizens in the language of the minorities in accordance with section 46, subsection 5, section 49, subsection 2, and section 63 of the aforementioned Act. In Decree No. 468/1971 concerning certain measures to improve activities in respect of the application and popularisation of legislation, provides that special attention should be given to publicising legislation in the language of the "cohabiting" nationalities in the areas where they live.
276. 131. Nevertheless, criticism of the fictitious character of institutions such as the national or regional committees which have no permanent secretary, no agenda, and are not allowed to plan their activities, was made known to the public by the Vice-Chairman of the National Council of Magyar Workers, Mr. Karoly Kiraly, in a letter to the Prime Minister, Mr. Ilie Verdet, in 1977. He also stated that the only annual meeting of the national Magyar committee, which is limited in time, confines itself to listening to declarations of principle, avoiding dealing with specific questions. (Endnote 63)
277. Provisions concerning the administration of justice
278. 132. As regards the administration of justice, the provisions of article 109 of the Constitution, providing for use of the mother tongue in proceedings in areas inhabited by a non-Romanian population, are specified by section 8, subsections 2 and 3 of Act No. 58/1968 in respect of the organisation of judicial proceedings; by sections 7, 8 and 128 of the Code of Penal Procedure; and by section 142 of the Code of Civil Procedure. Parties who do not speak Romanian may take cognisance of the documents in the case with the help of an interpreter and have the right to address the court and to submit conclusions in their own language.
279. CHAPTER 6
280. EXAMINATION OF THE SITUATION OF THE MEMBERS OF MINORITY GROUPS IN ROMANIA IN THE FRAMEWORK OF THE NATIONAL POLICY ON EQUALITY
281. 133. The situation of the members of national, ethnic, religious or linguistic minorities, whether or not these are recognised as such by the Government of the Socialist Republic of Romania, in terms of equality of treatment in employment and occupation, cannot be examined out of the context of that situation. The following account is intended to give a brief indication of the elements on which the Commission based its understanding of the relations between majority and minorities in the context of equality of opportunity and treatment in employment and occupation.
282. 134. The Commission first wishes to draw attention to the use made of historical research, and more particularly research into the origins of the settlement of a given region, in order to confirm or invalidate the right of first occupation in certain territories. The rationale for its use led to the denial by a fairly significant proportion of the population of the existence of such and such a group, or even to its exclusion, as the slogans adopted by the demonstrators (Endnote 64) in the inter-ethnic conflicts of Tirgu-Mures/Marosvasarhely testified. The interpretations of the past as thus presented reveal profound differences when they are not totally incompatible. The Commission does not intend to deal with this question, which lies outside its scope and its terms of reference. It nevertheless believes that if all Romanian citizens without exception could identify themselves and their neighbours in the light of a common historical background this would facilitate the acceptance and enforcement of a policy of equality of opportunity and treatment without discrimination on the basis of race, political opinion or national origin.
283. 135. Establishing a distinction between national, ethnic, religious or linguistic minorities is a delicate matter in that the ethnic or linguistic character of a minority may be combined with a form of religious worship that is also of a minority nature in a country in which approximately 70 per cent of the people belong to the Orthodox Church. As far as it is possible to tell in the absence of detailed information on Church membership, the majority of Romanians are Orthodox while the Magyars and Germans are Catholic and Protestant. Nearly all members of the Calvinist Protestant Church are Magyars, while the Lutherans are virtually all Germans from the Saxon community. As regards the other cults, the Unitarians are generally Magyars, the Moslems are Turco-Tatars while recruitment to the other confessions shows no particular ethnic bias.
284. 136. Before the Second World War there were more than 60 different creeds in Romania. Decree No. 177/1948 on the general system of worship reduced the number of authorised confessions to 14 and placed them under the supervision of the Department of Religious Affairs. The Roman Catholic Church, which is the second most important cult, is not included among the 14 recognised confessions. This Church, owing to the inability of Romania and the Vatican to come to an agreement on its status, had no legal existence in Romania at the time the complaint was lodged. However, it has not been made illegal, as was the case of the Uniate (Greco-Catholic) Church suppressed by Decree No. 358/1948, and of the movement to revive the Romanian Orthodox Church - "The army of the Lord" - which was dissolved under article 15 of Decree No. 177/1948 mentioned above.
285. Demographic assessment of the minorities
286. 137. In the period taken into consideration by the Commission, Romania was a unitary State characterised by the presence on its territory of a large number of minorities (more than 25 national, ethnic, religious or linguistic minorities according to the 1977 census returns) of varying size. At the last census, in 1977, Romania had 21,559,910 inhabitants. At the end of 1988 the Romanian population was estimated to number 23,112,000 persons.
287. 138. The figures for demographic composition, taken from census returns of which the latest date back to 1977, are disputed by the representatives of certain minorities, in particular the Magyars, or the Roma (Gypsies), who believe that the figures relating to them are underestimated. The complainants, for their part, have made serious reservations about the reliability of all the statistical data provided by the Government without giving further explanations. (Endnote 65) A Romanian population expert has expressed the opinion that the census data relating to the ethnic structure of the population were accurate in the main with the exception of those relating to the Roma population, which were believed to have been underestimated. (Endnote 66) The censuses returns, mainly from the last two of 1966 and 1977, have been regarded as political counters as much by the Government as by the spokesmen for the minorities. In view of the provisions of the 1945 Nationalities Statute, the existence of at least 30 per cent of the population with the same mother tongue other than Romanian, in a particular legal or administrative district, has implications for the right to the use of their language in the administration of justice and in relations with the local authorities, which in its turn has an effect on the employment of members of minority groups. The fragmentation of the regions where the members of minority groups represent a high proportion of the total Romanian population into administrative districts with a more mixed population initially led to the dilution of the members of minority groups among the Romanian population as a whole. These geographical divisions are, however, limited by their nature and by their economic purpose. While they can reduce the relative incidence of minorities in a particular group they are unable to make them disappear altogether.
288. 139. The Commission has neither the resources nor the mandate to determine the number of the members of minority groups, which nevertheless is not only a purely scientific question but assumes in this context political overtones. In its work, the Commission has drawn upon the figures of the official censuses carried out in Romania and has taken account whenever necessary of the opposing views and figures put forward by the different groups, indicating in each case the source of the data or the methods used to arrive at the results. The Commission wishes to make it clear that the fact of referring in its report without comment to statistical data from any source whatsoever does not imply that it considers the data to be accurate.
289. 140. The continuing dispute over the data relating to minorities is symptomatic of a state of tension that it would be desirable to ease by the appropriate means on the occasion of the next census, which is to be held in January 1992, by associating the representatives of minorities more closely with the choice of methodology, the census operations, the data processing and the decisions concerning the publication of the returns in order to achieve greater clarity in the data obtained and to ensure their acceptance by all the interested parties.
290. 141. In accordance with section 4 of Decree No. 45/1976 on population and housing census operations, the data relating to nationality and mother tongue, which are included in the census returns, are based on voluntary statements by the persons interviewed. Although no reference is made in this Decree to the 1945 Nationalities Statute, the provision in question corresponds to section 5 of the Statute by which "every Romanian citizen has the right to decide of his own free will as to his mother tongue or his nationality (...)". The extent to which such statements are accurate is not a matter for the authorities to control. Under Act No. 630 of 6 August 1945, any such investigation would have constituted an offence. The meaning of the statement depends upon several factors such as awareness of possessing a national identity, the value attached to this identity by the respondent and his family, and also the realisation by the respondent of the possible consequences of his statement for him and for his family in their subsequent relations with the authorities and even with their fellow citizens. In this respect, the policy followed by the state authorities with regard to a specific minority, or minorities in general, is bound to influence the truthfulness of the statement. The Minority Rights Group, in a report submitted in response to a request from the Commission for information, notes that the method used to assess the size of a national group can result as much in over- as under-estimation. In areas where there are mixed nationalities, the respondent may feel under pressure in making his statement or may choose to participate in both ambient cultures. In this respect the report refers to the 1956 census which returned 1.58 million persons who had stated that they were of Magyar nationality, but 1.65 million persons who had stated that they were of Hungarian mother tongue. (Endnote 67)
291. 142. The following table, drawn up on the basis of the population census returns, provides a general picture of the way in which the minorities varied in size between 1956 and 1977.
292. 143. According to the returns of the censuses taken since 1956, the ratio of other nationalities to the Romanian population has evolved unfavourably for the former. While in 1956 the proportion of people stating that they were members of a minority amounted to 14.3 per cent of the total population, the corresponding figure was only 12.4 per cent in 1966 and 11.8 per cent in 1977. At the same time the proportion of Romanians in the total population increased and in absolute numbers they have risen by more than 4 million since 1956.
293. Table I. The minorities in Romania (1956-77)
294. -----------------------------------------------------------------
295. 1956 % 1966 % 1977 %
296. -----------------------------------------------------------------
297. Romanians 14 996 114 85.7 16 740 310 87.6 19 001 721 88.137
298. Magyars ) 1 587 675 9.1 1 619 592 8.5 1 705 810 7.912)
299. ) (1 706 874 (7.917))
300. ) )
301. Szeklers ) 1 064 0.005)
302. ) )
303. Germans ) 348 444 1.616)
304. ) )
305. Saxons ) 384 708 2.2 382 595 2.0 5 930 0.028)
306. ) (358 732 (1.664))
307. ) )
308. ) )
309. Swabians ) 4 358 0.020)
310. Gypsies 104 216 0.6 64 197 0.3 229 986 1.067
311. Ukrainians) 54 429 0.252)
312. ) (55 417 (0.257))
313. ) )
314. Ruthenians) 60 479 0.3 54 705 0.3 988 0.005)
315. ) )
316. Hutzul ) )
317. ) )
318. Serbs ) 34 034 0.158)
319. ) )
320. Croats ) 46 517 0.3 44 236 0.2 7 617 0.035)
321. ) (42 358 (0.196))
322. ) )
323. Slovenes ) 707 0.003)
324. ) )
325. Russians ) 38 731 0.2 39 483 0.2 20 653 0.096)
326. ) (32 147 (0.149))
327. ) )
328. "Lipovans") 11 494 0.053)
329. Jews 146 264 0.8 42 888 0.2 25 686 0.119
330. Turks 14 329 0.08 18 040 0.09 23 303 0.108
331. Tatars 20 469 0.1 22 151 0.1 23 107 0.107
332. Slovaks 23 331 0.1 22 221 0.1 22 037 0.102
333. Bulgars 12 040 0.07 11 193 0.06 10 467 0.049
334. Czechs 11 821 0.07 9 978 0.05 7 756 0.036
335. Greeks 11 166 0.06 9 088 0.05 6 607 0.031
336. Poles 7 627 0.05 5 860 0.03 4 756 0.022
337. Armenians 6 441 0.03 3 436 0.02 2 436 0.011
338. MacedoRomanians 1 179 0.005
339. Aromanians 644 0.003
340. Others 13 357 0.07 4 681 0.03 4 141 0.019
341. Not stated 4 165 0.02 2 309 0.01 62
342. ------------------------------------------------------
343. Total 17 489 450 19 103 163 21 559 416
344. Sources: 1956: Directia centrala de statistica, Recensamintul populatiei din 21 februarie 1956 (Bucharest, 1959), p. 556.
345. 1966: Directia centrala de statistica, Recensamintul populatiei si al locuintelor din 15 martie 1966 (Bucharest, 1968), p. 113.
346. 1977: Preliminary census returns of 5 January 1977 (Scinteia, 14 June 1977).
347. -----------------------------------------------------------------
348. 144. The final presentation of the latest census data (1977) tends to underestimate the figures for the minorities. For instance, in the census returns published by the Central Statistical Office there is only one table relating to the census of the minorities by administrative districts (category of localities and departments) in which the criterion of mother tongue was superimposed on that of national identity. (Endnote 68) As a result, in the final statistical presentation of the 1977 census returns there is an 8 per cent decrease in the number of members of national minorities in the case of every minority, with the exception of the category "other nationalities", and a parallel increase of 1 per cent in the category "Romanians" by comparison with the preliminary data based solely on the returns of the statement of membership in a minority, as published in the official daily newspaper of the Romanian Communist Party. (Endnote 69) As regards the presentation of two series of data from the same census, the tables published in final form, which are the only ones to include data on nationalities, will be easier to consult in the future than the preliminary tables reproduced in a daily newspaper, and should therefore be taken as authentic. Moreover, the new presentation makes it impossible to measure the extent of assimilation to the majority culture, one indicator of which is the number of people who state that they are of Romanian nationality while possessing a different mother tongue. These practices are unfair, since they tend to deflate the numerical size of national minorities artificially. The choice of a format that emphasised the mother tongue in counting membership of nationalities at the time of the 1977 census coincided with or slightly preceded the decisions that were to affect the teaching of languages other than Romanian.
349. 145. Another aspect that emerges from a comparison of the census returns in Romania is the marked decline, both qualitatively and quantitatively, in the data published on minorities. Chapter V of the 1956 census covered nine groups of data: population distribution by nationality, broken down by sex and by category of locality; population distribution by mother tongue, broken down by sex and by category of locality; population distribution by nationality, broken down by region and by category of locality; population distribution by mother tongue, broken down by region and by category of locality; population distribution by nationality broken down by mother tongue; population distribution by nationality broken down by social group; population distribution by nationality in accordance with social group and sex, broken down by category of locality; population distribution by nationality in accordance with social group, broken down by region and by category of locality; population distribution of eight years of age and over by nationality in accordance with reading and writing skills, level of schooling and sex, broken down by region and by category of locality. The overall census returns also contained a certain amount of material, notably maps, that have enabled the situation in 1956 to be compared with the data obtained by the 1930 census. They have also made it possible to assess the reduction in the German and Jewish populations by comparison with the returns of 2re-Second World War censuses.
350. 146. In the presentation of the 1966 returns, the four types of data obtained by cross-tabulation of the criteria of nationality, mother tongue and social group with that of sex have been eliminated.
351. 147. The 1977 census did not follow the same format. Only one category of data relating to nationality was still published: it concerns population distribution by nationality in accordance with the mother tongue broken down by category of locality and by department. The following table illustrates the decrease of data concerning minorities in the three censuses of 1956, 1966 and 1977:
352. Table II. Comparison of categories of data concerning minorities presented in the censuses of 1956, 1966 and 1977
353. -----------------------------------------------------------------
354. Categories of data 1956 1966 1977
355. -----------------------------------------------------------------
356. Population distribution by nationality, broken
357. down by sex and by category of locality x
358. Population distribution by nationality, broken
359. down by region and by category of locality x x
360. Population distribution by mother tongue,
361. broken down by sex and by category of locality x
362. Population distribution by mother tongue,
363. broken down by region and by category of
364. locality x x
365. Population distribution by nationality,
366. broken down by mother tongue x x
367. Population distribution by nationality in
368. accordance with the mother tongue, broken down
369. by region and by category of locality x
370. Population distribution by nationality, broken
371. down by social group x
372. Population distribution by nationality in
373. accordance with social group and sex, broken
374. down by category of locality x
375. Population distribution by nationality in
376. accordance with social group, broken down by
377. region and by category of locality x x
378. Population distribution of eight years of age
379. and over by nationality in accordance with
380. reading and writing skills, level of schooling
381. and sex, broken down by region and by category
382. of locality x
383. Source: See table I.
384. -----------------------------------------------------------------
385. 148. The two phenomena of voluntary or involuntary refusal on the part of certain members of minority groups to draw attention to themselves by stating that they belonged to a "minority", and the tendency of the authorities to underestimate the magnitude of the minorities combine to make it more difficult to arrive at an objective understanding of the problem of minorities in Romania. In an open letter of 21 March 1981, addressed to the Romanian authorities, Mr. Karoly Kiraly, former Vice-President of the Council of Workers of Magyar Nationality, stated that on the occasion of the 1977 census the Magyars were officially divided into Magyars and Szeklers, but that the Csango-Hungarians in the Bacau region were forbidden to state their nationality and in Moldavia an order was given that no citizen of Magyar origin should be reported in the census records.
386. Numerical size and geographical distribution of the minorities
387. 149. The minorities are so widely distributed over Romanian territory that no one region is ethnically homogeneous and some have large concentrations of people of other nationalities than Romanian. The 1977 census distinguishes 15 "nationalities": Magyar, German, Gypsy, Ukrainian, Serbo-Croat, Russian, Tatar, Slovak, Turkish, Bulgarian, Czech, Greek, Polish, Armenian and Jewish. The application of the concept of nationality to the Roma and the Jews is not entirely appropriate since in the one case they are an ethnic minority and in the other a religious minority. Of the minorities registered by the census in Romania at the time the complaint was lodged, three exceeded 1 per cent of the Romanian population: the Magyars, the Germans, and the Gypsies or self-styled Roma.
388. Magyars, Germans and Roma
389. (a) Magyars
390. 150. Numerically the Magyars rank first among the national minorities with a population of 1,706,874, according to the 1977 census figures, that is 7.9 per cent of the total population, whereas in 1966 they represented 8.5 per cent and in 1956 9.1 per cent. While increasing in absolute numbers, the increase is less than that of the number of persons declaring another nationality, particularly Romanian. The census returns indicate that the growth of the Magyar population was less than half (about 0.5 per cent) that of the Romanian population (more than 1 per cent annually) during the period 1966-1977.
391. Romania: Administrative districts
392. The map is not in ILOLEX
393. 151. The increase of the Magyar population by about 119,000 since 1956 is contested both by the representatives of this minority and by independent researchers. The figures for the natural increase (excess of births over deaths) in the departments where there was a high proportion of Magyars between 1969 and 1978 are with two exceptions (Covasna, 1969 and 1973) equal to or slightly higher than the average rate of natural growth. The excess is to be found only partially in the increase recorded by the censuses. One author consequently concludes that the low returns in 1977 can only be explained if a large proportion of Magyars were registered against their will as Romanians, and gives as an example the case of the Csango-Hungarians settled in the Bacau region of Moldavia, who are estimated to be about 100,000 and have been subjected to measures of forced assimilation since the end of the 1950s. (Endnote 70) The estimates given by most authors are of about 2 million Magyars. The Minority Rights Group report, which has been referred to above, arrives at more or less the same figure by another means. The author of the report draws on the figures for church attendance given in the booklet entitled The Hungarian nationality in Romania, published at Bucharest in 1976. According to this booklet, 1.45 million Magyars take part in the main forms of worship (Roman Catholic, Calvinist, Lutheran, Unitarian), that is 85 per cent of the Magyar population, a highly unlikely proportion in a communist society. The booklet concludes that if it is assumed "that only two-thirds of Hungarians were church-goers and accepted the figure of 1.45 million, this would then provide a total of 2.17 million Hungarians". (Endnote 71)
394. 152. The Magyar population is concentrated in a few regions. According to the 1977 census returns, the Magyars exceeded 30 per cent of the population in five of the departments (Harghita, Covasna, Mures, Satu Mare and Bihor) as well as in the statistical category of municipalities, towns and communes of these departments (excluding suburban communes).
395. 153. It emerges from the figures published by the two censuses, whenever way they are comparable (see paragraphs 145-147 above), that there was a steady decline in the relative size of the Magyar population compared with the Romanian or Romanian-speaking population in those departments between 1966 and 1977. The table below shows the relative decline of the Magyar population in five departments as well as the difference between the growth rate of the population group who stated they were of Romanian nationality and that of the population who claimed to be of Magyar nationality between 1966 and 1977. The difference ranges from twice as much to five times as much and cannot be due solely to a disparity between the natural growth rates of the Romanian and Magyar populations.
396. 154. The situation is identical as far as the municipalities, towns and communes are concerned, except for the surburban communes of the five departments under consideration. The trend shows a decline in the relative number of Magyars in every case. The Magyars who constituted the majority nationality in the municipalities and towns of the five departments in 1966 were the majority in only three of these in 1977 (Covasna, Harghita and Mures). They also dropped below the 30 per cent threshold during the same period in the total statistical category of municipalities, towns and suburban communes of the department of Cluj. The growth rate of the population of Romanian nationality in the municipalities and towns was, except in the department of Covasna, as much as, or more than, twice the growth rate of the Magyar population.
397. Table III. Evolution of the Magyar population from 1966 to 1977 in the districts where it exceeded 30 per cent of the total population
398. ---------------------------------------------------------------
399. Bihor Covasna Harghita
400. ---------------------------------------------------------------
401. Total population, 1966 586 460 176 858 282 392
402. Magyars 192 948 140 472 248 886
403. Percentage 32.9% 79.42% 88.13%
404. Total population, 1977 633 094 199 017 326 310
405. Magyars 196 220 155 133 275 759
406. Percentage 30.99% 77.94% 84.50%
407. Growth rate of the Magyar
408. population 1966/1977 1.69% 10.43% 10.79%
409. Growth rate of the Romanian
410. population 1966/1977 10.21% 20.41% 46.92%
411. ---------------------------------------------------------------
412. Mures Satu Mare
413. ---------------------------------------------------
414. Total population, 1966 561 598 359 393
415. Magyars 249 675 147 594
416. Percentage 44.45% 41.06%
417. Total population, 1977 605 345 393 840
418. Magyars 264 567 150 389
419. Percentage 43.70% 38.18%
420. Growth rate of the Magyar
421. population 1966/1977 5.96% 1.89%
422. Growth rate of the Romanian
423. population 1966/1977 11.43% 13.34%
424. Source: Population censusesof 1966 and 1977.
425. ---------------------------------------------------------------
426. 155. When the data for rural communes in the five departments are examined they show that the growth rate of the Magyar population was consistently negative for the period 1966-1977 by more than 1 per cent to over 10 per cent, whereas the growth rate for the population of Romanian nationality was positive in the departments of Covasna and Harghita, where the Magyars represented more than four-fifths of the total population. Of the 15 departments where the Romanian population inhabiting the rural communes showed a positive rate of growth, seven had a population consisting of members of significant national minority groups (Bistrita-Nasaud, Brasov, Covasna, Harghita, Maramures, Sibiu and Timis).
427. 156. This tendency persisted from 1977 to 1989 as the policy of industrialisation and urbanisation which had caused it continued to be applied during those years.
428. Table IV. Evolution of the Magyar population from 1966 to 1977 in the municipalities, towns and communes where it exceeded 30 per cent of the total population
429. -------------------------------------------------------------
430. Bihor Covasna Harghita
431. -------------------------------------------------------------
432. Total population, 1966 178 725 54 715 78 418
433. Magyars 86 450 43 685 65 662
434. Percentage 48.37% 79.84% 83.73%
435. Total population, 1977 238 014 82 217 121 913
436. Magyars 98 845 62 269 94 636
437. Percentage 41.52% 75.73% 77.62%
438. Growth rate of the Magyar
439. population 1966/1977 14.33% 42.54% 44.12%
440. Growth rate of the Romanian
441. population 1966/1977 51.95% 59.68% 111.34%
442. -------------------------------------------------------------
443. Mures Satu Mare
444. ---------------------------------------------------
445. Total population, 1966 179 374 107 625
446. Magyars 92 927 51 061
447. Percentage 51.8% 47.44%
448. Total population, 1977 244 720 149 915
449. Magyars 118 277 63 045
450. Percentage 48.33% 2.05%
451. Growth rate of the Magyar
452. population 1966/1977 27.27% 23.46%
453. Growth rate of the Romanian
454. population 1966/1977 50.77% 54.66%
455. Source: Population censuses of 1966 and 1977.
456. -------------------------------------------------------------
457. Table V. Evolution of the Magyar population from 1966 to 1977 in the rural communes
458. ---------------------------------------------------------------
459. Bihor Covasna Harghita
460. ---------------------------------------------------------------
461. Total population, 1966 394 141 111 027 195 160
462. Magyars 105 200 95 328 174 467
463. Percentage 26.69% 85.86% 89.39%
464. Total population, 1977 380 530 106 127 195 334
465. Magyars 96 517 89 777 172 239
466. Percentage 25.36% 84.59% 88.17%
467. Growth rate of the Magyar
468. population 1966/1977 -8.25% -5.82% -1.27%
469. Growth rate of the Romanian
470. population 1966/1977 -2.99% +5.99% +5.22%
471. ---------------------------------------------------------------
472. Mures Satu Mare
473. ---------------------------------------------------
474. Total population, 1966 357 390 247 009
475. Magyars 144 350 92 005
476. Percentage 40.39% 37.24%
477. Total population, 1977 331 583 238 862
478. Magyars 132 989 82 574
479. Percentage 40.10% 34.56%
480. Growth rate of the Magyar
481. population 1966/1977 -7.87% -10.25%
482. Growth rate of the Romanian
483. population 1966/1977 -5.26% -1.66%
484. Source: Population censuses of 1966 and 1977.
485. ---------------------------------------------------------------
486. (b) Germans
487. 157. The situation of the Germans resembles in some respects that of the Magyars. They are concentrated in a few clearly defined geographical areas - the Banat and southern Transylvania - but in none of the departments did they exceed 20 per cent of the total population of the department or of the municipalities, towns and suburban communes, according to the 1977 census. On the assumption that the Nationalities Statute of 1945 was equitably applied, the Germans of Romania would not benefit from the provisions relating to the use of their language in judicial matters or in relations with the authorities in any municipality, town or suburban commune. As can be seen from table VI, the size of the German community has decreased both absolutely and relatively. Except for the growth rates for the towns of Sibiu-Hermannstadt and Timisoara-Temesvar, which are only positive, the growth rates are negative and reflect the definitive emigration of the German minority, which recommenced at a steady rate in 1967. In this regard, it should be recalled that the departure of emigrants was a twofold source of quick profits for the State: on the one hand, the emigrants had to leave the State most of their personal property and all their real estate and, on the other, the Romanian Government made the grant of exit visas contingent upon payment of a sum in foreign currency on the grounds of reimbursing educational and other expenditure, although Romanian citizens were forbidden to possess such currency on penalty of imprisonment.
488. Table VI. Evolution of the number of Germans from 1966 to 1977 by department
489. ---------------------------------------------------------------
490. Arad Brasov Caras-
491. Severin
492. ---------------------------------------------------------------
493. Total population, 1966 481 248 442 692 358 726
494. Germans 43 874 40 857 23 882
495. Percentage 9.11 9.22 6.65
496. Total population, 1977 512 020 582 863 385 577
497. Germans 38 366 35 940 19 975
498. Percentage 7.49 6.62 5.18
499. Growth rate of the German
500. population 1966/1977 -12.55 -12.03 -16.35
501. ---------------------------------------------------------------
502. Mures Sibiu Timis
503. ----------------------------------------------------------
504. Total population, 1966 561 598 414 756 607 596
505. Germans 20 625 96 882 103 315
506. Percentage 3.67 23.35 17
507. Total population, 1977 605 345 481 645 696 884
508. Germans 17 439 93 120 93 911
509. Percentage 2.88 19.12 13.47
510. Growth rate of the German
511. population 1966/1977 -15.44 -4.91 -9.10
512. Source: Population censuses of 1966 and 1977.
513. ---------------------------------------------------------------
514. Table VII. Evolution of the number of Germans from 1966 to 1977 by minicipalities and towns
515. ---------------------------------------------------------------
516. Arad Brasov Caras-
517. Severin
518. ---------------------------------------------------------------
519. Total population, 1966 188 311 269 017 148 191
520. Germans 12 378 19 216 17 423
521. Percentage 6.6 7.1 11.8
522. Total population, 1977 235 013 402 504 180 598
523. Germans 11 295 18 078 15 238
524. Percentage 4.80 4.49 7.99
525. Growth rate of the German
526. population 1966/1977 -8.74 -5.9 -16.35
527. ---------------------------------------------------------------
528. Mures Sibiu Timis
529. ---------------------------------------------------------------
530. Total population, 1966 179 374 202 983 248 658
531. Germans 7 063 48 423 40 787
532. Percentage 3.9 23.9 16.4
533. Total population, 1977 244 720 270 322 356 296
534. Germans 7 039 48 834 41 110
535. Percentage 2.88 18.06 11.53
536. Growth rate of the German
537. population 1966/1977 -0.3 +0.8 +0.79
538. Source: Population censuses of 1966 and 1977.
539. --------------------------------------------------------------
540. 158. The number of Germans in Romania was estimated at more than 900,000 before the Second World War, including the Germans of Bessarabia and Bukovina. In 1944, 50,000 of them followed the German army in retreat and those who remained were treated as vanquished persons: 73,000 were deported to labour camps in the Soviet Union as from January 1945, of whom about 10,000 are thought to have returned, while the Swabians of the Banat were deported to the Baragan plain between 1951 and 1956. (Endnote 72) Up to 1947, before the closure of the borders, 15,000 Germans were able to leave Romania. Emigration began again sporadically as of 1957 and then in a more regular fashion after 1967 when diplomatic relations were restored between Romania and the Federal Republic of Germany. The number of citizens who stated that they were of German nationality increased slightly between 1956 and 1966, and then declined both relative to the total population of Romania and in absolute terms from 1966 to 1977. This period was characterised by an upsurge in German emigration from Romania to the Federal Republic of Germany, which explains the drop of more than 23,000 people between 1966 and 1977. This trend continued from 1977 to 1989, and the estimated figures for the German minority took into account a regular migratory outflow of some 10,000 people a year, which amounted to 240,000 people by 1989.
541. (c) Gypsies or Roma
542. 159. The third minority group to exceed 1 per cent of the population according to the published returns of the last census is that of the Gypsy or Romany (Rom) group, which has very different characteristics from the Magyar and German minorities. In the first place, this minority has no historical or emotional ties with any other State bordering on or fairly close to Romania. A member of the Rom community, who was heard by the Commission as a witness, emphasised that membership in that minority signified a social identity that was experienced in a negative sense and not a cultural or national identity, (Endnote 73) as was the case for the majority of minorities in Romania that were defined by a common language, church, institutions, etc. Secondly, the Roma are not concentrated in one region, but are to be found all over the national territory even if, for economic, social or cultural reasons, they may be more numerous in urban than in rural areas. Thirdly, their contribution to the economy is regarded as marginal including, often enough, their contribution to the modern economy through paid activities. Their group consciousness has not been strongly asserted so far. Lastly, this is a minority which evokes widespread prejudice and a negative image in society.
543. 160. The number of persons who asked to be registered as being of "Gypsy" nationality at the last census, i.e. 229,986, are only a small part of the Rom population of Romania according to the leaders of the group. The estimates of this population vary from 1.5 million to 2 or 3 million depending on the source. (Endnote 74) The Commission's attention was drawn to this point by one of the witnesses (Endnote 75) who explained the low figures for the Rom minority in the 1956, 1966 and 1977 censuses and their variations over time by the fact that a large number of Roma were unwilling to state that they were of Gypsy nationality - "nationalitate tiganeasca" - as this was synonymous with social inferiority and was felt by many people to be a misfortune. The reduction in the number of people who stated they were of Gypsy nationality in 1966 compared with 1956, which was about 40 per cent, followed by an increase of around 400 per cent between 1966 and 1977, illustrates this phenomenon. Until recently, for a Rom a claim to Romanian nationality was one of the prerequisites for any possibility of ascending in the social scale. The relative increase in the number of people stating that they were of Gypsy nationality in 1977 is thought by certain authors to denote an awakening consciousness of belonging to the Rom people or a resistance on their part to drastic assimilation.
544. 161. Since the end of the war, the Government of the Socialist Republic of Romania has introduced various programmes for the social integration of the Roma. During the 1950s and 1960s, the nomad Roma were forced by administrative measures to become integrated. From 1977 onwards a national programme of integration, which has never been publicised, was applied by administrative means at the local level. While acknowledging that some good things were done in the context of that programme, a witness has nevertheless said that its overall objective was to integrate the Roma into a certain kind of work - paid labour in socialist units - and, as a result, to be able to exercise greater state control over this population group. This programme has often been enforced by the police because many Rom communities earn their living in a traditional way which can be described as parasitical in the light of those texts. They have been the subject of repressive measures on the pretext that they were not employed in state enterprises and, in many cases, they have been compelled to work. This kind of government-imposed integration has not been in accordance with the wishes of the community members. (Endnote 76)
545. Ukrainians, Serbs, Croats and Slovenes, Russians, Turks and Tatars, Slovaks, Czechs and Bulgarians, Greeks, Poles, Armenians and Jews
546. 162. The other minorities together make up less than 1 per cent of the Romanian population according to the 1977 census returns.
547. (a) Ukrainians
548. 163. The Ukrainians (55,417 people according to the preliminary returns of the 1977 census and 51,503 according to the final returns) are to be found mainly in the department of Maramures (in the north of Romania) where they constitute 7.3 per cent of the population and, also, to a lesser extent, in the department of Suceava in the Danube delta (department of Tulcea) and the Banat (departments of Timis and Caras-Severin). Compared with the 1956 census returns the Ukrainian population has decreased by more than 8 per cent; between 1966 and 1977 the number of people who stated that they were members of this minority rose slightly by about 700. The 1956 and 1966 census returns indicated the existence, under the same heading as for Ukrainian nationality, of the Ruthenian and Hutzul nationalities. These last two nationalities have been omitted in the publication of the definitive 1977 census returns.
549. (b) Serbs, Croats, Slovenes
550. 164. These minorities numbered 42,358 members according to the 1977 census (38,252 in the final returns) divided mainly between the Banat (departments of Timis, Caras-Severin, Mehedinti) and Chrishane (department of Arad). The number of people who stated they were of Serbian nationality in the 1977 census enumeration was 34,034, of Croat nationality 7,617 (departments of Timis and Caras-Severin) and of Slovene nationality 707. Up to 1977, the Slovenes were placed under the same heading as the Serbs and Croats. All mention of the Slovenes disappeared from the final 1977 census returns. The number of people belonging to the Serbo-Croat minority has been in decline, both absolutely and relatively, since the 1956 census. The decline amounts to about 9 per cent over the whole 20-year period and, from 1966 to 1977, to some 4.5 per cent. In the first half of the 1950s, at a time of tension with Yugoslavia, a large number of members of this minority were deported from the Banat to the Baragan plain (department of Teleorman), but subsequent census returns do not mention them, as the number of persons who stated they were of Serbo-Croat nationality in this region was negligible (15 in 1966 and two in 1977 according to the final returns).
551. (c) Russians
552. 165. The Russians numbered 32,147 persons according to the preliminary returns of the 1977 census (17,480 according to the final returns after the statements of national membership had been cross-tabulated with those of mother tongue), two-thirds of whom were in the department of Tulcea at the mouth of the Danube. As indicated below, the preliminary returns listed the number of Russians as 20,653 and of Lipovans as 11,494. The Lipovans or Raskolniki are Old Believers, followers of the Christian cult that has preserved the ancient ritual and is the result of a schism in the Russian Orthodox Church. The old ritual of the Christian Church is recognised by the Romanian authorities and this cult had 46 places of worship in 1986. (Endnote 77) However, in 1987, the authorities acknowledged that there were 48,000 Old Believers which is exactly the number of Lipovans enumerated in the 1930 census. A comparison between the 1956 and 1977 figures will show that the Russian minority must have lost more than 16 per cent of its members. It seems none the less to have increased slightly (by 752 persons, i.e. less than 2 per cent) between 1956 and 1966. The reduction in the number of people claiming this nationality took place essentially in a period when Romanian foreign policy tended to emphasise Romania's independence and individuality compared with the USSR, at the cost of a certain amount of tension that country.
553. (d) Turks and Tatars
554. 166. The Tatar minority which, according to the preliminary returns of the 1977 census, amounted to 23,107 members (20,508 according to the final returns), is concentrated in the department of Constanza. This minority, like the Turkish minority which has a similar number of members (respectively 23,303 and 20,750 according to the 1977 returns), is distinguished by the fact that its members are of the Muslim faith. The Turkish minority is also concentrated in the department of Constanza and, to a lesser extent, in that of Tulcea. The distinction between Turks and Tatars is not self-evident; in 1957 one author noted in this respect that many Tatars, particularly the intelligentsia, stated that they were Turks. (Endnote 78) The Tatars and the Turks are the only minorities which, judging from the 1977 census returns, have grown sufficiently to enable them to maintain their size relative to the total population (about 0.10 per cent). It appears from a work published in Bucharest in 1976 that the Romanian authorities decided in 1973 to make use of the representatives of the Muslim community in Romania to strengthen Romania's relations with the Arab and Muslim world. Romanian Muslims were authorised to take part in the pilgrimage to Mecca in 1973 while delegations of Romanian Muslims travelled to a certain number of Muslim countries or took part in Islamic congresses. In 1978, the Muslims were again allowed to attend primary schools in their mother tongue (these had been closed in 1957), and schoolbooks were printed in Turkish for these classes. In 1980 the Government is understood to have entered into a commitment with the Arab oil-producing countries to authorise the reopening of Koranic schools and to import copies of the Koran. During the same period, too, a quarterly periodical in Romanian, Turkish and English was allowed to be printed for the first time since the Second World War.
555. (e) Slovaks and Czechs
556. 167. The Slovak minority in Romania, which is reported in the preliminary 1977 census returns to number 23,037 persons (19,513 according to the final returns), is divided among the departments of Bihor, Arad, Salaj, Timis and, to a lesser extent, Caras-Severin. The Czechs, who number 7,756 (5,507 according to the final 1977 census returns), are concentrated in the department of Caras-Severin, while smaller groups live in the departments of Mehedinti, Timis and Arad. They are mainly rural people, living in areas that until very recently were still enclosed. The number of Slovaks has been declining steadily since the 1956 census (14 per cent from 1956 to 1977 and 9.8 per cent from 1966 to 1977). The Czech minority decreased by 44 per cent during the same period, especially after 1966. Living in poor areas, the members of the Czech minority have traditionally solved the problem of survival by emigrating either to more prosperous areas of the country (there are three and a half times more Czechs in Bucharest than Slovaks, for instance) or abroad, particularly Czechoslovakia. In fact, following an agreement concluded between Czechoslovakia and Romania in the 1950s, a third of the Czech population of Romania was allowed to return to their country of origin where jobs, housing and land, which became available after the forced departure of the Sudeten Germans, were allocated to them.
557. (f) Bulgarians
558. 168. The Bulgarians are concentrated in the department of Timis and, although to a lesser degree, in that of Arad. According to the preliminary 1977 census returns this minority consisted of 10,467 members (9,267 according to the final figures). Like most of the minorities, there has been a steady decline in the number of its members of about 13 per cent between 1956 and 1977.
559. (g) Greeks
560. 169. There has been an even greater reduction in the Greek community which, at the time of the 1977 census, was computed at 6,067 persons. Compared to their number in 1956, the reduction was about 40 per cent. However, if the returns of that census are set against the results for the elections to the Assembly of Deputies on 20 May 1990, it will be seen that this minority was underestimated in the census. The disparity is highlighted in table VIII.
561. Table VIII. Electoral results and census results concerning the Greek minority
562. ------------------------------------------------------------
563. Braila Constanza Dimbovita Galati Iasi
564. ------------------------------------------------------------
565. * 1966 1 417 669 32 598 76
566. * 1977 977 323 15 320 41
567. Elections
568. of ** 1990 267 1 055 141 331 229
569. ------------------------------------------------------------
570. Neamt Prahova Tulcea Bucarest
571. ------------------------------------------------------
572. * 1966 19 120 239 834
573. * 1977 12 93 108 957
574. Elections
575. of ** 1990 640 1 155 317 797
576. * Number of persons stating that they were of "Greek nationality".
577. ** Number of votes obtained by the candidates for the Hellene Union Romania in the elections of 20 May 1990.
578. Sources: Monitorul Official, No. 81-82, 8 June 1990. 1977 Population census (final returns). 1966 population census.
579. ------------------------------------------------------------
580. 170. The data compared are not of the same kind: the census data relate, as explained earlier, to the voluntary statements of membership of a nationality and count all individuals whatever their age, while the electoral results concern only the population group of over 18 years of age. Then again although the programmes and the votes for the list of candidates presented by the minorities had marked ethnic overtones, it cannot be excluded that people of other nationalities, including Romanians, may have voted for the candidates of an "ethnic" list. Lastly, it may have happened that not all the members of a minority voted for the candidate of the party presumed to represent their interests. In spite of these reservations, however, it may be assumed that the majority of votes for a candidate of that kind were cast by members of the minority. Except in the department of Braila, where the election results confirmed the reduction in the number of members of the Greek minority, in all the other departments the electoral results of the Hellenic Union of Romania show higher figures than those in the 1977 census and, in certain cases (Constanza, Dimbovita, Iasi, Neamt, Prahova, Tulcea), the 1966 census as well. The differences are particularly marked in the departments of Neamt, Prahova, Dimbovita, Iasi and Tulcea. However, in two departments where the Greek minority represented a significant proportion of the total population according to the 1966 and 1977 censuses (Dolj and Hunedoara), the Hellenic Union of Romania did not present any candidate.
581. (h) Poles
582. 171. In 1977 the Polish minority totalled 4,756 members (3,481 according to the final census returns), more than half of whom were concentrated in the department of Suceava. It appears, however, that a by no means negligible proportion of the population belonging to this country lived in the department of Prahova although this is not indicated in the census returns. In 1966, 61 people of Polish nationality were counted in the census in the department of Prahova, but in 1977 there were no more than 21. The result of the 1990 elections for deputies, which were won by the Polish Union of Romania "Dom Polski" at Prahova, reports 1,207 votes, a better result than that obtained by the same party in the department of Suceava (828 votes) where the census counted the great majority of Poles. As in the case of the Greek minority, the election results qualify - with the reservations indicated above - the earlier census returns. For the stated representative of a minority, the fact of being able to express an opinion freely - and confidentially - may arouse in him the consciousness of belonging to that minority by giving him the occasion to express himself.
583. (i) Armenians
584. 172. The 1977 census counted 2,436 Armenians, mainly in Bucharest and Constanza. Between 1966 and 1977, the Armenian community of Cluj is believed to have dropped from 173 to 21 persons. From 1956 to 1977, the Armenian minority as a whole was recorded according to the census returns as declining by about 62 per cent. It appears from Armenian sources that during the whole of that period the members of their community were discriminated against as regards promotion and the children had no opportunity to learn Armenian except in the family. The Armenian schools and the cultural centre "Stepan Chamoulian" had been closed in the 1950s. (Endnote 79) A few Armenian churches at Bucharest and Constanza, and an Armenian periodical constitute the backbone of the community.
585. (j) Jews
586. 173. The Jewish minority, the last "nationality" enumerated in the 1977 census returns, was counted as 25,586 persons (24,667 according to the final returns), scattered throughout nearly the whole of the territory, but particularly concentrated in the cities. In 1956 the Jewish minority had been recorded in the census returns as numbering 146,264 members, ranking just below the Germans. This minority is in the process of disappearing owing to the continuing emigration since the beginning of the 1960s.
587. 174. A comparison with the figures prior to the Second World War is no easy matter as a large number of members of the Jewish community lived in territories which after the war no longer formed part of Romania (northern Bukovina and Bessarabia). The deportations to extermination camps, which took place more often from Transylvania, then under Hungarian sovereignty, then from Moldavia or Wallachia, made the first important inroads into this community. After the war the number of persons belonging to this minority was estimated at 350,000 or 400,000. (Endnote 80) The emigration to Israel and the United States contributed to the virtual disappearance of this minority. Between 1944 and 1952, more than 160,000 Jews left Romania. The emigratory movement slowed down between 1952 and 1958 without ever stopping altogether, but resumed in 1958. In 1978, the Jewish community of Romanian origin in Israel amounted to 265,000 persons who had emigrated since 1944. The emigration of members of the Jewish minority became a feature of the Government's economic policy after the end of the 1960s. In 1980, the extension to Romania of the most-favoured-nation clause by the United States followed an easing of the Romanian Government's position regarding the emigration of the Jewish minority. Unlike the case of the German minority, the Commission has not been informed of complaints about loss of employment following upon requests for definitive emigration by members of the Jewish community. According to the Grand Rabbi of Romania, the average age of the Jewish population in Romania is thought to be over 60. At the same time, a certain number of decisions were taken to improve certain aspects of the life of this minority: the synagogue of Piatra Neamt was restored, beginning in 1978; an llth kosher restaurant was opened at Brasov/Kronstadt (the other ten being at Bucharest); and places of worship and burial were developed for purposes of tourism, etc.
588. Other minorities and minority groups within minorities
589. 175. A glance at the preliminary 1977 census returns reveals the appearance of minorities that had not been specifically mentioned in previous census returns. For the most part these are minority groups within existing minorities such as:
590. - the Szeklers (Seciu in the Romanian tongue; Szekely in Hungarian), established in the bend of the Carpathians, who claim to be ethnically and nationally Magyars, as is borne out by the low number of members who requested to be registered or have been registered as possessing Szekler nationality (1,064 persons);
591. - the Swabians (4,358) and the Saxons (5,930) who are the two main components of a German community whose members state that the vast majority of them are "Germans" - "nationalitat germana";
592. - the Slovenes (707 persons);
593. - the Lipovans (11,494 persons) or schismatic Russians.
594. 176. In addition, the 1977 census revealed the existence of two minorities, the MacedoRomanians (1,179) and the Aromanians (644). These were nomad shepherds who have become settled, who came originally from Macedonia and speak a Latin tongue that is close to Romanian. Members of these two groups are to be found in Albania, Bulgaria, Yugoslavia, mainly Serbia and Macedonia, and in Greece.
595. 177. These minorities are not specifically mentioned in the final results of the 1977 census.
596. The policy followed as regards minorities
597. 178. There are few official texts concerning the policy of the Government of the Socialist Republic of Romania as regards nationalities. The broad lines of a minorities policy are described in a publication that appeared in 1956 which records the accomplishments of the Romanian Communist Party during its ten years in power. The propositions set out reflect the ideas put forward by Lenin in his work on the national question: in accordance with Marxist-Leninist doctrine, only socialism offers a positive and fair solution to the question of nationalities. Nationalist tensions and the conflicts to which they give rise are products of the development of capitalism and its contradictions, and will disappear once the bourgeoisie cease to be all-powerful. The introduction of socialism will do away with all forms of exploitation, including nationalist oppression, and will lead to the establishment of fraternal relations in the working class whatever the national origins of the workers, as class consciousness will triumph over national consciousness. (Endnote 81) The Romanian Communist Party, and the Government whose actions are guided by the Party, have always affirmed that the nationalities question has been satisfactorily settled by energetically applying the principles of scientific socialism for the construction of a "multilaterally developed socialist society" and by granting complete equality of rights to all citizens of the country whatever their nationality. Many declarations have been made to the effect that the cohabiting nationalities are represented in the organs of the Party and the State in proportion to their numerical importance, and that education and culture in all languages are accessible to everyone. (Endnote 82)
598. 179. The prospect of equality of rights as a means of regulating the nationalities question is complemented by the idea that such equality is basically founded on material equality of an economic nature. To achieve this, and again numerous declarations have been made on the subject, it is necessary to assure the harmonious socio-economic development of all regions of the country. Consequently, certain departments regarded as being underdeveloped such as Bistrita-Nasaud, Covasna, Harghita, Satu Mare and Salaj, should be given special attention and receive as a matter of priority the investment that will be the starting point of their future material equality. In the Government's report to the 76th International Labour Conference, (Endnote 83) it stated that "... particularly after 1965, all the geographic zones and settlements of the country underwent sustained and balanced social and economic development benefiting all inhabitants, irrespective of nationality. Moreover, counties with a higher density of citizens of a distinct nationality, which lagged behind other counties, were granted more investment funds and subsequently achieved higher growth rates in terms of industrial production and job creation". The Government provided statistical data in support of its statement and pointed out that "on that basis, all the citizens of the country, irrespective of nationality, are guaranteed the full enjoyment of their economic and social rights, including the right to work, in their native region ..." and that the objective pursued at the end of these changes was "... to provide all citizens with full equality of rights in the effective enjoyment of human rights and freedoms and the elimination of all forms of discrimination". The Government concluded by stating that "considering that all Romanian citizens, irrespective of their nationality, are the architects and beneficiaries of the economic and social development process, these changes relate to the entire population of the country and extend without discrimination to all the citizens in every area, with respect, of course, for equal rights and their rights and fundamental freedoms". It is this claim of respect for fundamental rights and freedoms that is contested by certain national, ethnic, linguistic or religious minorities.
599. 180. The Romanian Communist Party has always emphasised the unitary nature of the State and maintained that national minorities are an integral part of that unitary State. In 1974, the President of the Republic and Secretary-General of the Romanian Communist Party declared that, in the near future, there would no longer be any nationalities in Romania but a single socialist nation. (Endnote 84)
600. 181. The general policy pursued over the last 20 years reveals different aspects depending on whether it is assessed in the light of speeches made or of its implications for the members of minority groups. According to the official public speeches and statements, it continued, without prejudice to the desire for assimilation expressed in the statement quoted above to aim at the harmonious development of national minorities, guaranteeing in particular their linguistic and cultural rights. As far as policy implications are concerned, the same period has been characterised, first and foremost, by the introduction and development of a system whereby the departure of the members of certain minorities was made contingent upon payment of a sum in foreign currency, which ultimately led to the disappearance of these minorities. The example of the Jewish and German minorities is illuminating in this respect. Secondly, the effects of this policy have been to bring about a slow erosion of the measures allowing the members of national minorities to preserve their identity, particularly in education and culture, and instead aimed at their assimilation. While these effects have been felt by the members of all minority groups they have been all the more deeply resented by members of certain minority groups which have had access for many centuries to comprehensive systems of education in a vast array of cultural institutions (Germans and Magyars).
601. 182. This policy of assimilation has evoked a wide range of reactions from the members of minority groups of which the most visible manifestations have been emigration and open opposition. As a result of their influence in the country and, initially at least, the fact that they had no possibility of emigrating permanently, the Magyars have been the principal target of the assimilation policy. The claims of the Magyars of Romania, which began to be expressed in 1977 (memorandum from Lajos Takacs; letters from Karoly Kiraly to the Prime Minister, Ilie Verdet, to Janos Fazeka and to Janos Vincze), dealt exclusively with the respect for rights and the application of the constitutional, legislative and other statutory texts. A meeting of the Councils of Workers of Magyar Nationality and of German Nationality respectively was convened but no decision was taken. Threats were made against persons considered to be "traitors to their countries", "who, for (...) a plate of lentils or goulash entered the service of foreign countries". (Endnote 85) At the same time, a campaign was launched by the Government, both inside and outside the country, against the reputed threat to the territorial integrity of Romania. Numerous documents were published and widely distributed to this effect. After a pause, the campaign was resumed in the mid-1980s.
602. 183. The situation of the minorities in Romania, and, by analogy, of the members of these minority groups has always been mainly conditioned during the period under review by considerations of foreign policy and immediate necessity, which tended to supersede considerations of respect for human rights. The situation of the German minority is the clearest illustration of the connections between foreign policy and the policy followed with regard to a particular minority. In the immediate postwar period and up to the mid-1950s, this minority was the subject of measures of deportation and then of discrimination. From 1957 onwards, the members of the German minority were allowed to emigrate and continued to do so, through slackening off from time to time during the whole of the period under review. At the same time, trade with the Federal Republic of Germany rose from 256 million lei in 1959 to 1,042 million in 1965 and to 6,231 million in 1978. In the 1980s, the Federal Republic of Germany was the second most important trading partner for Romania. This situation, which was relatively privileged compared to that of other minorities, did not spare persons requesting to emigrate from being exposed to discriminatory measures, particularly loss of employment as soon as their applications to emigrate were submitted.
603. 184. Another example is that of the Turco-Tatars. The use made of the opportunities offered by this minority in the context of relations with the Muslim countries, particularly those exporting oil and purchasing food products, led to an appreciable improvement in the group's situation as regards religious and educational matters after a period in which the Turco-Tatar network was suppressed (1957) and the Koranic school of Medjidia closed (1967). The deportation of members of the Serbo-Croat minority, which had been removed from the frontier area with Yugoslavia at the end of the 1940s and early 1950s, was due to the strained relations between Romania and Yugoslavia and still reflects this situation.
604. 185. Despite the equality of citizens, proclaimed in the texts, it would seem that the members of minority groups are not at any time citizens in quite the same sense as the others. In view of the magnitude and history of the Magyar minority, its situation is closely linked to the state of relations between Romania and Hungary and these on the other hand partly depend on the conditions in which the members of the Magyar minority live in Romania.
605. CHAPTER 7
606. EDUCATION AND TRAINING
607. 186. Access to training and education is the subject of allegations of discrimination concerning two different points. The first concerns social origin or political opinions used as a basis for distinctions made between persons, in particular as regards access to higher education or the continuation of studies. These distinctions allegedly result in exclusions or preferences regarding individuals who are prevented from initiating or continuing their studies or, on the other hand, who are permitted to initiate and continue them in exchange for their participation in a political party or bodies controlled by the latter. A second aspect concerns access to training and education by members of minority groups. The constitutional and legislative provisions analysed above (paragraph 119) give members of minority groups the right to education and training in their mother tongue. The exercise of this right, particularly in a planned economy, depends essentially on the determination of the State to make available to persons who are members of national minorities, as well as for persons belonging to the majority nationality, the necessary human resources and material means.
608. Examination of the legislative and statutory provisions in force at the time of the filing of the complaint
609. 187. The general framework for the organisation of teaching and training has already been examined in the preceding chapters. The following paragraphs examine the provisions respecting access to higher education, the occupational objective of which is very heavily emphasised in the Socialist Republic of Romania and the provisions respecting the organisation of teaching and training in the mother tongues of the members of minority groups.
610. Methods of access to higher education
611. 188. Access to higher education is determined by competition open to persons holding the high-school diploma, under the provisions of section 70 of Act No. 28/1978 on education and training. The matriculation regulations, organisation and subject papers of the competition are determined by the Ministry of Education.
612. 189. This provision must be read in conjunction with those established by sections 115 to 123 of Act No. 28/1978 entitled "Political and educational activities and social science studies in education" and section 148 which prescribes the obligations of pupils and students. Under section 115, the purpose of all education is to ensure the communist and revolutionary education of young persons and their training as new men and women "multilaterally developed and conscious builders who are devoted to socialism and communism". In the same way, the communist education of youth is a basic social and ethical task for teachers (section 121). Three sections are devoted specifically to the teaching of social sciences "based on the programme of the Communist Party" (section 118), the tasks assigned to students and teachers of social sciences and their obligations in particular towards the party (sections 119 and 120). The other sections of this part stipulate the methods of application of the principles set forth in section 115. Under the provisions of section 148, pupils and students are required, inter alia, to "assimilate the ideology and policy of the party" and to become "active militants in the implementation of the programme for the construction of a multilaterally developed socialist society" (subparagraph (b)), to be devoted to the party and the people (subparagraph (c)) and to conduct themselves in all circumstances in accordance with the socialist norms of behaviour in society (subparagraph (e)).
613. 190. As regards particular doctorates, section 90 of the above-mentioned Act stipulates that the method of organisation and admission to doctorates, training courses and the methods of obtaining the degree shall be established by a decree of the State Council. Decree No. 1058/1967 respecting scientific qualifications, as amended by Decree No. 345/1973, stipulates in section 6 that candidates who have completed a preparatory stage as grant holders must undergo an examination whereas the admission of other candidates is made on the basis of an interview. The admission examination and interview are held by a committee appointed by the Ministry of Education which is responsible for their organisation. Under the provisions of section 8, candidates are admitted according to the number of places available and the results of the examination or the interview. After the preparatory stage, candidates may defend their thesis before a jury.
614. Education in the languages of national minorities
615. 191. Decree No. 278/1973 respecting the establishment of unit structure norms for teaching institutions, repealed by Act No. 28/1978, establishes norms for the establishment and running of classes in the various kinds of teaching establishments. In pre-school teaching, kindergartens could be set up with a minimum of 25 children. This number could be reduced to 20 by the People's county council, "in well-justified cases". As regards general obligatory education, in primary schools, gymnasia and the first two years of high school, in some localities (classes I to VIII or classes I to X) the minimum number of students is 25. In isolated localities, classes in primary schools may operate with seven children. In high schools and technical vocational education, the average number of students must be 36 although the Ministry of Education and Training may approve the holding of classes in the last two years with 25 students. These criteria respecting numbers were provisions of a general application except as regards the establishment and functioning of classes in Romanian "in communes in which there are schools which teach in the languages of the cohabiting nationalities" and "in high schools which operate and which teach in the languages of the cohabiting nationalities and in which sections or classes shall be organised which shall teach in the Romanian language irrespective of the number of students". Boarding schools, day boarding schools and school canteens may be set up with a minimum of 50 students in the general obligatory educational system and with 100 students in high schools or in technical vocational teaching establishments.
616. 192. Sections 27 (kindergartens) and 30 (general obligatory education) stipulate that the unit structure norms shall be established by the law whereas such standards shall be established by the competent minister as regards high schools (section 38) and vocational training (section 50), in consultation with other central or departmental bodies (People's council) if necessary. Act No. 28/1978 does not give any figures regarding the establishment or running of classes at the various levels of teaching and no other text respecting the "unit structure norms" had been listed as of 1 January 1989. (Endnote 86)
617. 193. Section 9 of Act No. 6/1969 respecting the status of teaching staff in the Socialist Republic of Romania stipulates that in regions populated by cohabiting nationalities, only teachers familiar with the language used in the institution or the section to which they are assigned may be appointed.
618. Allegations submitted by the complainants
619. 194. The complainants allege that restrictions are deliberately applied in education in the Hungarian language and that limitations are made regarding access to higher education and the training of young persons belonging to the Magyar minority. Youth of the Magyar ethnic minority as well as young persons of other minority groups (Germans, South Slavs, Slovaks, Ukrainians, Jews and Roma, etc.) are discriminated against in education and training. (Endnote 87)
620. 195. The ICFTU, on behalf of the complainants, refers in its communication dated 30 March 1990 to the comments made by the Committee of Experts on the Application of Conventions and Recommendations. (Endnote 88) It also refers to several cases of discrimination in training to which its attention was drawn and which concern refusal of access to vocational, secondary and higher education for reasons related to political opinions or social origin and threats of exclusion from a vocational training school against persons who had written to a foreign radio station.
621. 196. The complainants refer to the case of Mr. William Totok, a writer and literary critic originally from Timisoara, a member of a group of young German-language authors who demanded the right to write and publish in their mother tongue, German. Four members of this group were charged in October 1975 with the attempted unlawful crossing of frontiers; in November, Mr. William Totok was arrested and charged on the basis of section 166 of the Penal Code with "facist propaganda" designed to achieve the overthrow of the socialist order. His brother, Gunther Totok, had been arrested and condemned to five years' prison at the beginning of 1975 on the basis of the same section. After nine months' detention, Mr. William Totok was released and expelled from the University. He was authorised to renew his inscription at the University at the beginning of the 1977-78 academic year.
622. 197. The regulations governing the defence of doctoral theses stipulate that a file must be submitted to the organs of the Single Party before approval can be given for the candidate to defend his thesis and which must contain, in addition to information on the thesis itself, a report on the candidate's social, political and civic activities. The file, completed by report by the competent authority of the Single Party, is returned to the faculty or the institute at which the candidate must defend his thesis. (Endnote 89)
623. 198. The complainants also refer to the case of Mr. Emil Iovanescu, from Lugoj, county of Timisoara, whose application to the Institute of Foreign Commerce in Bucharest was rejected three times, despite the excellent marks he had obtained in the entrance examination, the necessary recommendations of the party and the local police authorities and the Party Youth Organisation of which he was a local official. A high-ranking officer of the security services - Securitate - allegedly told him that his applications had been refused because of a regular correspondence which he maintained with foreign citizens on vacation in Romania whom he had met.
624. Other information
625. Communication of information by governments under article 27 of the Constitution
626. 199. The communication from the Government of the United States points out that "in recent years Ceaucescu's régime reduced the opportunities for minorities to have ... schools in their native language". According to the report, primary schooling is still available in Hungarian and German and even in the native language of small minority groups, such as Czechs, although opportunities are shrinking. The number of Magyar children being educated in Hungarian is declining significantly. Except in a few countries, students can no longer take university entrance examinations in minority languages and opportunities for university study in Hungarian have also decreased. Babes-Bolyai University in Cluj, which resulted from the fusion in 1959 of two universities, one conducting its courses in the Romanian language and the other in Hungarian, has increased its intake of ethnic Romanian students over the years and made Romanian the language of instruction in most subjects. As regards education in the German language, several German-language high schools still operate although they face a declining enrolment of native German speakers due to the emigration of members of the ethnic German community. (Endnote 90)
627. Communication of information by international organisations at the request of the Commission
628. 200. The Special Rapporteur of the Commission on Human Rights refers in his report to the situation regarding education and training for the members of minority groups. A numerus clausus is applied at the University of Cluj to limit access by Hungarian students. A decision by the Central Committee of the Single Party in March 1985 sought to suppress higher education in the Hungarian language, with the exception of sections in the Hungarian language at the University of Cluj, the Tirgu-Mures School of Dramatic Art and the Tirgu-Mures Institute of Medicine and Pharmacy. (Endnote 91) The number of classes and schools in which Hungarian is the language of instruction has been gradually reduced in favour of Romanian and in the other classes, general subjects such as history, geography or civics are taught in Romanian. The entrance examination for the specialised schools and universities is set in Romanian only, which discourages many young members of the Magyar and German minority from continuing their primary and secondary education in their mother tongues. (Endnote 92) The Special Rapporteur concluded that with a few exceptions, higher education courses are now in Romanian only and that in primary, secondary and vocational education, the number of schools and classes in which Hungarian is the language of instruction has declined markedly in favour of Romanian. Given the situation and the limitations placed on access to higher education, many Hungarian and German parents opt for their children to be educated in Romanian from the beginning, "in the expectation that they will thus have better prospects". (Endnote 93)
629. Information communicated by non-governmental organisations at the request of the Commission
630. 201. According to the reports communicated to the Commission by the Minority Rights Group, the Magyar minority has had a long tradition of a high level of education, notably through the religious schools, and, has a well-educated intelligentsia and skilled working class. The full educational network providing teaching in the Hungarian language from the nursery to the university which was organised after the Second World War was dismantled in two stages. First, Hungarian schools were merged with Romanian ones, with the Hungarian language schools becoming sections of a Romanian-speaking establishment without any administrative autonomy. The most dramatic aspect of this phase was the merging of the Bolyai University with the Romanian Babes University in 1959 which was followed by a drastic shrinking in higher education in the Hungarian language. This reduction is illustrated by the statistics given in the memorandum prepared by Lajos Takacs, a former vice-rector of the University and one-time Nationalities' Minister when this ministry existed.
631. 202. The second phase consisted of limiting the number of pupils or students following their studies in a minority language. The report also gives details on the way the "internal provisions" were used to reduce further the number of students of Magyar origin following their studies in the Hungarian language: "... an internal regulation prescribed that in each year in each subject, study groups could be established as long as they had a minimum of 15 students. If, for example, in chemistry, there were 60 students in the first year, that could form the basis of four study groups; if there were at least 15 Hungarians, one study group could be held in Hungarian, but if there were only 14 Hungarians, then all four would be held in Romanian. Often this could be ensured by admissions policy, with never more than a dozen Hungarians being accepted." (Endnote 94) A similar policy was followed in primary and secondary education under the provisions of Decree No. 278/1973 (see paragraph 109): if there were only 24 Magyar or German applicants instead of the 25 prescribed by the Decree, no primary class in the mother tongue would be opened for them and the children were obliged to go to a Romanian language class. Since the average size of villages in Transylvania is between 500 and 1,000 inhabitants, it is difficult to raise the required quota of pupils prescribed by the Decree. Throughout the 1980s, the number of Magyar pupils educated in their mother tongue continued to fall, as can be seen from table X.
632. 203. The report points out that by contrast, there is no restriction on the number of pupils required for the setting up of classes in the Romanian language. Thus even in a village in which there are 25 Magyar pupils in a class, if a Romanian language pupil turns up, the entire class is given in Romanian. For a while, parents attempted to resolve the problem of quotas by bussing children to the nearest large village where a Hungarian school still existed. But this system was prohibited on the pretext of insufficient petrol.
633. Table IX. Changes in the number of teaching staff at Babes-Bolyai University of Cluj by nationality
634. ---------------------------------------------------------
635. Subject Nationality 1958-59 1976-77
636. ---------------------------------------------------------
637. Chemistry Romanians 45 63
638. Magyars 36 14
639. Law Romanians 18 23
640. Magyars 15 4
641. Economics Romanians 23 76
642. Magyars 15 19
643. Physics Romanians n.a. 92
644. Magyars n.a. 19
645. Mathematics Romanians 31 51
646. Magyars 19 14
647. Biology Romanians n.a. 112
648. Magyars n.a. 24
649. History and Romanians 29 20
650. Philosophy Magyars 14 7
651. Source: Memorandum of Lajos Takács, 1977.
652. ---------------------------------------------------------
653. Table X. Number and proportion of Magyar pupils educated in Hungarian and Romanian (primary school and gymnasium)
654. -----------------------------------------------------------------
655. 1976 1980 1986
656. -----------------------------------------------------------------
657. Total pupils 3 019 776 3 308 462 3 030 666
658. Magyar students (est.) 271 000 297 000 272 000
659. Magyar students educated
660. in Hungarian 171 924 179 569 60 613
661. Percentage of Magyar total (63) (60) (23)
662. Magyar students educated
663. in Romanian 99 026 117 431 211 387
664. Percentage of Romanian total (37) (40) (77)
665. Sources: Figures for total number of pupils, Annual Statistics of the RSR, 1986; figures for those learning in Hungarian, Hungarian news agency, quoted in "Hungarian Minority in Romania", Bekesi, et al., p. 29.
666. -----------------------------------------------------------------
667. 204. The closing down of classes was accompanied by the dismissal of Hungarian language teachers. The report gives the example of secondary education in Huedin (district of Calata, county of Cluj) in a region where Magyars are in the majority. After the application of the 1973 reform, there were 2.2 times more classes in the Romanian language than in the Hungarian language in humanities and an equal ratio in technical subjects.
668. 205. According to the report, the Magyars are concerned at the way in which the authorities are determined to keep Hungarian language technical or vocational education to a minimum. The situation in Cluj county, where in 1956 Magyars formed 26.1 per cent of the population, was the following: at the opening of 1973-74 school year, there were 174 Romanian language classes for the first year of technical schooling as against two classes in Hungarian. By 1976-77 the situation had changed somewhat in that Romanian language classes had increased to 192 while Hungarian ones had risen to nine. The Hungarian language classes were textile, technology and building; and the rest in agriculture, mechanical and electrical engineering and iron foundry, etc. The choices offered to pupils willing to accept their training in Romanian are much wider.
669. 206. The above-mentioned report emphasises the importance given to the learning of the Romanian language in Magyar secondary schools and believes that this is not unreasonable. Some subjects are taught in Romanian (history, geography, literature and certain technical subjects) and extra-curricula activities, organised jointly with the Romanian section of the school, are held in Romanian. One of the speakers at the 1978 Joint Plenum of Magyar and German Nationality Councils, referring to German schools, stated that military education, training in the field of trade and the organisation of the enterprise and economic legislation were also taught in Romanian. Presumably the same pattern applies to Hungarian schools as well.
670. 207. Helsinki Watch, in a report on the destruction of ethnic identity amongst the Hungarians of Romania, communicated to the Commission, (Endnote 95) reproduces some of this information. Furthermore, it emphasises the effects of the teacher placement policy on the functioning of teaching in mother tongues other than Romanian. It quotes in this connection an article by Karoly Kiraly which states that: "most of the restrictions were justified by a so-called "lack of Hungarian teachers". The lack, however, was not only created but was caused by the imposition of punitive sanctions. Hungarians with diplomas - teachers, doctors, scholars - were placed in jobs outside Transylvania or in Romanian-speaking territories. If they rejected these jobs they were unable to obtain any other work, and therefore had to reimburse the State for their tuition." (Endnote 96)
671. Helsinki Watch also quotes the letter sent by Eva Cseke Gyimesi, an adjunct professor at the Faculty of Hungarian Language and Literary Sciences at the University of Cluj, to the Ministry of Education on 8 March 1988 asking the Ministry to place Magyar graduates in posts in which they can teach in the Hungarian language or in institutions in which they can develop their culture "by which you will prove that equal rights are guaranteed in Romania". Recalling her previous requests to the Ministry, Mrs. Csekme Gyimesi points out that the only consequences for her were "interrogations and threats ... as if I had committed an act of disloyalty".
672. 208. Teachers who do not speak the languages of minorities are assigned to schools or sections which use these languages, contrary to the provisions of section 9 of Act No. 6/1969. According to a report by the Hungarian Democratic Forum, these provisions were completely swept away by an oral instruction from the Minister of Education at the opening of the 1985-86 school year. In the county of Harghita, where 86 per cent of pupils in 1982 followed courses in Hungarian schools, 191 of the 223 teachers who were assigned in 1985 to Hungarian language sections did not speak Hungarian. In the same way, in 1986, 23 directors of secondary education establishments were Hungarians; 17 of them were replaced by Romanians.
673. 209. The report quotes the statement made by a person who wanted to study to become a teacher of German and English in 1987. Two weeks before the examination, the Minister stated that it was not possible to sit examinations in two "foreign" languages and that students would have to choose between one "foreign" language and Romanian.
674. Observations of the Government of Romania
675. Observations of the Government of the Socialist Republic of Romania communicated at the request of the Director-General of the International Labour Office under article 26 of the Constitution of the International Labour Organisation
676. 210. As a result of the events of December 1989, the Government's position has undergone considerable modification since the beginning of the procedure. The Committee therefore considers it essential to examine first the position of the Government of the Socialist Republic of Romania, as manifested up to December 1989, and then the position of the Romanian Government as manifested since 22 December 1989.
677. 211. The Government of the Socialist Republic of Romania, in the observations communicated at the request of the Director-General of the International Labour Office, reproduced in paragraph 1 of this report, states that education is compulsory (ten years in 1989) and free and that the only condition of access to higher forms of education is to be successful in competitions for admission which are open, without any discrimination, to all young persons holding a high-school diploma. The Government states that teaching in Romania is closely linked to the economic and social development programmes in the country, in order to respond to the needs of the country as a whole and to ensure that at the end of their studies young persons are able to find jobs commensurate with their training and qualifications, without any discrimination.
678. 212. The Government recalls that the provisions of Act No. 28/1978 on education and training applies to pupils belonging to the national minority groups. It points out that a special section of the Ministry of Education is responsible for this matter and that one of the Secretaries of State of the Ministry is a member of a minority. No information is given on the responsibilities of the Secretary of State. Finally, the Government provides information on the situation of teaching in the languages of the existing nationalities in Romania for the school year 1988-89. This information is summarised in the following table.
679. Table XI. Synopsis of the situation of teaching in the languages of nationalities existing in Romania for the school year 1988-89
680. -----------------------------------------------------------------
681. Total number % of total number
682. -----------------------------------------------------------------
683. Pupils and students at all
684. levels of education including
685. higher education 5 556 128
686. 152 962 2.75
687. Pupils and students in all
688. levels of teaching belonging to
689. national minorities 435 765 8.16
690. Pupils and students in higher
691. education and belonging to
692. national minorities 9 504 0.17
693. Pupils and students in all
694. levels of teaching belonging to
695. national minorities and educated
696. in their mother tongue 284 308 5.11
697. 100% Total
698. Pupils and students in pre-school
699. establishments belonging to
700. national minorities and educated
701. in their own language 20.03 56 952 1.02
702. Pupils and students in primary
703. and secondary establishments
704. belonging to national minorities
705. and educated in their mother
706. tongue 65.57 186 422 3.35
707. Pupils and students in high schools
708. belonging to national minorities
709. and educated in their mother
710. tongue 14.22 40 431 0.72
711. Others (including higher education) 0.08 503 0.0009
712. -----------------------------------------------------------------
713. 213. In the same period, 59 primary classes and 242 secondary classes with a number of pupils lower than the minimum norms established by the regulations were created to meet the needs of children belonging to minority groups. Teaching is provided in the languages of the national minorities in 2,746 establishments out of a total of 27,975 kindergartens, primary schools, secondary schools, high schools, vocational schools and teaching training establishments and higher education establishments. Eighteen thousand, three hundred and thirty-one teachers (8.54 per cent) out of a total of 214,484 are members of national minority groups. Thirty-three per cent of school textbooks were published in the languages of the nationalities. Young persons belonging to a national minority group may use their mother tongue in competitions for entry into higher education.
714. Observations of the Government of Romania communicated at the request of the Commission
715. 214. The Government of Romania has not made any observation on the allegations and information which the Committee communicated to it for this purpose. However, a White Paper presented by the delegation of Romania to the meeting of the Conference on Security in Europe held in Copenhagen in 1990 refers to remedial measures taken to correct "some injustices inherited from the period of dictatorship" regarding students who had been previously excluded, for political or religious reasons, or who had not passed examinations on subjects concerning ideology.
716. Examination of the facts and conclusions of the Commission
717. 215. The allegations of discrimination based on political opinion or religion have not been contested by the authorities which have taken measures to remedy existing cases. An assessment of the scope of this phenomenon must not be based only on the number of cases of persons who have suffered discrimination. The Convention does not provide only protection to persons who have been the victims of discrimination but also seeks to offer conditions of employment or training which are free from any discrimination based in particular on political opinion or religion. Threats of exclusion may suffice for the majority of persons professing a given religious faith or having political opinions which are not shared by the authorities to cease expressing their opinion or faith. In the same way, examination papers on subjects dealing with ideology and which are required for admission to certain schools, may give rise to discrimination and permit the exclusion of candidates on the basis of their beliefs or their absence of beliefs or by establishing preferences for certain candidates to the detriment of others.
718. 216. The Commission believes, in the light of the testimony which it has collected and the information which has been communicated to it, that discrimination based not only political opinion but also on social origin, religious belief and was very widespread in higher education. The regulations and in particular sections 115-123 and 148 of Act No. 28/1978 on education and training permitted such discriminations and justified them by references to obligations of an ideological nature incumbent upon pupils and students. The phenomenon was not a uniform one even if it was present in all establishments. Some faculties (social sciences, law, philosophy) made greater use than others of entrance criteria based on conformity with the existing political system. However, conformity, at least in appearance, with existing political order was required in all subjects. It was one of the rules of the game which few individuals infringed because of the consequences which such action could have on their future. Ideological training, provided throughout the period of compulsory education, must have facilitated observance of this rule.
719. 217. The allegations concerning access to education and training of persons belonging to the national minorities were not the subject of any observations by the Government and thus their relevance must be recognised. The Committee must therefore examine this point.
720. 218. The Convention does not stipulate that a State which ratifies the Convention must adopt special measures such as the establishment of a specific educational system for a given category of the population. But neither does it exclude such a system. Thus section 5 of the Convention stipulates that special measures of protection or assistance which is generally recognised as necessary shall not be deemed to be discrimination. It is in this spirit of protection that measures enabling the members of national minorities to acquire training in their language may be adopted. The legislation in force in the Socialist Republic of Romania at the time of the filing of the complaint makes provision for training in the language of national minorities and the learning of their language. It is not for the Commission to examine whether this legislation grants sufficient rights to the members of the minority groups but what the effects of its application may have on equal opportunity and treatment for the members of the minority groups and how this legislation is applied with regard to the Convention.
721. 219. During the hearings, the question of access by members of the Rom minority to education and training was raised by two witnesses. One witness, referring to families of Rom descent in the region of Cluj, pointed out that because of their modest income, they could not send their children to school regularly. In general, access to education is difficult for these children and their level of education does not go beyond the first two or three years of schooling. According to the witness, the State does not provide the members of this ethnic group with the normal and necessary social conditions to permit the access of members of this minority to education and culture. Rom children have the right to go to school which is obligatory and free of charge for everybody but not all have the possibility of doing so. In fact each family with children at school must buy school textbooks as well as materials, uniforms, etc. The incomes of these families, who are often very large, do not enable them to cover these expenses. The witness pointed out that there was no "official" discrimination against the Roma in the schools but "the attitude of teachers as well as of other pupils results in the mistreatment and discredit of the Gypsies". He stated that teachers without exception show a total lack of interest in Rom children and are not concerned when they do not come to school or by what they do when they are there; in short, "such children are like waifs and strays who interest no one". (Endnote 97) Another witness also referred to the situation of the Roma as regards education and training. He pointed out that after the Second World War many Roma gained access to education and training, including higher education. But such opportunities meant denying their origins. Real inequality exists between certain Rom communities and the other members of Romanian society, in particular as regards training. The absence of "affirmative action" measures on behalf of these persons helps perpetuate de facto inequalities against which equality before the law means nothing. (Endnote 98)
722. 220. The instances reported by the witnesses concern the existence of de facto inequalities which mainly affect certain persons belonging to the same ethnic group and having a different way of life from that of their fellow citizens. The elimination of these de facto inequalities is one of the objectives which a national policy of equal opportunity and treatment in employment, occupation and training should seek. The Commission has not been informed of the existence of specific programmes or measures to remedy these inequalities. It would appear from the interventions of the representatives of the Government of Romania that they believed that the situation depended on the interest or lack of interest of the persons concerned themselves. The role of the authorities in the application of the Convention cannot be limited to the affirmation of the necessary but in themselves insufficient legal principles of equal access to education and training without discrimination and the provision of education free of charge. The authorities must also examine within the framework of the policy set forth in Article 2 of the Convention the possible problems, in particular those resulting from the persistence of de facto inequalities, as well as methods to resolve them.
723. 221. Furthermore, one of the witnesses emphasised the attitude of teachers and other pupils towards children of the Rom minority. The Commission has not found any evidence of educational programmes designed to ensure the acceptance and application of a policy of equal opportunity and treatment for all citizens without discrimination based on race or national origin which the ratifying State must promote under the provisions of Article 3(b) of the Convention.
724. 222. As regards the reduction in the number of pupils and students receiving education in a mother tongue other than Romanian, the Commission has examined the figures communicated or published by the Government of the Socialist Republic of Romania on various occasions. Table XII table gives information on the development of the situation between 1975 and 1989.
725. 223. As regard pre-school education and obligatory schooling at the primary and secondary levels, the number of pupils studying in a language other than Romanian has continued to decrease both in percentage terms and in absolute numbers, whereas at the same time the total number of pupils is increasing. Education in a mother tongue other than Romanian has fared better in the high schools where the proportion of pupils receiving such education has fallen in percentage terms as compared with the total number of pupils in high schools, although it did increase between 1976 and 1987 in absolute numbers, followed by an important reduction between the beginning of the 1987 academic year and the 1988 academic year. The deterioration in the situation regarding teaching in a mother tongue other than Romanian is even greater if comparisons are based on the role of teaching in just the Hungarian language at the beginning of the 1956-57 school year. Pupils enrolled in schools in the Hungarian language accounted for 14 per cent of the total number of pupils enrolled in pre-school education, 9.49 per cent of the children enrolled in obligatory schooling and 8.03 per cent of pupils enrolled in high schools.
726. 224. Whereas the increase in the total school population was 142 per cent between 1948 and 1989, the number of pupils attending schools using a mother tongue other than Romanian increased by 12.3 per cent for Magyars, 13.8 per cent for Germans and fell by more than 870 per cent for the other minorities. Furthermore, although the total number of pupils in primary and secondary education increased by more than 60 per cent, the figures fell for all other minorities. The drop varies considerably from one minority to another, from 7.9 per cent for Magyars, 13.8 per cent for Germans to more than 900 per cent for the other minorities. (Endnote 99)
727. 225. In higher education, the number of students from national minorities has fallen in percentage terms although there was a slight increase in absolute figures between 1976 and 1987, followed by a reduction in 1987 and 1988 as shown in table XIII.
728. Table XII. Number of pupils in educational establishments
729. -----------------------------------------------------------------
730. 1975-76(1) % 1987-88(2) %
731. -----------------------------------------------------------------
732. General total (incl. 4 725 935 5 535 306 100
733. pupils from the
734. national minorities) n.a. 457 125 8.25
735. Pre-school education 812 420 100
736. Pupils in languages 8.63
737. other than Romanian: 70 138 (1.48) 58 878 1.06
738. incl. Hungarian 53 186 6.54 n.a.
739. incl. German 14 878 1.83 n.a.
740. incl. Serb 701 0.08 n.a.
741. others 1 373 0.16 n.a.
742. Obligatory education 3 011 538 100 n.a.
743. Pupils in languages 7.12
744. other than Romanian: 214 588 (4.54) 193 241 3.49
745. incl. Hungarian 169 032 5.61 n.a.
746. incl. German 42 045 1.39 n.a.
747. others 3 511 0.11 n.a.
748. High schools 901 977 100 n.a.
749. Pupils in languages 4.08
750. other than Romanian: 36 827 (0.77) 42.530 0.76
751. incl. Hungarian 30 861 3.42 n.a.
752. incl. German 5 605 0.62 n.a.
753. others 361 0.04 n.a.
754. -----------------------------------------------------------------
755. 1988-89(3) % 1989-90(4) %
756. -----------------------------------------------------------------
757. General total (incl. 5 556 128 100 5 544 648
758. pupils from the
759. national minorities) 435 765 7.84 n.a.
760. Pre-school education 825 890 100
761. Pupils in languages 4.8
762. other than Romanian: 59 952 1.02 55 707 (1.00)
763. incl. Hungarian n.a. 44 834 4.2
764. incl. German n.a. 9 850 0.6
765. incl. Serb n.a. n.a.
766. others n.a. 1 023 0.05
767. Obligatory education n.a. 2 891 810 100
768. Pupils in languages 6.1
769. other than Romanian: 186 422 3.35 176 385 (3.18)
770. incl. Hungarian n.a. 153 379 5.3
771. incl. German n.a. 21 319 0.75
772. others n.a. 1 687 0.08
773. High schools n.a. 1 346 315 100
774. Pupils in languages 2.8
775. other than Romanian: 40 431 0.72 37 873 (0.68)
776. incl. Hungarian n.a. 33 555 2.5
777. incl. German n.a. 3 910 0.3
778. others n.a. 408
779. (1) Cohabiting nationalities in romania - Statistical tables.
780. (2) Comments from the Government communicated to the Conference Committee on the Application Standards, 76th Session, 1989.
781. (3) Observations of the Government in reply to the Director-General of the ILO, GB.244/4.20.
782. (4) Statistical data from the Ministry of Education and Teaching.
783. -----------------------------------------------------------------
784. Table XIII. Number of students in higher education
785. -----------------------------------------------------------------
786. 1975-76 1987-88 1988-89
787. Total number of ------------------------------------------
788. students 108 750 149 979 152 962
789. -----------------------------------------------------------------
790. Students from
791. national minorities 8 427 7.74% 9 557 6.38% 9 504 6.12%
792. including Magyars 6 188
793. including Germans 1 717
794. others 522
795. Students followingeducation in amother tongue n.d. 799 0.53% 503 0.32%
796. -----------------------------------------------------------------
797. 1989-90
798. Total number of -----------
799. students 157 838
800. ----------------------------------
801. Students from
802. national minorities 9 026 5.7%
803. including Magyars 7 091 4.5%
804. including Germans 1 347 0.8%
805. others 588 0.4%
806. Students followingeducation in amother tongue n.d.
807. Sources: See previous table.
808. -----------------------------------------------------------------
809. 226. Higher education in a mother tongue other than Romanian accounts for a tiny percentage of the total number of students and a very small percentage of the number of students belonging to national minority groups (between 5 and 8 per cent). By way of comparison, at the beginning of the university year 1938-39, there were 2,835 Magyar students in seven establishments (Bolyai University, I. Andreescu Institute of Plastic Arts, Gh. Dima Conservatory and Institute of Agronomy of Cluj, Institute of Medical and Pharmaceutical Studies, Szentgyörgyi Theatre Institute and Pedagogical Institute of Tirgu-Mures) comprising 17 faculties in the Hungarian language, accounting for almost 6 per cent of the total number of students. (Endnote 100) The case of the Institute of Medicine and Pharmaceutical Studies of Tirgu-Mures, established in 1945 as a Faculty of Medicine of the Bolyai University of Cluj and transformed into an Institute in 1948 providing education in the Hungarian language, illustrates this deterioration. In 1962, on the basis of a verbal indication given by N. Ceaucescu, a Romanian section was established. Magyar students follow courses in the Hungarian language and the practical courses, which are common to both sections, are given to Romanian. Table XIV shows the development in the ethnic breakdown of students who completed their studies between 1950 and 1985.
810. 227. In 1989, the percentage of Magyar students by section was 8.5 per cent in the first year, 13 per cent in the second, 20 per cent in the third year, 48 per cent in the fourth year and 37 per cent in the final two years. In the Faculty of Stomatology, out of a total of 25 students enrolled in 1989, there were three Hungarian students in the first year and two in the second year. At the same time, there has been a marked reduction in the number of Hungarian language teaching staff: two out of a total of 13 in surgery, seven out of a total of 25 in medicine and none in many other sectors.
811. Table XIV. Number of graduates from the Institute of Medicine and Pharmaceutical Studies of Tirgu-Mures, by nationality (in percentages)
812. ----------------------------------------------------------
813. Graduates 1950 1955 1960 1970 1975 1980 1985
814. ----------------------------------------------------------
815. Romanians 9 2 4 37 42 43 43
816. Magyars 72 85 87 50 55 53 51
817. Others 19 13 9 13 3 4 6
818. Source: Parliament of Romania, Committee of Inquiry: Rapport sur les événements de Trigu-Mures (Bucarest, Jan. 1991), Vol. 2, Annex XIII.
819. ----------------------------------------------------------
820. 228. Finally, as regards technical education, there were 304,533 students at the beginning of the 1989-90 academic year, of whom 125 were students in sections in which teaching was given in a language other than Romanian (in fact in Hungarian).
821. 229. The information available confirms the reduction in the share of members from national minorities in all kinds of teaching, and even their virtual absence. This situation was the subject of several warnings made to the Government of the Socialist Republic of Romania by members of the Magyar or German minorities, either through institutions supposed to represent the minorities or in communications published outside the country. It does not appear that these appeals have resulted in any measures to correct the discriminatory effects of the education policy, since new measures have been taken to reduce even further the opportunities for access to education by members of the minority group in their mother tongue. Referring to the question of the network of schools in the Hungarian language, the report of the Parliamentary Committee of Inquiry into the events at Tirgu-Mures points out that it "was seriously affected by the administrative measures taken by the dictatorship during recent decades". (Endnote 101)
822. 230. It appears from the various information which the Committee has received and been able to verify that the period prior to the filing of the complaint saw a significant reduction in teaching in the languages of the national minorities, in particular Hungarian and German. The reduction in the number of students in the German language sections closely parallels the reduction in the number of persons from this minority following the permanent emigration to Germany of approximately 10,000 persons a year. This is not the case for the members of the Magyar minority whose numbers, according to the results of censuses, have increased in absolute terms. However, the number of children educated or trained in Hungarian has constantly fallen in percentage terms and in absolute numbers as compared with the total population and the Magyar population.
823. 231. It is not possible to ascribe the full extent of this reduction to a numerically significant movement of parents of children of Magyar origin choosing to place their children in a different teaching system even if this kind of choice is available. The ever-decreasing opportunities for following technical and vocational training courses in a mother tongue, enabling the students to take up a job with a future, encourages the choice of a system which offers a wider range of job outlets. That being so, the Magyar population has, as a whole, shown unequivocable resistance to the various measures taken by the authorities of the Socialist Republic of Romania to encourage or accelerate this reduction in teaching in the Hungarian language.
824. 232. The movement has not been spontaneous. It has been encouraged by several series of measures taken to dismantle gradually the network of teaching in the Hungarian language: the loss of administrative autonomy, the establishment of high quotas for the setting up or continuation of classes, reduction in the share of subjects taught in the mother tongue, the failure to advertise vacant posts, the appointment of Hungarian language teachers in schools, gymnasia or high schools where there are no classes in the Hungarian language, etc. These measures have been adopted one after another at a time when the existence and functioning of teaching in the languages of the minorities continued to be one of the aspects of the policy of equal opportunity and treatment which the Government of the Socialist Republic of Romania said it was applying. Thus, the information communicated to the supervisory bodies of the International Labour Organisation and to the Director-General of the International Labour Office, under article 26 of the Constitution of the ILO, have continued to refer to this policy of education and training in the languages of cohabiting nationalities.
825. 233. Article 2 of the Convention stipulates that a member State which ratifies the Convention undertakes to declare and pursue a national policy designed to promote equality of opportunity and treatment with a view to eliminating the discriminations covered by Article 1. The policy applied must conform to the policy which is defined, which has not been the case as regards the education and training of the members of national minorities in their mother tongue. The Committee believes that the policy applied by the Government of the Socialist Republic of Romania has partially invalidated the policy which had been defined. Furthermore, although the Convention leaves the choice of methods for promoting equal opportunity and treatment to the Government concerned, the text does however imply that once measures have been adopted and a certain degree of protection against discrimination attained, the existing system of protection may not be dismantled unless it is accompanied by the adoption of an alternative system which increases or maintains rather than reduces the protection granted or the guarantees given.
826. CHAPTER 8
827. ACCESS TO EMPLOYMENT
828. 234. Access to employment without discrimination on the grounds defined by the Convention is an essential element of the policy to promote equality of opportunity and treatment aimed at by the Convention. Observance of the principle of equality of opportunity entitles all persons to have their application for the employment of their own choice considered in a fair and just manner. The complainants drew attention to a number of measures establishing preferences, but mainly exclusions, in respect of persons professing specific religious beliefs or expressing opinions deviating from government views, or even belonging to specific national, ethnic, religious or linguistic minorities. The Committee first examined the legislative and statutory provisions applicable at the time when the complaint was filed, then the allegations of the complainants, and information noted in the course of the procedure, as well as the observations of the Government. It has drawn its conclusions in the light of the results of this examination.
829. Review of legislative and statutory provisions in force at the time when the complaint was filed
830. General obligation to work
831. 235. In the Socialist Republic of Romania, access to employment is inherent in the general obligation to work, established in section 7 of the 1972 Labour Code, which stipulates that "from the age of 16 years, every person who is fit for work and is not attending courses at a school has a duty, until reaching pensionable age, to engage in socially useful work providing his livelihood and means of spiritual development". Act No. 25/1976 respecting the allocation of able-bodied persons to useful employment reiterates that work is a duty and an obligation for all citizens, and stipulates that all able-bodied persons who are not employed shall be required to register with the Directorate of Labour and Social Security with the object of being allocated to employment. The case of any person who systematically refuses without a valid reason to be engaged for employment and who leads a parasitic form of life shall be convoked by the general meeting of citizens, with the object of inducing him to agree to his engagement or training. Where, despite all the encouragement he has received, a person refuses to take up employment, he shall be obliged by court order to work for a year on a construction site, in an agricultural or forestry undertaking or in some other economic enterprise, or, in the case of minors under the age of 18 years, shall be obliged to work or follow a course of training in a labour and re-education centre subject to the Minister of Labour. This Act has been the subject of comment on the part of the ILO supervisory bodies for a number of years in the context of the application of Convention No. 29 concerning Forced Labour, 1930.
832. Measures to keep workers in the enterprises
833. 236. In order to keep workers in the employment to which they have been allocated, Act No. 3/1983 respecting the labour contracts stipulates that newly recruited workers shall be obliged to work in the unit to which they have been assigned for a minimum duration of five years as associate members of the work collective. A percentage of the wage of associate members of the collective (profit-sharing fund) shall not be paid until the end of the five-year period but shall be frozen in a savings account. Should associate members leave the unit before the end of five years, whether voluntarily, without justifiable reason or as the result of dismissal through their own fault, they shall be obliged to pay back a sum of money equivalent to the amount spent by the unit on their vocational training, as well as other expenditures of the unit from which they have benefited gratuitously, and shall lose their entitlement to the money deposited in the savings bank. Under the terms of section 16 of the Act, all workers must sign a form of commitment or pledge, an example of which is contained in Decree No. 337/1983, approving the content of the labour contracts for enterprises, industrial centres, ministries, central organisations and the executive committees of people's regional councils and the city of Bucharest, as well as the content of the individual contracts. The individual contract is worded as follows:
834. I, the undersigned ............................... as a full (or associate) member, in the capacity of ......................, working in ..............................., undertake to carry out in an exemplary manner all the obligations placed upon me by the "labour contract", to campaign actively for the continuing development of socialist property, for the strict application of the decisions of the Party and of the laws of the country in every aspect of my work.
835. 237. The commitments signed by ministers, directors and management personnel contain a passage implying their responsibility in respect of the way in which their subordinates respect the obligations to which they have subscribed by their individual contracts. By appending his signature to this individual pledge, the worker is presumed to have given his support to the system of authority personified by the Romanian Communist Party, under which he pledges to carry out his activity as an associate. Strict application of the Party's decisions in the occupational field is a "norm of conduct", infringement of which can lead to disciplinary sanctions under the terms of section 100 of the 1972 Labour Code.
836. Allocation to employment
837. 238. In accordance with section 2 of the Labour Code, the right to work is guaranteed to all citizens without restriction or distinction of sex, nationality, race or religion. The worker is "allocated" to a "work collective" of which he becomes a member with all the rights and obligations implied by this status, subject to provisions relating to the five-year period under the terms of the aforesaid Act No. 3/1983. Section 62 of the Labour Code specifies that the selection of workers and their allocation to the various branches of activity are carried out in harmony with the targets of the Plan. Persons are appointed to units in accordance with the unit's needs, "having regard to the candidate's aptitudes, training and preferences, and also the extent to which he satisfies other special requirements of the work in which he will be engaged, as prescribed by law". The special requirements of the work to be performed include not only technical but also political and ideological requirements, such as those listed in sections 1, 2 and 23 of Decree No. 413/1979 approving the conditions of service of civil aviation staff, (Endnote 102) or paragraph (a), section 142, of Act No. 28/1978 on education and training, under which discrimination on grounds of political opinion is admissible, in particular by allowing persons not meeting the requisite political and ideological standards to be excluded from the list of candidates. Under the terms of section 63 of the Code, access to employment is subject to an evaluation of the person's aptitudes and vocational training "by means of a practical test, individual or competitive examination or period of probation" of 15 days, or 90 days in the case of management functions.
838. 239. Act No. 24/1976 respecting the recruitment and allocation of manpower specifies the legal framework in which recruitment is carried out. This Act also prescribes the system of allocation and engagement of pupils completing their secondary, vocational or technical instruction, which must be effected within 30 days following the end of their studies. There are specific laws and regulations governing the placement of certain categories of pupils.
839. 240. Students who have completed their studies must be assigned to employment in a work unit, according to the results obtained in examinations, taking into account certain criteria of a social character (place of residence of parents, spouse, etc.), on the decision of the National Allocation Committees, as regulated by the Decree of the Council of State No. 54/1975, concerning the allocation to production jobs of graduates of higher daytime education. These Allocation Committees comprise members of the ministries concerned and of the local government authorities, as well as representatives of the League of Communist Students' Unions. Refusal to report at the work unit to which the graduate has been assigned is punishable by a fine ranging from 5,000 to 8,000 lei, depending on the duration of the course of studies completed. Work units which refuse to accept a graduate who has been assigned to them are liable to a fine of between 2,000 and 3,000 lei. Under the terms of the Decree, graduates are entitled to choose their place of work according to the results obtained in their examinations. Section 11 of the Decree states that, if there are serious grounds, the Ministry of Education and Training may approve a request for a change of assignment submitted by a graduate within one year of his assignment, and with the prior agreement of the local or national authorities responsible for the unit to which the graduate has been assigned.
840. 241. Decree No. 436/1978 respecting the allocation to employment of higher medical and pharmaceutical college graduates stipulates a three-year work experience assignment for such graduates, considered as an internship, to be followed by an assignment similar to that prescribed by Decree No. 54/1975 for other graduates.
841. Other measures
842. 242. Since 1985, all workers have been obliged to sign an undertaking stating that they have read the text of Decree No. 408/1985 on state secrets, a decree which has never been published in the Official Bulletin.
843. 243. The worker is issued a work book within 30 days following his first recruitment. This book is a personal document which may not be given up or disposed of, and which must be carried by the worker throughout his entire working life. Under the terms of Decree No. 92/1976 concerning the work book, this book shall contain proof of the holder's seniority, occupation or specialisation and the enterprises in which he has worked. Section 1, paragraph 2 of the Decree, stipulates that the labour book shall contain particulars concerning the worker's occupation, marital status, education and training, remuneration obtained and "any other situation mentioned in the work book in accordance as prescribed by law". The holder of the book may apply to the competent authority to have any false information removed from his work book. Theft of the work book must be advertised in the "Official Bulletin of the Socialist Republic of Romania" before a new book can be issued. Loss, destruction or alteration of the work book is an offence punishable by a fine.
844. Allegations submitted by the complainants
845. 244. The complainants alleged that "members of ethnic minorities, in particular the Hungarian minority, are currently being forcibly dispersed from their places of birth and assigned by the authorities to employment not of their own choosing" and "persons of Hungarian origin are barred from a number of cities". (Endnote 103)
846. 245. Furthermore, the ICFTU, acting on behalf of the complainants, suggested that the virtually absolute power of the State over its citizens was felt most in the field of access to employment, referring, inter alia, to selection procedures in which political recommendations in particular were essential to a successful outcome. (Endnote 104) The ICFTU also drew attention to the dependence of workers in respect of the government system of allocating them to their first jobs, with the consequences this can have for their future employment, and the notorious difficulties resulting from the pressures from the security service - Securitate - experienced by a number of witnesses in their search for first employment or employment after they have been dismissed. (Endnote 105) The ICFTU referred in this context to the administrative and/or judiciary sanctions imposed on persons without stable employment by Decree No. 153/1970 which provides for penalties in the case of certain offences against the rules of communal social life and public law and order.
847. 246. Some of the allegations refer to officially imposed assignment as a reprisal measure against human rights activists (Endnote 106) or to compel persons with agricultural aptitudes to work in the agriculture sector, by forbidding them to work elsewhere. (Endnote 107)
848. Other information
849. Information communicated by international organisations at the request of the Commission
850. 247. In reference to the official assignment to a workplace, the Special Rapporteur of the United Nations Economic and Social Council stated that in 1988:
851. ... the Ministry of Education appointed 12 of the 17 graduates from the Department of Hungarian Language and Literature of Cluj University to posts outside Transylvania in regions with an ethnic-Romanian majority. Of the five other persons, only one has been authorised to teach Hungarian. Furthermore, young members of the Hungarian minority who have failed college entrance examinations or do not wish to continue their education after tenth grade are transferred, for a five-year period, to an officially assigned workplace, such as Bucharest, the Danube delta or the mines. (Endnote 108)
852. Information communicated by non-governmental organisations at the request of the Commission
853. 248. In a report addressed to the Commission, the Minority Rights Group points out that the Magyars in Romania argue that those among them who succeed in completing an education in Hungarian face great difficulties in finding employment in Transylvania and are obliged to look for work in the Regat. (Endnote 109) The report draws attention to the impact this has had on the situation of the Magyar minority (breaking the links between the Magyar intelligentsia and the remainder of the community, accelerating assimilation of the Magyar professional class), and demonstrates the consequences for certain jobs and occupations, such as the medical profession (Romanian doctors forced to communicate with their Magyar patients through interpreters, while equally qualified Magyar doctors are assigned to regions where they never see a Magyar patient). According to the report, this problem was publicly recognised by N. Ceaucescu in his speech to the Nationality Councils in March 1978: "Generally speaking, we must take action to direct graduates - especially educational cadres, but also medical and agricultural cadres - to their native localities, thus avoiding sending them from one part of the country to another, or from one part of the county (judet) to another". The report indicates, however, that there are many other statements by Ceaucescu which give a different view, and that these statements should be read in conjunction with Acts Nos. 24 or 25, 1976, which in effect give the Romanian authorities the powers to direct labour and to order Romanian citizens to take employment wherever directed.
854. 249. The report also quotes information emanating from the Budapest-based Hungarian Press of Transylvania, according to which, at the beginning of the 1988-89 school year, 4,500 Magyar students from the three Transylvanian districts were forced to attend schools outside Transylvania and were required to sign five-year labour contracts with enterprises outside the area. The report states that Magyars were barred from immigrating to Brasov Kronstadt, Cluj Kolozsvar and Tirgu-Mures Marosvasarhely, while ethnic Romanians received positive incentives - 15,000 lei and guaranteed housing - to do so. (Endnote 110)
855. 250. The same report also states that ethnic Magyars are excluded from a number of important ministries (notably Foreign Affairs, Defence and Interior), with the result that there are few if any Magyars in the Romanian diplomatic service, in the officers' corps and, above all, the police. As for the latter, the number of ethnic Magyar police in Transylvania is minimal, though no actual figures are available. The report concludes on this issue by emphasising that "as the policeman was frequently the first point of contact between individual and State, this had serious consequences for that relationship especially when monoglot Romanian policemen resented being addressed in Hungarian". (Endnote 111)
856. Observations of the Government of Romania
857. Observations of the Government of the Socialist Republic of Romania in response to the request of the Director-General of the International Labour Office under article 26 of the Constitution of the International Labour Organisation
858. 251. In the observations communicated by the Government of the Socialist Republic of Romania in response to the letter of the Director-General of the International Labour Office dated 20 July 1989, (Endnote 112) it is stated that:
859. The allegations concerning (...) assignment to forced labour (...) towns declared out of bounds to certain persons on the basis of nationality (...) evoke situations which do not occur in Romania; consequently the question of finding a solution should not even arise. Such affirmations have not been, and cannot be, proved because they bear no relation to reality and take no account of the accurate information provided by the Romanian Government (...) including the reply given last June (1989) to the International Labour Organisation.
860. The Government states, however, "in order to maintain constructive dialogue with the Governing Body and to ensure that its members receive information from direct sources" that the practical guarantee of the right to work and the full use of the labour force is ensured by the sustained development of the economy and by the creation of a number of new jobs every year. Ninety per cent of the country's total human resources are in employment, which represents one of the highest employment rates in the world. The Government emphasises that the number of jobs increased four times faster than the population between 1965 and 1980, and that investments, industrial production and the number of jobs created in the districts with a higher density of citizens of other nationalities than Romanian "whose development lagged behind other districts", had been higher than the national average.
861. 252. The Government further states that "all citizens, without discrimination or distinction have been able to move freely throughout the country and to establish themselves in any area". It adds, however, that "certain regulations aimed at limiting the number of persons settling in large cities, in particular in the capital, apply equally and without any discrimination to all citizens of the country, regardless of their nationality", and that towns closed to one population group or another do not exist. The Government also mentions the guarantee of employment to those who have completed various forms of vocational training and describes the procedures and criteria for the assignment of graduates, as provided under the terms of Decree No. 54/1975 referred to earlier. It insists that these criteria do not provide for or apply any discrimination, but that:
862. ... in view of the number of available jobs in various localities and districts of the country, it is possible that in some years a number of young people are assigned to other localities than those from which they originate. This situation is due primarily to the absolute requirement of offering to each person a job in his own occupation and, at the same time, to the economic and social development needs of the country as a whole.
863. Observations of the Government of Romania communicated at the request of the Commission
864. 253. The Romanian authorities have not given the Commission specific replies to the allegations of the complainants on these issues. However, in respect of the present procedure, they informed the Chairman of the Governing Body and the Director-General of the ILO of measures adopted since December 1989, in a letter dated 2 March 1990, which the Director-General of the International Labour Office communicated to the Committee. In particular, the Government announced the repeal of Act No. 25/1976 respecting the allocation of able-bodied persons to useful employment, of Decree No. 68/1976 "concerning the ban on working or living in the 14 towns designated as 'major cities'", of Decree No. 54/1975 "concerning the obligation of graduates from universities and other institutions of higher education to accept assignments in certain localities". The Government adds that "the illegal practice of forcibly recruiting workers for the mining and coal industry has been abolished, as has the practice of using the military in these sectors".
865. 254. In a letter dated 20 June 1990, the Romanian Government communicated its observations in reply to the request made to it by the Chairman of the Commission in his letter of 17 January 1990. The Government states that:
866. ... all the important moments in the life of a person used to depend to a large extent on whether or not he was a member of the Communist Party or of other organisations, on his personal file, which was drawn up according to criteria established by the same communist organisations. The discriminatory measures referred to above affected all sections of the country's population, regardless of their ethnic, religious or other affiliations.
867. Examination of the facts and conclusions of the Commission
868. 255. The allegations presented refer to the discriminatory effects created by the existence and the operation of the administrative system of controlling access to employment and occupation in force in Romania at the time the complaint was filed.
869. 256. Before examining the issues dealt with above, the Commission will define its position with regard to certain statements made by the Government. The Romanian Government has declared, at various stages of the procedure, that certain allegations, which it, in fact, admits to be valid, do not come within the Commission's mandate, limited as it is to examining the observance of Convention No. 111 concerning discrimination (employment and occupation), 1958, and that they should therefore not be examined. The Commission considers that certain of the facts placed before it relate to the application of other international labour Conventions, or other international instruments. In accordance with its mandate, it has not conducted an in-depth inquiry into such facts, except in so far as they have a bearing on the observance of Convention No. 111. Thus, the general obligation to work, imposed by the Labour Code and Act No. 24/1976, comes mainly within the scope of Convention No. 29 concerning forced labour, 1930. Several allegations submitted to the Committee concerned labour for which the persons concerned had not voluntarily offered their services and which was carried out under threat of penalty, in various sectors (mining, agriculture) or construction sites (construction of the Black Sea/Danube/Bucharest Canal, construction of the Bucharest Civic Centre, etc.), allegations which were in the main acknowledged by the Romanian authorities after December 1989.
870. 257. There is detailed information available on the manner in which the various laws and regulations were applied. Thus, Act No. 25/1976 respecting the allocation of able-bodied persons to useful employment, which, according to repeated assertions of the Government of the Socialist Republic of Romania, implied no sanctions, was used in particular against persons wishing to leave the country. Although questions relating to emigration do not fall within the scope of Convention No. 111 concerning discrimination (employment and occupation), 1958, the act of filing an application to emigrate was considered by the authorities to be an expression of political opposition sanctioned in the field of employment. On 1 August 1977, six persons who had on several occasions applied for permission to emigrate from the Socialist Republic of Romania (Cristian Ionesco, Corneliu Munteanu, Corneliu Urdariany, Constantin Hulduban, Adrian Sinca and Adrian Mutica) were taken after their arrest to the Manpower Office, sector 6, in Bucharest, where they were employed against their will on the construction site on Braila Island. Charged with parasitism before a tribunal on 2 August, they were sentenced for "parasitism", under Act No. 24/1976, to one year's forced labour on the said construction site. The sentence of the tribunal legalised forced recruitment with working conditions which were different from those of the other workers on the site. (Endnote 113)
871. 258. To the extent that the general obligation to work constitutes the normal framework of the employment relationship, and that it can be used to threaten persons behaving in a certain manner, or to punish them for having so behaved, or to force persons to take up employment outside their area of origin on grounds of their national extraction, equality in access to employment, is seriously impaired. For this reason, an examination of the effects which the general obligation to work can have on equality of opportunity and treatment is well within the mandate of the Committee. (Endnote 114)
872. 259. The Commission has also examined certain provisions which, in themselves or considered separately, do not appear to have a discriminatory effect on access to employment; but the conditions under which they are applied, the general context in which they are placed, transforms them into instruments of discrimination. Such is the case with the labour book which, according to several allegations, contain information which could lead to distinctions or exclusions on grounds of political opinion or religion. The vague definition of the type of information which may be entered in the book, "any other situation is mentioned, as prescribed by law", leaves the door open to all kinds of arbitrary practices in this area, especially in view of the fact that there is no law limiting the content or the nature of the information that may be entered in the book. One witness described the effect that a previous dismissal mentioned in a person's work book can have on his future prospects of employment. The grounds of dismissal are also entered in the work book, which the worker carries for the rest of his life, and this means that, if these grounds bore any relation to manifestations of poltical or religious opposition or non-conformity, the worker is in grave danger of not being re-employed and thus of falling foul of the law on social parasitism and of being convicted of leading a parasitic form of life. (Endnote 115)
873. 260. In respect of the discriminatory effect created by the existence and operation of a system controlling access to employment and occupation, which officially imposes without the possibility of independent or impartial appeal assigned persons to a specific job and place of work, the Commission points out that, a few hours after their accession to power, the new authorities introduced a certain number of measures in the name of respect for human rights, in particular the principle of equality. The repeal of Acts 25/1976 and 3/1983 and of Decrees 54/1975 and 68/1976 referred to, explicitly or implicitly, by the complainants as being the legal basis of discrimination in employment and occupation on grounds of political opinion, social extraction, national origin or religion, shows that the new authorities realise the extent of the human rights violations to which these laws could give rise. The same is true of the amendments to sections 2 and 7 of the Labour Code. In this sense, the Commission considers the validity of certain allegations submitted to it to be established. This was, moreover, implied by the Romanian Government in its statement that "violations and situations (the subject of proceedings before the International Labour Organisation) have been condemned by the Romanian people and eliminated by the Revolution (of December 1989). (Endnote 116)
874. 261. However, Decree No. 153/1970 which provides for penalties in the case of certain offences against the laws of communal social life and public law and order, as amended by Decree No. 41/1980, which has still not been repealed, was used during the period under consideration to penalise membership of a political party. It was invoked on two occasions, in 1984 and June 1986, in the case of Florin Rusu, a former teacher, sentenced to four months' imprisonment for "parasitism". He had been repeatedly refused employment on account of his political activities for the National Peasant Party which was proscribed in 1948. (Endnote 117) The Decree was also used against members of the Rom minority, whose customs and way of life are different from those of the other citizens.
875. 262. Some of the allegations refer to the practice of making employment conditional on agreement to work for the security services - Securitate - as an informer. One witness reported on how he had been approached by persons who introduced themselves as Securitate agents. (Endnote 118) Persons refusing to collaborate are assigned to employment in areas far away from their home or place of origin, or even to jobs considered as hard labour.
876. 263. One witness spoke of the case of Mrs. Herta Marconi, an ethnic German, citizen of Romania, who took an examination, in which she was successful, for a post as actress at the German language theatre of Timisoara. However, she did not obtain the post because she had once applied for an emigration visa which had been refused her. (Endnote 119) When asked by the government representative whether this person had the required qualifications for the post of actress at the German language theatre of Timisoara, the witness replied that the person was not a professional actress (the German language section of the Bucharest drama school had been closed since 1980), that 80 per cent of the actors in the German language theatre of Timisoara had no more than their secondary school certificates, that she had experience in the amateur theatre, while others had none at all, and that she offered the best possible conditions. (Endnote 120) The refusal to employ her was a punishment for her desire to emigrate.
877. 264. Bearing in mind the nature of political recommendations, the Commission is not in a position to confirm or deny their influence in the matter of obtaining employment of any kind. It points out, however, that in view of the role which the Single Party and the organisations it controls plays in an enterprise, of the fact that there is no ban on discrimination on grounds of political opinion or social origin in the laws and regulations, and of the nature of the information collected by the system of personal files, there is no guarantee that distinctions, exclusions or preferences on grounds of political opinion have been eliminated. On the contrary, the laws require an evaluation of the person's character not only by the management of the enterprise but also by the organisations controlled by the Single Party. Thus, under the terms of section 71-8 of Act No. 5/1978 respecting the organisation and management of state socialist units, as amended by Act No. 24/1981, a person who leaves one undertaking to take up employment, "legally", in another undertaking must request a report on his work from the management body and the trade union organisation of the undertaking he is leaving, and his subsequent engagement will depend on the evaluations contained in that report.
878. 265. The Chairman of the Parliamentary Committee on Human Rights recalled that the criterion of competence had frequently been ignored during the period of dictatorship, appointments being made on other criteria. (Endnote 121) In the case of management cadres belonging to the Nomenclatura, these criteria are political. One witness described the Nomenclatura as a system for the appointment of managerial or supervisory personnel for the economic machinery of the undertaking, down as far as foremen, by the Party's political authorities, on the basis of such criteria as a good social background, acts of loyalty to the Head of State and the Party, collaboration with the security services, the fact of having undergone special party training. (Endnote 122)
879. 266. Discrimination on grounds of political opinion and/or religion has been applied in the matter of access to employment. Persons have been given preference for appointment to certain managerial posts on the basis of their political opinions and membership of a political party. Conversely, exclusions have been largely facilitated, or even made possible, by the general obligation to work and the officially imposed allocation to employment in specific undertakings. The Commission is of the opinion that the cases known to it represent only a small part of the phenomenon, which is based on the supervision and surveillance of persons at their place of work, designed to discourage them from expressing any opinion deviating from the Single Party line. This discouragement is contrary to the Convention, one of the obligations of which is to declare and pursue a policy to promote equality of opportunity and treatment in respect of employment and occupation without any discrimination on the basis of religion, social origin or political opinion.
880. 267. The Commission has also examined the allegations concerning access to employment for members of minority groups.
881. 268. With regard to the allegations relating to the fact that certain minorities, especially Magyars, are excluded from employment in a number of important ministries, or from functions such as that of policeman in the areas largely populated by these minorities, the Commission has been unable to obtain any confirmation or denial from official sources. However, one witness, invited to testify in his capacity as Vice-President of a Romanian nationalist organisation, stated that discrimination had been practised against Romanian citizens belonging to certain nationalities in the matter of employment in the three Ministries of Foreign Affairs, the Interior and Defence. According to this witness, such measures had been taken, because "there was no great confidence in foreigners or ethnic minorities in the military or diplomatic career, because these ethnic minorities often requested repatriation to Germany, Hungary, Greece and even Israel". (Endnote 123) The terms used in this testimony suggest that Romanian citizens of nationalities other than Romanian (Magyars, Germans, Greeks or Jews) were not citizens like any others, and that the discrimination practised against them was dictated by the demands of security. The mere fact of being a member of one of these minorities made one suspect and prevented the establishment of an employment relationship of any kind in the ministries referred to above, regardless of the requirements of the employment in question.
882. 269. During an interview granted to the Commission by a group of parliamentarians, one deputy confirmed that, in the recent past, discrimination had been practised against members of the Magyar and German minorities in respect of access to posts in certain ministries (Defence, Interior, External Trade, Foreign Affairs). He added that the same was true of managerial posts in enterprises and local government. (Endnote 124) The Commission took note of information relating to management personnel structures in a department where national minorities represented a major proportion of the population. It appears from this information that most of the management cadres were of Romanian nationality: of a total 605 management cadres, 470 were of Romanian nationality (77.7 per cent), 132 Hungarian (21.8 per cent) and three German. The proportion of management cadres of Hungarian nationality was considerably lower than the proportion of the Magyar population in the department. (Endnote 125)
883. 270. During its visit to Romania, the Commission had occasion to meet a large number of officials from central, regional and local government departments. With one exception, none of these officials was or claimed to be a member of a national minority. The Commission does not draw any definitive conclusion from this fact.
884. 271. The aforesaid witness also referred to discimination against certain citizens who, in the course of their studies in a foreign country, notably in the USSR, had married citizens of the said country, and therefore could no longer be considered trustworthy. (Endnote 126) Another witness stated that access for a person of Hungarian nationality to certain jobs involving responsibility, such as manager of a village shop, was often made conditional on his or her having a Romanian spouse. (Endnote 127)
885. 272. One witness stated that the only certain employment open to a person of Hungarian nationality was in agriculture, and that in his native village, where the majority of the population was Magyar, large numbers of Magyars had been forced to work in agriculture instead of practising the trade or profession for which they were qualified. (Endnote 128) It does not appear to the Commission that this constraint is any different from that placed on people of Romanian nationality in the villages where they represent the majority.
886. 273. Some members of the Rom (gypsy) minority have no qualification from a vocational training centre or after their compulsory schooling. Consequently, even if they have acquired skills by practising traditional trades (coppersmiths, for example), they are not given employment in the state undertakings, as their qualifications are not sanctioned by a diploma. In order to be able to carry on their traditional trades, they have set up co-operatives. In 1986, some members of the Rom community of Sibiu, members of such a co-operative, were penalised under the provisions of Decree No. 153/1970, on the pretext that, since they were not wage-earning employees, they were social parasites. At the time when they were imprisoned they none the less received money owing to them from their activities within the co-operative. One witness referred to the concept of work as understood in Romanian law, according to which only a person "integrated into a work collective" is considered as being in employment. Anyone not included under this definition is regarded as a social parasite. (Endnote 129) Another witness pointed out that when Roma were employed they were treated as unskilled labour regardless of the skills they might have learnt on the job. They had no prospect of promotion and were assigned to the most arduous and menial tasks normally considered as socially degrading. (Endnote 130)
887. 274. Yet another witness stated that a large number of Roma who did not declare their gypsy origins had been integrated into socialist undertakings like any other citizen.
888. 275. The available information indicates that direct or indirect discrimination is practised against members of certain minorities in the matter of access to employment, either in certain ministries or in managerial posts.
889. 276. Another set of allegations concerns the ban on Hungarians' settling in certain towns. This ban has the effect of reducing employment opportunities for Romanian citizens of Hungarian origin, compared with Romanian citizens of other nationalities, including Romanian. According to the Government, this ban applies to all citizens without any discrimination on grounds of national extraction.
890. 277. In the light of the information at its disposal, the Commission can make no definitive pronouncement as to whether or not there is such a ban. It notes, however, that Decree No. 68/1976 respecting change of domicile to other localities specifies that the number of persons authorised to change domicile, in the interests of their work or of their family, shall be determined annually by presidential decree. However, no such presidential decree has been published or listed. Moreover, a nominal authorisation to change domicile is issued by a committee comprising a Vice-President of the People's District Council Executive Committee, the First Vice-President of the Municipal People's Council, the Director of Labour and Social Security for the district, the Secretary of the District Trade Union Council, the Committee Secretary of the Communist Youth League, the Secretary of the District Women's Council and the Chief of the Militia. The predominance of officials of the Single Party on this committee is obvious. The same predominance is apparent in the committees responsible for housing allocation. Finally, the 14 towns in which the number of persons authorised to settle is low or nil include, apart from Bucharest, towns in which Magyars represent 30 per cent or more of the population, according to the results of the 1956 and 1967 Censuses (Cluj Kolozsvar, Tirgu-Mures Marosvasarhely). A review of the demographic evolution of these towns shows that the natural increase in the population of Hungarian nationalities was considerably less than that of the population of Romanian nationalities. This discrepancy can only be explained by an influx of migrants of Romanian nationality into these towns with the consent of the authorities.
891. 278. On this point, the Commission can but note that the authorities, in particular the Single Party, have means of controlling settlement in the towns, not only at mass migration level, but also at the level of the individual, through a policy of allocating housing to migrants coming from other regions, without any screening other than what the higher officials of the Single Party choose to conduct.
892. 279. Another allegation refers to the practice of systematically assigning graduates who are members of national minorities, notably Hungarian, to posts outside their area of origin. The Government concedes, in a number of statements submitted to the Commission, that graduates belonging to national minorities may be appointed to their first post in other localities than those from which they originate. It explains this fact by the existence of an appointments system based on merit and examination results, social criteria being applied only in deciding between candidates who have obtained equal marks, and that therefore no discrimination is applied in the assignment of candidates who are members of national minorities. According to the Government, these appointments outside the areas largely populated by these minorities is the result of a national system of assigning new graduates to their first posts and is the same for all.
893. 280. The above system to which the Government referred both in its reply to the request of the Director-General of the International Labour Office, dated 20 July 1989, and during the hearing of witnesses, was developed, during the period under consideration, in application of the aforementioned Decree No. 54/1975, which was repealed by the new authorities with other laws and regulations contrary to human rights. The aforementioned Decree No. 436/1978 likewise applies to the appointment of doctors and pharmacists.
894. 281. The application of a national system of allocating graduates to posts in a country where there are minorities geographically located in certain areas may not always produce fair and just consequences: a young graduate who is a member of the majority population, appointed to an area other than that from which he originates, will continue to use his mother tongue, which is at the same time the official language. The same does not apply in the case of the young graduate member of a minority group, who can lose the use of his mother tongue if he is assigned to a locality outside the area where the minority group lives. The Commission has already had occasion to draw attention to the difference between equality of treatment and equality of opportunity. Identical treatment of situations which are not equivalent is not in keeping with the principle of equality of opportunity. In the event, it has the effect of impairing equality of opportunity on grounds of national extraction.
895. 282. Moreover, a national allocation system, as introduced by Decree No. 54/1975, should operate in a uniform manner, regardless of the type of post to be filled or the graduates involved, be they engineers, physics teachers or language teachers. In this respect, the practice of assigning graduates who specialise in the teaching of languages, and who have as their first language one of the minority languages of Romania, has a test value in respect of the equitable nature of the national allocation system. The Commission has been informed of practices applied to fill certain types of post, in which specific reference is made to the teaching of Hungarian language and literature in such secondary schools in which such subjects are taught. Since the early eighties, the majority of graduates from the faculty of Hungarian language and literature of the University of Cluj have been consistently appointed to posts outside Transylvania to teach the second language they have studied: English, French, German, for example. At the same time, there have been vacancies for teachers of Hungarian language and literature in the schools in Transylvania, while classes have been discontinued for lack of teachers or the posts filled by teachers who had not completed their university courses in these subjects.
896. 283. In this particular case, the criteria established in the regulations examined above cannot explain this assignment of graduates to posts outside the areas where their presence would be justified by their academic titles and the type of work they are doing - teaching Hungarian language and literature - as well as by the need for such teachers in a region where the Hungarian language is spoken by a considerable number of the inhabitants. One witness remarked that the criteria defined by the regulations concerning post assignments could apply to students of history or medicine, subjects in which there might be competition between young Magyars and Romanians, although political criteria generally constituted the dominant factor in assignment, and it was very difficult not to accept the job to which one was assigned. However, these criteria could not apply to students of Hungarian language and literature, subjects for which there were few (if any) students of Romanian nationality, and therefore little or no competition. (Endnote 131) Another witness pointed out that it was common practice for university graduates who were members of minority groups, to be allocated to posts outside the area from which they originated. The witness in question had himself been sent to teach his degree subject in a region from which he did not originate, and in which there were over 200 language teachers not teaching their own speciality, whereas in his place of origin, the Banat, certain German language schools were without graduate teachers. (Endnote 132) The witness could see two reasons for this situation: in the first place, there was a political will to foment conflict between the nationalities; secondly, the posts available in or near the more attractive and sought-after towns were not advertised by the schools inspectorate, as they ought to have been, but were awarded through bribery or as a reward for services rendered. On this issue of corruption, the witness mentioned the case of persons who had presented as much as half a pig to the schools inspector in order to obtain a post in their home district. When asked by the government representative for details on this matter, the witness explained that in the case of minority schools, vacancies were not advertised. (Endnote 133) The Secretary of State for Education, Mr. Babhadji, told the Commission that, at the start of the 1990-91 academic year, there had been 18,520 teachers of nationalities other than Romanian and that approximately 10,000 of these were teaching in the language of the national minority to which they belonged. (Endnote 134)
897. 284. Refusal to report for the employment assigned contravened the law on parasitism (Act No. 25/1976) (Endnote 135) and moreover, under the terms of the aforementioned Decree No. 54/1975, was punishable by a fine equivalent to several months' wages. In reply to a question put by the government representative as to whether he was familiar with the procedure of appeal against an allocation decision, the witness pointed out that there was a considerable discrepancy between the letter of the law concerning appeals and its application in practice: he referred to one of his colleagues in the case of whom an action to contest an allocation decision had cost 48,000 lei. (Endnote 136) He also mentioned a teacher, a member of the Croatian minority, who had been assigned to a region other than one where there were people who spoke his language. Three years later, and after he had paid a certain sum of money demanded of him, he had finally managed to obtain a teaching post in a school for children of the Serbo-Croat minority. (Endnote 137)
898. 285. Access to employment for members of national minorities gave rise to a twofold discimination: general discrimination, positive or negative, to which all Romanian citizens where potentially liable, on grounds of political opinion, religion or social origin; and discrimination against members of minority groups as such, based on considerations of national extraction or race. The existence of a national system of employment allocation makes it possible to pursue a policy of assimilating national minorities. The system operates on the basis of purely formal criteria, taking no account of the differences, especially linguistic differences, which are nevertheless sanctioned in the constitution and in law. Combined with measures to limit access to certain towns and positive measures allocating housing to newcomers, it permits the implementation of a policy which is contrary to the Convention, and which has the effect of impairing and destroying equality of opportunity and treatment on grounds of political opinion, social origin or membership of a minority. Despite the discretion with which this system operates, as borne out by the non-publication of certain laws and regulations, it is still possible to assess its extent with a certain degree of accuracy.
899. CHAPTER 9
900. GENERAL CONDITIONS OF WORK, WAGES, BONUSES AND LEAVE
901. 286. The complainants have referred to the discriminatory effects resulting from the application of a wage calculation system introduced in all sectors of activity from 1983 and the payment of bonuses allegedly determined by preferences or exclusions based on one or more grounds of discrimination prohibited by the Convention. They have also furnished information on discriminatory practices as regards annual leave and statutory rest days.
902. Examination of the provisions in force at the time of the filing of the complaint
903. Provisions regarding remuneration
904. 287. According to the Labour Code, remuneration is made up of the minimum guaranteed wage, fixed for each branch of economic activity (section 83) supplemented by various bonuses some of which are based on a worker's individual productivity (section 90).
905. 288. Act No. 57/1974 respecting remuneration based on the quantity and quality of work in state units, handicraft and consumer co-operatives, makes provision for the fixing of minimum and maximum wage levels and establishes a close link between remuneration and labour productivity. Under section 9 of the Act, the components of the wage are the scheduled wage ("scheduled payment" according to the new terminology established by section 212 of the Act), management compensatory payments, where applicable, annual bonuses established on the basis of the results obtained in achieving the main indices of the plan (up to a maximum of 3 per cent of the scheduled wage), exceptional bonuses (for the achievement of exceptional work, the increase of exports and the limitation of imports), wage supplements granted in respect of uninterrupted seniority "in order to stimulate staff stability" (3-12 per cent of scheduled wage) and wage increases or supplements to compensate for work carried out in special conditions (up to a maximum of 15 per cent of the scheduled wage). Section 12 of the Act describes the various forms of wages authorised by the Act: piece work wage (direct, progressive, by "global agreement", indirect piece work); wage based on real costs or time wage; wage based on schedules or percentages established according to the value of the respective acquisitions, sales or services. The failure to achieve the targets set by the plan results in a corresponding reduction of the scheduled wage which may not however exceed one-third of the wage (section 45 of the Act). The minimum guaranteed wage accounts for approximately 70 per cent of the base wage.
906. 289. Under section 205 of the Act, it is the responsibility of the collective management organs of enterprises to approve the scheduled wage, bonuses and other supplements and to establish the amount of wage increases and reductions when targets are exceeded or not achieved. Section 208(1) of the Act stipulates that the labour courts are competent for settling disputes resulting from the incorrect application of the Act. However, appeals concerning the granting of wage steps or grades, the method of establishing increases or reductions in the scheduled wage as well as the granting of bonuses are the responsibility of the collective management organ or the next higher organ, if the staff member who makes the appeal has been appointed by the said organ.
907. 290. Act No. 27/1976 respecting remuneration for work in agricultural co-operatives applies these principles to employees in the agricultural sector by adapting them to the nature of the activity concerned.
908. 291. A reform of the remuneration system was adopted by the XIIIth Congress and by the National Conference of the Romanian Communist Party in December 1982 with a view to increasing production by systematically reducing production costs, limiting investments, reducing imports and giving priority to exports. The Central Committee of the Romanian Communist Party adopted on 29-30 June 1983 a decision establishing "the strict application of the principles of workers' self-management, the further development of the economic and financial mechanisms of the system governing the remuneration of work", approved by Decision No. 4/1983 of the National Assembly dated 1 July 1983. On the same day, the National Assembly adopted a work programme on these matters for the five-year period 1984-89 as well as two Acts: Act No. 2/1983 respecting the basic principles of the further development of the system governing the remuneration of work and the distribution of income of workers and Act No. 3/1983 respecting labour contracts. Several Decrees respecting the methods of application of the reform in general or in special sectors of activity were adopted in 1983-84: (Endnote 138) Decree No. 335/1983 respecting the application of forms of remuneration by global agreement and of other forms of remuneration specific to certain branches or activities; Decree No. 336/1983 respecting the calculation, release and supervision of wage funds, specific regulations for the agricultural, foreign trade, building and transport sectors. A number of provisions of Act No. 57/1974 as well as all the provisions of Act No. 27/1976 were repealed following the adoption of the reform of 1982 and 1983. Henceforth, the methods of remuneration in agriculture would be identical to those applied in other sectors of the economy.
909. 292. Act No. 2/1983 concerns the extension and generalised application of remuneration by global agreement, which was already embodied in Act No. 57/1974, to all sectors with the exception of a small number of specifically mentioned activities. The "global agreement remuneration" system is a method of determining the amount of wage which is no longer linked to the individual results achieved by a worker but to the target to which the "labour collective" is committed by the signature of a "global agreement". Section 5 of the Act stipulates that workers shall be paid on the basis of the work completed and the results obtained; if the planned production level is exceeded income increases and when production targets are not met, "remuneration is diminished proportionally without a provision for a guaranteed income". This provision annuls section 45 of Act No. 57/1974 which stipulated that the reduction of the scheduled wage could not exceed one-third of the wage. Under the provisions of section 11 of the above-mentioned Act, a labour collective undertakes, on the basis of a contract concluded with the unit, or as the case may be with the next higher organ, to carry out work and produce a specific quantity of products or provide a given service, in stipulated conditions regarding quality, use of defined raw materials and energy in exchange for a global sum established in advance.
910. 293. The calculation of the final individual wage varies according to the kind of post occupied. For production staff the production of the goods or the rendering of the service established in the global agreement is the criterion used to determine the amount of monthly remuneration. The remuneration paid is the result of the sharing of the total amount received by the work collective of which the worker is a member, adjusted according to the results achieved and divided between the members of the collective on the basis of the scheduled wage (former base wage) and the actual hours of work of each worker. For supervisory staff, technicians and engineers, the amount received corresponds to the average results achieved in implementing the "global agreement" by the work collectives in which they participate or which depend on them. The remuneration of the executive staff of enterprises and services, ministries and the central organs of the economy is calculated in accordance with the results of the collectives which they head and three elements which are determined by the results of the enterprise or the service: the value of the net production, the volume of goods or services ordered or paid for and, where applicable, the success rate in implementing the export plan.
911. 294. Act No. 2/1983 cited above maintains the distinction between the two components of remuneration: scheduled wage, which corresponds to the previous base wage and a variable component which is made up of bonuses. Under section 16 of the Act, the variable element is increased and was equal in 1985 to one-quarter of the "wage fund", the total amount of sums allocated to the remuneration of workers in a unit. The variable component of the wage consists of various bonuses which are essentially those listed in section 9 cited above of Act No. 57/1974. The scheduled wage component was increased under section 22 of the above-mentioned Act to 1,500 lei a month. The minimum scheduled component, the payment of which depends on "the full utilisation of working time, the observation of work standards and the production plan" is used as a reference element for the calculation of the share of the sum fixed under the "global agreement" for each worker and as a basis for the calculation of some of the elements of the variable component. It is therefore not a minimum wage.
912. 295. Under the terms of section 2 of Decree No. 335/1983 respecting the application of forms of remuneration by "global agreement" and of other forms of remuneration specific to certain branches or activities, the remuneration of "all categories of staff, including managerial and production staff, irrespective of the form of remuneration applied" will depend on their participation in the implementation of the plan, "calculated on the basis of scientifically established norms and prescriptions". Work standards are drawn up by the ministries, the central organs and the executive committees of the People's county councils "for all work posts and all categories of staff with a view to the rational and efficient utilisation of all workers" (section 16(2)).
913. Deductions from wages
914. 296. Any infringement of discipline is punishable by reduction of wages by 5 to 10 per cent for a period of from one to three months under section 100(1)(d) of the Labour Code. These reductions are made in accordance with the disciplinary procedure described above (see paragraph 225).
915. 297. Another kind of deduction from wages was established by the legislation of 1983. The wage regulations introduced under Act No. 2/1983 cited above and the decrees which were subsequently adopted make provision for a reduction in the "wage fund" resulting in a simultaneous reduction in the wage paid to members of the collective for the failure to achieve work standards and the targets of the plan. Section 7(3) of Decree No. 335/1983 cited above stipulates that "in the event that the conditions established in the global agreement contract are not carried out, the sum agreed for the materially finished product will be reduced, in accordance with the extent of incompletion, by up to a limit of 10 per cent". The reduction is not made directly from the individual wage but from the global amount payable to the collective, with the respective decision-making organ being responsible for distributing the reduction amongst workers on the basis of the scheduled share of each worker. This distribution is made by the collective management bodies of the unit.
916. Rest days and leave
917. 298. Under section 124 of the Labour Code, persons appointed to work staffs are entitled each week to a rest period of at least 24 consecutive hours which will be on Sundays unless otherwise decided in agreement with the works council. The suppression of the weekly rest period is not contemplated by the Code. Under section 125 of the Labour Code, every person appointed to a work staff is entitled in every calendar year to leave with pay of 15-24 working days according to seniority. The leave may be allowed in instalments when service requirements make this necessary but it may not be suppressed.
918. Allegations submitted by the complainants
919. Payment of wages and bonuses
920. 299. The complainants refer to the partial payment of wages which allegedly affected, in a discriminatory manner, the members of the Hungarian minority who, furthermore, according to the complainants did not receive the bonuses paid in the enterprises. (Endnote 139)
921. 300. The ICFTU, in its communication dated 30 March 1990 mentioned above, also refers to allegations concerning deductions from wages applied to workers because of their status as members of a national minority or following the adoption of political positions. (Endnote 140)
922. 301. The ICFTU also invited the Commission to consult an article (Endnote 141) which analyses the reform of remuneration methods introduced in the Socialist Republic of Romania in 1983 and known as the global agreement remuneration system. The authors of this article analyse the legislative and statutory texts adopted in 1983. On the basis of this analysis they draw attention to several points. First, the reform consists of the generalised application of productivity-related remuneration to all sectors of activity at all occupational levels. This results in the disappearance of the minimum guaranteed wage, including when the failure to achieve targets is not the fault of the worker:
923. the reform in fact makes provision first for the suppression of the minimum guaranteed wage, which hitherto represented 70 per cent of the base wage: and secondly, for the disappearance of all possible compensation in the event that the worker is prevented from completing his work for reasons beyond his control (in this case it was previously possible to pay pieceworkers the full amount of their scheduled remuneration. (Endnote 142)
924. The authors even mention the possibility of a negative wage in cases in which production standards are not achieved. Secondly, the use of the term "global agreement" should not be misinterpreted as meaning the existence of any real opportunities for bargaining. Workers do not have the possibility of negotiating or challenging the terms of the proposed agreement or of refusing to respect it. The political and economic system offers in exchange for participation in the "global agreement" only an increase of remuneration based on compliance with work standards, which it alone is authorised to fix.
925. 302. For the authors of this article, this wage increase is in most cases an illusion. Referring to section 5 of Appendix 1 of Decree No. 336/1983, the authors recall that the plan may not and must not be exceeded except in the case of products for export or those designed to restrict imports. For any other kind of product or service, excess production is subject to the prior approval of the central organs on the condition that their sale is guaranteed. Finally, one of the consequences of the implementation of this wage system is that it is in the interests of everyone to ensure that each worker achieves maximum production and that "bad workers" are excluded from the collective. This interest is also shared by the higher bodies "because it is only by dividing the cake (the amount stipulated in the contract) into a smaller number of pieces that workers can hope to improve their situation a little". (Endnote 143)
926. 303. The ICFTU concludes from these remarks that all Romanian workers were "entirely at the mercy of the political and administrative authorities directing the country" and that the "freedom of workers was reduced to zero by the combined action of the wage provisions and the constant supervision to which they were subject".
927. 304. Several cases are also described in Appendix 1 of the above-mentioned communication of 30 March 1990.
928. 305. A person of Magyar ethnic origin, a skilled locksmith, employed for 25 years as a quality control worker in an enterprise in Tirgu-Mures/Marosvasarhely (Electromures) stated that only his Romanian colleagues received the bonuses granted as a result of his proposals for work improvements and that the productivity and production bonuses were awarded to the detriment of the Magyars and members of other ethnic minorities and to the advantage of the Romanians. He pointed out furthermore that since wages depend on the category in which workers are placed, the probability of a Romanian finding himself in a higher category was much greater than of a member of a minority group. He also stated that because of his refusal to join the Single Party, he received a wage which was at least 10 per cent lower than that to which his education and job productivity entitled him. (Endnote 144)
929. 306. Another person from the county of Oradea and working in the Alfa furniture factory stated that unlike their colleagues of Romanian origin, Magyar workers never received bonuses or premiums and their work was always judged more strictly than that of their colleagues. It was also pointed out that on several occasions Magyar workers were obliged to reimburse part of their wage because the production quota had not been achieved. This lower production was due to the fact that the supply of raw materials was insufficient or because foreign clients returned merchandise which did not meet the set specifications or quality standards. (Endnote 145)
930. 307. A person of Magyar origin working in a precision watchmaking factory in Arad, said that workers were prohibited from speaking Hungarian in the enterprise and that infringements of the rule resulted in a 5 per cent reduction in wages. (Endnote 146)
931. Leave and public holidays
932. 308. The complainants also referred to discriminatory measures in the granting of leave based on national origin or as a reprisal for having expressed certain opinions. Furthermore, the complainants make numerous allegations that work is frequently required on weekly rest days and public holidays under the threat of deductions from wages or bonuses or the loss of miscellaneous benefits.
933. Other information
934. Information communicated by non-governmental organisations at the request of the Commission
935. 309. The above-mentioned Minority Rights Group report points out that persons of Romanian nationality from the Regat who accept employment in the new factories set up in Transylvania are offered special incentives to take up these jobs: a bonus of 15,000 lei and guaranteed housing. (Endnote 147)
936. Observations of the Government of Romania
937. Observations of the Government of the Socialist Republic of Romania communicated at the request of the Director-General of the International Labour Office under article 26 of the Constitution of the International Labour Organisation
938. 310. The Government of the Socialist Republic of Romania stated that no discriminatory practice was tolerated as regards the remuneration of work and that the allegations of discrimination in the granting of bonuses are based on an ignorance of the regulations and their respective methods of application. The Government refers to Act No. 57/1974 respecting remuneration based on the quantity and quality of work whereby bonuses are granted according to whether production targets in the unit are achieved or exceeded or in respect of "special achievements in import and export operations and economies made in the use of raw materials". It points out that the level of bonuses and the list of recipients are established by decision of the General Assembly of workers of the unit and that it is "clear that there is and can be no discrimination as regards the granting of bonuses. Furthermore, the remuneration of workers is regulated on the basis of the principle of equal remuneration for equal work enshrined in the Constitution". According to the Government "this exludes any discrimination or distinction based on nationality".
939. Observations of the Government of Romania communicated at the request of the Commission
940. 311. The Government of Romania referred to wage reductions within the framework of the injustices and abuse committed in all sectors of activity under the previous regime. (Endnote 148) In the document annexed to the above-mentioned communication, the Romanian Government refers, without further details, to "wage injustices" and "the elimination of unjustified wage reductions for reasons which do not depend upon the staff" and which it had remedied by the adoption of new regulations. (Endnote 149)
941. Examination of the facts and conclusions of the Commission
942. 312. As regards wages, two distinct sets of allegations have been made by the complainants or their representative. The first concerns the discriminatory effects covered by the Convention resulting from the generalised application of the "global agreement" remuneration system. The second refers to the differences in wages and deductions allegedly resulting from the expression of political opinions contrary to those of the established authorities or membership in an ethnic minority.
943. 313. During the hearing of witnesses, the Government representatives stated on several occasions that questions concerning remuneration by "global agreement" did not fall within the competence of the Commission. (Endnote 150) The Commission refers to the observations noted above concerning the assessment of its mandate (see paragraph 100). In examining the "global agreement" remuneration system the Commission must assess the discriminatory effects resulting from this system on the basis of one of the seven criteria established in the Convention. To do this, it must analyse the various information at its disposal and, in particular, legislative and statutory provisions. The Commission has noted that the Government of the Socialist Republic of Romania has, in its communications, referred exclusively to Act No. 57/1974, without mentioning the more recent provisions adopted in 1983 which substantially amended the wage system. It has also noted that most of the texts respecting remuneration by "global agreement" were repealed after the month of December 1989.
944. 314. One of the consequences of the application of the "global agreement" remuneration system, which links the collective results of work to individual remuneration, has been to make the amount of the individual monthly wage uncertain through the elimination of any minimum guaranteed wage. A further consequence has been to render imprecise the components used in the calculation of wages and bonuses. Finally, a third consequence of the generalisation of the "global agreement" remuneration system has been the introduction of an additional arbitrary element in relations between the workers and the management organs. Important decisions concerning the "global agreement" and, in particular, the fixing of work standards, the methods of application in the unit and the possible disputes which may arise depend on bodies controlled by the Single Party. The application of the "global agreement" remuneration system has resulted in general in a significant drop in the amount of wages actually paid. This wage reduction has affected all workers in the Socialist Republic of Romania. Strikes occurred for example in September 1983 in the non-ferrous metals mining field of Baia Borsa (county of Maramures) and in November 1983 in the Steagul Rosu truck factory in Brasov/Kronstadt where workers demanded the reintroduction of the old wage system after the application of the new system had led to a drop in wages.
945. 315. The adoption of measures such as those to which the complainants refer is due to the arbitrary nature of all the decisions taken by the organs controlled by the Party concerning the calculation and payment of wages and the imprecise nature of the calculation methods. Wage reductions resulting from the implementation of the reform of the remuneration system have appeared to be forms discrimination based on national origin, all the more so because the managerial staff is of a different nationality from that of production staff or because the policy of the Single Party is seen as less favourable to national minorities. The absence of independent and impartial appeals bodies can only encourage this belief.
946. 316. The Commission, in pursuance of its mandate, may not express views on the conformity of the system introduced by the 1983 reform with other international labour standards. These measures have not been directed against the members of minority groups or against persons who have expressed political opinions different from those authorised by the authorities. The fact that demonstrations of opposition to the reform of the wage system have occurred in certain regions (Maramures, Brasov) in which members of minority groups account for a significant part of the population does not constitute sufficient proof that these measures have affected more particularly the members of minority groups. The Commission observes that this does not exclude the fact that isolated measures may have been taken in enterprises, which would constitute discrimination in the sense used in the Convention. The adoption of such measures is made possible and even encouraged by the arbitrary method by which the level of individual wages is determined. In the absence of any appropriate machinery to remedy or avoid situations contrary to the Convention at the national or regional level the Government is not in a position to ensure the full application of the Convention which requires the modification of any provision or administrative practice incompatible with the national policy of equal opportunity and treatment in employment and occupation.
947. 317. As regards the payment or non-payment of bonuses because of a worker's nationality, the Commission does not have any information enabling it to confirm or invalidate the argument that bonuses have been promised or paid to persons of Romanian nationality who settle in certain localities of Transylvania. It has no information enabling it to confirm or invalidate the view that persons belonging to a national minority have been deprived of bonuses to which they were entitled because of their national origin or that wage deductions were adopted as a result of disciplinary measures taken against them following the use of their mother tongue at the workplace. However, the Commission recalls that there is an element of arbitrariness in the remuneration system and refers to the observation made in the previous paragraph.
948. 318. During the course of the hearings, one witness referred to the differences in wages for work of equal value (in this case harvest work) allegedly applied to members of the Rom minority. He had personally seen that in the work which he performed as a student the Roma were less well paid than the peasants or other categories of persons employed in this work. In a question addressed to the witness the representative of the Government suggested that these differences could be due to the fact that the amount of work carried out by the Gypsies was less than that performed by other persons. (Endnote 151) In an open letter published at the beginning of the 1980s a person who was a member of the Rom minority living in Cluj/Kolzsvar, Mrs. Cosmina Cosmin, stated that she knew "for certain ... that in the years 1977-78, with the agreement of the authorities and state administration, a labourer from Maramures was paid 105-110 lei a day, a Lipovan 80-85 lei and a Gypsy 57-58 lei. The amount of work is the same, the Wage Act makes no provision for discrimination and yet ... this is the situation. It is easy to understand the tensions which existed (and which still exist) between these groups of workers". (Endnote 152) The author attributes these differences to an attempt to divide Romanian citizens into different categories whose interests do not coincide. Other accounts by witnesses concerning wage differences between the Roma and other citizens were presented to the Commission. However, given the indirect discriminations practiced against the members of the Rom minority as regards promotion, it is difficult to distinguish in these accounts the results of wage discrimination based on national origin or race from discrimination in promotion which would result in lower wages for Roma.
949. 319. The Commission is not in a position to confirm or invalidate the existence of discrimination in the calculation of wages based on the fact that a person is or is not a member of the Single Party. This question should be considered rather within the framework of opportunities for promotion to higher posts which membership in the Single Party may offer or facilitate.
950. 320. The Committee is not in a position to assess the scope of the non-payment of bonuses to persons who have expressed opposition to the authorities. The suppression of bonuses and the non-payment of bonuses in the future have been used as measures of reprisals or to force certain persons to renounce their political opinions or religious beliefs.
951. 321. The Commission is not in a position to confirm or invalidate the allegations concerning annual leave, the granting of which during the best periods of the year is allegedly based on the national origin of the applicants. However, the absence of any independent machinery to regulate occupational relations in enterprises can only encourage the existence and development of arbitrary behaviour.
952. 322. The allegations concerning "patriotic work" organised within the framework of Decree No. 151/1984 concerning the conditions for carrying out certain public works by the organisations of the Communist Youth League and the League of Romanian Communist Students' Unions and work carried out in the enterprise on legal days of leave and weekly rest days do not as such fall within the mandate of the Commission. The Commission does not have any information enabling it to conclude that the carrying out of such work would give rise to distinctions or preferences which are not compatible with the national policy of equal treatment and opportunity within the sense used in the Convention. It is however convinced, in the light of the information provided by the complainants or collected on the spot, that the refusal to carry out such work would in the eyes of the authority constitute an expression of opposition which could result, over and above the statutory penalties, in discriminations prohibited by the Convention.
953. CHAPTER 10
954. PROMOTION, DOWNGRADING AND TRANSFER
955. 323. A study of promotion practices should be complemented by a study of the practices followed as regards downgrading, the application of positive or negative sanctions in employment being a widely used device for ensuring the ideological conformity of workers with the decisions of the Single Party and of the authorities.
956. Recapitulation of the provisions in force at the time of the filing of the complaint
957. Promotion
958. 324. Under section 19(f) of the Labour Code, a person appointed to a socialist unit has the right "to be promoted to a higher category or higher duties ... benefiting in this way from the opportunities created by the socialist system for displaying and developing personal aptitudes and abilities". The criteria governing promotion are, according to this article, training, experience, work results and the needs of the unit. Section 75, paragraph 1, of the Code, adds to these criteria "the requirements of the post" and specifies that "promotion is based on the results of a practical test or of an individual or competitive examination, as provided by law". The criteria based on the professional skills of the worker are compounded by ideological or political criteria. Under section 13, paragraph 1, of the Code, the improvement, among other things, of "politico-ideological training" is a right and a duty for the worker. His appointment to appropriate jobs and promotion to higher duties depend on such improvement. As regards promotion to managerial functions, one of the supplementary criteria taken into account by virtue of section 75, paragraph 2, is the "political training ... of those considered for such functions". The evaluations and recommendations of the worker body in which the candidate for promotion has been working are also taken into consideration.
959. Downgrading
960. 325. Under the terms of section 100, paragraph 1, of the Labour Code, downgrading is a penalty for an infringement of discipline at work. Failure to comply with the obligations listed in section 20, paragraph 2, of the Code, including those relating to "standards of conduct" constitute a breach of this kind. These obligations include the defence of socialist property, the maintenance of socialist standards of conduct in relations with other members of the worker collective, the combating of any retrograde tendencies, and the maintenance of state and service secrecy, and, as they are not clearly defined, can be applied to a vast range of behaviour, in particular, contact with foreigners. The penalty is determined, under section 101, paragraph 1, by the organ of collective management - the Council of Workers - presided over by the Secretary of the Party Organisation, with the Secretary of the Organisation of the Communist Youth Union as Vice-President. The persons penalised may appeal the disciplinary penalty, within 30 days of its notification, to the next higher administrative organ (section 175, paragraph 1(a) of the Code).
961. Transfer
962. 326. The transfer of workers to another unit in the same branch of activity may, under section 69 of the Labour Code, be arranged "to meet the operating needs (of the unit)". A transfer may be objected to "on medically certified grounds or where there are other valid objections". No explanation is given as to the nature of the valid circumstances to which the text refers, but the text specifies that "the decision as to whether the objections are valid is a matter for the organ next higher in rank". It is not stated whether the worker can request a transfer.
963. Allegations submitted by the complainants
964. 327. The complainants allege that the members of ethnic minorities, notably those of the Magyar minority, are officially assigned to jobs that are not of their choice and that the transfers are generally made without prior notification. (Endnote 153)
965. 328. In the communication submitted by ICFTU on behalf of the complainants, it is alleged that the downgradings and transfers to harder jobs are some of the most common examples of discriminatory practices. (Endnote 154) Various cases of transfer or downgrading are described in Appendix 1 to this communication.
966. 329. In 1982, the academic authorities proposed Mrs. Doina Cornea, assistant at Cluj University for the post of librarian in the University in order to prevent her from continuing to teach philosophy based on the thought of Henri Bergson and Mircea Eliade, considered by the Party to be politically unsound for the students. As a result of her refusal to accept the transfer, Mrs. Cornea was dismissed with the loss of her pension rights.
967. 330. In 1988, Mr. Gabriel Andreescu, a physicist at the Bucharest Institute of Meteorology and Hydrology, who had been condemned and imprisoned the previous year for providing information on the status of human rights in Romania, was proposed for a post in a scientific research project set up a especially to distance him from his colleagues at work. His refusal to take up that post led to the suspension of payment of his salary.
968. 331. In 1988, an optician (Endnote 155) employed in the INFRATIREA plant at Oradea, and a member of the Single Party since 1969, disputed in the course of a meeting, a statement made by the Secretary of the Party in the enterprise to the effect that "the history of Romania should be reorganised". He was convened the day after the meeting to the headquarters of Securitate, and threatened with downgrading or dismissal. Two weeks later, he was downgraded; his salary was cut by half and he was transferred, as an unskilled worker, to another section where working conditions were harder.
969. 332. In 1989, Mr. Leontin Ihuas, computer engineer at the Cluj Mining Computer Centre, was transferred to another post in the same enterprise because he was not regarded as sufficiently reliable to maintain the confidentiality of classified service information because of his contacts with foreigners.
970. Observations of the Government of Romania
971. 333. The Government of Romania stated that, "despite the legal obligation to arrange individual or competitive examinations, the managers were almost all occupied in applying the so-called principle of rotation to party and state cadres". The Government indicated that, under cover of that principle, many injustices took place, especially as regards promotions and transfers. (Endnote 156)
972. Observations and conclusions of the Commission
973. 334. In the light of the allegations submitted and the comments made by the Government of Romania, there can be no doubt as to the existence of discrimination on the basis of political opinion or religion in questions of promotion or transfer.
974. 335. Persons encountered in the course of visits made by the Commission confirmed the existence and widespread nature of these types of discrimination. The Deputy Mayor of Brasov Kronstadt stated that a person who had not joined the Romanian Communist Party could not hope for promotion. (Endnote 157) According to the Secretary of State for Education, most teachers joined the Single Party because their membership was a means of ensuring their promotion and peace of mind. (Endnote 158) A number of witnesses stated that it was useful, not to say necessary, to be a member of the Party for purposes of promotion. One witness declared that it was difficult to be upwardly mobile without being a member of the Communist Party. (Endnote 159) Another witness believed that a person who did not have a certain kind of curriculum vitae, showing sound social origins, testimony of loyalty to the Party and to the Head of State, co-operation with the security services, and activities in a special party group, could not hope to be appointed to a responsible post in an enterprise. (Endnote 160) According to the same witness, the Nomenclatura system, that is, the system of appointment to executive posts, which was in force in enterprises, was used for appointments from the level of foreman upwards. Another witness explained that it was impossible to become a foreman without being a member of a party in good standing. (Endnote 161) This testimony confirms the effective enforcement of section 13, paragraph 1 of the Code, on the need for workers to have "politico-ideological training" for promotion purposes, and of section 75, paragraph 2, relating to the "political training" of persons to be promoted to management functions. The application of these provisions enables persons to be preferred on the basis of membership in a political party or to be excluded on the grounds of not belonging to that party or of expressing opinions contrary to those in favour with the Party.
975. 336. Transfers were used on many occasions to punish persons who openly opposed the established order, either individually or collectively. For example, a large number of miners who took part in the demonstrations of 1-3 August 1977 in the Jiu Valley were transferred to other mining areas or to other jobs as a reprisal for their behaviour and also to isolate the leaders of the demonstrations from their fellow workers. (Endnote 162) The same consequences resulted for the workers participating in the demonstrations of 15 November 1987 at Brasov Kronstadt. Mr. Andrei Plesu, specialist in the philosophy of art, was transferred to Tescani, to a post that did not correspond to his qualifications, for having protested publicly together with other writers against the dismissal of Mircea Dinescu in March 1989. The transfers brought other difficulties in their wake as a result of separation from the family home with, in most cases, a wife who worked and children at school, thus limiting the possibilities of the person transferred to pursue political or religious activities, all these being compounded by the break with the person's professional background. The fact of having parents abroad, public expressions of discontent with regard to the authorities or to the policy followed by them, claims for rights that were entitled to be accorded by law were the main reasons for discrimination that took the form of "technical" measures such as a prohibition on publication or separation from the usual place of work rather than by dismissal. (Endnote 163)
976. 337. Requests for transfer made by the interested parties themselves have also been regarded as opportunities for penalising the expression of opinions that were contrary to those of the authorities. A witness reporting on his own experience stated that, although a voluntary transfer from a teaching post to an editorial post on a periodical would normally have been approved, this transfer had not taken place because of the political content of some of his writings and a request for permanent emigration. (Endnote 164) Persons who had been dismissed for having submitted a request for definitive emigration did not receive any offers of transfers, although this was not in conformity with section 133, paragraph 1, of the Labour Code (see Dismissal below).
977. 338. In the case of transfers brought to the attention of the Commission or of which the Commission was informed, the provisions of section 69 of the Labour Code, under which transfers could be arranged to meet the operating needs of the service, had not been observed. Reasons for transfers are governed by requirements external to the enterprise, and are designed to punish and isolate persons "guilty" of expressing opposition to or disagreement with the views and decisions of the Single Party. Moreover, refusal of a transfer by the person concerned leads to dismissal, and the fact that the "valid objections ..." referred to in that section of the Labour Code have not been defined enables the decision to be upheld whatever the objections might be.
978. 339. The Commission took note of the case of Mrs. Mariana Celac, a city planner, who had been downgraded in her work because of the views she had expressed in public, and as a means of inducing her husband, the mathematician Mihai Botez, who had been transferred out of Bucharest, to change his attitude towards the authorities. The Commission had no supplementary information concerning the cases of downgrading. It nevertheless considered that the definition of obligations found in the Labour Code, the non-observance of which was liable to be penalised by downgrading, was far too vague and made it possible for a wide range of behaviour to be penalised, including the expression, or lack of expression, of political opinions, which is protected by the Convention. The Council of Workers, whose President and Vice-President represented the Single Party and its Youth Organisation, did not offer sufficient guarantees of impartiality to ensure that political opinion was not taken into account in determining the penalty to be applied. The provisions of section 71(6) of Act No. 5/1978 respecting the organisation and management of state socialist units, as amended by Act No. 24/1981, emphasising the severity and uncompromising attitude that should be shown by workers towards those who were guilty of a breach "of order and discipline", attest to the lack of guarantees.
979. 340. Has the discrimination in matters of promotion, transfer or downgrading been directed against members of minority groups because of their national origin or race?
980. 341. Various witnesses stated that discrimination in matters of promotion affected the members of the Rom minority who were wage earners. One of the witnesses said that many Roma believed that the fact of declaring their origin would have a negative effect on their chances of promotion in the enterprise. (Endnote 165) Another witness explained that, when professional qualifications were equal, promotion was granted to persons of other nationalities who were given preference over Roma. He gave the example of a young Rom who had asked for the position of sector chief in his enterprise; the promotion had been refused on the grounds that he had no experience in that respect. (Endnote 166) In the technical service of the municipality for which this witness worked, the subordinate jobs were filled by Roma whatever their level of qualification.
981. 342. Persons belonging to the German and Magyar national minorities told members of the Commission during their visits outside Bucharest that discrimination on the basis of national origin or ethnic membership did not exist at all levels of the enterprise but became more marked in the designation and appointment of top managers and executives. The possibilities for members of these minorities to occupy an executive position or a responsible post had become considerably less since the 1970s. Consequently, very few of them had succeeded in occupying such posts. (Endnote 167) For others, promotion and acknowledged membership in an ethnic group were incompatible: persons who assumed their identity as members of an ethnic minority and who claimed their rights as such were discriminated against and could not advance in their work. (Endnote 168) The Deputy Mayor of Brasov/Kronstadt stated that membership in a minority was taken into account for purposes of promotion. (Endnote 169) Representatives of the Democratic Union of Magyars of Romania (UDMR) stated that in the town of Cluj where Magyars constituted 28 to 30 per cent of the population, no enterprise had a director of Magyar origin and few Magyars sat on the governing bodies of enterprises in the region. (Endnote 170)
982. 343. However, a person whose father was of a non-Romanian nationality, and who held the post of economic adviser in a prefecture, stated that there had been no ethnic discrimination whatsoever in his career. (Endnote 171) The Regional Director of Labour in the department of Cluj stressed that certain posts involving contact with customers were sought after by Magyars (in commerce, restaurants and jewellers' shops, as mechanics and hairdressers), as they were jobs in which tips were allowed for services rendered to customers. A witness said he had been told that profitable occupations in Cluj/Kolozsvar, in which people could receive tips and become involved in black market activities, were filled by Magyars in a much higher proportion that that of the total Magyar population. (Endnote 172)
983. 344. Owing to the disparities in the opinions and testimony gathered, there is no single answer to the question of whether national origin or race were systematically taken into consideration in the context described above for the adoption of measures of promotion. The situation is quite different for the Roma and for the other nationalities. Within the other nationalities, too, the situation is not the same for the Magyars, the Germans and the numerically smaller minorities. Nevertheless a general conclusion emerges: in matters of promotion as in many others connected with employment, outward indications of belonging to a certain nationality, the visible signs of origin, or the claim to rights whose exercise appears to be indispensable to the existence of the minority in question, have encouraged discrimination.
984. 345. As regards the Roma it is necessary to distinguish between those who have become assimilated into Romanian society and those who have retained or who bear the characteristic signs of their membership. According to the testimony of a member of this minority, most of the Rom people work in industrial, trade or agricultural enterprises and have the same working conditions as the other members of the workforce. They are not subject to discrimination because of their national origin, but a large number of these people conceal their origin and are not perceived as Roma from the time when they become "integrated" in the enterprise. (Endnote 173) The situation of those who have maintained or who bear the characteristics of their membership in the Rom minority is different. The discrimination against them in terms of lack of promotion is traceable to the lack of training culminating in a diploma or the non-recognition of skills acquired outside the formal educational system. This is indirect discrimination. More direct discrimination is the result of a phenomenon that can only be described as racist, which lays on each individual, independently of his or her aptitudes and qualifications, the burden of the prejudices attaching to an ethnic group.
985. 346. As regards the other national minorities, the situation varies considerably among them. It appears from the information available that membership in a numerically small minority does not seem to have impinged, during the period under consideration, on the promotion or career development of the persons in question. The same cannot be said of the members of the strong German and Magyar minorities.
986. 347. The question of knowledge or lack of knowledge of the official language has not been raised to try to justify measures to exclude persons belonging to national (and linguistic) minorities from the benefit of promotion. This must be seen as evidence that the Romanian tongue has become generalised among the members of the ethnic minorities.
987. CHAPTER 11
988. DISMISSAL AND JOB SECURITY
989. 348. Most of the allegations made to the Commission refer to measures of dismissal or threats of dismissal as a penalty for the expression of political opinions, a religious belief, or as a measure of reprisal. Within the framework of an equal opportunity and treatment policy, dismissal is justified only for reasons related to a worker's conduct, his capacity or ability to fulfil his functions or the operational needs of the enterprise.
990. Review of the legislative and statutory provisions in force at the time when the complaint was filed
991. Dismissal
992. 349. Section 129 of the Labour Code stipulates that the labour relationship comes to an end in particular through the termination of the contract at the initiative of one of the parties. The cases in which the employment contract may be terminated at the initiative of the enterprise are listed in section 130(1) of the Code. In addition to those cases concerning the granting of a retirement or disablement pension and the replacement of a worker by the reintegration of the person who previously held the workplace ((f), (g) and (h) respectively), the labour contract may be terminated either as a result of the situation of the enterprise or a worker's conduct.
993. 350. An employment contract may be terminated when the enterprise is disbanded and ceases operations (b), or when it reduces its personnel following reorganisation (a). In the latter case, the post supressed must be of the same kind as that held by the person concerned. An employment contract may also be terminated if the enterprise moves to another locality or region in the following two cases: when the enterprise is able to secure the necessary personnel locally (c), or when the work staff is not willing to move with the enterprise (d).
994. 351. Under the provisions of section 133(1) of the Code, if the labour contract is terminated under section 130(1)(a), (b), (c), (e) and (f), the enterprise shall offer the person affected a transfer to other suitable work, requesting in this connection the assistance of the higher body and placement organs, or itself arranging for the retraining of the said person.
995. 352. A labour contract may also be terminated if the person does not meet the occupational requirements of the post to which he has been appointed (e). In this case, the provisions of section 133(1) cited above apply. Serious misconduct or repeated breaches of work obligations "including the standards of conduct in the unit" are also grounds for the termination of a labour contract (i). Provision is made for the disciplinary termination of a labour contract in section 100 of the Labour Code, which stipulates that the worker body may hold a discussion on the offence committed and ask the management of the unit to apply disciplinary penalties "including termination of the labour contract". The termination procedure may be initiated at the request of the higher body and that of the organs controlled by the Single Party and by the organisations which depend on it in the enterprise (see paragraph 325).
996. 353. A contract may also be terminated if a criminal court has prohibited a worker from temporarily or permanently carrying on his occupation (l), or if a person is convicted by a final judgement of an offence related to his work and "the conviction renders him unsuitable for the post which he holds" (k). Finally, a contract may be terminated if a person has been sentenced to imprisonment for more than 60 days.
997. 354. Where a labour contract is terminated at the initiative of the enterprise, the trade union committee must be consulted under the provisions of section 132(1) of the Code. The dismissal of managerial staff in the enterprise and of staff who do not fall within the competence of the collective management bodies is, under section 39(i) of Act No. 5/1978 respecting the organisation and management of state socialist units, the responsibility of the management of the enterprise. As regards managerial staff "integrated" by decision of the management body, the termination of their contract is subject to the approval of this organ (paragraph 2), whereas in the case of staff "integrated" by a decision of the higher body, termination is the responsibility of that body (paragraph 3). Section 35 of the Act stipulates that the Council of Workers "shall decide ... the dismissal of management staff in factories, firms, plants, building sites and other similar units, as well as that of section and service chiefs. Under the provisions of section 36(r) of the above-mentioned Act, the Executive Office of the Council of Workers "shall approve ... the dismissal of managerial staff not covered by section 35(h) with the consent of the organs concerned".
998. 355. The termination of a labour contract must be made in writing, stipulating the grounds of dismissal, the statutory provisions on which the termination is based, the time limits and the organs to which an appeal may be made. This notification must be made within a period of five days. In the event that it is annulled, the enterprise shall be required to reinstate the person dismissed, to pay compensation calculated on the basis of his average wage or, if he takes up a new job, to pay the difference between the average wage received in the previous post and that paid in the new post. Under the provisions of section 11(2) of Decree No. 92/1976 respecting work books, the date of the termination of the labour contract and the statutory provisions on which it is based must be noted in the work book.
999. 356. All these provisions must be set within the framework of the general obligation to work, examined above (see paragraph 235). Under the provisions of Act No. 24/1976 respecting the recruitment and allocation of manpower, it is the responsibility of the person dismissed to register with the Directorate of Labour and Social Security, or its regional office, for the purposes of placement in employment. Under the provisions of Act No. 25/1976 respecting the allocation of able-bodied persons fit to useful employment, the placement decision is obligatory. These provisions have been the subject of observations by the ILO supervisory bodies for a number of years.
1000. 357. At the time of the complaint, no provision had been made for a system of unemployment compensation or legislative or statutory provisions respecting unemployment. Any jobseeker would be placed in employment in accordance with the provisions established by labour law. The concept of unemployment was non-existent in Romanian law.
1001. Allegations submitted by the complainants
1002. 358. The complainants have alleged that "the Hungarian minority, among which there are more than 300,000 unemployed, is affected by suppressions of jobs or whole enterprises". (Endnote 174)
1003. 359. The ICFTU, acting on behalf of the complainants, has pointed out that the practice of discrimination affected the members of minority groups and was likely to affect indifferently all workers, whether for reasons of political views, religious beliefs, social origin or other reasons. (Endnote 175) The complainants believe that dismissal is one of a number of restrictive measures, the effect of which is to "subject the worker, almost totally, to the employer" who, in almost all cases, is the State. (Endnote 176) Dismissal or the threat of dismissal is used against persons professing certain religious beliefs or expressing political opinions other than those of the Single Party.
1004. 360. The complainants have communicated several cases of persons who have been dismissed because of their religious beliefs or political opinions.
1005. 361. In 1978, Mr. Pal Bodor, Head of the "Ethnic Minorities" section of a cultural publication in Bucarest, was relieved of his functions. He had received, from Mr. Dumitru Popescu, President of the Committee on the State Radio and Television and the Secretary of the Central Committee of the Single Party, an order to join a "higher committee". This "higher committee" was to examine the occupational qualifications and cultural and intellectual abilities of journalists of various publications and the radio and television services. A list of 50 journalists suspected by the authorities of holding heterodox political opinions was drawn up and measures were taken with a view to their dismissal. Mr. Pal Bodor refused to sign the conclusions of the Committee, which he maintained were devoid of any legal basis. Forced to sign under coercion, he added the words "subject to reservation" under his signature. Disciplinary proceedings were taken against him and he was dismissed. (Endnote 177)
1006. 362. In 1983, Mrs. Doina Cornea, a teaching assistant at the University of Cluj, was put under pressure to relinquish her functions as philosophy teacher and to accept a transfer to a post as librarian (see above, paragraph 329). When she refused the transfer she was dismissed at the age of 54, although she was not entitled to retirement. (Endnote 178)
1007. 363. In 1984, Mr. William Totok, officially a translator with the Neue Banater Zeitung in Timisoara, but employed as a journalist, protested against the arrest and the mistreatment by the security services of Helmut Frauendorfer, a German language writer. The editorial committee of the newspaper, in a decision dated 21 January 1985, dismissed him for "professional incompetence" under the provisions of section 130(1)(e) of the Labour Code. The decision was taken in the light of the fact that Mr. W. Totok did not meet the occupational requirements of the post of translator, "since in his activity he had not shown a high standard of ethical and professional conscience, he had not actively promoted the revolutionary spirit in social life as provided for in the Act No. 3/1974 on the press". A post as assistant teacher outside Timisoara, but in the County of Timis, was proposed to Mr. Totok, in accordance with the provisions of section 133 of the Code. (Endnote 179)
1008. 364. In March 1989, Mrs. Christa Balzer, a German language teacher at the Sinmartin High School (Commune of Macea, County of Arad) was dismissed for having made an application for permanent emigration to the Federal Republic of Germany and for having refused to withdraw the application. The decision of the Inspectorate of the County of Arad, which was informed by the passport office (dependent on the security services), pointed out that the contract of the worker concerned was terminated in accordance with the provisions of section 130(1)(e) of the Labour Code and section 11(2) of Act No. 6/1969 respecting the status of teaching staff in the Socialist Republic of Romania, "in the light of her reprehensible conduct, which makes her unsuitable for educating the young generation in a revolutionary patriotic spirit, following her request for permanent emigration". The decision does not mention any offer of another post. (Endnote 180)
1009. 365. On 23 June 1989, a decision to terminate his employment contract was communicated to Mr. Leontin Iuhas, a systems engineer at the Mining Electronic Calculation Centre in Cluj, on the basis of section 130(1)(a) of the Labour Code (suppression of a post following the reorganisation of an enterprise). After an initial refusal, the trade union committee of the unit met again at the request of the management and approved the dismissal. Mr. L. Iuhas appealed against this decision to the competent higher body and the Cluj court, alleging that the dismissal was designed to keep him out of Cluj/Kolozsvar. (Endnote 181) At the time of his interview before the Commission, Mr. Iuhas stated that his appeal filed before the Cluj court was rejected. (Endnote 182)
1010. Other information
1011. Information communicated by governments to the Commission under article 27 of the Constitution of the International Labour Organisation
1012. 366. A report communicated by the Government of the United States of America to the Commission refers to dismissals which would allegedly affect persons belonging to religious movements such as the revival movement within the Romanian Orthodox Church known as "The Lord's Army", and evangelical movements. (Endnote 183)
1013. Information communicated by international organisations at the request of the Commission
1014. 367. The Special Rapporteur, appointed in accordance with resolution 1989/75 of the Commission on Human Rights, points out in his report that workers have lost their jobs because they have applied to emigrate, or tried to leave the country without permission, or for political reasons. Furthermore, several strikes or labour clashes originating from working conditions and pay (miners in the Jiu valley in 1977; miners in the metal ore mines in northern Transylvania in 1983; strikes in November 1986 in Cluj/Kolozsvar and Turda/Torba; strikes at the "NICOLINA" plant in Ias in February 1987; demonstrations and strikes in the "TRACTORUL" and "STEAGUL ROSU" plants in Brasov in November 1987) were followed by dismissals and correctional labour. (Endnote 184) The Special Rapporteur also mentions the cases of: Mrs. Maria Bejan, dismissed from her post as assistant at the University of Bucharest in March 1987 for having made a request for permanent emigration to the Federal Republic of Germany, where her husband has resided since 1985; Mr. Mircea Dinescu, editor of the Romania Literara review, dismissed in March 1989 for having addressed an open letter the the President of the Writers' Union, criticising the action of the Union, and for giving an interview to a foreign newspaper; Dana Disaga, an accountant at Resita (County of Timis), member of the Baptist Church of Resita, dismissed following her application for permanent emigration to the United States; Messrs. Dorel Dorian, Ion Stoica and Mrs. Pia Swebanescu, journalists at Romania Libera, who were dismissed in February 1988 for having expressed, during a private conversation, their solidarity with journalist colleagues who had been arrested in the month of January; Mr. Aurel Dragos Munteanu, a writer, was relieved of his functions as editor of the literary weekly Luceafarul in 1988 for having criticised the Government policy and sent a letter of resignation from the Single Party; Messrs. Mihai Torja, a metalworker, and Marian Lupau, an employee, were dismissed from the weapons factory at Zarnesti (County of Brasov) in June 1988, for having attempted to organise a trade union in this plant.
1015. Information communicated by non-governmental organisations at the request of the Commission
1016. 368. The information communicated by Amnesty International refers to a number of cases of dismissals of persons because of their religious beliefs, the expression of political opinions which differ from the line followed by the Single Party. In August 1977, approximately 4,000 miners in the Jiu valley were dismissed, and a large number of them were transferred to mines in other regions. Amnesty International also refers to persons who were dismissed, as well as members of their families, following their application for permanent emigration. (Endnote 185) Amnesty International has also provided information on the case of Mr. Nestor Popescu, a film editor, whose contract of employment was terminated in August 1987 after he had criticised the cultural policy of the Single Party. He was considered unqualified for the functions of editor because of his religious beliefs. Mr. Popescu is a member of the Baptist Church of the Holy Trinity (Sfinte Treime). He was subsequently arrested for having attempted to communicate a letter to the Swiss Embassy in Bucharest, and then sent to a psychiatric hospital in Poiana Mare.
1017. 369. Helsinki Watch, in a report communicated to the Commission, draws attention to the case of Mr. Gustav Molnar, a philosopher and political scientist and editor in a publishing company specialised in a minority publication, "KRITERION". Mr. Molnar was dismissed in March 1988 for having set up and promoted a non-political cultural organisation designed to deal with Magyar minority issues, with some 15 Magyar intellectuals as its members, and known as Limes (Frontiers). In the 18 months of its existence, Limes produced a thousand pages of manuscript which circulated only amongst its members. Mr. Molnar emigrated to Hungary at the end of March 1988 following interrogation and harassment by the security services. (Endnote 186)
1018. Observations of the Government of Romania
1019. Observations of the Government of the Socialist Republic of Romania communicated at the request of the Director-General of the International Labour Office under article 26 of the Constitution of the International Labour Organisation
1020. 370. The Government stated, in response to the allegations of the complainants, that "it is totally fictitious to assert that there is unemployment in Romania amongst the citizens of Hungarian and other nationalities, and that jobs and enterprises have been suppressed." The Government sees this as proof of "a willful disregard of the real situation and the thoughtless reiteration of malicious assertions. (Endnote 187)
1021. Observations of the Government of Romania communicated at the request of the Commission
1022. 371. The Romanian Government has referred to the injustices and abuse perpetrated by the organs of the Communist Party in all sectors of activity, including as regards dismissals, without giving any further information. (Endnote 188)
1023. Examination of the facts and conclusions of the Commission
1024. 372. It appears from the information available to the Commission that dismissal has been used as a penalty against certain categories of persons. The expression of a political opinion which differs from the line of the Single Party, a religious faith exercised within the framework of certain churches or sects, or the expression of which is considered too ostentatious, a manifestation of solidarity with persons who have been arrested or dismissed, an application for permanent emigration, have directly or indirectly motivated many cases of dismissal. The precise information provided by the complainants, or from other sources, accompanied in some cases by copies of documents from the competent authorities, is corroborated by evidence gathered by the Commission. One witness referred to the case of a person from Turda who lost his stable employment of 15 years for having burned his membership card in the Single Party. (Endnote 189) Another witness refers to the dismissal of a translator in a metallurgical enterprise in Timisoara because she had co-signed an open letter in support of the witness who was at that time imprisoned. (Endnote 190) Another witness stated that approximately ten colleagues in the high school of which he is the Director, lost their jobs for having made a request for permanent emigration, or for having expressed the desire to do so. (Endnote 191) The threat of dismissal has been used frequently to make people adopt the behaviour desired by the authorities, and pressure has been brought to bear on family members. One witness told the Commission that he was threatened with dismissal on a number of occasions if he did not try to convince his mother to cease her activities against the Government. (Endnote 192)
1025. 373. In some cases, the punishment was restricted to dismissal; in other instances, dismissal was but the prelude to other penalties, such as transfer to more arduous workplaces, correctional labour under the provisions of Act No. 25/1976 and psychiatric hospitalisation or imprisonment under the provisions of Decree No. 153/1970. Although these consequences do not fall directly within the scope of Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Commission believes that they should be recalled in this report, in as far as they are evidence of a desire to punish behaviour or attitudes which, within the framework of employment, are protected by the Convention. Furthermore, the imposition of such penalties affects the subsequent job opportunities of the persons concerned.
1026. 374. Dismissals are in general made on the basis of section 130(1)(e) of the Labour Code, which deals with the failure to meet occupational requirements. This concept includes elements which may not be considered inherent requirements of a given job, such as standards of behaviour which, in general, concern the political opinions or religious beliefs of the persons in question. The application of this provision, which encompasses a wide range of attitudes regarding political behaviour, or taken in conjunction with the specific provisions of texts respecting specific occupations (teachers, journalists), or certain functions, is contrary to the Convention in that it permits the establishment of exclusions or distinctions based in particular on political opinions or social origin.
1027. 375. The provisions of the Labour Code are, in some cases, formally applied. Thus in the case of the termination of the contract of employment of Mr. William Totok, a new work post (German language substitute teacher in a distant school in Timisoara) was assigned to him, in accordance with the provisions of section 133 of the Code, which obliges the undertaking to offer persons concerned a transfer to other suitable work, or to take measures for the retraining of the said person. In other cases the provisions of the Code are ignored or distorted. Although she had been dismissed on the basis of section 130(1)(e) of the Labour Code, no offer of transfer was made to Mrs. Christa Balzer, contrary to the provisions of section 133(1) of the Code. According to detailed information gathered on the spot, it appears that in the case of teachers who had made applications for permanent emigration, no other post was proposed (or imposed). One teacher, Mr. Josef Appeltauer, thus remained without a job for ten years after he had made an application for emigration which had been rejected. (Endnote 193)
1028. 376. In the case of Mr. Leontin Ihuas, the termination of the labour contract was made on the basis of section 130(1)(a) of the Labour Code which concerns the reduction of staff following a reorganisation of the enterprise. The rapidity with which the decision was communicated to the person concerned (on 3 June) as soon as a document from the higher organ justifying the suppression of the post was obtained, would tend to show that the principle of the decision had already been established. The advance notice of dismissal, dated 3 June 1989, refers to a communication from the central administration anticipating reductions in staff, which was received on the same day by the management of the enterprise. The procedure was followed to the letter: in accordance with section 132(1) of the Labour Code, the trade union committee of the unit was consulted on 8 June and unanimously voted against dismissal. The management of the unit convened a second meeting of the trade union committee, which on 22 June approved the dismissal. The actual reorganisation of the enterprise is itself open to question. The three other persons whose posts had allegedly been suppressed at the same time as that of Mr. Iuhas did not receive their advance notice of dismissal by 23 June 1989 (they had still not been dismissed at the time of the events in December 1989). Furthermore, three systems engineers requested their reintegration in their original units, with the support of the latter, but the Calculation Centre refused to allow them to leave. The suppression of the post of Mr. Iuhas, who had been subject to harassment for a number of years because of his political views and support for his mother, Mrs. Doïna Cornea, was motivated by a desire to remove him from his enterprise (where he seems to enjoy a genuine popularity, if account is taken of the first unanimous decision of the trade union committee to disallow the dismissal) and from the town where he lives (and where his mother also lives) and where he pursues activities on behalf of human rights.
1029. 377. As regards the allegations concerning unemployment allegedly affecting the members of the Magyar minority, the Commission does not have any information to support these charges. No information concerning unemployed persons has been collected, since there is allegedly no unemployment. The unemployment figures put forward by the complainants are not confirmed by the information gathered on the spot: thus, in the County of Cluj, during the period 1985-89, between 1 and 2 per cent of the active population were unemployed, according to estimates made by the county manpower services in 1990. These estimations have taken into consideration the fact that several unemployed people did not declare themselves as such under the previous regime, in order to avoid being officially obliged to take up allocated work by virtue of the above-mentioned Act No. 25/1976. In the light of the census data from 1977 - to give some idea of the numbers involved - this percentage is equivalent to approximately 7,000 persons in the county of Cluj. No information makes it possible to conclude that the situation would be any different in other counties in which persons belonging to minorities constitute a significant percentage of the active population. Furthermore, it is impossible to say whether the persons belonging to minorities have been discriminated against on the basis of their national origin or race.
1030. CHAPTER 12
1031. RULE OF LAW AND APPEAL PROCEDURES
1032. 378. The most perfect legislation is of little use if the person whose rights have been infringed cannot obtain redress from an independent judicial authority which gives scrupulous attention to the respect of the primacy of law. The matter of appeals was often raised during the hearing of witnesses by the representatives of the Government who asked the witnesses whether they were familiar with the appeals procedures available and if they had made use of them. Several witnesses placed the question of appeals in the wider framework of the situation of the rule of law in the Socialist Republic of Romania.
1033. Review of the provisions in force at the time of the filing of the complaint
1034. 379. In the sphere of labour law, appeals are regulated by the provisions of sections 171-182 of the Labour Code of 1972. Three bodies are competent in the sphere of labour disputes: "the judiciary commissions", the "judicial authorities" and the "higher administrative bodies" which include, under the Code, the "collective management body".
1035. 380. The judicial commissions are "organs ... possessing jurisdiction", elected by the general meetings of workers of the unit (section 173). They adjudicate disputes in which the claim is below a specified amount or is not susceptible to pecuniary evaluation and arises out of the formation and performance of a contract of employment; disputes concerning claims in relation to termination of a contract or reinstatement "where the grounds for and legality of the action taken are not in dispute"; any labour dispute which does not fall within the competence of the courts under a provision of the Code or another law.
1036. 381. The "judiciary authorities" (courts of the first instance) are composed of magistrates. They are competent to hear cases relating to the formation and performance of a labour contract and disputes arising out of the termination of a labour contract and regarding reinstatement, except for persons holding management posts (section 174).
1037. 382. The "higher administrative organ" or the collective management body is competent to hear disputes concerning disciplinary penalties. Disputes concerning the termination of a labour contract and reinstatement of persons holding management posts; disputes concerning the redeployment of staff in connection with a reduction of personnel; disputes concerning the granting of pay steps, reductions of the scheduled wage on account of incomplete performance of service assignments and any dispute concerning the granting of premiums or bonuses (section 175). Appeals must be determined within a period of 30 days.
1038. 383. Under the provisions of section 178 of the Code, the burden of proving the valid grounds for and legality of the action taken by it shall rest on the unit.
1039. 384. It follows from these provisions that disputes concerning the termination of a labour contract fall within the competence of the courts for all employees with the exceptions of those belonging to the Nomenclatura where disputes are regulated by members of the Nomenclatura. All disputes concerning the application of disciplinary penalties, transfers, promotions, wage reductions, the granting of premiums and bonuses also fall within the competence of the "higher administrative bodies" or the collective management body. The composition of these bodies, which is not stipulated by the Labour Code, has considerable importance for the proper administration of justice.
1040. Examination of the facts and conclusions of the Commission
1041. 385. During the hearing of witnesses, the representatives of the parties and the members of the Commission asked certain witnesses if they had at any time during the procedures taken against them lodged an appeal or contemplated doing so. The government representatives asked the witnesses if they knew of the existence of the appeals procedures provided for in the legislation and, of they did know, the reasons why an appeal had not been made.
1042. 386. Most of the witnesses were aware of the existence of appeals procedures. The reasons given for not using them are varied:
1043. - discrepancy between the texts and practice: "I was informed of this possibility (appeal against a transfer decision) but I was much more familiar with practice. One of my colleagues ... tried to do this and she had to pay 48,000 lei in damages because she had not accepted the position which had been assigned to her". (Endnote 194) "It was not possible to lodge an appeal against illegal acts (dismissal following a request for permanent emigration) during the Ceaucescu dictatorship and I would like to emphasise this once again"; (Endnote 195)
1044. - defiance of justice: "I did not use this legal means (requesting a court to oblige the unit to respect a decision of transfer which had previously been accepted). You yourself know very well how the courts operated at that time. The Writers' Union told me very clearly that it would in no case be possible because the Securitate was involved." (Endnote 196) So I appealed to the court against the decision of the enterprise to dismiss me but the Securitate put pressure on the judges and my appeal was not accepted. (In response to a question from the President of how he had learned of the intervention of the Securitate.) After the revolution I spoke with the judge ... and it was he who told me. He came to see me and apologised and said that he couldn't have acted otherwise"; (Endnote 197)
1045. - excessively long delays: "I was told that I could expect the legal proceedings to last three years, which was much too long for me"; (Endnote 198)
1046. - fear of reprisals: "I would have been subject to all kinds of political pressure which would have made the situation even worse and this was a risk which I did not want to run". (Endnote 199) "The Hungarians did not have the right to appeal. This was something which you knew and which you felt. If I had appealed I would not have solved my situation, indeed it would have become worse". (Endnote 200)
1047. 387. In general, as one witness pointed out, citizens are very poorly informed of their rights and the means to ensure their respect. They have no confidence in the judicial system and few people appeal or have attempted to lodge appeals. (Endnote 201) Another witness pointed out that it was impossible to make any effective appeals because there were no independent bodies to hear them. Workers had no confidence in the judicial system which depended on the "Nomenclatura" and which was subject to such pressure that it was impossible to apply the rule of law: there were no genuine lawyers, no real bodies for an impartial settlement of disputes. (Endnote 202)
1048. 388. In a letter addressed to the Commission, the Romanian Government pointed out that the bodies entrusted with the settlement of labour disputes were, like the trade unions, unable to defend the interests of the workers because of their subordination to the bodies of the Single Party. (Endnote 203)
1049. 389. In a meeting with the Commission, the Secretary of State for Justice stressed that the judicial system was perverted. There was considerable mistrust amongst the population of everything relating to the state administration, and the measures adopted were seen as directed against citizens. Excesses had been committed by the judicial system which issued decisions which were based on neither the law nor the facts. The situation varied according to the nature of the cases: the repression of what was considered to be an expression of dissident opinion involved a marked interference of local and national authorities in the application of justice. Interventions were less rare in civil matters. (Endnote 204) On the other hand, the First Deputy of the the Attorney-General emphasised that during the events of the month of December 1989, no magistrate had been set upon by the crowd which expressed its confidence in the judicial system by appointing many magistrates amongst the new authorities. (Endnote 205)
1050. 390. Two other factors also played a role in the way citizens viewed the law in the Socialist Republic of Romania: (i) the existence of internal provisions, the texts which are not recognised in the hierarchy of legislative and statutory acts, which are adopted by the officials of the Single Party and unpublished, and (ii) the existence of statutory texts which are not communicated to citizens.
1051. 391. As regards the internal provisions, information was communicated to the Commission that internal provisions (dispozitii interne) were adopted by the organs of the Single Party. Usually, such provisions would not be made public but would apply to everyone through the party organs, represented in all the decision-making bodies of economic and social life. They appear to have been mainly used from the middle of the 1980s in the policy applied to minorities. (Endnote 206)
1052. 392. Because of their nature, it is not very easy to establish the existence of the internal provisions adopted by the organs of the Single Party. The Government of Romania has made no comment on the existence of these provisions or their possible content. The Commission noted that the decisions of the Single Party were considered in the publications of the Council of State as standard-setting texts which ranked higher than laws and regulations and that some of these decisions were published. This is the case with the decisions of the Plenum of the Central Committee of the Romanian Communist Party regarding the reform of the wage system. (Endnote 207) These decisions were followed on the next day by the adoption of acts by the National Assembly. The Commission previously noted that internal provisions were adopted and used and given the concept of the directing role of the Single Party enshrined in the Constitution, that these provisions prevailed over the legislative and statutory texts adopted. It is not however in a position to indicate the exact content of these provisions. The Commission recalls however the discrepancy between public statements on the situation of teaching in the maternal language of members of minority groups and the constant reduction in the number of pupils and students in the maternal languages. It believes that this discrepancy cannot be ascribed to local individual initiatives but can result only from a deliberate policy of which the published statutory and legislative texts are the only visible element.
1053. 393. This opinion of the Commission is supported by the fact that some statutory texts apply even though they have not been communicated to the public or published. This is the case with Decree No. 367/1980 establishing certain measures for the rational utilisation of staff in socialist units. This Decree has never been published in the Official Gazette or in the annual collections and does not appear in the legislative catalogues of the Socialist Republic of Romania. Its existence is however confirmed. Paragraph 10 of the single section of Legislative Decree No. 9, dated 31 December 1989 to repeal certain standard-setting acts, repeals Decree No. 367/1980 by indicating that the latter was never published.
1054. 394. The non-publication of Decree No. 367/1980 is not an isolated case. Decree No. 408/1985 on state secrets has never been published or catalogued in the official publications. This has not prevented the authorities from making all workers sign a statement testifying that they are familiar with the contents of this Decree and with the penalties to which any violation of provisional secrecy would expose them. (Endnote 208)
1055. 395. In these circumstances, the Commission is not in a position to define exactly the scope of this practice which is contrary to the principle whereby in a state subject to the rule of law no one may be kept in ignorance of the law. The Vice-President of the Parliamentary Commission responsible for drawing up the draft Constitution stated that during the period of dictatorship, the Constitution and laws contained provisions concerning the rights of citizens but that these texts were not applied in practice. (Endnote 209) The Commission has reached an identical conclusion: the law and regulations are applicable only when they serve the interests of the Single Party.
1056. 396. The effective exercise of the right to a fair judgement depends, on the one hand, on the existence of legislation which regulates legal situations and judicial procedures and, on the other, the general respect for the primacy of the rule of law in the everyday life of society. The Commission has reached the conclusion that neither of these conditions existed in the Socialist Republic of Romania at the time of the filing of the complaint. The effect of the constitutional, legislative and statutory provisions was determined by a system which was not that of a State based on the rule of law in which the letter and spirit of the law are strictly observed in practice by the courts.
1057. CHAPTER 13
1058. EFFECTS OF THE SYSTEMATISATION POLICY
1059. 397. The systematisation policy was described in the complaint as a policy for the destruction of a large number of villages and which threatens the existence of the members of national minorities. Strictly speaking, systematisation is a plan for the radical reorganisation of the territory, and the deliberate transformation of the rural and urban habitat and the communication network and the redistribution of economic activities throughout the national territory. The objective of this plan is to standardise Romanian society and accelerate the advent of the "new man".
1060. Presentation of the legal framework and evolution of the systematisation programme
1061. 398. The concept of systematisation first appeared in 1960 with the creation of a "State Committee for building, architecture and systematisation", the role of which was to co-ordinate and direct the work of 16 regional systematisation committees. The objectives of this national and regional structure are the rationalisation of town and country planning, the promotion of industry, the control of the rural exodus and the standardisation, both social and ethnic, of the population. At the same time, the Hungarian Autonomous Province, created at the beginning of the 1950s, was reorganised and renamed the Mures-Hungarian Autonomous Province. Following this reorganisation, it lost its Magyar character: districts which were predominantly inhabited by Magyars were detached and others which were predominantly inhabited by Romanians were added. The regional systematisation committees have been mainly active in the towns where they have destroyed the symbols of the previous regime and religion or anything which recalled the existence of ethnic minorities.
1062. 399. In 1964, the Romanian Communist Party defined a policy for the "systematisation of rural localities" the objective of which was to readjust the distribution of the rural population, which was too disperse, on the basis of the new agricultural holdings which had emerged from the collectivisation campaign concluded in 1962. To apply this policy, a Central Committee on the systematisation of villages was set up following the meeting of the Central Committee of the Communist Party in November 1965. The idea was given a new lease of life by the adoption of "principles for the improvement of the territorial and administrative organisation of Romania and the systematisation of the rural environment" by the Central Committee of the Communist Party at its session of 5 and 6 October 1967.
1063. 400. The principles regarding administrative and territorial organisation were incorporated into Act No. 2/1968 respecting the administrative distribution of the territory. The Act suppressed the 16 regions and replaced them by 39 counties and the number of communes was reduced from 4,259 to 2,705. The Mures-Hungarian Autonomous Province was abolished and divided into three counties: two predominantly Magyar counties (Covasna and Haghita) and one mixed department (Mures).
1064. 401. The National Conference of the Communist Party in July 1972 established guidelines for the division of all the villages of the country into two categories: those with prospects of development and those with no prospect of development.
1065. 402. Built-up areas were divided into five categories in accordance with the priority assigned to their development:
1066. - 237 towns (municipes), the number of which will be increased to 265 under the provisions of Act No. 2/1989 respecting local administrative organisation;
1067. - 540 agro-industrial centres, that are to be promoted to urban status offering community services to people living within a radius of 15 to 20 kilometres, and the purpose of which is to establish manpower in rural regions;
1068. - 1,800 administrative centres of the communes which will eventually become agro-industrial centres;
1069. - large villages which will not become agro-industrial centres but which will nevertheless be equipped with some modern amenities;
1070. - the small villages that offer no prospect of development and which will in fact eventually disappear. Their number varies, according to sources used, between 7,000 and 8,000.
1071. 403. The guidelines established by the National Conference of the Communist Party were incorporated in Act No. 58/1974 respecting territorial systematisation in national and urban districts. The Act has several objectives, in particular the limitation of building land in localities to a strict minimum (under the terms of section 3, the prohibition of building on agricultural holdings), the conditions governing the granting of building permits (under section 14, building is prohibited in small dispersed villages) and the grouping together of "small villages scattered between villages with prospects of development which will be defined by the Act" or the "gradual displacement of family holdings from villages where new building is prohibited ... to villages with prospects of development". This systematisation policy as defined by the highest authorities of the State must be applied with the participation of the departmental or local people's councils which, under section 56 of the Act, "carry out at the local level the policy of the Party and the State as regards systematisation".
1072. 404. The provisions governing urban planning reflect the same determination to reduce building surfaces, emphasise the protection of the historical heritage and stipulate that "buildings for accommodation shall be built as a matter of preference from the centre of localities out towards the peripheral zones". In general, the historical heritage is concentrated in the centres of towns which are the first to be affected by the development measures.
1073. 405. The implementation of this policy has encountered more difficulties in rural areas than in urban zones. Urban growth since the beginning of the 1950s has profoundly modified the urban landscape. (Endnote 210) Most buildings have been constructed on the perimeter but others have appeared in the actual centres of towns where old buildings are frequently destroyed. In rural areas, the systematisation programme had little effect until 1986 when the first destructions of villages began in Dubrouja, Banat, and near Bucharest, around the Otopeni airport.
1074. 406. In December 1987 the National Conference of the Communist Party adopted a resolution stating that "work must be carried with greater determination to complete, by the year 2000, the programmes for the systematisation, organisation and modernisation of towns and communes and to reduce the area of built-up land with a view to strengthening the alliance between all sectors of Romanian society, speeding up the standardisation of Romanian socialist society and the disappearance of differences between the various classes and sectors of society".
1075. 407. On 3 March 1988 Nicolai Ceaucescu declared before the National Conference of Presidents of People's Councils that systematisation had entered a new phase and for the first time announced specific objectives: "We must drastically reduce the number of villages from around 13,000 to 5,000-6,000 at the most". The implementation of this programme was to comprise three stages:
1076. - establishment of two or three agro-industrial centres by country for 1990;
1077. - initiation of work on the construction of all agro-industrial centres in 1995;
1078. - termination of the programme scheduled for the year 2000.
1079. 408. This relaunching of the programme was quickly followed by a series of actual destructions, in particular on the Bucharest-Snagov access, the announcement of the destruction of villages in various regions of the country, particularly in those with a large number of members of ethnic minority groups, and the reconstruction of villages "with prospects of development" on the basis of a standard model: buildings of two or three storeys, with a political and administrative centre, school, hospital, shopping centre and cultural institute.
1080. 409. On 17 April 1989 Parliament adopted Act No. 2/1989 respecting the local administrative organisation which established a framework for the systematisation policy. The Act stipulates that the systematisation programme will be carried out on a local basis in consultation with inhabitants and experts. The territorial administrative framework established by Act No. 2/1968, as amended in 1981, underwent a change: 28 of the 548 agro-industrial centres established throughout the country obtained the status of cities, with the number of cities increasing from 237 to 265. The number of communes was reduced from 2,705 to 2,359; no figure was given for the number of villages since the concept of village no longer had any legal validity. According to the UNESCO mission report on Romania, the 13,000 villages which had hitherto existed in Romania, "both as autonomous administrative entities and as groups of rural dwellings, will be considered for administrative purposes as forming clusters" around the villages to be developed. (Endnote 211)
1081. Allegations submitted by the complainants
1082. 410. The complainants have alleged that considerable damage has resulted from the rural systematisation programme which has affected Transylvania in particular. Citizens are forced to destroy their own houses and are resettled elsewhere with their families in low-quality buildings. (Endnote 212) The representative of the complainants has not furnished other information on this matter.
1083. 411. The representative of the complainants communicated allegations concerning forced or obligatory labour in the case of certain projects, in particular the construction of the Bucharest Civic Centre. It does not appear from these allegations that this obligation to carry out work within the framework of the systematisation programme was based on one of the seven criteria set forth in Convention No. 111. The Commission believes that these allegations concern the application of Convention No. 29 and thus do not fall within its terms of reference.
1084. Observations of the Government of Romania
1085. Observations of the Government of the Socialist Republic of Romania communicated at the request of the Director-General of the International Labour Office under article 26 of the Constitution of the International Labour Organisation
1086. 412. The Government has stated that the problem of the modernisation of all localities of the country, including rural areas, is a long-term problem which was examined and approved by Parliament in 1974. This programme "aims at solving in the best possible conditions problems related to teaching ... (and) developing industrial activities which are closely linked to agriculture. This programme essentially aims to ensure that inhabitants of the rural areas have living conditions which are similar or highly comparable to those prevailing in the cities." The Government also gives information on the projects to be carried out in this context, "in consultation with the population and with its consent". The Government concludes by stating that "there is ... no intention of destroying rural localities or transferring the population from other areas since the objective is precisely to stabilise the population, and in particular young persons in the rural areas, and to create the best possible living and working conditions which are comparable to those existing in the cities. The programme is a general one and covers the entire country, not only certain regions". (Endnote 213)
1087. Observations of the Government of Romania communicated at the request of the Commission
1088. 413. The Government of Romania has not made any comments on the allegations concerning the systematisation policy.
1089. Examination of the facts and conclusions of the Commission
1090. Rural systematisation
1091. 414. At the time of the filing of the complaint, rural systematisation was in its initial stage. It is only when this stage has been completed, that is when the villages "with development prospects" have absorbed the population from villages "without development prospects" that the disappearance of the latter will be stepped up. Disappearances would occur either through the destruction of buildings or through their "natural death" or "dying out". (Endnote 214)
1092. 415. The counties of Giurgiu and Ilfov (near Bucharest) have been the most affected, particularly in the region between Bucharest and Snagov (the villages of Buda, Vladisceaska, Dimieni, Ordoreanu, Coteni Podul Ilfovolui). Work is more or less advanced in the counties of the regions of Moldavia and Transylvania, whereas delays seem to have occurred in the counties of the region of Maramures and in the north and centre of Transylvania. According to the Transylvania press agency, the systematisation programme has followed a different course in Transylvania and in the rest of Romania where the destruction of villages is now under way. In Transylvania the destruction of villages has not yet begun although the new appartment blocks in which the displaced villages will be settled are now being built. (Endnote 215)
1093. 416. Several methods have been used to facilitate the implementation of systematisation measures. In addition to the pure and simple destruction over a period of a few days, without any advance notice being given to inhabitants, as in some villages around Snagov, other less brutal methods have been tried. Pressure has been brought to bear on local officials or on persons likely to have some kind of influence over inhabitants in convincing them of the validity of the programme and to leave their villages. The villages scheduled for disappearance have become streets or districts attached to more important villages which will subsequently be modernised. Thus their future destruction will not appear as the destruction of a village but rather that of a street or a district. The merging of two or more villages into a single unit has also been used, sometimes combined with the removal of signposts marking the existence of villages to make the name of the village disappear before the actual disappearance of the village itself. In other cases, the authorities have assumed that the population will leave following the lack of essential services and the prohibition placed on carrying out repairs on houses. (Endnote 216) The authorities have refused to issue in villages "without development prospects" the necessary building permits to carry out repairs of a certain scale. The authorities have in some cases warned that they would gradually cease the distribution of foodstuffs and close down classes and medical services in the villages.
1094. 417. The Romanian newspapers have given some examples of systematisation with details of the scope of operations and insisting on their "positive" aspects, in particular as regards the improvement of the living environment. Thus an article on the reorganisation of Livada, a commune in the county of Satu Mare, comprising four villages, pointed out that the village of Livada Mica (115 houses) was entirely destroyed, along with 92 of the 164 houses of the village of Adrian, and 174 of the 315 houses of Dumbrava and 879 of the 1,441 houses of Livada. (Endnote 217)
1095. Urban systematisation
1096. 418. Some aspects of urban systematisation are closely related to the rural systematisation measures. Thus the construction of agro-industrial centres results in the destruction of a number of old residential complexes which give way to new buildings in the centres of cities, and the reorganisation of highways or infrastructure. (Endnote 218) Urban systematisation is currently the most advanced part of the programme: all Romanian towns have to some extent or another been partially rebuilt. Twenty-nine cities are reported to have been destroyed by up to 85-90 per cent and rebuilt under the systematisation plan, while 37 other cities are scheduled for systematisation. (Endnote 219)
1097. 419. In addition to Bucharest, the most affected regions are Moldavia and Wallachia. In Moldavia all the major cities (Suceavea, Iasi, Bacau) and a number of less important localities (Piatra Neamt, Foscani, etc.) have been systematised. In Wallachia the region of Muntenia, near Bucharest, has been more affected than Oltenia: the historic centre of the town of Tirgoviste, named in 1984 as "the second capital of Romania", has been practically razed to the ground. The same is true although to a lesser extent of Ploiesti. In Transylvania and the Banat, work has been concentrated on the cities closest to the frontiers (Satu Mare/Szatmar, Arad, Oradea/Nagyvarad, Timisoara) and the east (Miercurea Ciuc). The centre and north of Transylvania seem to have been less affected. The less advanced stage of work in these regions is generally ascribed to the more resistant character of the population of Transylvania, although other factors, in particular political choices, have undoubtedly played a role.
1098. 420. The case of Bucharest is a special one. The decision to systematise the centre of Bucharest was taken following the earthquake on 4 March 1977. The dilapidated state of the buildings following the earthquake served as a pretext for their demolition. However, according to the UNESCO mission which visited Bucharest in September 1989, "the zone affected by the earthquake does not fully coincide with that involved in the development of the Avenue of the Victory of Socialism and its neighbourhood, which has had to be modified in order to accommodate the displaced buildings". (Endnote 220)
1099. 421. It is above all residential buildings which have been destroyed. Inhabitants in the destroyed districts were in most cases given only 24 hours' notice to prepare their departure and lost a considerable part of their belongings during the removal. They were relocated in suburban districts without account being taken of their place of work.
1100. Effects of systematisation
1101. 422. How has the systematisation programme affected equal opportunity and treatment in employment and occupation in general and, in particular, as regards the members of ethnic minorities?
1102. 423. No precise allegation has been made concerning direct discrimination in employment or occupation resulting from the implementation of this programme.
1103. 424. It appears, from the information available to the Commission, that the systematisation programme taken separately cannot be seen as being specifically aimed at the members of recognised minority groups in Romania or the members of any given minority group. The systematisation programme has been applied both in regions inhabited by minorities as well as in purely Romanian areas. The differences in application are not related to the presence or absence of members of minority groups in the regions which have been spared or in those which have been affected.
1104. 425. The Minority Rights Group report on Romania's ethnic Hungarians believes that the systematisation campaign was not directed specifically against the Hungarian minority since most of the villages which were destroyed were ethnic Romanian ones. However, it stresses that the continuation of this programme would have inevitably adversely affected the cultural heritage of the members of minority groups: "traditional Hungarian values were surviving with difficulty in the villages; such an uprooting could well have proved fatal and certainly facilitated assimilation." (Endnote 221) In addition to the argument that the number of villages destroyed is not conclusive in itself - the total number of villages inhabited by Romanians is much greater than that of the villages inhabited by members of minority groups - this assessment does not take sufficient account of the relationship between the systematisation programme and the other measures adopted by the Romanian authorities.
1105. 426. Thus, there is a striking convergence in measures which complement and reinforce one another in their attempt to standardise a society in which a number of differences continue to exist and, in particular, ethnic differences. In various ways, these measures lead in the long term to the disappearance of minorities and the assimilation of their members into a homogenous society. In the eyes of the authorities, the alternative to such assimilation has been the permanent emigration of the members of some minority groups, a method which has been frequently used in exchange for financial payments made in foreign currency. (Endnote 222) Whether in 1960, 1968 or in the middle of the 1980s, each stage of the systematisation programme was accompanied, preceded or followed by decisions which directly affected the members of minority groups in their day-to-day life, in their relations with the national or local authorities or in their future prospects within the society to which they are bound by links of citizenship. The convergence noted above is compounded by the permanent nature of the objective sought.
1106. 427. The application of the programme has had heavy consequences for the entire Romanian population but the burden has been even greater for members of minority groups. These and in particular the members of the Magyar and German minorities have seen the measures taken in application of programmes such as the systematisation programme as threats against their cultural identity. The threat has come from three sides: through the mixing of populations in areas with a high concentration of minority members, resulting from the state industrialisation policy, defined at the central level, and the determination of the authorities to dilute highly concentrated minority populations; through the loss in the use and learning of their languages resulting from the policy of providing education and training in the official language; and the disappearance of their way of life and historical references which have been threatened or compromised by the systematisation programme.
1107. 428. The standardisation which is the objective of the systematisation policy is not only designed to reduce social inequalities by a levelling down process but to bring about the disappearance of the minorities through their assimilation or departure. The mixing of populations in the agro-industrial centres and the villages "with development prospects", has made it possible to dilute the population of villages "with no development prospects", which are inhabited essentially by persons of Magyar or German origin, and who have along with their architecture lost their social cohesion, education in their own language and their culture. One writer has pointed out that "if the Romanian people in its entirety is threatened by cultural ethnocide the latter is seen by the Hungarians of the country and abroad as the last step in a process to remove from the Romanian soil the 'invaders', the Hungarian 'barbarians' described in the school textbooks, or the Conducator himself. Systematisation was immediately seen by the Hungarians as the last phase of Romanisation which they have always opposed". (Endnote 223) These practices applied in the same manner in the villages inhabited by Romanians have not produced the same effects: language and some of the culture which are those of the majority of the inhabitants of the country are preserved despite the destruction of the architectural setting.
1108. 429. The effects of the systematisation programme which has been so devastating for society as a whole, as the Romanian authorities themselves concluded from 26 December 1989 by repealing most of the texts, have posed a serious threat to the continued right of members of minority groups to education in their maternal language enabling them to gain access to employment in an industrialised society. In this sense, the systematisation programme combined with other measures to make society "homogeneous", which the Commission had the opportunity of examining in the allegations made by the complainants, is an unfavourable environment for the development of national policy, in the sense used in Article 2 of the Convention, which is not likely to encourage the promotion of equal opportunity and treatment in occupation and training through the elimination of any discrimination based in particular on race or national origin.
1109. 430. To the knowledge of the Commission, a balance sheet of the systematisation policy and its effects has not been drawn up by the new authorities which however, shortly after taking power, did repeal the texts establishing the legal framework of systematisation and made a number of statements condemning this programme.
1110. 431. This programme was largely responsible for damaging the image of Romania abroad and the mass media in Western Europe, the United States and to a lesser extent in the rest of the world have commented at length on these decisions and repeated and magnified the rumours that villages have been or are about to be destroyed and razed to the ground. This has not always contributed to an understanding of the exact scope of the phenomenon. Thus the systematisation of cities, with the exception of the destruction of the Uranus district in Bucharest, has often been forgotten; the announcement of destructions which have allegedly been carried out or are imminent, has not been corroborated and has even been invalidated by trustworthy witnesses. In this connection Helsinki Watch quotes the case of a report made by a newspaper, allegedly from a foreign and independent source, that several villages in the south-east and south of Transylvania had been destroyed (Szaraszpatak, Grossaut, Seident and Weidenbachot, Apaeca and Alsarakos as well as the thirteenth century church of Szaszhermany). Officials of the Embassy of the United States in Bucharest who have been able to carry out an on-the-spot inspection have not found any evidence that the village of Szaraszpatak and the Szaszhermany church have been destroyed. In his cable to the State Department, the Ambassador of the United States concluded that these two visits serve to reinforce the general impression that "despite extensive foreign press reporting, rural systematisation appears to be a policy in the planning, not implementation, stage". (Endnote 224)
1111. TITLE III
1112. NATIONAL POLICY IN RESPECT OF EQUALITY OF OPPORTUNITY AND TREATMENT SINCE THE FILING OF THE COMPLAINT
1113. (26 June 1989)
1114. 432. As for the period between the filing of the complaint and the events of December 1989, various allegations have been referred to the Commission, concerning situations or practices similar to those obtaining before 26 June 1989. The legislation to which the Commission referred in Title II of its report was neither modified nor amended during this period.
1115. 433. The period that has elapsed since the complaint was filed was marked by a change of government, following a series of events, starting on 16 December 1989 in the town of Timisoara and ending with the setting up of the Council of the National Salvation Front in Bucharest on 22 December 1989.
1116. 434. A large number of measures were announced or enacted by the new authorities as soon as they came to power, notably in matters of respect of human rights. Several laws and regulations were repealed, and practices incompatible with a national policy to promote equality of treatment and opportunity in employment and occupation without discrimination on any of the seven criteria of the Convention, were modified. Moreover, the new Government adopted measures designed to redress the wrongs suffered by persons unjustly treated by previous governments. However, certain laws and regulations have remained in force, and allegations concerning the persistence of practices incompatible with the Convention have been referred by the complainants to the Commission.
1117. CHAPTER 14
1118. ADOPTION OF NEW LEGISLATION, REPEAL OF LEGISLATIVE PROVISIONS AND MODIFICATION OF ADMINISTRATIVE PRACTICES
1119. 435. The first prescriptive acts of the new authorities included, symbolically, the repeal of several laws or regulations which had been declared contrary to fundamental human rights. The preamble to Legislative Decree No. 2 of 27 December 1989, concerning the constitution, organisation and function of the National Council and Territorial Councils of the National Salvation Front, indicates that the new Government's programme intends to renounce the leading role of the Single Party and establish a democratic pluralist political system, with a view to building a society respectful of fundamental human rights. (Endnote 225) Certain changes have been made in administrative practices, but difficulties still remain with regard to the application of the Convention.
1120. Repeal or modification of legislative or statutory provisions
1121. 436. Since the moment of their accession to power, the new authorities have manifested their will to respect human rights. The provisional government bodies have accomplished a prodigious feat in examining legislative and statutory provisions. This has led to the adoption of laws and regulations repealing or modifying former legislation in December 1989 (Legislative Decree No. 1 of 26 December 1989 respecting the repeal of certain laws, decrees and other prescriptions, Legislative Decree No. 9 of 31 December 1989 respecting the repeal of certain prescriptions), then, to the adoption of other measures a few days before the general elections of May 1990 (Legislative Decree No. 147 of 11 May 1990 respecting modification or repeal of various legal provisions restricting the right to work, Legislative Decree No. 149 of 11 May 1990 concerning the repeal of certain regulations). The adoption of provisions governing specific domains such as education or wages, also provided the occasion to examine earlier legislation and to introduce amendments in conformity with the undertaking to respect human rights. The Parliament resulting from the May 1990 elections has continued with this examination when enacting new laws and regulations.
1122. 437. Despite all this considerable work, several laws or regulations, the enforcement of which entails the application of discriminatory measures in employment and occupation, as the Commission has observed in this present report, have not yet been either repealed or modified.
1123. General obligation to work
1124. 438. Several laws and regulations concerning the general obligation to work, of which the Commission has emphasised the adverse effects on equality of opportunity and treatment, have been repealed or modified. In the first place, section 7 of the Labour Code, according to which every person over the age of 16 years "had a duty" to engage in socially useful work, has been modified by the introduction of freedom of choice: "every person who is fit for work has the right to engage (...) in useful work" in the above-mentioned Legislative Decree No. 147/1990. Secondly, Act No. 25/1976 respecting the allocation of able-bodied persons to useful employment has been repealed in accordance with paragraph 7 of the single section of Legislative Decree No. 9/1990 (see paragraph 235). Act No. 3/1983 respecting the labour contract, concerning the obligation to work for a period of five years in the same enterprise, on pain of reprisals of a financial kind, has been repealed in accordance with paragraph 13 of the single section of the same Legislative Decree (see paragraph 236).
1125. 439. Decree No. 153/1970, subsequently modified by Decree No. 41/1980, which provides for penalties in the case of certain offences against the rules on communal social life and public law and order (persons leading a parasitic or anarchic form of life), has not been repealed or modified. This Decree was used on two occasions against members of the Rom minority, following the inter-ethnic conflicts in Tirgu-Mures in March 1990 and the events in Bucharest in June 1990. During an interview at the Ministry of Labour, it was stated that this Decree had been maintained by accident, and that proposals to repeal it would be communicated to the competent authorities.
1126. Education and training
1127. 440. Sections 115 to 123 and subsections (b), (c) and (e) of section 148 of Act No. 28/1978 concerning education and training have been repealed by Decision No. 521 of 12 May 1990 respecting the organisation and functioning of teaching in Romania for the (university) academic year 1990-91, referred to earlier. Moreover, Decision No. 521 has restored the quota system for the creation and maintenance of classes in the various categories of education (see paragraphs 189 and 216).
1128. Assignment to specific employment
1129. 441. Decree No. 54/1975, concerning the allocation to production jobs of graduates of higher daytime education, in accordance with which these graduates were assigned to a post for a specific period without effective right of appeal, has been repealed by section 1 of Legislative Decree No. 14 of 10 January 1990 (see paragraph 240). Decree No. 68/1976 respecting change of domicile to other localities, under the terms of which persons could be banned from taking up employment or residence in 14 towns designated as major cities, was repealed by Legislative Decree No. 1 of 26 December 1989 respecting repeal of certain laws, regulations and other prescriptions (see paragraph 277). The Commission possesses no information as to the continued enforcement of Decree No. 436/1978 respecting the allocation to employment of higher medical and pharmaceutical college graduates, according to which these graduates were compelled to work for a specific period in a place to which they were assigned (see paragraphs 240-241). The Government has approved a Decision (No. 475 of 4 May 1990) concerning post assignments for medical and pharmaceutical college graduates who have completed their internship, on the basis of a national competitive examination. The text of this decision contains no reference to Decree No. 436/1978.
1130. Provisions allowing discrimination on grounds of political opinion or social origin
1131. 442. Section 2 of the 1972 Labour Code does not prohibit discrimination based on political opinion or social origin (see paragraph 238). In accordance with Legislative Decree No. 147/1990, "political convictions" and social origin have been added to the criteria of sex, nationality, race or religion, listed in the original text.
1132. 443. A certain number of laws and regulations governing occupations or particular occupational categories contained provisions referring to ideological and political qualifications, which were not compatible with the terms of the Convention (see paragraph 238). The above-mentioned Legislative Decree No. 147/1990 has repealed section 1 of Decree No. 413/1979 approving conditions of service of civil aviation staff, according to which the staff in question contributes to the implementation of the policy of the Romanian Communist Party. Section 2 of the said Decree has been so modified as to eliminate references to high political awareness and boundless devotion to the Party. Similarly, section 142, subsection (a), and all other provisions referring to the role of the Single Party and the allegiance of teachers to party decisions, contained in Act No. 28/1978 on education and training, have been repealed by section 58 of Decision No. 521 respecting the organisation and function of teaching in Romania for the (university) academic year 1990-91. The Committee wishes to emphasise that the measures adopted to remove from the above-mentioned Act No. 28/1978 all provisions which could lead to discriminatory practices, are among the most comprehensive it has ever been its privilege to encounter. Act No. 5/1978 respecting the organisation and management of state socialist units, certain clauses of which referred to political or ideological requirements, has been repealed by Act No. 15 of 7 August 1990 on the reorganisation of state economic undertakings into independent authorities and trading companies. Decree No. 337/1983 approving the content of labour contracts for enterprises, industrial centres, ministries etc., according to which every worker had to pledge himself to "campaign actively (...) for the strict application of party decision", has been repealed by Legislative Decree No. 149/1990 referred to earlier (see paragraph 236).
1133. 444. Section 23 of Decree No. 413/1979 approving the conditions of service of civil aviation staff, according to which persons to be promoted must have a good political-ideological training, give evidence of profound attachment to the socialist system and apply with consistency the policy of Party and State, has not been repealed. Decree No. 92/1976 concerning the work book and Decrees Nos. 360/1976 and 361/1976, to issue disciplinary rules for transport workers, and postal and telecommunication staff, have not been modified to eliminate from the work book, which the worker must carry with him throughout his working life, such references as might lead to discrimination on the basis of political opinion (see paragraph 243).
1134. Wages
1135. 445. National Assembly Decision No. 4/1983, concerning the strict implementation of the principles of worker management and joint worker-management control, the improvement of economic and financial mechanisms, the wage system and wage increases during the Five-Year Plan, which underlies the laws and regulations permitting remuneration "by global agreement", has been repealed by Legislative Decree No. 149/1990 referred to earlier. The clause concerning unlimited wage reductions, adopted in accordance with Acts Nos. 57/1974, 2/1983, 1/1986 and other prescriptions, have been repealed in accordance with section 3 of Legislative Decree No. 35 of 19 January 1990 concerning the modification of certain regulations on wages. Under the terms of section 16 of the aforesaid Legislative Decree, the term "remuneration" used in Act No. 57/1974 and other subsequently adopted legislation, is to be replaced by the term "wage" (see paragraphs 288-292). Act No. 3/1982, concerning workers' profit-sharing in state socialist undertakings to establish an economic development fund, has been repealed by Legislative Decree No. 1/1989, referred to earlier.
1136. 446. On 8 February 1991, Parliament adopted Act No. 14 on wages, which came into effect on 9 March 1991. In accordance with section 12 of this Act, Acts Nos. 57/1974 (with the exception of sections 75, 193 (paragraph 1), 196 and 197) and 2/1983 have been repealed, as have Decrees Nos. 335/1983 on the application of the "remuneration by global agreement" and 336/1983 on the calculation and supervision of the uses of the wage fund. The whole corpus of laws and regulations relating to wage policy in effect since 1974 has been repealed by this Act. Section 2 of Act No. 14/1991 stipulates that wages should be fixed without distinction on grounds of political opinion, ethnic or religious affiliation, age, sex or material situation.
1137. Promotion
1138. 447. Section 13, paragraph 1 of the 1972 Labour Code, which stipulates that the worker's political-ideological training shall be taken into account in the matter of promotion to higher duties, has been modified by the above-mentioned Legislative Decree No. 147/1990. The new text of section 13 refers to "the improvement of vocational training and general culture" which is a "right and a duty of all workers on the basis of which they be appointed or promoted to the corresponding duties". It will be necessary to observe the scope that will be given, in practice, to the term "general culture", so that this cannot be interpreted in such a way as to allow the introduction of ideological or political requirements incompatible with the Convention.
1139. 448. Section 75, paragraph 1 of the Labour Code, which refers to the criterion of "political training" for persons to be promoted to management functions, has not been repealed or modified (see paragraph 324).
1140. Appeals
1141. 449. The Commission has not been informed of any modifications to the provisions of the Labour Code concerning appeals (see paragraph 378 et seq.).
1142. 450. In accordance with section 2 of Legislative Decree No. 92 of 14 March 1990, respecting the election of Members of Parliament and the President of Romania, which determines the relations between the powers, the Government of Romania is based on the separation of the legislative, executive and judiciary powers. This principle of the separation of powers is reaffirmed in several instruments, such as Legislative Decree No. 140 of 11 May 1990, respecting staff appointments and salaries in the Justice Department and Public Prosecutor's Office, and Act No. 37 of 7 December 1990 on the organisation and operation of the Romanian Government. At the time of the talks between the Commission and the Secretary of State for Justice, far-reaching changes in the legal system were under discussion. In order to ensure the independence of the magistracy, there are plans to place the Public Prosecutor's Office under the supervision of the Ministry of Justice and to put an end to its former control over the magistracy, especially regarding the defence of the socialist regime and the legitimate rights and interests of the socialist organisations. This control is to be transferred to a superior council of the magistracy. An intermediate division, allowing for appeals, is to be added to the two existing divisions of the judiciary. There are also plans to abolish the system of judicial committees, elected by the workers, to examine certain categories of dispute under labour law.
1143. Systematisation policy
1144. 451. Some of the first repeal measures enacted by the new authorities concerned the policy of systematisation. Legislative Decree No. 1 of 26 December 1989 rescinded Act No. 58/1974 respecting territorial systematisation in urban and rural districts, as well as Decree No. 56/1978 concerning the organisation of the Central Committee of the Party and the State for the territorial systematisation of urban and rural districts and the local systematisation committees. The preamble to Legislative Decree No. 38 of 22 January 1990, concerning the repeal of Act No. 2/1989 respecting local administrative organisation, states that this Law, "adopted during the dictatorship had, wrongly and unjustifiably and without the consent of the people concerned, destroyed up to 300 communes and a large number of villages". Legislative Decree No. 149/1990, referred to earlier, has repealed Decree No. 674/1969 relating to certain measures to direct, co-ordinate and control activity in the field of construction, architecture and systematisation. This Decree was not listed in the index of laws and regulations in force at 1 January 1989. (Endnote 226)
1145. Other measures
1146. 452. Many other provisions, which could have been used at one time or another to justify the adoption of measures leading to discrimination in employment and occupation within the meaning of the Convention, have been repealed or modified. Decree No. 358/1948 prohibiting the Greek Catholic form of worship (see paragraph 136) has been repealed by the aforementioned Legislative Decree No. 9/1989, while Decree No. 151/1984 concerning the conditions for carrying out certain public works by the organisations of the Communist Youth League and the League of Romanian Communist Students' Unions, which empowered these organisations to make young persons perform compulsory work ("patriotic work") under threat of loss of benefits or of difficulties in gaining access to certain types of vocational training, has been repealed by Legislative Decree No. 149/1990 referred to earlier (see paragraph 436). The repeal of Act No. 5/1978 has made it possible to abolish all provisions enabling the Single Party to exercise its authority at the workplace, notably by ensuring that the President of the Workers' Council and one of its Vice-Presidents were appointed to the respective posts of Party Organisation Secretary and Secretary of the Communist Youth League, or that the Party Secretary should participate ex officio in the meetings of the executive board of the economic unit.
1147. 453. To a large extent, the laws and regulations underlying the adoption of discriminatory policies in employment and occupation have been abolished. There are still, however, a few remaining provisions which, when used in the pasts, served as a basis for measures taken in the field of employment and occupation, against persons who had expressed certain political opinions.
1148. Modification of discriminatory administrative practices
1149. 454. Discriminatory administrative practices were very widely used and played a considerable role in the policy pursued, in the matter of employment and occupation, by the authorities in power up to December 1989. The laws and regulations in force left extensive room for arbitrariness of interpretation in favour of the interests of the Single Party. The renunciation of the concept of the leading role of the Single Party and, above all, the recognition of the plurality of the political and social actors, have encouraged the elimination or modification of discriminatory administrative practices at the workplace. Progress has been made in this field since December 1989.
1150. 455. The existence of workers' organisations, independent of both management and government, is a new element which could help mitigate the previous arbitrary situation. Within the scope of its mandate, the Commission attaches considerable importance to the existence and smooth operation of such workers' organisations as have already been formed or are to be formed in the future, and to the employers' organisations, which will undoubtedly emerge accordingly as conditions are established allowing private persons the right to engage freely in economic activities of all kinds. In this respect, the Commission recalls that the State which has ratified the Convention undertakes, under the terms of Article 3(a), to seek the co-operation of employers' and workers' organisations in promoting the acceptance and observance of the policy designed to promote equality of opportunity and treatment in respect of employment and occupation. Observance of this provision presupposes that the principles of freedom of association are fully applied.
1151. 456. However, specific allegations, which mention practices which might result in the perpetuation of discriminatory practices or the introduction of new types of discrimination in employment and occupation, have been referred to the Commission. These allegations mainly concern dismissals and reprisals against persons alleged to have expressed political opinions contrary to those of the government in power. Moreover, there have been allegations regarding certain practices, such as incitement to denunciations at the workplace to incriminate persons on grounds of their political views. The Secretary of State for Education informed the Commission that teachers who had fallen foul of the old regime were assigned to administrative or research work, if sufficiently qualified; some of them being allowed to retire. In the case in point, the Government was anxious not to create a new class of outlaws.
1152. Dismissals and reprisals
1153. 457. The complainants referred to the situation of Mr. Ioan Manucu, a railway engineer, head of the fixed installation section of Craiova No. 1 electric traction, dismissed on 15 June 1990. Mr. Manucu testified before the Commission.
1154. 458. Mr. Manucu, in his capacity as head of section, on the evening of 13 June 1990, cut off the electric current on part of the line, to prevent the running of trains which did not conform to the railway regulations in force. These special trains to Bucharest were intended for the transportation of miners responding to President Iliescu's call to "workers and persons of conscience" to defend "the values of the December 1989 Revolution" which were threatened by a "Legionary" coup d'état. The trains were delayed by two hours. The dismissal was pronounced by the Board of Directors of the Romanian Railways for the Craiova district, on the basis of section 5 of the Disciplinary Rules for Transport Workers, concerning attitudes or behaviour which could jeopardise the social life of the country. Mr. Manucu appealed against this decision to the Craiova Tribunal. His complaint was filed under No. 8639 and is still pending. The Board of Directors lodged a criminal complaint against Mr. Manucu at the Dolj district Public Prosecutor's Office for breach of rail traffic security and misuse of power, claiming damages estimated at 6,100 lei. The Public Prosecutor rejected these charges and declared the case closed.
1155. 459. The Craiova Railways regional management had not pressed for Mr.ùManucu's dismissal on grounds of professional misdemeanour, as covered in Circular No. 3 "Prevention and treatment of railway incidents". On the contrary, it announced, in a press release published on 16 June in the Bucharest daily "Adevarul", that the engineer Manucu had been dismissed, with the approval of the trade union, for having "disrupted normal traffic of passenger and goods trains". However, on the same day, the Railway Workers' Union from the fixed installations section of the Craiova electric traction (registered with the Craiova Tribunal under No. 189/PJ/1990), published a press release stating its unequivocal opposition to Mr. Manucu's dismissal.
1156. 460. In reply to a question from the Government representative implying that Mr. Manucu had defied orders from his superiors, Mr. Manucu explained that the general manager had indeed ordered him to restore the current on the line, but although this person was his administrative superior, he had not the authority to give this technical order. (Endnote 227) The Commission would point out that the former Minister of Transport, Mr. Pavel Aron, who, at the express command of Ceaucescu, had organised on 20 December 1989 the transportation to Timisoara of the patriotic guards, sent to restore order and disperse the demonstrators, had been brought before the courts in January 1990 for non-observance of the provisions of the Railway Regulations concerning special trains. These are the same railway regulations which Mr. Manucu observed on 13 June 1990 in cutting the electric current. As Mr. Manucu explained in a memorandum submitted to the Public Prosecutor's Office, "exercising the power of decision vested (in him) by procedural directives, (he had) tried to prevent the movement of these trains towards Bucharest by cutting the traction current on the Lainici station line in the Jiu defile; the convoys in question were not authorised to run on electric traction". (Endnote 228) Mr. Manucu was dismissed for having respected this procedure. The dismissal of Mr. Manucu was a dismissal on political grounds, pronounced by the public authorities. Such a practice, which defies the provisions of section 130 of the Labour Code, is not in conformity with Article 3(c) and (d) of the Convention.
1157. 461. One witness referred to the situation of one of his colleagues, Mr. Petre Moldovanu, who had emigrated to the Federal Republic of Germany in 1988 and returned to Cluj/Kolozsvar in December 1989. In accordance with the provision of Legislative Decree No. 7 of 31 December 1989 concerning the repatriation of Romanian citizens and former Romanian citizens, authorising the reinstatement in their former employment of persons who had left the country and subsequently returned, Mr. Petre Moldovanu had resumed his post in the calculation section of the Ministry of Mining in Cluj and had signed an employment contract. In April, he took part, outside working hours, in solidarity demonstrations organised in Cluj/Kolozsvar to coincide with the demonstrations on University Square in Bucharest. The management of the enterprise informed him that his labour contract had not been signed by the competent person and offered him a new, fixed-term contract. This new contract is not in conformity with section 63, paragraph 1, of the Labour Code, which specifies that the maximum probationary period is 15 days, a period which Mr. Moldovanu had already completed. After fruitless discussions, since the enterprise was unwilling to grant him a permanent contract, Mr. Moldovanu gave in and left the enterprise with the observation "separation with the agreement of both parties" entered in his work book. (Endnote 229)
1158. 462. A further witness, referring to persons who had been arrested during the events of 14 and 15 June in Bucharest, stated that these persons had lost their jobs because of their arrest for having participated in demonstrations organised by opposition movements. The witness explained that these persons had been detained for over two months and then released, without any proof of their guilt having been provided by the Public Prosecutor. However, according to section 130, paragraph (j) of the Labour Code, the labour contract may be terminated on the initiative of the unit in a case where the person concerned has been sentenced to imprisonment for more than 60 days. In the opinion of the witness, the state authorities, who detained these persons for over two months, are responsible for their losing their jobs. (Endnote 230)
1159. 463. Yet another witness stated that workers in certain enterprises in Bucharest had been threatened with the loss of one day's wages unless they took part in the pro-Government demonstrations of 13 and 14 June 1990. The workers in question were employees of the IMGB enterprise and of the underground works section of the Bucharest metro. The chief engineer of this group threatened to make the workers in his section lose a day's wages; he dressed up as a miner and led the group on the streets of Bucharest. He was subsequently disavowed by the management of the metro which was opposed to such practices. (Endnote 231) The press voiced similar threats to persuade the miners in certain coal fields to go to Bucharest on 13 and 14 June. The weekly newspaper "Timisoara" reports the statements of a miner from Comanesti that "those who did not want to go were threatened by their section chiefs with penalties for unexplained absence" if they did not go to Bucharest. For one day of unexplained absence, a miner loses a month's payment of his seniority bonus, family allowance, special maintenance allowance and 5 per cent of his basic wage.
1160. 464. Referring to the situation in the Pitesti automobile construction works, where he is employed as a driver, one witness, Mr. Aurica Preoteasa, spoke of disputes with the head of his department, a former member of the Single Party, who had been appointed by the department staff in December 1989 following elections contested by the witness. On 18 April 1990, Mr. Preoteasa was dismissed on the grounds that he had attempted to steal a carburettor, which members of the security personnel had found in his vehicle. Mr. Preoteasa appealed against this decision before the Works Management Board, which, after an inquiry, decided to reverse the decision to terminate the labour contract, and to reinstate Mr. Preoteasa in his job from 31 May. The charge of theft, brought before the Public Prosecutor's Office for the department of Arges, was also dismissed. Every day for three months, Mr. Preoteasa reported at the factory for work, only to be turned away by the head of his department, who refused to abide by the decision of the management board. The Ministry of Engineering had to intervene before the manager of the factory would take appropriate measures to have the Board's decision respected and Mr. Preoteasa reinstated. (Endnote 232)
1161. 465. At the request of the Commission, one non-governmental organisation submitted information on threats of dismissal made against persons, to induce them to vote for one politcial party or deter them from participating in the campaigns of other parties. (Endnote 233) Among the abuses committed during the electoral campaign, Helsinki Watch mentions the statement of Dr. Aurel Maxim, Head of the Parliamentary Commission on the election for the county of Sibiu, according to which workers were being told by their supervisors in the factories that they would lose their jobs if they did not vote for the National Salvation Front. A peasant woman in the village of Risiori reported that members of the agricultural co-operative were told by the members of the National Salvation Front that they would not get feed for their animals if they did not become members of the Front. Thus, many in the co-operatives had signed. Some members of the co-operative indicated that they were afraid of their fate if they actively opposed the Front.
1162. 466. During its interviews in Bucharest, the Commission was also informed of the suspension from office of Mr. Vartan Arachelian, director of programmes for national minorities on Romanian television (and producer of the political show "The words that build" which was cancelled), though his capability and professionalism were well known. This suspension was the subject of a parliamentary question in order to determine the reasons for this case. The Commission did not have before it any information on the follow-up to this case.
1163. Calls for denunciations
1164. 467. One witness referred to appeals for denunciations launched on radio or television by the highest state authorities, calling in particular for lists of state enterprise employees who had been involved in political activities in connection with the University Square demonstrations in Bucharest. Similar appeals were repeated in a number of publications.
1165. Threats
1166. 468. The Commission has been informed of threats made against workers expressing political opinions other than those of the parties which supported the Government. One of the mildest of these threats is that of loss of employment. The Commission would emphasise in particular the situation of Messrs. Mihai Torja, Marian Lupu and Bogdan Serban, employees of an enterprise in Zarnesti in the county of Brasov, who were victims of a virulent press campaign calling on the authorities to dismiss them on grounds of their political views, their trade union activities and their alleged links with foreign trade unions. The Commission is worried by the tone and the violence of the attacks published in the Brasov/Kronstadt local newspaper (Endnote 234) against these persons, who are being reproached with their attitude before the change of government: participating in or organising strikes, publishing and circulating tracts and manifestos, etc. Under the old regime, these activities had earned them a conviction and transfer to hard labour in distant regions. The persons concerned are of the opinion that these attacks are possible only with the collusion or connivance of the local authorities.
1167. 469. One witness spoke of threats against peasants who refuse to work any longer in the agricultural co-operatives: the state organisations were refusing to supply them with the inputs or the mechanised services that they needed for their work. (Endnote 235)
1168. 470. Threats to close down or wreck their enterprises were reportedly made against persons engaged in legitimate activities under the terms of Legislative Decree No. 54/1990 on the organisation and implementation of economic activities based on free initiative, if they persisted in putting up bilingual signs or notices, in Romanian and Hungarian. These persons were obliged, in certain cases by force, to take off of their signs the indications in the Hungarian language. (Endnote 236)
1169. CHAPTER 15
1170. REPARATIONS
1171. 471. In view of its undertaking to respect human rights, the new Government has been seeking means of remedying the consequences of human rights violations committed by the previous regime and of redressing the wrongs suffered. Equality of opportunity in employment and occupation had, in a number of cases, been nullified or impaired. The reparation measures are a manifestation of the Government's will to restore this nullified or threatened equality. Not all the measures adopted to repair human rights violations concern the application of the Convention. However, some of them are designed to remedy the consequences of discriminatory practices in areas covered by the Convention.
1172. 472. Reparation measures relating to the application of the Convention have taken various forms: amnesties, establishment of ad hoc committees to settle cases of persons claiming to have been wronged, adoption of regulations designed to remove discriminatory measures, re-examination of certain verdicts, compensation granted by the tribunals. Numerous other measures to redress wrongs suffered as a result of the application of discriminatory measures have been enacted in specific instruments. Thus, section 2 of Legislative Decree No. 35 of 19 January 1990, concerning the modification of certain regulations on wages, provides for a full reimbursement of wage deductions made during 1989, to paid-in instalments spaced out over 1990 and 1991. This partial reparation, however, applies only to wage deductions effected in 1989.
1173. Amnesty measures
1174. 473. An amnesty covering political offences committed between 30 December 1947 and 22 December 1989 inclusively was granted by Legislative Decree No. 3 of 4 January 1990, respecting amnesty for certain offences and remission of certain penalties. Under the terms of section 1, political offences, as defined in the Penal Code and special laws, committed since 30 December 1947 are amnestied. Included under the definition of political offences subject to amnesty within the meaning of the Legislative Decree are: actions in connection with the expression of opposition to the dictatorship and the personality cult, the terrorism and abuse of power committed by those who held political power. The definition also covers actions committed in connection with respect for human rights and fundamental freedoms, with the demand for civil and political, economic, social and cultural rights, and the abolition of discriminatory practices.
1175. Activities of the Provisional Council of National Unity Committee
1176. 474. In accordance with section 3(p) of Legislative Decree No. 82 of 13 February 1990 respecting the composition of the Provisional Council of National Unity (PCNU) and its Executive Board, and of the Council's specialised committees, a specialised committee was formed "to inquire into abuses and violations of basic human rights and to rehabilitate the victims of the dictatorship". This Committee elected Mr. Nicu Stancescu as its chairman and worked from March to May 1990.
1177. 475. During the three months of its proceedings, the Stancescu Committee received over 18,000 claims for reparation of human rights violations committed by the previous government. It examined and settled between 4,000 and 5,000 cases. (Endnote 237) The Commission of Inquiry was unable to meet or speak to Mr. Stancescu during its visit to Romania as he was out of the country on a mission.
1178. 476. One witness, a member of the Stancescu Committee, said that several hundred files concerned cases of abuse at the workplace. He also stated that it had been impossible for the Committee to conduct its proceedings efficiently, largely owing to lack of personnel and the inordinate number of cases. He also referred to a certain lack of co-operation on the part of those whose duty it was to help solve the cases. (Endnote 238) In reply to a question by the government representatives, the witness stated that relations between the Stancescu Committee and the various ministries concerned, notably the Ministry of Labour, had been satisfactory. Relations with the Public Prosecutor's Office (Endnote 239) had been more difficult. When the Committee discontinued its proceedings shortly before the elections of 20 May 1990, there were some 14,000 claims for reparation still outstanding. The witness spoke of Mr. Stancescu's complaint that, since that date, the files had been left in such a state that it would be difficult to resume them for examination by the competent departments in each ministry. (Endnote 240)
1179. 477. The PCNU Committee has not published a general report on its proceedings, but it reported periodically to the Provisional Council of National Unity on its activities and on the difficulties encountered. The Government has not communicated more detailed information on the results achieved by the PCNU, under the chairmanship of Mr. Stancescu, as requested in a letter from the Chairman of the Commission of Inquiry dated 16 October 1990.
1180. Legislative Decree No. 118 of 30 March 1990
1181. 478. The Provisional Council of National Unity adopted, on 30 March 1990, a Legislative Decree to grant rights to persons persecuted for political reasons by the dictatorship established on 6 March 1945. In accordance with this Decree, time spent in detention or in work not corresponding to the training received is taken into account for the calculation of seniority or years of service or employment. The provisions of this Decree are analysed in paragraphs 478 to 495.
1182. Scope
1183. 479. Employed or retired persons charged with political offences who have found themselves in one of the following six situations may apply to the departmental committees for recognition of their rights to benefit from the provisions of the Decree:
1184. - deprivation of liberty, pronounced on the basis of a final decision of the court or on the basis of a detention order for offences of a political nature;
1185. - deprivation of liberty as a result of administrative measures or to serve the needs of an inquiry by the forces of repression;
1186. - psychiatric internment;
1187. - house arrest;
1188. - forcible transfer from one place to another;
1189. - first or second-degree disability arising during or following any of the above five situations, and preventing the person from finding work.
1190. 480. By virtue of section 8 of the Legislative Decree, persons who were not able to engage in their occupation or employment during the period leading up to their political arrest, or during the investigation of their case by the forces of repression, may also claim their rights under this Decree (section 8).
1191. 481. Under the terms of section 9, the provisions of this Decree also apply to repatriated persons and Romanian citizens in other countries, on condition that they take up permanent residence in Romania.
1192. 482. In accordance with the single section of Act No. 38 of 13 December 1990, the provisions of Legislative Decree No. 118 are extended to persons deported after 23 August 1944. This category includes persons considered as prisoners by the Soviet side from that date.
1193. Exclusions
1194. 483. Excluded from the scope of the Legislative Decree, in accordance with section 11, are persons convicted of crimes against humanity, though the article in question does not specify by what tribunals and under the provisions of what laws these persons may have been convicted. Section 11 also excludes persons who have conducted "proven fascist activities" as members of an organisation or movement of that type. This provision refers to persons who were involved in such activities in the past and not persons currently involved in these activities. The concept of "proven fascist activity" is sufficiently vague to cover the manifestation of opinions or beliefs, or even membership of any kind of opposition organisation or movement, without any criminal or illegal act having been committed. Finally, the wording of section 11 of the Decree, "in the framework of an (fascist) organisation or movement", leaves the door open to the establishment of distinctions on the basis of membership or support of an organisation or movement described as being fascist.
1195. 484. The epithets "fascist" or "legionary" (Endnote 241) were frequently used in the past by the authorities of the Socialist Republic of Romania to describe the activities of all the former political parties subscribing to the liberal, Christian democratic or social democratic ideology or nationalist. More recently, these terms were widely used by the mass media during the events of June 1990 in Bucharest, though the "fascist" or "legionary" nature of the persons or parties thus referred to was by no means established.
1196. Nature of the situation and means of proof
1197. 485. It must be established that the persecution was conducted on political grounds, but the Legislative Decree fails to define what is meant by political grounds.
1198. 486. Under the terms of section 6, proof of the situations referred to in section 1, paragraph 1, must be supplied by the party concerned, on the basis of official documents issued by competent authorities or, where this is not possible, by any legal means. The formulation of this section makes it difficult to produce proof in the case of an unexplained refusal on the part of the competent authority to issue an "official document", especially in cases where no conviction had been pronounced by any court. The wording of section 8 raises a similar question: the proof that a person was unable to engage in his occupation during the period leading up to his arrest, when he was being prosecuted for political reasons by the forces of repression, must also be substantiated by a judicial decision.
1199. Nature and scope of reparations
1200. 487. The reparations provided for under the Legislative Decree are of three kinds: the taking into account of the duration of the persecution or its consequences in the calculation of seniority in employment; financial indemnities proportionate to the duration of the persecution; and entitlements in respect of medical care and housing accommodation.
1201. 488. Section 1, subsection 2, of the Legislative Decree stipulates that each year of detention or internment under the circumstances listed in paragraph 1 shall be considered as one year and six months of service or employment. In order to claim this right, persons who were under house arrest or forcibly transferred from one area to another must supply proof that they are unable to engage in employment "in posts for which they had received vocational training". Seniority thus calculated is considered as continuous employment (uninterrupted seniority) in the same "work unit" (subsection 5). This seniority is taken into account in the calculation of the retirement pension (Endnote 242) and other entitlements accruing with seniority: remuneration level (Labour Code, section 82.2), bonuses, paid leave (Labour Code, section 125), severance pay, for example. Seniority is also a factor in the allocation of certain goods or services (housing, vacations in works holiday centres, purchase of certain consumer goods, etc.).
1202. 489. Employed or retired persons, covered by the definitions contained in section 1, are entitled to a monthly allowance of 200 lei for each year of detention, internment, house arrest or forcible transfer. The amount of 200 lei per year of detention was considered very low by the Association of Former Political Detainees.
1203. 490. Persons receiving the financial indemnities provided for under section 3 are also entitled to free medical care and medicaments from the state health services. Moreover, persons who have been in situations referred to in section 1 are given priority in the allocation of housing "from the state housing property, subject to the legal provisions in force". The original part of this state property consists of buildings confiscated from their former owners, frequently for political reasons.
1204. 491. Furthermore, according to section 36 of Act No. 18 of 19 February 1990 concerning landownership, persons whose lands were confiscated and given over to the State following a criminal conviction under the terms of Legislative Decree No. 118, or the heirs of such persons, may receive shares in companies established under Act No. 15/1990 of 7 August 1990 on the reorganisation of state economic undertakings, up to an amount equivalent to the value of ten hectares of land per family.
1205. Committee composition and procedure
1206. 492. The machinery set up for the implementation of the Legislative Decree comprises committees established at county level and composed of government officials and representatives of the parties concerned (the Association of Former Political Detainees and Victims of the Dictatorship), assisted by a secretariat provided by the decentralised departments of the Ministry of Labour and Social Security. A national committee is responsible for the coherence of the entire procedure, but has no function whatsoever in respect of appeals against decisions taken by the county committees.
1207. County committees
1208. 493. County committees have been formed in each county and in Bucharest. They are composed of six members (two government officials from the Directorate of Labour and Social Security and four representatives of the Association of Former Political Detainees and Victims of the Dictatorship) and one chairman, who must be a lawyer. The method of designating the chairman is not explained. The composition of the local committees is supervised by the central committee in respect of the conditions of composition contained in the Decree, quoted above. The committee must pronounce a well-founded verdict within 30 days on the claims referred to it (section 5, subsection 6). Two-thirds of the members form a quorum, and the decision is taken on the majority vote of those present. Both the claimant and the Directorate of Labour and Social Security may appeal against the decision before the county tribunal or the Bucharest Tribunal, within 15 days from the day on which the decision is published. The decision of the tribunal is final.
1209. National Committee
1210. 494. The National Committee is composed of seven members (one representative of the Ministry of Justice, one representative of the Ministry of Labour and five representatives of the Association of Former Political Detainees and Victims of the Dictatorship) and elects its chairman from among these members (section 5, subsection 3). The role of the National Committee is to co-ordinate the activities of the local committees (subsection 4): to this effect, it supervises the composition of the local committees and gives them the assistance necessary for the solution of the cases referred to it (subsection 5). The nature of this assistance is not specified, any more than are the hearing procedures of the National Committee. The National Committee organised a seminar in mid-June 1990 for the benefit of members of the local committees, to co-ordinate the decision-making criteria decided upon.
1211. Implementation of decisions
1212. 495. According to section 7, the enterprises that employ the persons concerned, the departments of Ministry of Labour and the municipal councils shall carry out the final decisions adopted by the committees or the tribunals. Adequate financial provision has been made, as far as the Ministry of Labour is concerned.
1213. 496. The Government has provided the Commission with information concerning the implementation of Legislative Decree No. 118. On 25 August 1990, 9,312 reparations claims were registered throughout the country, 5,430 of which have been settled; 3,882 cases are still pending.
1214. Measures enacted in higher education
1215. 497. In a document communicated to the Commission, (Endnote 243) the Government stated that certain injustices in higher education, inherited from the period of dictatorship, had been eliminated. Students who had previously been excluded from higher education for political or religious reasons, or who had not passed examinations on ideological questions, were reintegrated in their universities. The Commission requested the Government to provide further details on these cases at its second session. In its reply, (Endnote 244) the Ministry of Labour indicated that all students who had been expelled for political or religious reasons had, without any discrimination, been re-enrolled in the academic course and level of the year in which they had been expelled. The Government added that teachers who had been persecuted for political or religious reasons now enjoyed their full rights.
1216. 498. The Commission has not been able to gather any more detailed information concerning, in particular, the number of students and teachers reinstated in their right to pursue an education, without discrimination on the basis of political opinion or of religion. During the talks it was able to conduct, both with government officials and private individuals, the Commission detected a certain reticence on the subject of re-enrolment measures. A number of persons, including one of the witnesses, continued to assert that, under the former regime, the only criteria for access to higher education had been competence and merit.
1217. Action taken in favour of members of national minorities
1218. 499. In accordance with section 16 of Act No. 18 of 19 February 1991 concerning land ownership, "Romanian citizens belonging to the German minority, who were either deported or transferred and dispossessed of their lands by a prescription enacted after 1944", if they so request, shall be awarded priority in the allocation of an area of land not exceeding ten hectares per family from the land reserves placed at the disposal of commissions in the localities from which they originated. Should the lands of which they were dispossessed have become state property, they may, on request, receive a number of shares proportionate to the value of ten hectares of land per family.
1219. Special cases brought to the notice of the Commission
1220. 500. Detailed information was referred to the Commission concerning the situation of the workers in Brasov, who, in November 1987, had demonstrated against the government in power. On 3 December 1987, the Brasov District Tribunal convicted 61 workers of outrage to public decency and disturbance of the peace ("hooliganism"), under section 321, subsection 2 of the Penal Code. In addition, the majority of these 61 workers were forcibly transferred to other areas, to more arduous and lower-paid jobs. Furthermore, these workers declared that they were ill-treated during their arrest and detention. They fear that they were irradiated during their detention after being exposed to radioactive substances. They stated that one of them died after showing symptoms of having been irradiated: loss of hair, diarrhoea, skin problems; two others show similar symptoms. They requested a medical examination to be carried out by an international organisation in order to analyse the symptoms and to determine if others in the group had been irradiated.
1221. 501. These 61 persons were able to return to Brasov in the final days of December 1989. At this time they formed an "Association of 15th November 1987" and lodged an extraordinary appeal with the Public Prosecutor, for the reversal of the decision of the Brasov District Tribunal. The Public Prosecutor considered that the appeal could be brought before the court. The Supreme Court of Justice pronounced its ruling on 23 February 1990, quashing the penal sentence of the Brasov District Tribunal. The persons convicted in December 1987 were consequently acquitted of the charge of outrage to public decency and disturbance of the peace. However, the 61 persons concerned felt that this decision did not do justice to their case, in that it did not recognise the political nature of the actions for which they had been condemned.
1222. 502. The Commission heard the testimony of one of the members of the "Association of 15th November 1987" of Brasov, Mr. Miroea Sevaciuc, who explained the reasons for the appeal lodged with the Public Prosecutor for the redefinition of the charges brought against them in December 1987. (Endnote 245) The Commission is gratified to note that the Supreme Court, in a ruling of 5 March 1990, redefined the charges and recognised the political nature of the demonstration of 15 November 1987 in Brasov and the actions carried out on that occasion.
1223. 503. Following the first decision of the Supreme Court on 23 February 1990, the members of the association requested the authorities to make good the financial losses they had suffered as a result of their conviction and transfer.
1224. 504. After their request had been examined by the enterprises and the ministries responsible for the latter, the Ministry of Labour, on behalf of the Government of Romania, gave a definitive reply on 13 September 1990. This decision recalled the provisions of section 13 of Legislative Decree No. 35/1990 concerning the modification of certain regulations on wages. The remuneration of persons excluded from employment for political reasons is calculated in conformity with the provisions of section 200, subsection 2, of Act No. 57/1974 respecting remuneration based on the quality and quantity of work in state units, handicraft and consumer co-operatives, at the level of the fixed wage on the day on which the labour contract was terminated, and taking into account length of continuous employment (uninterrupted seniority) in the same enterprise on that same date, with a view to awarding the corresponding seniority bonus. The decision also recalls that under the terms of section 136 of the Labour Code, the unit is bound to reinstate the person whose contract was wrongfully terminated and pay him compensation calculated on the basis of his average wage during the last three months preceding the termination of his contract and to grant him all the individual rights of which he was deprived. These rights are as follows:
1225. - payment of the difference between the wages paid before the termination of the labour contract and those paid since termination of contract or transfer;
1226. - payment for days not worked during custody and police investigation and until reinstatement in employment;
1227. - payment of premium for uninterrupted seniority in the same unit;
1228. - restitution of wage deductions in the case of persons condemned to serve their sentence at their place of work;
1229. - paid leave calculated on the basis of the conditions applicable before termination of the contract;
1230. - payment of children's allowances for the periods during which these allowances were not paid in full or in part;
1231. - allowances for transfer in the interest of the service; transport costs incurred by visits to their families, in the case of persons transferred to localities other than the locality in which their family is domiciled;
1232. - restitution of monies representing rents paid to workers' hostels in the enterprises in which the persons in question were accommodated.
1233. 505. On the other hand, claims concerning the recovery of wives' wages, compensation for moral wrongs, supplementary payments for work with toxic substances, and legal costs cannot be covered. All the monies mentioned above are to be paid by the undertakings in which the persons concerned were employed on 15 November 1987.
1234. 506. The decisions of the Brasov District Tribunal, to which the members of the Association had applied, with a view to obtaining compensation for the wrongs suffered as a result of the decisions taken in December 1987 and reversed by the Supreme Court, were pronounced on 10 September 1990. According to these decisions, the monies due should not be payable by the undertakings in which the workers were employed, but by the Romanian State. The Tribunal bases its decision on the "fact that the decision (to dismiss the workers) was not signed by the manager of the undertaking, which proves that the undertaking was not responsible for terminating the labour contract, the operation having been carried out, in defiance of the law, by the personnel department at the command of the state authorities and the Securitate". The State retains the right to recover the sums paid to those who took the decisions at that time. The Tribunal recognises the claims of the complainants and awards them a sum in respect of the difference in wages, for allowances, for seniority bonuses retroactive over three years, for legal costs and for compensation for moral wrong, taking into consideration the complainant's distance from his family, home, friends, etc.
1235. CHAPTER 16
1236. EQUAL OPPORTUNITY AND TREATMENT IN RESPECT OF MEMBERS OF MINORITY GROUPS
1237. 507. The new authorities clearly indicated in the first communiqué published on 22 December 1989 their determination to respect human rights in general and, as expressed in point 7 of the communiqué, "the rights and freedoms of the national minorities and their full equality before the law with Romanians". (Endnote 246) These terms were fully incorporated in the preamble of Legislative Decree No. 2 dated 27 December 1989 concerning the constitution, organisation and function of the National Council and Territorial Councils of the National Salvation Front. Under the provisions of section 4 of this Legislative Decree a specialised committee "on national minorities" was set up. (Endnote 247)
1238. 508. A similar committee was set up under section 3(j) Legislative Decree No. 82 dated 13 February 1990 respecting the composition of the Provisional Council of National Unity and its Executive Board, and of the Council's specialised committees when the Council of the National Salvation Front was replaced by the Provisional Council of National Unity.
1239. 509. On 5 January 1990, the Council of the National Salvation Front published a declaration on the rights of the national minorities of Romania which rejected the discriminatory practices and the policy of forced assimilation which had characterised previous practice. The programme which was announced comprises the points: (1) "the recognition and guarantee of the individual and collective rights and freedoms of national minorities in the new Constitution of the country"; (2) "the preparation and adoption of an act respecting national minorities, in accordance with the provisions to be inscribed in the Constitution and adopted by Parliament within a period of six months following the adoption of the Constitution"; (3) "the establishment by law, with a view to providing the necessary institutional framework for the exercise of the basic rights of minorities, of education in their mother tongue, the promotion of the national culture and the defence of ethnic identity. To this end, a Ministry of National Minorities shall be created".
1240. 510. Within this general framework, measures have been adopted mainly within the sphere of training and a number of administrative practices have been amended. The Commission believes that it is necessary to review measures which although not related to the application of any given Article of the Convention do, however, form the context of a policy of equal opportunity and treatment in employment and occupation without discrimination based on national origin or race. Although the Commission will restrict itself to noting the existence of these measures without expressing its views on their intrinsic value, it believes that their existence and the application which in principle they should be given are such as to facilitate the acceptance and application of a national policy in line with the provisions of Article 2 of the Convention.
1241. General measures
1242. 511. One of the concerns expressed by the authorities has been to ensure the political representation of minorities. The existence of committees on minorities in the two "legislative" bodies established before the general election of 20 May 1990 is proof of this.
1243. 512. Section 1 of Legislative Decree No. 81, dated 9 February 1990, to establish the Provisional Council of National Unity makes provision for the representation of minorities irrespective of the numerical size of the minority concerned. Twelve groups have been represented under the provisions of this section: Magyars (Democratic Union of the Magyars of Romania and Independent Magyar Party of Cluj), Germans (Democratic Forum of Germans of Romania), Ukrainians (Ukrainian Union of Romania), Lipovans (Lipovan Community of Romania), Bulgarians (Bulgarian Democratic Union of the Banat and Cultural Associations), Turco-Tatars (Turco-Muslim Democratic Union of Romania), Slovaks and Czechs (Democratic Union of Slovaks and Czechs of Romania), Serbs and Croatians (Democratic Union of Serbs of Romania), Armenians (Democratic Union of Armenians of Romania), Greeks (Union of Hellenes of Romania), Roma (Democratic Union of Roma of Romania) and Jews (Federation of Hebrew Communities of Romania). Furthermore, political parties based on ethnic membership have obtained status as observers in the Council. The parties admitted as observers represent to the Roma (Democratic Party of Free Roma (Sfintu Gheorghe)), Party of the Democratic Union of Roma in Romania (Rimniciu Vilcea), Romani Gypsies Party (Sibiu), Free Democratic Union of Roma of Romania (Cluj), Christian Democrat Party of Roma of Romania (Cluj), or Magyars (Party of Magyar Farmers of Romania (Miercurea Ciuc) and the Magyar Christian Democratic Party of Romania (Cluj)). These parties which emerged after the events of December 1989 are in general of a very local kind as can be seen from the results of the elections of 20 May 1990. Finally, personalities belonging to the Magyar national minorities (Messrs. Karoly Kiraly, Arpad Orban, Emeric Pataki and Lazlo Tökes) and German minorities (Mr. Hugo Hausl) were members of the Council as representatives of the former Council of the National Salvation Front. The Polish minority of Romania was not represented on the Council.
1244. 513. Legislative Decree No. 92, dated 14 March 1990, respecting the election of Members of Parliament and the President of Romania, stipulates in section 4 that the organisations representing national minorities which were registered on the date of the adoption of the Legislative Decree and which have not obtained a sufficient number of votes to sit in the Assembly of Deputies are entitled to one deputy. Under the provisions of section 96, the organisations of national minorities established under the provisions of the Act and which are represented in the Provisional Council of National Unity are considered as political parties if they present lists of candidates.
1245. 514. The results obtained in the elections of 20 May 1990 for the Assembly of Deputies by candidates presented by the national minorities are given in the table XV.
1246. Table XV. Results obtained by candidates presented by national minorites in the elections for the Assembly of Deputies
1247. -----------------------------------------------------------------
1248. Number of votes Percentage
1249. -----------------------------------------------------------------
1250. Magyars including: 994 179 7.25
1251. - the Democratic Union of the
1252. Magyars of Romania 991 601 7.23
1253. - Independent Magyar Party 2 578 0.02
1254. Roms including: 81 418 0.58
1255. - the Democratic Union of
1256. Roma of Romania 29 762 0.21
1257. - Party of the Democratic
1258. Union of Roma 21 847 0.16
1259. - Romani Gypsies Party 16 865 0.12
1260. - Christian Democratic Party
1261. of Roma of Romania 7 939 0.06
1262. - Free Democratic Union of
1263. Roma of Romania 4 605 0.03
1264. Germans
1265. Democratic Forum of Germans
1266. of Romania 38 768 0.28
1267. Lipovans
1268. Lipovan Community of Romania 17 974 0.13
1269. Ukrainians
1270. Union of Ukrainians of Romania 16 179 0.12
1271. Serbs and Croatians
1272. Democratic Union of Serbs of
1273. Romania 9 095 0.07
1274. Turco-Tatars
1275. Turco-Muslim Democratic Union 8 600 0.06
1276. Greeks
1277. Union of Hellenes of Romania 4 605 0.04
1278. Slovaks and Czechs
1279. Democratic Union of Slovaks
1280. and Czechs of Romania 4 584 0.03
1281. Bulgarians
1282. Union of Bulgarians of the Banat 3 451 0.03
1283. Poles
1284. Union of Poles of Romania
1285. "Dom Polski" 2 372 0.02
1286. Armenians
1287. Union of Armenians of Romania 399
1288. Total 1 181 624
1289. Source: Data provided by the Government of Romania.
1290. -----------------------------------------------------------------
1291. 515. The Democratic Union of the Magyars of Romania obtained 29 seats in the Assembly of Deputies. All the other minorities which presented candidates (Germans, Roma, Lipovans, Ukrainians, Serbs and Croatians, Turco-Tatars, Slovaks and Czechs, Bulgarians, Greeks, Poles and Armenians) obtained one seat. The Jewish minority did not present any candidate to the election. The Democratic Union of the Magyars of Romania is an autonomous parliamentary group. The members of the other minorities joined forces in a "parliamentary group of national minorities other than the Magyar minority" comprising 12 deputies following the confirmation of the election of a deputy from Constanza in representation of the Tatars. (Endnote 248)
1292. 516. By Decision No. 17 dated 3 July 1990, the Senate set up a standing committee of 11 members on basic human and citizens' rights, the mandate of which includes, in particular, matters related to the minorities. The National Assembly also set up a committee on human rights, religious beliefs and the problem of national minorities.
1293. 517. There is no ministry specifically responsible for the national minorities. (Endnote 249) A general directorate responsible for promoting the affirmation of the cultural identity of minorities was established within the Ministry of Culture, as well as a directorate within the Ministry of Education and Science.
1294. Measures taken in the sphere of education and training for members of national minorities
1295. 518. The question of training and education in the languages of the national minorities is of special importance for Romanian society as a whole. It was one of the factors which led to the serious inter-ethnic confrontations which took place in Tirgu-Mures/Marosvasarhely, the county town of Mures in March 1990. Immediately after the events of December 1989, the new authorities issued a number of statements on education in the minority languages without establishing any clear perspective. The expectations of the members of the Hungarian minority were all the greater because the regime which had fallen was held responsible for the deterioration in the network of teaching in the Hungarian language. The minorities believed that the decline in the network of teaching in the Hungarian language had been brought about by the loss of administrative and pedagogical autonomy by the establishments following their fusion with Romanian language establishments. Decisions were taken at the local level to re-establish the system of separate schools for the Magyar minority. These initiatives, apparently supported by the Deputy Minister of National Education, led to a backlash by Romanian speaking teachers or parents of pupils in some towns in Transylvania and in particular in Tirgu-Mures.
1296. 519. After the Deputy Minister of Education was dismissed from his post on 27 January 1990 because of his "independent decisions" according to the communiqué issued by the Rompress news agency, the Ministry of Education announced on 30 January that the agreements on the separation of the Magyar and Romanian schools which had been concluded spontaneously in Transylvania would be maintained and that where no agreement had been reached the question of the possible separation would be left pending until the beginning of the 1990-91 academic year.
1297. 520. Between 7 and 19 March 1990, the Magyar students of the Institute of Medicine and Pharmacy of Tirgu-Mures went on strike to obtain the separation of teaching at the Institute into two autonomous sections, one in Romanian and the other in Hungarian. This followed the re-creation of the Hungarian language Bolyai University at Cluj/Kolozsvar.
1298. 521. The Committee of Inquiry of the Parliament of Romania, in its report on these events, noted that the teaching network in Hungarian had been seriously affected by the administrative measures taken in recent decades and pointed out that the adoption of measures to reorganise this network "without account being taken of all the possible implications and difficulties and without a constructive political dialogue between the representatives of the Romanian and Magyar populations" had led to these conflicts. (Endnote 250) The report stresses in particular that the separation was seen by a number of Romanian-speaking persons as a "first step" towards administrative and political separation, whereas the representative organisations of the Magyars in Romania have in all their public statements rejected any idea of separatism.
1299. 522. The Commission believes it important to recall that the process of separation of the networks of teaching has not in every case resulted in conflict. One witness referred to the process of separation in Timisoara which led to the establishment, without any major difficulties, of a Romanian high school made up of the Romanian sections of high schools which once again became German high schools and the Magyar high schools. (Endnote 251) It also believes it necessary, however, to recall that this matter has continually given rise to rumours which have been taken up by the mass media. These rumours have referred to inter-ethnic disputes which have supposedly led to the brutal expulsion of pupils of one nationality from their high school. When attempts have been made to verify these rumours, they have proved to be totally devoid of any foundation. The parliamentary Committee of Inquiry on the events in Tirgu-Mures analysed several of these cases of unfounded rumours, particularly those concerning the separation of the Bolya Farkas high school and the Al Papiu Ilarian high school in Tirgu-Mures, the pedagogical high school of Odorheiu Secuiesc and high school No. 2 of the city of Sfintu Gheorghe. (Endnote 252)
1300. 523. The Government adopted Decision No. 521 dated 12 May 1990, respecting the organisation and functioning of teaching in Romania for the (university) academic year 1990-91 and the development of the teaching system. This Decision is a transitory measure which, under the provisions of section 58, will apply only for the academic year 1990-91. Act No. 28/1978 on education and teaching remains in force with the exception of all the sections referring to the political/ideological conditions applicable to both teachers and students (see paragraph 447).
1301. 524. The third paragraph of the preamble of the Decision prescribes that "teaching shall be given in the Romanian language at all levels". Section 43 of the decisions stipulates that specialisation and technological studies as well as practical courses shall be given in Romanian. Under section 44, Romanian language and Romanian literature are obligatory subjects for the high-school diploma since young persons belonging to the national minorities must know Romanian to "participate actively in the full economic, social, political and cultural life of Romania".
1302. 525. Provisions have been established to enable members of national minorities, including those who have chosen to be educated in the Romanian language, to acquire a knowledge of their mother tongue (section 45).
1303. 526. As regards teaching in the mother tongue, section 43 of the Decision stipulates that "in localities which have members of national minorities, kindergartens, primary and secondary schools, general high schools, teachers' training colleges, art high schools, classes, groups or sections may be set up in which the teaching is given in the mother tongue". Section 43 does not refer to the question of the separation of the teaching network, since teaching may be given in a mother tongue in a section of a mixed establishment or in the entire establishment. As compared with section 106 of Act No. 28/1978 cited above, the new text no longer refers to vocational schools and schools for supervisors. It must thus be concluded that technical teaching is provided exclusively in the Romanian language, which would appear to be confirmed by the second paragraph of section 43. Members of national minorities may, under the provisions of section 46 of the Decision, sit the competitive examinations for admission to higher education and the periodical control examinations in their mother tongue, with the exception of the Romanian language and literature paper of the high-school diploma.
1304. 527. Under section 6 of the Decision, classes in primary schools and gymnasia must have an average of 26 pupils and a maximum of 30. Classes may not be smaller than 15 pupils "in the light of existing material resources". An exception is made in the case of classes in the Romanian language organised in localities in which schools teaching in the languages of the minorities operate, even if the number of pupils is less than 15 (section 7). In high schools, classes comprise an average of 28 pupils, with a maximum of 32 students and a minimum of 18. Section 47 of the Decision stipulates that the Ministry of Education shall establish, in accordance with the requests received from establishments and the requirements of "cultural life", the number of students to be educated in their mother tongue, in higher educational establishments and specialised teacher training schools. It also stipulates that, in special cases, the establishment of pre-school groups or classes of other kinds which have less than 15 pupils must be approved by the Ministry of Education.
1305. 528. Finally, under the provisions of section 51 of the Decision, the school network and denomination of teaching establishments must be approved by the Ministry of Education.
1306. Reactions to the adoption of these measures
1307. 529. These measures resulted immediately after their adoption in criticisms by the representatives of minorities who accused the Government of failing to consult them and having adopted this text in the midst of an election campaign at a time when the attention of those concerned was concentrated on other subjects. On 30 May 1990, the representatives of ten minorities published an appeal for the repeal of this text and the respect of the rights of minorities regarding teaching and training in the mother tongue.
1308. 530. During meetings with the representatives of the Democratic Union of the Magyars of Romania, the latter agreed that with the exception of the provisions excluding the use of a language other than Romanian for vocational and technical training, and providing there was a fair application of the decision based on good faith, the decision would be an acceptable basis for discussion for the Magyars. (Endnote 253)
1309. Application of Decision No. 521
1310. 531. The framework established by Decision No. 521 implies the setting up of classes and the appointment of teachers to vacant posts. It appears that the application of the Decision resolved some of the criticisms which had been made by the representatives of the national minorities at the time of its adoption.
1311. 532. The Government adopted Decision No. 487 dated 8 May 1990 to approve the standards concerning the appointment and transfer of teaching staff in pre-university teaching establishments for the academic year 1990-91, allowing teaching staff to be appointed on the basis of the new criteria adopted. Section 1 of Chapter 2 of these standards stipulates that an inventory of the vacant posts shall be drawn up in each school inspectorate by a committee which will include in particular representatives of the trade union organisations. The posts considered vacant were announced publicly at the end of the month of May. Under section 3 of the same chapter, teachers who had been separated from service following a reduction in teaching activities, which is the case of many teachers belonging to national minorities whose posts had been suppressed following the reduction of classes in the languages of the minorities, are entitled to apply as well as persons who had been assigned to a forced residence under the provisions of Act No. 22/1981 obliging the activists of the party, the State and the mass organisations, the managers of socialist units, specialists in agriculture and other spheres of activity to reside in the localities where they carry on their activities. All candidates, with the exception of persons assigned to a forced residence, must have a fixed residence in the locality where they wish to be appointed or transferred as of 31 December 1989.
1312. 533. The Government communicated information in reply to the questions which the Commission had raised at its second session. A working meeting was organised by the Ministry of Education and Science to examine, along with the representatives of the national minorities, the subject of teaching of the mother tongue, and a programme was drawn up for the development or establishment of new schools for children belonging to the Bulgarian, Rom, Turkish and Tatar, Lipovan, Serb and Ukrainian minorities. Classes for children of these minorities, which are set up only if parents are in agreement and if the ethnic community actively supports their establishment, were opened at the beginning of the 1990-91 school year in localities in the counties of Bacau, Tulcea, Constanza, Teleorman, Suceava, Prahova, Arges, Mures, Calarasi, Timisoara, Maramures and Caras-Severin. A pedagogical programme for the training of teachers teaching in Bulgarian, Lipovan, Slovak, Turk, Romanesch, Ukrainian has been adopted. For the academic year 1990-91 29 teacher training classes were set up (19 in Hungarian, three in German, two in Romanesch, one each in Turkish, Bulgarian, Lipovan, Ukrainian and Slovak). A group of 29 teachers belonging to the Turco-Tatar minority followed courses in Turkey to improve their linguistic skills.
1313. 534. During his meeting with the Commission, the Secretary of State for Education pointed out that one of the difficulties involved in the extension of teaching in the mother tongue was the shortage of qualified teachers, a problem which had been in part inherited from the previous period. (Endnote 254) There are at present 18,520 teachers belonging to nationalities other than Romanian: approximately 10,000 teach in the minority languages and 4,569 teach in Romanian in Romanian schools. These teachers could be retrained, if they wished, to teach in their mother tongue. The Secretary of State emphasised that there was a general shortage of teachers throughout Romania.
1314. 535. The Government also pointed out that as regards higher education measures had been taken to determine the number of places to be reserved for students from the national minorities who planned to teach their mother tongue. The Secretary of State for Education pointed out that the number of courses in Hungarian had increased significantly at the beginning of the 1990-91 academic year, from 60 to 108. Thus, in 1990 provision had been made for the teaching of ethnology in the Hungarian language at the Babes-Balyai University of Cluj. The number of Magyar students registered at Cluj/Kolozsvar at the beginning of the academic year was 1,277 out of a total of 8,071 (in the first year, there were 285 Magyar students out of a total of 2,318). In Tirgu-Mures the figure was 321 out of a total of 1,039 students (in the first year, 100 Magyar out of a total of 345). In Timisoara, there were 207 first year polytechnical students, out of a total of 1,309; in the Faculties of Social Sciences, Medicine and Agronomy, the figures were as follows: 96 out of 727, 22 out of 441 and 21 out of 305. The Secretary of State pointed out that so far the Ministry of National Education had refused to re-create the Bolyai University.
1315. 536. As regards the Roma, the Ministry of Education has established posts for teachers of Rom origin speaking Romanesch, but it has not been possible to fill all the vacant posts because of an insufficient number of candidates. The Secretary of State for Education referred to a joint project between his Ministry and the Ministry of Labour for the training of social assistants, the role of which would be to open up society to underprivileged social categories such as the Roma.
1316. 537. One witness referred to the situation allegedly existing in some regions of Transylvania and in particular in the counties of Covasna, Harghita and Mures, where Romanian-speaking children can no longer follow their education in the Romanian language. (Endnote 255) This situation was said to be due to the fact that Romanian teachers had been sent away, in some cases following threats, and replaced by Magyars. This matter cropped up during several of the meetings. It will be examined in greater detail in the following paragraphs which deal with discrimination in employment in as far as the situation described is the result of discriminatory measures in employment based on national origin.
1317. 538. Furthermore, the Commission examined the report presented to the 42nd Session of the International Conference of Education (Geneva, August 1990) by the Ministry of Teaching and Science, (Endnote 256) in which reference is made to the profound changes which have occurred since the month of December 1989 and their repercussions on teaching. In its analysis of Decision No. 521, the report does not provide any new information on measures dealing with the education of members of the national minorities.
1318. Measures adopted in respect of employment
1319. 539. The repeal of most of the provisions which had been used against members of the national minorities in respect of employment is a significant step forward on the part of the new authorities. Discriminatory practices, however, continue to exist here and there although not on the widespread scale which had existed before. The absence of impartial and effective appeals' machinery facilitates the maintenance of these practices which should be eliminated.
1320. 540. The repeal of certain laws and the elimination of discriminatory practices do not necessarily lead to the re-establishment of the equality of opportunity and treatment without discrimination which was violated or modified by the policy followed by the previous regime. No measure of this kind has been drawn to the attention of the Commission. Most of the Government representatives who spoke to the Commission referred to general measures taken for all citizens in the name of equality before the law. Some persons belonging to national or ethnic minorities did, however, emphasise that it was necessary to re-establish real equality between citizens so as to avoid a perpetuation of the inequalities inherited from the previous regime.
1321. 541. The appointment of prefects and mayors under the provisions of Act No. 5, dated 19 July 1990, respecting territorial organisation, led to protests, in particular by members of the national minorities who pointed out that very few persons belonging to these minorities were appointed. The Government stated that the prefects and mayors had been appointed on the sole basis of their competence. One representative elected by a minority expressed surprise that amongst the competent persons in such counties as Satu Mare or Bihor, where more than one-third of the population is Magyar, there were no competent persons of Magyar origin who could have been appointed to these functions. (Endnote 257)
1322. 542. During the hearing of witnesses (see paragraph 537) and the private meetings which the Commission had in Romania, reference was made to alleged discriminations in employment against persons of Romanian nationality living in regions in which the Magyars are in the majority.
1323. 543. The first set of allegations concerns Romanian-speaking teachers who allegedly had to leave their jobs, in some cases under force. The Commission noted the Report of the Parliamentary Committee of Inquiry on the events in Tirgu-Mures, (Endnote 258) according to which the departure of a large number of teachers of Romanian nationality in the counties of Covasna and Harghita was the result, inter alia, "of the discriminatory policy of the dictatorial regime seeking to hinder the distribution of graduates of Hungarian origin in the above-mentioned counties. From 1985, the system of distribution by university centres resulted in the distribution in these departments of graduates who were, for the most part, of Romanian nationality and who were thus forcibly separated from their families and place of training. Furthermore, this departure was also the result of the hasty decision by the Ministry of Teaching, which in fact cancelled the obligation for graduates to remain for a three-year period in the school establishments to which they were assigned. Taking advantage of this ministerial decision and the fact that the reduction of scholastic activities in the middle of the academic year made posts available in most of the localities of the country, some of the teachers of Romanian nationality, and in particular those who had just finished their studies, wanted to return to their native regions. The large majority of these teachers taught a variety of subjects in the Magyar sections of various schools. Their lack of knowledge of the Hungarian language was a source of difficulty in their teaching activities. It is undeniable that the decision to leave by some teachers and other persons of Romanian origin was also the effect of moral and psychological pressure brought to bear on them in some localities in which the Magyar population was in the majority. Thus, the departure of a large number of teachers of Romanian origin is a more complex phenomenon which cannot be explained by simple reasons of ethnic origin".
1324. 544. The Report of the Parliamentary Committee points out that a committee of inquiry was set up to shed as much light as possible on this matter and it gives some figures communicated by the Ministry of Teaching: 223 teachers of Romanian nationality and 56 of Magyar nationality have left the counties of Covasna and Harghita. Sixty to seventy per cent left following the reduction of scholastic activities and the others as a result of transfers which were made before the beginning of the 1990-91 school year. The Senate Committee of Inquiry set up by Decision of the Senate No. 26, dated 31 October 1990, makes provision for the appointment of seven senators in the Committee on the hearing of persons who since 22 December 1989 have been forced to leave their place of work and their homes in the counties of Covasna and Harghita.
1325. 545. The other allegations concern cases of dismissal of managerial staff of Romanian nationality who were allegedly replaced by persons of Magyar nationality. The Parliamentary Committee of Inquiry also had to examine this question and has made an analysis, for the single county of Mures, of the structure of managerial staff based on ethnic criteria. The results are as follows: "1. Before 21 December 1989, most of the managerial staff were of Romanian nationality. Thus, out of a total of 204 enterprises and institutions in the county with a total number of 605 executive staff, 470 were of Romanian nationality (i.e. 77.7 per cent), 132 of Hungarian nationality (21.8 per cent) and three of German nationality. This report shows that the representation of the Magyar population fell short of its numerical proportion in the total population: 46 per cent in the county and 58 per cent in the municipality of Tirgu-Mures; 2. After 22 December 1989, the situation remained unchanged, with 467 managerial staff of Romanian nationality (77.2 per cent), 136 of Magyar nationality (22.4 per cent) and two of German nationality. This proportion clearly shows that changes at the level of managerial staff in the county of Mures were made not as a result of ethnic criteria but on the basis of competence or moral and political behaviour". (Endnote 259) An analysis of the situation sector by sector shows a significant increase in the number of Hungarian directors, from three to eight, just in cultural and sports organisations. As regards the criteria used to fill these posts, the Commission has doubts about the significance and content of the criteria of moral and political behaviour to which reference is made in the report.
1326. 546. The above-mentioned report reproduces a note on the verification of the situation of 14 persons of Romanian nationality who were allegedly persecuted in their employment because of their national origin. Four of these persons were not known in the enterprises in which they were supposed to be working, three persons had requested a transfer for personal reasons (better job or workplace more adapted to their skills), three persons had left the enterprise which employed them because there was not enough work and had been transferred to enterprises in other regions, one person is still working in the enterprise from which he was said to have been forced out, and a trainee engineer left his enterprise as soon as the regulations on the obligatory assignment to a workplace were repealed. There remains the cases of two persons: the first was dismissed for occupational reasons. The former management had tried to dismiss this person but was always dissuaded by "the vehement protests from the security official responsible for the enterprise that the person was his collaborator". The second person was a former secretary of the Single Party "supported ... by obscure figures of the former regime" and who, according to the management of the enterprise "left to look for a similar workplace, i.e something which did not require any work".
1327. 547. One of the conclusions which the Parliamentary Committee of Inquiry reached is that "any negative social phenomenon tends to result very quickly in ethnic political confrontation. Out of a total of 250 complaints received and analysed by the Committee concerning work incidents (promotion, recruitment, dismissal, etc.), the majority could also be found with the same frequency in any other area and in any other social, cultural productive sector of the country ... But, in the context of the consequences of the crisis at Tirgu-Mures, most of the victims emphasise national persecution and chauvinism". (Endnote 260)
1328. 548. The Commission does not completely share this conclusion in as far as it tends to attenuate the influence of membership in a national minority on matters of employment.
1329. 549. In fact, with rare exceptions, the press and mass media in general adopt a disparaging tone based upon a person's real or supposed membership in a national minority by emphasising, for example, that a given person is the wife (or husband) of someone from a national minority, that such and such a person is of Jewish or Magyar origin. In the case of the Rom community, certain articles or statements reproduced in the mass media show an evidently racist character. Such an attitude is not a favourable environment for the application of the Convention. The respect of the freedom of the press should not be an obstacle to action in this sphere, either through the use of the pertinent sanctions of the the Penal Code respecting defamation or racism or by attempting to obtain the collaboration of the press and mass media in encouraging the acceptance and application of a policy of equal opportunity and treatment without discrimination based on race or national origin.
1330. 550. The statements made in various international bodies by representatives of the Government concerning its determination to improve relations between members of the communities or avoid inter-ethnic tensions are not always taken into consideration by the local authorities. The same is true as regards decisions adopted at the national level. In this respect, the question of the naming of towns, streets and the introduction of bilingual signs is symptomatic of this discrepancy. Legislative Decree No. 100/1990 respecting the assignation and change of names stipulates that in counties with national minorities, the members of the latter shall form part of committees composed of between five and seven specialists (historians, ethnographers, geographers, linguists, artists, etc.) and that the same attention shall be given to names in the languages of the national minorities as to those in the Romanian language. This legislative decree adopted in February 1990 had to be published again at the end of October 1990. (Endnote 261) Its implementation has met with resistance by the local authorities in such towns as Cluj/Kolozsvar.
1331. 551. The "theses for the preparation of the draft Constitution of Romania" established by the Parliamentary drafting committee contain a number of proposals regarding national minorities and the rights of their members. The State must recognise and guarantee "to all national minorities their right to preserve, develop and express their identity in all spheres of the social, economic and legal life of the country. Any discrimination shall be punished by the law". The implementation of this principle would require the adoption of measures for the conservation, development and expression of national identity, in particular in the sphere of employment and training. The only measures envisaged in the "theses" are "protection measures ... respecting the preservation of the identity of the national minorities, which should be consistent with the principles of equality and non-discrimination with regard to other Romanian citizens".
1332. 552. As regards training, the "theses" stipulate that "the right of persons belonging to the national minorities to learn their mother tongue or to be educated in this language is guaranteed in the conditions prescribed by the law so that, if possible and necessary, such languages can be used in their contacts with the public authorities in accordance with the legislation in force". As regards the methods for exercising this right, the draft Constitution refers to the rules in force or to be adopted and introduces a limitation, of an imprecise scope, regarding the use of the mother tongue. How is one to judge when the use of a mother tongue is possible and necessary in relations with the public authorities? The "theses" also stipulate that in judicial proceedings "the parties who do not speak the language in which the proceedings are being conducted may be informed of all the acts and documents of the case as well as the right to speak in the court" and to argue their case through the intermediary of an interpreter. It is, however, established that the judicial proceedings should be conducted in Romanian.
1333. 553. In the "territorial administrative units where the population is of a nationality other than Romanian, provision is made, as prescribed by the law, for the use of the mother tongue". As regards the representation of members of minority groups, it appears that the provisions of Legislative Decree No. 92/1990 respecting the election of Members of Parliament and the President of Romania which ensure the representation of minorities which do not have enough votes to obtain a seat in the Assembly of Deputies, have not been included in the "theses". The "theses" in fact establish, in an alternative proposal, the representation of minorities only at the level of the Senate. The representatives of "each national minority not represented in Parliament in the conditions as established by the Act respecting elections" are senators in their own right. The other alternative proposal results in the non-representation of minorities too small numerically to obtain the required number of votes for a seat. Furthermore, the "theses" establish that political parties established exclusively on ethnic, religious or linguistic criteria are unconstitutional. An alternative proposal makes provision for the elimination of this provision.
1334. 554. These theses, on a number of points, fall short of the declarations made and the hopes nurtured after the events of the month of December 1989. They reflect what could be called the new policy regarding equality of opportunity and treatment in employment and occupation in respect of members of the national minorities. Their implementation would require measures to be taken, in particular in the sphere of employment, to permit the use of the mother tongue in relations with the administrative authorities or the legal system (training of interpreters, recruitment of judges and bilingual officials, etc.). However, the "theses" make no provision for the introduction of such measures which would not be consonant with a so-called "formal" equality.
1335. TITLE IV
1336. CONCLUSIONS AND RECOMMENDATIONS
1337. CHAPTER 17
1338. GENERAL CONCLUSIONS
1339. 555. In conformity with the provisions of article 28 of the Constitution of the International Labour Organisation, the Commission is called upon to draw its conclusions on all points of fact with a view to establishing the extent of the complaints referred to it, and to evaluate these facts in the light of the obligations undertaken by Romania in respect of Discrimination (Employment and Occupation) Convention, 1958 (No. 111) which that country has ratified. In so far as the Commission concludes that observance of the Convention is not guaranteed, it is obliged to formulate recommendations regarding the measures to be taken to rectify these shortcomings.
1340. Preliminary considerations
1341. 556. The Commission would draw attention to the special circumstances in which it was obliged to fulfil its mandate. (Endnote 262) The complaint was filed on 26 June 1989 by 13 Workers' delegates at the 76th Session of the International Labour Conference. In conformity with the procedure laid down by the Constitution of the International Labour Organisation, the Governing Body, at its 243rd Session (June 1989), requested the Director-General to invite the Government of the Socialist Republic of Romania to communicate its observations on the complaint so as to reach him not later than 1 October 1989. The Government of the Socialist Republic of Romania communicated its observations, which were referred to the Governing Body. The latter decided, at its 244th Session (November 1989), that the question should be referred to a Commission of Inquiry. The Governing Body appointed the members of the Commission of Inquiry at the same session.
1342. 557. During the session of the Governing Body devoted to an examination of the complaint, the representative of the Government of the Socialist Republic of Romania stated that his Government rejected as null and void the decision to set up a commission of inquiry. According to the Government representative, the complaint seriously distorted the real situation in Romania and prejudiced his country's interests. This action "is inspired by motives and objectives which are totally foreign to those of the Organisation and of Convention No. 111", and has an "obvious political significance".
1343. 558. In December 1989, the Government of the Socialist Republic of Romania was overthrown, and new authorities came to power. One of the first actions of the new authorities was to proclaim their attachment to respect for human rights and the international obligations to which Romania had subscribed. The organisation of elections open to all parties to nominate members of Parliament and the President of the Republic was scheduled, first for April 1990, and subsequently for 20 May 1990, when they did, in fact, take place. The President of the Republic took office officially on 20 June 1990 and the Government was invested by a vote of Parliament on 28 June 1990.
1344. 559. As originally intended, the Commission held its first meeting in Geneva from 5 to 9 January 1990. It examined the situation created by the change of government, taking into account the intentions of the new authorities, as reflected in the press and other available sources of information. From the same sources it also took note of the fact that several laws and regulations relating to the subjects of the allegations had been repealed. In view of the developing situation, the Commission decided at this session to continue its examination of the allegations referred to it, but with certain changes in its timetable. In particular, it set time-limits for the Government to communicate its observations, allowing for the fact that a new government would be in office after the spring elections. It also expressed a wish to receive information on developments occurring since the date on which the complaint was lodged.
1345. 560. The Commission was informed of an exchange of correspondence between the Romanian Ministry of Foreign Affairs and the Director-General of the ILO. The Romanian Government indicated in its letter dated 20 January 1990 that the procedures concerning human rights violations were no longer relevant in view of the development of the situation, "such violations and situations having been condemned by the Romanian people and eliminated by the Revolution". The Director-General called the invitation of the Commission to communicate to it all statements that the Government wished to submit.
1346. 561. At the beginning of March, the Government of Romania informed the Chairman of the Governing Body and the Director-General of the ILO that it had modified its position with regard to the decision of the Governing Body to appoint a commission of inquiry to examine the complaint concerning Romania's observance of Convention No. 111 and was prepared to co-operate with the International Labour Organisation in this procedure. The Government considered that, if it was deemed necessary to continue the procedure, the present situation should also be taken into account. The Commission was informed of the Government's decision. The Commission had already, in its first communication to the Government, announced its desire to receive information on developments since the date on which the complaint was lodged (see paragraph 559).
1347. 562. The change of government affected the procedure followed by the Commission. In view of the changes introduced by the new authorities, certain conclusions concerning the period preceding the complaint could no longer provide a basis for recommendations. The renunciation of the concept of the Single Party and the establishment of the necessary conditions for a multi-party system, the authorisation to form occupational organisations and associations and the restoration of freedom to worship had, on the one hand, vindicated the charges made in the allegatons and, on the other hand, rendered moot any recommendations that the Commission might have seen fit to make. For this reason, the Commission deemed it expedient to differentiate in its conclusions and to formulate its recommendations only in respect of such conclusions as might have a bearing on the present situation.
1348. Presentation of witnesses by the parties
1349. 563. At the Commission's Second Session (Geneva, 3 to 4 July 1990), the complainants had proposed that the Commission should hear the testimony of seven witnesses. During the hearings, they requested the Commission to hear the testimony of seven additional witnesses, to which the Commission agreed.
1350. 564. In a communication received by the Commission on 22 May 1990, the Romanian Government confirmed its decision not to present witnesses. The Commission took note of this intention, recalling that, under the terms of article 1 of the Rules of Procedure, the Commission was authorised to call such witnesses as it deemed appropriate. The Commission considered that the investigation of the facts necessitated the hearing of such witnesses as they, by their functions or by their actions, were in a position to cast light on certain aspects of the allegations contained in the complaints. Of the six witnesses called by the Commission, five actually appeared and were examined by both sides.
1351. Position of the Government of Romania
1352. 565. The Government has taken only a general stand on the additional comments communicated by the representative of the complainants and on the different items of information requested by the Commission and subsequently communicated to the Government. The Romanian Government, in its communication of 20 June 1990, having indicated that most of the allegations were of a general nature and not directly connected with Convention No. 111, supplied general information acknowledging the existence, in the field of employment, of discrimination on the basis of political opinion and social origin. The Commission has discussed this information in Title II of this report. The Government emphasised that, in its opinion, the discriminatory measures referred to had affected all workers "regardless of their ethnic, religious or other affinities".
1353. 566. The representative of the Romanian Government stated, at the Second Session of the Commission, (Endnote 263) that his Government, in its observations to the Commission, had conceded that, in general, Convention No. 111 had not been applied. He indicated that the Government recognised the validity of the allegations, and that all laws and regulations referred to by the allegations had been abrogated: "the fact that all the documents referred to have been abrogated constitutes an official acknowledgement on the part of the Government". (Endnote 264) He also reiterated his view that some of the allegations had no bearing on the application of the said Convention. Later in his speech, he referred explicitly to Conventions concerning freedom of association and protection of the right to organise.
1354. 567. The Commission considered that the Government communication dated 20 June 1990 did not constitute an explicit acknowledgement of the validity of all the allegations contained in the complaint, which would have rendered it unnecessary to investigate further elements and allow confirmation or denial of the allegations submitted. The Commission indicated to the Government representative that, without an explicit acknowledgment which it is up to the Government to communicate, it would pursue its inquiry in order to establish the facts of the complaint. The Commission did not receive explicit acknowledgement of the validity of the complaint.
1355. 568. As for the Government's question relating to the general character of the terms of the complaint, the Commission recalled that the representative of the complainants had communicated additional information on 30 March 1990 and on 21 September 1990 concerning specific and easily identifiable cases of discrimination. The Government had exercised its right not to reply to these allegations, which the Commission considered to be neither vague nor general in content.
1356. 569. During the hearings of witnesses, the Government representative stated that the complaint was not concerned with discrimination in employment and occupation, but was motivated by some political objective. (Endnote 265) The mandate entrusted to the Commission is to examine whether or not Romania had failed to secure the effective observance of the provisions of Discrimination (Employment and Occupation) Convention, 1958 (No. 111) ratified by that country. The Commission considers, as did previous commissions called upon to pronounce on similar objection, (Endnote 266) that it is not concerned with the motives that may have prompted the complaints. It is no part of its function either to endorse or impugn them. In view of the fact that the purpose of the Convention is to secure protection against all discrimination based on political opinion, the question before the Commission is linked, by virtue of the terms of the Convention, with questions of a political nature. However, in its conduct of the investigations entrusted to it, the Commission accorded priority to the legal aspect of the problems raised.
1357. 570. The Government of Romania invited the Commission to visit the country. The Commission wishes to express its gratitude to the national and local authorities for the facilities which they put at its disposal to enable it to conduct its inquiry successfully. The Government allowed the Commission to carry out its mandate at all times and in complete freedom and offered its collaboration in the smooth conduct of the procedure.
1358. 571. The Commission also thanks the Office of the United Nations Development Programme in Bucharest for the support and material assistance provided during its visit to Romania.
1359. Mandate of the Commission
1360. 572. The complaint referred to the Commission relates to Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the substantive provisions of which are reproduced to this report in Appendix III.
1361. 573. The principal obligation undertaken by a State which ratifies the Convention concerning discrimination in employment and occupation is to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof. In its use of the term "to declare" - "formuler" in the French version - the Convention intends that such policy should be the subject of an extensive and comprehensive information campaign among the persons concerned. The implementation of the policy presupposes the repeal of any statutory provisions and the modification of any administrative practices which are inconsistent with the policy, as well as the enactment of such legislation and the promotion of such educational programmes as may be calculated to secure the acceptance and observance of the policy. The policy must be pursued in respect of all employment under the direct control of a national authority. The Government undertakes to ensure observance of the policy in the activities of vocational training and placement services under its authority. In respect of other types of employment, the Government undertakes to seek the co-operation of employers' and workers' organisations in promoting the acceptance and observance of the policy. It sould also seek the co-operation of other appropriate bodies (associations, non-governmental organisations). Certain measures of protection or assistance are not deemed to be discrimination: this applies to special measures, determined after consultation with the employers' and workers' organisations, to meet the particular requirements of specific population groups.
1362. Government obligations
1363. 574. The Government of the Socialist Republic of Romania disputed the competence of the Commission of Inquiry and denied the existence of discrimination in Romania. On the other hand, the Government of Romania has on numerous occasions maintained, through its representatives, that the Government had not committed acts of discrimination, and that the discriminatory practices in question were the result of the behaviour, actions and omissions of the persons concerned, or the defaults which certain persons (officials or employers) may have committed, the responsibility of the Government being in no way involved. (Endnote 267) This gives rise to two separate questions concerning, on the one hand, the scope of the Convention in respect of indirect discrimination and, on the other hand, the meaning and scope of the obligation referred to in article 19, paragraph 5(d) of the Constitution of the International Labour Organisation, under the terms of which members ratifying a Convention "will take such action as may be necessary to make effective the provision of such Convention". The Commission holds the following view on these two questions.
1364. 575. As regards the scope of Discrimination (Employment and Occupation) Convention, 1958 (No. 111), the Commission would refer to the explanations contained in Chapter 3 of this report. In reference to the effect of distinctions, exclusions or preferences in respect of equality of opportunity and treatment in employment and occupation, the definition provided in the Convention takes as a criterion the objective consequences of measures taken, or of the absence of such measures. The Convention is not concerned with the intentional nature of the discrimination, or even with an identifiable author of a discriminatory action or omission. Situations in which apparently neutral regulations and practices result in inequalities to the disadvantage of persons manifesting certain characteristics or belonging to groups which manifest certain characteristics (race, colour, sex, religion, national extraction, etc.) constitute indirect discrimination, which falls within the scope of the Convention.
1365. 576. The obligation referred to in article 19, paragraph 5(d), of the Constitution is an obligation on the member to make the provisions of the Convention effective, in law and in practice. It is therefore essential, but not sufficient, that statutory provisions should be in full conformity with the requirements of the Convention. It is essential that legislation conforming to the requirements of the Convention should be fully and strictly enforced. This implies the existence of effective administrative law enforcement services and, in particular, of measures enabling thorough inspection by officials who can act with complete independence. It also implies that the provisions of such legislation are brought to the attention of all persons concerned, and that these persons are provided with a clear picture of their resulting rights and obligations, by all appropriate means, including notices displayed at the workplace or national information campaigns. It implies that effective grievance procedures should guarantee workers the right to lodge complaints concerning infringements of the law, in conditions of independence and impartiality, without their having to fear reprisals of any kind, that such infringements should carry adequate sanctions, which are strictly applied and can be relied upon to be so applied.
1366. 577. Where such conditions are complied with, a government cannot be considered as failing in its obligations deriving from a Convention, on the grounds that the provisions of such Convention have been violated by an official or manager of an undertaking, as these persons would be subject to appropriate disciplinary or judicial procedures.
1367. 578. If these conditions are not fully complied with, a government cannot disclaim responsibility for actions or omissions on the part of its agents, or for the behaviour of employers or even of private individuals.
1368. 579. In view of the present economic situation in Romania, the Government has exercised, and to a large extent still exercises, a direct responsibility in respect of the measures that can be adopted in enterprises or in the matter of education and training, to the advantage or detriment of this or that person, on the basis of the criteria referred to in Article 1, paragraph 1(a), of the Convention. As regards the specific aspect of the Convention, the application of which by Romania is the subject of the present inquiry, the Commission also recalls that the Government should seek the co-operation of employers' and workers' organisations and other approprite bodies in promoting the acceptance and observance of the policy on equality of opportunity and treatment, which it has undertaken to declare and pursue. If this co-operation is to be obtained, it is essential that these organisations be strengthened and, in particular, that a fair and just solution be found to the question of the allocation of assets inherited from the former General Union of Romanian Trade Unions. Furthermore, there is the obligation to ensure conditions for the necessary exercise of freedom of expression and association so that all persons can assert their rights without risk of reprisal, in the event of a grievance relating to the application of the provisions of the Convention.
1369. Discrimination based on political opinion and social origin
1370. 580. With regard to discrimination on the basis of political opinion and social origin, the Single Party system in place in the Socialist Republic of Romania was very highly developed at the workplace, where, in accordance with Act No. 5/1978 respecting the Organisation and Management of State Socialist Units, it was in a position to exercise its control over all conditions of employment. The situation was identical in education, where, in accordance with Act No. 28/1978 respecting Education and Training, ideological and political qualifications played a determining role in the matter of obtaining certain types of education, notably higher education and access to all courses of specialised training for which higher education is a qualification. The criterion of political opinion was used to dismiss persons from their employment in retaliation for having expressed political views contrary to those authorised by the Single Party, but also to further the promotion of those adhering to the views of the Single Party. The criteria of political opinion and social origin were frequently combined. Thus, access to higher education was rendered more difficult, if not impossible, for certain persons, because their parents had been members of political parties opposed to the Single Party, and for this reason, had been imprisoned, deported or exiled.
1371. 581. The Romanian Government's commitment to construct a pluralist political system and its renunciation of all reference to the leading role of the Single Party have put an end to the systematic practice of discrimination based on these criteria. The amendment to section 2 of the Labour Code, which henceforth prohibits distinctions on the basis of political convictions and social origin, is a considerable step forward in this respect. Similarly, section 2 of Act No. 30 of 15 November 1990 concerning the recruitment of employees on the basis of their abilities, which prohibits distinctions based on political, ethnic or denominational criteria, sex, age or economic situation follows the same line. The recognition of trade union pluralism and the establishment of institutions genuinely representing the staff of an enterprise will eventually contribute to compliance with these provisions. The Commission is convinced that there is no longer a nationally defined and rigorously applied policy which would lead, in the field of employment and vocational training, to discriminaton on the basis of political opinion and social origin.
1372. 582. None the less, the establishment of a democratic pluralist system, to which the authorities claim to aspire, is a slow process and one which cannot be accomplished without taking the recent past into consideration. References to the ideological and political attitudes expected of workers in their jobs, or of students in their studies, have been removed from the old laws and regulations still in force. A systematic re-examination of laws and regulations is, however, still necessary in order to eliminate provisions which may have been overlooked at the time of the repeals of 1990, and to identify terms liable to be so interpreted as to lead to distinction on grounds of political opinion: such terms as "secret", "loyalty to the Government", "general culture", should thus be clearly defined, in order to avoid all risk of arbitrariness in their application.
1373. 583. Actions of the national and local authorities or of heads of state undertakings, such as those discussed by the Commission in paragraphs 457 to 470, constitute discriminatory practices in employment, on the basis of political opinion, within the meaning of the Convention. Any manifestation of political opinions differing from, or opposed to, those of the government in power still give rise to discriminatory practices in employment, at shop-floor or enterprise level, or even on the part of local autorities. The fact that such practices have no bearing on government policy or any government intention to discriminate does not in any way alter the discriminatory character within the meaning of the Convention (see paragraph 576 et seq.). It is up to the Government to take all necessary steps to put an end to the practices in question, in particular by providing for swift, cheap and impartial grievance procedures, and by resolutely implementing judicial decisions penalising such actions.
1374. 584. The Commission has taken cognisance of the decision of the Ministry of Education not to deprive teachers of their employment because of their attitude under the previous regime. Administrative or research appointments have been offered to persons who have been relieved of their teaching duties. For this attitude to be understood and accepted, it is all the more necessary that the authorities should act without leniency towards all persons, without exception, who, by their actions, could give the impression that the old discriminatory practices are still current.
1375. 585. The Commission is disturbed by the present status of the personal files, which workers were expected to complete and keep up to date under the former regime. These files contain data on social origin, political opinions and, where applicable, participation in the single-party apparatus. These files, which all workers were required to draw up and keep up to date, regardless of their occupation or employment, go far beyond what might be considered necessary to the establishment of a fair and just employment relationship. The provision of detailed information on the present status of these files (the bodies responsible for keeping them, procedures for consulting them, right of persons concerned to consult their own files, etc.) would reinforce the credibility of any policy to promote equality of opportunity and treatment with a view to eliminating discrimination on the basis of political opinion or social origin.
1376. Discrimination based on religion
1377. 586. Members of some religious denominations were victims of discrimination on religious grounds during the period preceding December 1989. No allegations concerning religious discrimination in employment and occupation since that date have been referred to the Commission, nor has any information on this subject been received. The Commission can reasonably conclude from this that the measures enacted by the new Government of Romania and the new relations between it and the various churches have helped to eliminate discriminatory practices of this kind. The recognition of freedom of worship, the repeal of the ban on the Greek (Uniate) Catholic Church, are positive measures which should remove the reasons for most distinctions based on religion. However, these positive developments should not lead to the conclusion that the question of discrimination based on religion has been eliminated permanently. Such discrimination could re-emerge despite the policy pursued by the Government, and machinery such as swift, cheap and impartial appeals procedures should be set in place to remedy it.
1378. Discrimination based on national extraction and race
1379. Situation of persons belonging to minorities up to December 1989
1380. 587. The Commission has conclusive evidence of the existence of discrimination in employment and occupation affecting members of national minorities on grounds of national extraction and race. This discrimination was very widespread under the previous regime, and took various forms, depending not only on the minorities to which the persons discriminated against belonged, but also on the objectives pursued by the Government of the Socialist Republic of Romania in its relations with a number of other States. Members of national minorities, like all Romanian citizens, could be victims of discrimination on grounds of political opinion and religion. However, the Commission considers that discrimination on grounds of national extraction and race was practised specifically against members of national minorities, because of their membership of a minority.
1381. Germans
1382. 588. Members of the German minority were, as a general rule, subjected to discriminatory measures following a request for an emigration permit. These discriminatory measures took such forms as loss of employment and allocation to precarious and/or arduous jobs, often involving downgrading. Since the early eighties, there have been reports of the arbitrary assignment of young graduates to teaching posts not corresponding to their main degree subject.
1383. Magyars
1384. 589. The discrimination practised against the Magyar minority was fostered by the system of arbitrary postings, under which persons who had completed university studies (teachers, doctors, engineers, etc.), tended to be sent away from the traditionally Magyar regions. In the case of teachers of the Hungarian language, this banishment resulted in having to accept posts which did not correspond to their principal qualifications. Moreover, access to certain employment sectors was prohibited or rendered difficult for members of the Magyar minority because of their national extraction and the real or supposed links that they might have with a neighbouring country. Distinctions on grounds of national extraction in the matter of wages and allowances were possible, in view of the system of wage calculation and payment in force, but have not been proved.
1385. 590. As regards education, the period under consideration is marked by a progressive decrease in the possibilities of receiving an education in the mother tongue, in respect of the number of schools and classes in which Hungarian was the language of instruction. Besides, the systematic implementation of the system of arbitrarily assigning young graduates to posts outside the regions where the majority of Magyars live, discouraged many young persons from commencing or continuing their studies at this level. The failure to assign Hungarian-language teachers to posts in the schools and colleges of the areas where the majority of Magyars live has led to a teacher shortage, which has accelerated the trend towards the closure of classes in Hungarian for lack of numbers. The numerus clausus established by the authorities, on the basis of no known objective criterion, meant that many schools could not be maintained in view of the dispersal and ethnic heterogeneity of the Transylvanian region.
1386. 591. All these practical measures, taken as a whole and systematically applied, were in contradiction to the laws and regulations, as well as to the majority of the statements made by the authorities.
1387. Roma
1388. 592. The situation of members of the Rom minority was characterised by both direct and indirect discrimination. Direct discrimination was based on presumed physical or moral characteristics, such as, for example "Gypsies don't like work". These generalisations have a racist character. They take concrete form in the field of employment, in the allocation of Roma to the most arduous jobs with the lowest social status, in wage differentiation and difficulties in respect of promotion. Indirect discrimination occurs in training and access to employment: certain Roma are marginalised because of their low incomes; consequently, their children are unable to receive the technical or vocational training provided by the educational system. The result is that these children encounter difficulties in respect of access to skilled jobs and are reduced to a marginal status which tends to repeat the pattern set by the previous generation.
1389. 593. The Commission noted, however, that a large number of persons of Rom origin had been integrated in employment and in society, most of them at the cost of renouncing or denying their membership of this minority.
1390. Other minorities
1391. 594. The Commission possesses very little information concerning the other minorities. It is therefore not in a position to draw general conclusions on the situation of the members of these minority groups in the field of employment and education, during the period preceding the date on which the complaint was filed.
1392. Situation of minorities since December 1989
1393. 595. The changes which have occurred since December 1989 have appreciably modified the situation of members of minority groups in respect of employment and education.
1394. Germans
1395. 596. There have been no allegations of discrimination against members of the German minority in the field of employment and training. The main problem, one which does not fall within the scope of the Convention, is that of keeping this minority in Romania. Over 100,000 Germans from Romania have emigrated to Germany since January 1990. The Commission takes note of the measures provided in Act No. 18 of 19 February 1991 concerning landownership, according to which members of the German minority may recover the lands confiscated from them. It also notes that the question of keeping members of this minority in the country has been the subject of bilateral talks between the Romanian and German Governments.
1396. Magyars
1397. 597. With regard to members of the Magyar minority, the repeal of the provisions respecting the arbitrary posting of graduates and the abolition of discriminatory administrative practices have contributed to the elimination of certain situations referred to in the complaint. According to certain persons, the Magyars can now go to work temporarily in Hungary. (Endnote 268) However, these measures alone have not restored equality of opportunity between members of the Magyar minority and the remainder of the population.
1398. 598. Moreover, the question of education in the mother tongue continues to give cause for anxiety, among both the members of the Magyar minority and persons belonging to the Romanian majority. Decision No. 521/1990, respecting the organisation and functioning of teaching in Romania for the academic year 1990-91, contains provisions which, if fairly and justly applied, are acceptable to all, apart from the following exception: the Decision excludes vocational training in the mother tongue; it is to be provided in Romanian only. The members of the Magyar minority consider this exclusion unacceptable.
1399. 599. The Commission is aware of the importance that this question of training provided in the mother tongue can have, both for the Magyar minority and for Romanian society as a whole. Apart from its practical aspects, it has become a symbol for each side. Future relations between the Magyar minority and Romanian society, of which it is a part, will depend on a fair and just solution to this question, and such a solution cannot be found exclusively under the terms of Convention No. 111.
1400. Roma
1401. 600. There has been no appreciable improvement in the situation of the Roma since the events of December 1989. Direct discrimination appears to continue and is probably aggravated under the influence of the defamatory campaigns conducted by the mass media, which treat the Roma as scapegoats responsible for all past, present and future ills.
1402. 601. With regard to the combat against indirect discrimination, the Commission has noted the establishment of classes for Rom children in four Romanian towns and of two training courses for teachers of the Rom language, and it would like to think that this education programme will be progressively expanded to meet the needs of the Rom community. The Commission has also taken note of the training programme for social workers, jointly sponsored by the Ministries of Education and of Labour, aimed at opening society to disadvantaged social groups, including Roma. These positive measures adopted by the Romanian Government are not sufficiently extensive to cope with the problem created by the existence of Rom communities which are not socially integrated or whose members are in danger, in the process of complete economic reorientation, of being the first to lose their jobs and become even more marginalised. Considerable thought, which cannot be limited to the context of Convention No. 111, must be given to the problem of defining measures designed to promote equality of opportunity and treatment in employment and education, for this minority. This must be preceded by a total ban on the propagation in government-dependent mass media of racist stereotypes aimed at members of this community. The position of other mass communication media should be discussed in talks between the authorities and all the parties concerned, including representatives of the Rom community.
1403. Other minorities
1404. 602. With regard to the other minorities, the Commission has been informed of measures enacted to revive the teaching of the languages for the members of the Bulgarian, Turkish and Tatar, Lipovan, Serbian and Ukrainian minorities, on the twofold condition that the parents are in favour and that the community encourages this action. Classes have been opened in several towns in the country, as have training courses for teachers in Turkish, Bulgarian, Lipovan (Russian) and Ukrainian. The Commission has received no information on the situation of members of these minorities in respect of employment and occupation.
1405. 603. The Commission has also taken note of information relating to discrimination practised against persons of Romanian nationality, residing and working in areas where the Magyars form the majority, who have been compelled to leave their employment because of their national extraction. In the light of facts which emerged during the Parliamentary Committee of Inquiry into the events of Tirgu-Mures, it does not appear that pressure exerted by one ethnic group on another led to the departure of persons of Romanian nationality, that such departures as were reported in the mass media actually took place, or that such persons actually existed. A Senate Committee of Inquiry was appointed to examine the situation of persons in two departments (Harghita and Covasna), who left their employment since January 1990. The Commission hopes that the conclusion of this Committee of Inquiry will be brought to the attention of the Governing Body of the International Labour Organisation.
1406. General context of equality
1407. 604. The elimination of distinctions in employment and education, which affected and, in certain cases, continue to affect persons because of their national extraction or race depend, on the one hand, on a general context of equality of opportunity and treatment without which the full application of Convention No. 111 would be illusory. The same is true as regards the prevention of discrimination on the basis of political opinion, social origin or religion. This general context will depend on the fulfilment of two conditions: respect for the rule of law and development of a climate of tolerance.
1408. The rule of law
1409. 605. The first condition will depend on the role reserved for law and the channels of appeal open to persons who consider themselves to be victims of discriminatory practices. The Romanian authorities have repeatedly manifested their will to establish the rule of law. This will has found expression in the affirmation of the principle of the separation of powers and in legislative measures, such as those restoring the autonomy of the lawyer vis-à-vis the Government - an autonomy that had ceased to exist during the previous regime - or allowing citizens to contest decisions of an administrative authority before the courts (Act No. 29 of 7 November 1990 on administrative actions).
1410. 606. However, certain events, the details of which are still somewhat obscure, show that much remains to be done before achieving a true state of law; arrests carried out by persons not authorised to do so on 14 and 15 June 1990; the failure to issue, or late issue of arrest warrants in the case of persons arrested during those days; detainees kept in ignorance of the specific reasons for their arrest or long delays in informing them of those reasons; extensions of pre-trial detention beyond the time-limit laid down by law; refusal to allow counsel access to the charges without a substantiated order. The United Nations Special Rapporteur also referred to discrimination in the administration of justice. Persons demonstrating against the Government (18 February, 24 April and 13 June 1990 in Bucharest) were subjected to the full force of the law, including Legislative Decree No. 153/1970, whereas very few criminal proceedings were instituted against those who took part in the various counter demonstrations. (Endnote 269) Discrimination is also practised on the basis of race: of the 19 accused remanded in custody following the inter-ethnic clashes in Tirgu-Mures on 19 and 20 March 1990, 12 were Gypsies, six were Magyars and one was Romanian, whereas of the 14 persons sentenced and convicted under Legislative Decree No. 153/1970, 12 were Roma and the two others were Magyars. (Endnote 270)
1411. 607. Even the most perfect legal guarantees are of little use unless the person whose rights are abused can seek redress from an independent and impartial judicial authority, scrupulously intent on respect for the rule of law. Effective enjoyment of the right to a fair trial depends on the one hand, on the legislation governing every aspect of judicial procedures and, on the other hand, on a general respect for the rule of law in the day-to-day life of society. Neither the one nor the other condition existed in the Socialist Republic of Romania. The first is being progressively established; constant efforts will be required before the second takes root in the mores of the Romanian Republic.
1412. Development of a climate of mutual tolerance
1413. 608. The second condition, the creation of a general context of equality of opportunity and treatment, depends not only on the enactment of legislation but also on the promotion of education, as referred to in Article 3(b) of the Convention. It should embrace the entire field of employment and education, but should not be limited to these fields alone. The aim of such an education programme is to promote the development of a climate of tolerance, without which coexistence between minorities and majority, or even among the various minorities themselves, can only be fraught with conflict. This same climate of tolerance is essential to political pluralism, without which there can be no democracy.
1414. 609. The lack of tolerance currently manifested in the bulk of the mass communications media, in the form of slander, threats, incitements to emigrate, incomplete or false information, fosters a climate of intolerance or even racial hatred with regard to the Roma, and to a lesser extent, the Magyars. This can only aggravate the social and ethnic divisions. During the events of 13-15 June 1990 in Bucharest, too many of the mass media, including the national television, tended to present all members of the Rom community as deviant, anti-social beings inclined to crime and black market activities on the sole basis of their ethnic origins and physical appearance. This attitude encourages expressions of discrimination or racism. The Government should reject such attitudes publicly and unequivocally.
1415. 610. Acceptance of the existence of minorities within Romanian society and, by the same token, acceptance by the members of minority groups that as citizens they are part of this society, are indispensable prerequisites for the application of Convention No. 111. This is something more than a question of human rights; it is a question of mutual respect which is difficult to create and even more difficult to maintain. The parties representing the national minorities, especially the Magyar Democratic Union of Romania, have issued a number of statements regarding the full participation of the Magyars as Romanian citizens. The preparation, conduct and publication of the results of the census scheduled for January 1992 could well provide the occasion of proving the acceptance of minorities within Romanian society.
1416. Policies to promote equality of opportunity and treatment
1417. 611. The policy to promote equality of opportunity and treatment, within the meaning of Article 2 of the Convention, as pursued by the Government of the Socialist Republic of Romania, was not in conformity with the Convention. It placed the emphasis almost exclusively on equality of treatment. Equality of opportunity, which demands dynamic support measures, did not appear to be an element of this policy. This point takes on particular significance in matters of the promotion of equality of opportunity for members of minority groups. Moreover, not all the grounds of discrimination mentioned in Article 1, paragraph 1(a), of the Convention, were covered by legislation; in particular political opinion and social origin were not considered by the laws as grounds on which discrimination should be declared illegal.
1418. 612. The Romanian authorities have not yet defined a policy to be pursued by the Government in this respect. They have, however, provided indications, which have not yet found expression in laws or regulations. The Commission has examined these indications as projects without any definitive character.
1419. 613. The Commission has noted that, in the draft legislation which it has had occasion to review, in particular the "Theses for the formulation of a draft Romanian Constitution", the accent had been placed on equal rights, which corresponds to equality of treatment in the terminology of Convention No. 111. The concept of equality of opportunity, which implies a more dynamic approach to the concept of equality, does not appear to have been taken into consideration. The Convention, for its part, refers to equality of opportunity and treatment. This aspect of the question will have to be examined by the authorities in consultation with all parties concerned.
1420. 614. Measures which could be introduced in favour of members of this or that minority group are considered as "privileges" and as such, are rejected in the name of equality. The Commission considers that this approach is erroneous and contrary to the Convention. In the first place, it fails to take into account the concept of equality of opportunity. Secondly, it ignores the provisions of Article 5, especially those of paragraph 2, according to which measures determined after consultation with the employers' and workers' organisations designed to meet the particular requirements of persons, or groups of persons, who are generally recognised to require special protection or assistance, shall not be deemed to be discrimination.
1421. 615. The Commission hopes that these questions will be subjected to careful examination in the definition of a national policy to promote equality of opportunity and treatment, formulated with the widest possible participation of the beneficiaries and implemented with the consent of the majority. The International Labour Office is prepared to place its experience in these matters at the disposal of the Romanian authorities in consultation with the employers' and workers' organisations and other appropriate bodies.
1422. CHAPTER 18
1423. RECOMMENDATIONS
1424. 616. Having carefully examined the facts stated by the complainants in the light of the provisions of the Discrimination (Employment and Occupation) Convention, 1958 (No. 111), of the International Labour Organisation, and having regard to the general conclusions of the inquiry as set forth in Chapter 17 of this report, the Commission deems it appropriate to recommend that the Government of Romania adopt a number of measures which could help it to conform fully to the Convention. In the opinion of the Commission, the essential premises for the attainment of this aim are as follows:
1425. - that the concept of the rule of law be gradually strengthened in Romanian society;
1426. - that the principle of separation of the legislative, executive and judiciary powers be laid down in the Constitution;
1427. - that the legal and material conditions be created to ensure an independent judiciary and bar;
1428. - that access to justice be open to all citizens, irrespective of their financial means and without any discrimination whatsoever;
1429. - that there be absolute equality between litigants, even if one of them is the Romanian State or a public institution linked to that State;
1430. - that the enforcement of judicial decisions be secured in law and in practice;
1431. - that the Constitution guarantee the rights recognised for all persons by the Universal Declaration of Human Rights and by the International Covenants on economic, social and cultural rights and on civil and political rights;
1432. - that freedom of association and the freedom to bargain collectively be observed in public, private and mixed enterprises in the application of Acts Nos. 11/1991 on collective contracts and 15/1991 on collective labour disputes;
1433. - that a permanent structure for dialogue between management and trade unions be established by law in such enterprises;
1434. - that the assets previously belonging to the General Federation of Trade Unions of Romania be distributed fairly among the new trade union organisations to enable them to establish themselves and to draw up the programmes called for by the current situation;
1435. - that Decree No. 153/1970 which provides for penalties in the case of certain offences against the laws of communal social life and public law and order be repealed;
1436. - that a competent body be entrusted with the task of receiving and settling some 14,000 complaints which remained pending after the dissolution of the Commission of the Provisional Council of National Unity "to investigate abuses and infringements of fundamental human rights and to rehabilitate the victims of the dictatorship".
1437. 617. The Commission hopes that all of these premises will be achieved and maintained within the framework of the democratic rule which the Romanian people has expressed the will to establish in its country. On the basis of these premises, the Government of Romania should adopt as soon as possible, in accordance with Convention No. 111, measures aimed at:
1438. 1. Ending all discrimination in employment and occupation based on any of the criteria set out in Article 1(a) of the Convention, and in particular on political opinion.
1439. 2. Dismantling all instruments of the policy of assimilation and discrimination against members of minority groups pursued in the past by the Government of the Socialist Republic of Romania.
1440. 3. Putting an end to all use of the personal records which workers had to fill out under the former regime and to publicise widely information on the present and future status of such records.
1441. 4. Putting an end to the effect of discriminatory measures in employment and restoring equal opportunity and treatment which was suspended or altered to the persons concerned (for example Mr. Ioan Manucu of Craiova and Mr. Mircea Pusca of Cluj).
1442. 5. Instituting, for all disciplinary measures against workers, a grievance procedure leading to a speedy and impartial settlement.
1443. 6. Guaranteeing an efficient and impartial follow-up to the requests for medical examinations made by the persons who went on strike on 15 November 1987 in Brasov, who have been rehabilitated by the courts.
1444. 7. Reinstating the workers who, under the Labour Code provisions on imprisonment for over two months, lost their jobs as a result of being arrested following the June 1990 demonstrations and of not being released until after more than two months, despite the absence of evidence.
1445. 8. Adopting all the necessary measures to promote dialogue and an attitude of conciliation between the Romanian majority and minorities.
1446. 9. Adopting a language policy which, without prejudice to the status of Romanian as the official language of the State, would meet the cultural and economic needs of minorities.
1447. 10. Through such a policy, implementing in practice the right of minorities to their cultural identity, traditions and the use of their respective languages.
1448. 11. Achieving an appropriate balance in the teaching of Romanian and minority languages from elementary school through university, so that all citizens master the Romanian language, while enabling minorities, if they so wish, to engage in trades and professions using their own language.
1449. 12. Prohibiting any distinction in recruitment based on the candidates' language.
1450. 13. Undertaking a vast campaign, in collaboration with the political authorities, employers' and workers' organisations and other appropriate bodies, with a view to eradicating the traditionally negative attitude towards the Roma (Gypsies).
1451. 14. Improving the social situation of the Roma by means of an integrated programme drawn up in collaboration with their representatives, covering education, employment, housing and the other elements necessary to their progress.
1452. 15. Stepping up existing efforts to train teachers of Rom origin and to ensure that children of Rom origin attend school.
1453. 16. Allocating the maximum available resources to enable Rom families to improve the utterly deplorable housing conditions under which many of them live.
1454. 17. Drawing up programmes of special measures as provided in Article 5 of Convention No. 111 to improve the socio-economic status of the Roma; in particular, creating a programme for the recognition of occupational skills which are not formalised by a diploma.
1455. 18. Assisting citizens wishing to rebuild their houses destroyed as a result of the systematisation policy declared by the previous regime.
1456. 19. With regard to the January 1992 census, ensuring that representatives of minorities are involved in choices of methodologies, census-taking operations, processing of results and decisions concerning their publication.
1457. 20. Informing the supervisory bodies of the International Labour Organisation of the results achieved as regards reparations for the discrimination suffered by members of national minorities (in particular, under section 16 of Act No. 18/1991 respecting landownership) or by persons persecuted for political reasons (in particular, Legislative Decree No. 118/1990, as amended by Act No. 38/1990; section 36 of Act No. 18/1991).
1458. 21. Taking the measures recommended by the Commission and supplying detailed information as soon as possible on all developments in the annual reports on the application of Convention No. 111 submitted under article 22 of the Constitution of the International Labour Organisation.
1459. Geneva, 28 March 1991 (signed) The Honourable Jules Deschênes,
1460. Chairman
1461. Professor Francesco Capotorti
1462. Professor Budislav Vukas
1463. In submitting this report, the members of the Commission would like to thank Mr. Michel Hansenne, Director-General of the International Labour Office, and Mr. Heribert Maier, Deputy Director-General, for their assistance in carrying out their mandate.
1464. They also wish to express their appreciation to Mr. Thiecouta Sidibé, Director of the International Labour Standards Department, for his invaluable assistance.
1465. Lastly, the members of the Commission, both individually and collectively, would like to stress in particular the excellent work done by the secretariat staff: Mr. Loïc Picard, Mr. Joseph Yacoub, Mr. Edward Sussex, Ms Andréa Spencer-Cooke and Ms Maryse Csupor. Their indefatigable efforts to carry out the Commission's requests, both during its meetings in Geneva and during its stay in Romania, and the tact and patience with which they have dealt with the unexpected, were of great help to the Commission. Its members are deeply grateful to them for it.
1466. J.D.
1467. F.C.
1468. B.V.
1469. APPENDIX I
1470. OBSERVATIONS OF THE ROMANIAN GOVERNMENT IN RESPONSE TO THE LETTER OF THE DIRECTOR-GENERAL OF THE INTERNATIONAL LABOUR OFFICE DATED 20 JULY 1989
1471. With reference to the complaint filed by a number of Workers' delegates of some member countries of the International Labour Organisation under article 26 of the Constitution of the Organisation (GB.243/14/29, 243rd Session, Geneva, of 28 June 1989, see Appendix), the Romanian Government submits to the Governing Body of the ILO the following observations and clarifications:
1472. General observations
1473. 1. The origin of this complaint, as shown by the questions set forth in the document, is to be found in the so-called report of the organisation "Hungarian Democratic Forum" which was taken up by the trade union organisation "Force ouvrière" of France, and transmitted to the International Labour Organisation by a letter dated 13 March 1989.
1474. With a view to the discussion of the communication submitted on this subject by "Force ouvrière" to the Committee of Experts on the Application of Conventions and Recommendations of the ILO, the Romanian Government, through the Permanent Mission of the Socialist Republic of Romania in Geneva, submitted its observations on the so-called report to the Organisation by a letter (No. 341) dated 9 June 1989 addressed to Mr. Th. Sidibé, Director of the International Standards Department.
1475. In these observations, it was pointed out that in a paper of approximately 100 pages which was appended to the communication of "Force ouvrière" labour-related questions were dealt with entirely incidentally and superficially in two paragraphs in the form of allegations unsupported by facts.
1476. As was shown in the reply of the Romanian Government the paper in question deals largely with problems concerning the history of central Europe, in particular one part of the territory of Romania, as well as with ideological questions. The paper tries to promote confused and erroneous ideas concerning human rights problems, such as the idea of segregation at the workplace, in industry, in school and in churches. It uses false information and presents a distorted view of the laws in force in Romania.
1477. The assertions contained in this paper are not based on fact, have no foundation and depict the reality in Romania in a distorted manner. It pursues political objectives which bear no relation to the concerns and problems of the International Labour Organisation.
1478. Consequently, the allegations reiterated in the complaint and presented as "facts" - whether they derive from the above-mentioned paper, the communication of "Force ouvrière", or from other sources - were not, and are not, in accordance with the real situation. For example, it is difficult to understand what the authors of the report have used as a basis for the argument that there are 2 million Romanian citizens of Hungarian nationality in Romania while Romanian data, based on official censuses, indicate another figure. Similarly, the allegations concerning the alleged forced dispersals, assignment to forced labour, population transfers, towns declared out of bounds to certain persons on the basis of nationality and other criteria evoke situations which do not occur in Romania; consequently, the question of finding a solution should not even arise.
1479. Such affirmations have not been, and cannot be, proved because they bear no relation to reality and take no account of the accurate information provided by the Romanian Government in various fora, including the reply given last June to the International Labour Organisation.
1480. The very manner of proceeding - reiterating unsubstantiated assertions emanating from dubious sources, to say the least, and presenting them as "facts" - does not satisfy the conditions for an objective dialogue on which co-operation within the Organisation should be based.
1481. 2. The communication sent by "Force ouvrière" as well as the reply of the Romanian Government will be examined by the Committee of Experts on the Application of Conventions and Recommendations at its session in March 1990.
1482. In the opinion of the Romanian Government, as long as the Committee of Experts has not examined the communication and the reply to it, it would not be justified to institute at the ILO another parallel and competing procedure concerning the same issue.
1483. The Romanian Government of course considers that in the light of the real situation neither of these procedures is necessary.
1484. However, from the point of view of the ILO's own standards, instituting parallel procedures would mean taking unduly premature action and undermining the role and significance of some of the procedures established by the Organisation.
1485. Observations and clarifications concerning employment problems
1486. Despite the origin of the complaint and the manner in which it was filed, in order to maintain constructive dialogue with the Governing Body and to ensure that its members receive information from direct sources, a number of clarifications and observations concerning the legislation in force and the real situation prevailing in Romania are presented below with regard to the employment problems raised.
1487. 1. Discrimination (Employment and Occupation) Convention, 1958 (No. 111) provides that ratifying States should undertake to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
1488. To this end the ratifying States should, inter alia, enact laws and encourage educational programmes designed to ensure the acceptance and application of such a policy, repeal any legal provisions and any practice which is incompatible with it and ensure its application in all areas of activity.
1489. Under the terms of the Convention, discrimination is defined as any distinction, exclusion or preference based on race, colour, sex, religion, political opinion, national extraction or social origin which would eliminate or impair equality of opportunity and treatment in employment and occupation. Under this Convention employment and occupation cover access to vocational training, access to employment and to various occupations as well as working conditions.
1490. 2. Romania has consistently adopted and applied such a policy in the area of employment, ensuring equality of opportunity and treatment to all citizens of the country without any discrimination whatsoever.
1491. This policy is enshrined in the Constitution and in other laws and its implementation is pursued and ensured by a number of state, administrative and judicial bodies as well as by trade unions and other non-governmental organisations.
1492. Article 17 of the Constitution thus provides that:
1493. the citizens of the Socialist Republic of Romania, regardless of their nationality, race, sex or religion, enjoy equal rights in all areas of economic, political, legal, social and cultural life. The State guarantees the equality of citizens before the law. No restriction of these rights and no difference in their exercise on the grounds of nationality, race, sex or religion are permitted. Any expressions aiming to establish such restrictions, nationalist-chauvinist propaganda, or incitement to racial or national hatred are punished by law.
1494. According to article 18:
1495. In the Socialist Republic of Romania, the citizens have the right to work. Each citizen is given the possibility to carry on, according to his training, an activity in the economic, administrative, social or cultural field and remunerated according to its quantity and quality. For equal work there is equal pay.
1496. This provision is further developed in the Labour Code and reads as follows:
1497. Article 2. The right to work is guaranteed to all citizens of the Socialist Republic of Romania without restriction or distinction of sex, nationality, race or religion. They have the opportunity to take up employment in economic, technical, scientific, social or cultural areas according to their talent, training and personal preference, in accordance with the needs of society as a whole.
1498. Article 317 of the Penal Code of the Socialist Republic of Romania provides that "the act of conducting nationalist-chauvinist propaganda or instigating racial or national hatred ... is punishable by imprisonment of six months to five years".
1499. This policy is implemented in all fields by central and local institutions, state bodies, economic units and non-governmental organisations.
1500. In Romania there are no discriminatory laws and any discriminatory practice is prohibited by law.
1501. Special protective measures taken in favour of certain categories of the population, such as women, children, the disabled, large families or families with the lowest incomes are not considered as discriminatory under Article 5(2) of the Convention. All persons belonging to these categories benefit from these measures, regardless of their nationality.
1502. 3. As regards the situation in Romania in the field of employment, the right to work, which is enshrined in the Constitution, is accompanied by legal, economic and social guarantees which enable it to become a reality. The real content of the right to work is confirmed in the legal guarantee of a series of rights which, as a whole, authenticate the right to work, namely: the guarantee of vocational training, of employment in accordance with professional qualifications, of adequate remuneration, of stable employment and healthy working conditions, of the right to rest, medical care and the right to social security.
1503. As it develops Romanian society is using more and more of its resources to guarantee these rights.
1504. Legal guarantees consist also in the strict regulation of cases where an employer can terminate a worker's employment contract as well as in a system of multilateral, administrative, jurisdictional and civil supervision of labour-management relations, so as to restitute promptly and completely the rights of those who have lost their employment.
1505. These rights and guarantees are applied equally to all citizens of Romania, irrespective of their nationality.
1506. The right to work also finds expression in the contractual nature of all legal relationships in the field of labour: it is not possible to take measures which may adversely affect the rights and interests of a worker, without his express consent.
1507. The practical guarantee of the right to work and the full use of the labour force is ensured by the sustained development of the economic and social potential of the country and by the creation of a number of new jobs every year. The planned development of the national economy continues to make it possible to ensure the required number of jobs, taking into account manpower trained at school and through other means of vocational training and the level of qualifications.
1508. The process of industrialisation in the country and the rapid development of all areas of the national economy on this basis have laid the foundations for full employment. At the end of 1987 the active population had reached 10,700,000 persons. If young able-bodied persons who are receiving vocational training were added to that figure, the total would be 11,600,000 persons, 90 per cent of the country's total human resources, one of the highest employment rates in the world. Although the population increased by 20.7 per cent between 1965 and 1980, the number of jobs increased by 82.2 per cent.
1509. It must be emphasised that the majority of jobs were created in the non-agricultural sectors, especially in industry and in the urban centres, thereby causing a significant influx of the rural population into the towns. Although during the period 1950-85 the number of salaried workers increased by more than 5,600,000, the number of persons working in the field of agriculture decreased by 3,500,000. Subsequently the proportion of salaried workers in the total active population increased from 25 per cent in 1950 to 72 per cent in 1985 while the proportion of the rural population in the country's total population decreased from 76.6 per cent in 1948 to 45 per cent in 1987, thereby swelling the urban population which reached 54.3 per cent in 1987.
1510. During this period, in particular after 1965, harmonious economic and social development in all the geographic areas and in all the localities of the country was ensured for the benefit of all the inhabitants, irrespective of their nationality.
1511. Districts with a higher density of citizens of other nationalities whose development lagged behind other districts were granted more investment funds and recorded a more sustained increase in industrial production and in the number of jobs, as shown in the following tables:
1512. Growth in percentage terms in 1985 compared to 1965
1513. ----------------------------------------------------------
1514. Investment Industrial Jobs
1515. production
1516. ----------------------------------------------------------
1517. Country total 457 616 171
1518. Bistrita Nasaud 1 200 1 500 260
1519. Covasna 1 200 913 237
1520. Harghita 530 685 198
1521. Satu Mare 732 789 206
1522. Salaj 972 2 200 271
1523. ----------------------------------------------------------
1524. On this basis all citizens, irrespective of their nationality, have been, and are being, fully guaranteed the right to work and other economic and social rights.
1525. These developments triggered, and sustain today, a process of urbanisation and changes in the country's settlements, a process of demographic concentration in the towns and the establishment of new urban settlements.
1526. It is totally fictitious to assert that there is unemployment in Romania among citizens of Hungarian and other nationalities and that jobs and enterprises have been suppressed. This demonstrates a wilful disregard of the real situation and the thoughtless reiteration of malicious assertions.
1527. Within the context of the industrialisation process and the development of the entire country, all citizens, without discrimination or distinction, have been able to move freely throughout the country and to establish themselves in any area. Certain regulations aimed at limiting the number of persons settling in large cities, in particular in the capital, apply equally and without any discrimination to all citizens of the country, regardless of their nationality. Towns closed to one population group or another do not exist and have never existed in Romania.
1528. In Romania no discriminatory practice is allowed in respect of remuneration. References to alleged discrimination in the award of bonuses reflect ignorance of the regulations and the manner in which they are applied as well as of real conditions in Romania.
1529. In accordance with the Act on remuneration according to the quantity and quality of labour, No. 57 of 29 October 1974, bonuses are granted for particular results obtained such as the attainment or surpassing of production targets in the respective economic units, outstanding achievements in export and import operations as well as savings in raw materials, equipment, fuel and energy.
1530. The amount of the bonuses and those who receive them are determined by a decision of the workers' general assembly of each unit.
1531. It is therefore obvious that there is no discrimination in the granting of bonuses and that such discrimination would be unacceptable.
1532. In Romania the remuneration of all workers is the subject of detailed regulations based on the principle set forth in the Constitution: "for equal work there is equal pay". This precludes any discrimination and any distinction based on nationality. Assertions that there is such discrimination are devoid of any foundation.
1533. 4. The guarantee of employment to those who have completed various organised forms of vocational training, including higher education, is regulated by the provisions of the Decree of the Council of State No. 54/1975. The Decree essentially provides that:
1534. Article 1. In conformity with the provisions of the Constitution concerning the right to work of citizens of the Socialist Republic of Romania, the State shall ensure jobs for graduates of institutions of higher education in accordance with the training acquired.
1535. Article 2. The establishment of jobs for the employment of graduates is carried out in accordance with the aims of economic and social development and the harmonious distribution of the forces of production throughout the country. Priority shall be given to meeting the need for specialists highly trained in rapidly developing branches and the need of those socialist units, departments and zones which are deficient in particular types of specialists.
1536. Article 4. The assignment of graduates is based on results obtained in studies, taking into account certain criteria of a social nature, in accordance with the requirements of this Decree.
1537. The graduate's own choice of unit and appointment is made based on the marks obtained at the end of the study period, with reference to the regulations concerning the exercise of functions in the branch or area of activity to which the socialist unit belongs, as follows:
1538. (a) persons at the head of the class, according to their subject, may choose in the order of their marks, any appointment from among those which have been made available to the class;
1539. (b) graduates who ask to be assigned to municipalities in which they, their parents or spouses are resident, or in adjoining municipalities, have first choice regardless of marks obtained;
1540. (c) graduates who ask to be assigned to workers' centres and towns where they or their parents or spouses are domiciled, with the exception of large towns as established by law, and who during their studies, have obtained an average mark of at least seven, are given priority in taking up appointments in these areas or in adjoining municipalities;
1541. (d) graduates who are domiciled in large towns as established by law, and who, during their studies, obtained an average mark of at least eight points, may, within the order of their marks, take up 70 per cent of the total number of appointments made available for assignment in these areas;
1542. (e) the remaining appointments available are taken up by graduates in the order of the marks obtained, without regard to their place of residence.
1543. For the situations mentioned above, where marks are equal, the first choice of area is given to married graduates. If there are several married graduates those who have children are to be assigned first, followed by those whose spouse is already employed in a socialist unit in the area concerned.
1544. Where married graduates are members of the same class and have studied the same subject the assignment of both is made by taking into account the higher average mark of the two persons.
1545. The assignment of married graduates to the same area or to adjoining areas is to be taken into account.
1546. Persons who have completed a course of higher education but who have not graduated after the final examination are assigned to production, in conformity with the provisions of the preceding paragraphs, after the assignment of the graduates.
1547. These are the criteria used for assignment and the rights enjoyed by all persons who complete higher education; as is clearly demonstrated, they do not provide for or apply any discrimination. Admittedly, in view of the number of available jobs in various localities and districts of the country, it is possible that in some years a number of young people are assigned to other localities than those from which they originate. This situation is due primarily to the absolute requirement of offering to each person a job in his occupation and, at the same time, to the economic and social development needs of the country as a whole.
1548. In conclusion, the allegations according to which production assignments are used to remove intellectuals belonging to minorities from their native areas are not consistent with the reality in Romania. Similarly, the allegation that Romanians receive economic incentives to settle in areas where the population of Hungarian extraction is in the majority is totally false, as is the allegation that jobs are created or suppressed on the basis of nationality or that there is a numerus clausus and towns which are out of bounds for the population of Hungarian nationality.
1549. 5. The Romanian authorities have recently submitted very detailed information on the programme of modernisation in all areas of the country, including the rural areas. This programme was examined and approved by the country's Parliament 15 years ago.
1550. This is a long-term programme which aims at solving in the best possible conditions problems related to teaching, health, cultural activity and leisure, supply and services. It also aims at developing industrial activities which are closely linked to agriculture. This programme essentially aims to ensure that inhabitants of the rural areas have living conditions which are similar or highly comparable to those prevailing in the cities.
1551. As part of this process, plans have been made to construct in the municipalities secondary schools and vocational training schools in order to extend the duration of compulsory education to 12 years, hospitals, cultural centres, modern housing and other facilities intended to raise the standard of living of the rural population and above all to stabilise this population, in particular young people in these areas. All inhabitants of villages who wish to construct new houses at their own expense are encouraged and supported by the State. It is ensured that all the inhabitants of rural areas are able to maintain the existing houses, as well as the necessary land for constructing new housing, for vegetable gardens and for other premises adjoining rural dwellings.
1552. The programme of modernisation of the localities will be implemented gradually, in consultation with the population and with its consent.
1553. There is therefore no intention of destroying rural localities or transferring the population from other areas since the objective is precisely to stabilise the population, and in particular young persons in the rural areas, and to create the best possible living and working conditions which are comparable to those existing in the cities. The programme is a general one and covers the entire country, not only certain regions.
1554. 6. Article 2 of the Act on Education and Teaching (No. 28/1978) provides that "the citizens of the Socialist Republic of Romania have the right to education regardless of nationality, race, sex or religion and without any restriction which might amount to discrimination".
1555. Article 3 stipulates that "the nationalities are guaranteed the free use of the mother tongue in education at all levels and the study of and deeper acquaintance with the mother tongue".
1556. Article 105 provides that "young persons belonging to the nationalities are guaranteed equal opportunity to receive education of all types and to be assigned to jobs of all types in accordance with the needs of the economy and society, according to their education and talents".
1557. Article 107 provides that "in the territorial administrative units where part of the population is of non-Romanian nationality, teaching units, sections, classes or groups are organised in accordance with the overall structural norms, where teaching is carried out in the languages of the nationalities concerned. In trade training schools, schools for foremen, teaching can also be carried out in the languages of the nationalities".
1558. Article 108 - "Parents or young persons who belong to one of the nationalities can choose to be registered in a school where the language is either that of the nationality in question or Romanian."
1559. Article 109 - "In competitive examinations organised in accordance with the law, candidates who are members of nationalities have the right to take the examination in their national language in the subjects which they have studied in that language."
1560. Article 110 - "The Minister of Education and Teaching guarantees the training and in-service training of teaching staff and the provision of textbooks and other necessary teaching material."
1561. Following the application of these provisions of the Constitution, the state of teaching in the languages of the nationalities in Romania in the school year 1988-89 was as follows:
1562. Out of a total of 5,556,128 persons receiving all the various types of training, 453,765 (8.16 per cent) were young persons from the nationalities. Among those persons 284,308 (62.65 per cent) chose to study in their mother tongue.
1563. The others, who opted to study in Romanian, were guaranteed the possibility of studying their mother tongue, in accordance with the law mentioned above.
1564. Out of the 284,308 young persons from the nationalities who study in their mother tongue, 56,952 were at the pre-school level, 186,422 at the primary and secondary level and 40,341 were at technical schools.
1565. During the school year 1988-89, so as to enable children from the nationalities in areas where the latter are in the minority to study in their mother tongue, there were 59 primary-school classes and 242 secondary-school classes which had a number of students below the minimum standards laid down by the legal regulations.
1566. As regards university education, out of the 152,962 students, 9,504 were from the nationalities.
1567. Of a total of 27,975 kindergartens, primary, secondary, technical, vocational training and teacher training schools and institutions of higher education, in 2,746 of them (9.82 per cent) students are taught in the languages of the nationalities. Out of 214,484 teaching staff members at all levels, 18,331 (8.54 per cent) are from the nationalities.
1568. Out of a total of 1,118 titles of school textbooks, 369 (33 per cent) were published in the languages of the nationalities.
1569. At the Ministry of Education and Teaching there is a special department which deals with teaching in the languages of the nationalities. A Secretary of State of the Ministry is from one of the nationalities.
1570. Teaching in Romania is closely linked to the economic and social development programmes in the country, in order to respond to the needs of the country as a whole. This makes it possible to ensure that at the end of their studies young persons find jobs commensurate with their training and qualifications, without any discrimination.
1571. The allegations that the Hungarian language is prohibited in public life, that there is a progressive elimination of "Hungarian cultural institutions" are malicious insinuations which are devoid of any substance or foundation.
1572. In Romania there are at present 52 newspapers and magazines in the languages of the nationalities, 32 of which are in Hungarian and 8 in German. There are also 14 theatres, operas and professional musical institutions in the languages of the nationalities (ten in Hungarian, three in German and one in Yiddish). Out of the 1,300 members of the Union of Writers, 150 are of Hungarian nationality, 40 of German nationality and 30 of the other nationalities.
1573. It is curious to assert that young people wishing to leave the country are enlisted in the army or sent to forced labour camps. In Romania young able-bodied men do military service from the age of 18 or 19 years onwards at the end of their studies (secondary or vocational). No other criteria are applied for military service. Similarly, there is no forced labour in Romania.
1574. The duration of compulsory education is now ten years and, as of 1990, compulsory education for 12 years will become the norm. Teaching at all levels is completely free of cost. As has been underlined, university education is closely linked to the requirements of the national economy and to managerial needs.
1575. Access to higher forms of education is subject to no restriction whatsoever; the only existing condition is to be successful in competitions for admission which are open, without any discrimination, to all young persons holding a school-leaving certificate.
1576. As has been emphasised, the Act on Education and Teaching makes it possible for young persons of another nationality to use their mother tongue when participating in the competitions for admission. In view of the foregoing, it is absurd to say that there is a numerus clausus applied to the Hungarian minority.
1577. The Romanian Government expresses the hope that these clarifications and data will be duly taken into consideration by the Governing Body as an expression of its sincere wish to co-operate with the Organisation and to continue working within the latter in a constructive manner, on an objective basis and in accordance with the aims of the ILO.
1578. APPENDIX II
1579. OBSERVATION OF THE COMMITTEE OF EXPERTS ON THE APPLICATION OF CONVENTIONS AND RECOMMENDATIONS CONCERNING THE OBSERVANCE BY ROMANIA OF CONVENTION NO. 111
1580. (International Labour Conference, 76th Session, 1989, Report III (Part 4A)
1581. Romania (ratification: 1973)
1582. The Committee notes the Government's report on the application of the Convention. It also notes a communication by the General Confederation of Labour "Force Ouvrière" (France) of 13 March 1989 drawing attention to the Report on the Situation of the Hungarian Minority in Romania, prepared for the Hungarian Democratic Forum in Budapest in 1988, and the Resolution 1989/75 on the Human Rights Situation in Romania adopted by the United Nations Commission on Human Rights at its 45th Session in March 1989.
1583. 1. Political opinion and social origin. In comments made for several years, the Committee noted that under section 2 of the Labour Code all citizens of Romania are guaranteed the right to work without any restriction or distinction based on sex, nationality, race or religion. It noted that section 2 of the Labour Code does not cover discrimination based on political opinion or social origin, grounds expressly mentioned in Article 1(a) of the Convention.
1584. In its latest report, the Government reiterates its earlier indications that, on the basis of the fundamental principle of equality of opportunity or treatment in employment and occupation, the Constitution and the Labour Code guarantee the right to work without any discrimination.
1585. The Committee takes due note of this indication. It observes that article 17 of the Constitution as well as section 2 of the Labour Code omits political opinion and social origin from the prohibited grounds of discrimination.
1586. The Committee previously also referred to various statutory instruments which require workers to have a specific political outlook:
1587. (a) The Committee noted that according to article 1 of the Decree of the Council of State No. 413 of 5 December 1979 approving the conditions of service of civil aviation staff, the staff in question contributes to the implementation of the policy of the Romanian Communist Party. Article 2 of the Decree provides that civil aviation staff shall be highly aware politically and shall demonstrate boundless devotion to their country, the people and the Party.
1588. In its report, the Government states that article 2 of the Decree does not govern the engagement or promotion of civil aviation staff, but establishes the qualities which staff working in civil aviation must have; the Government adds that this staff must realise state policy in the field of air transport with a view to ensuring an increase of agricultural production, emergency sanitary assistance, sport and the development of tourism. According to the Government, article 2 of the Decree reads as follows: "Civil aviation staff must have a high political conscience; demonstrate devotion to their country and the people, give evidence of firm discipline and thorough vocational training".
1589. The Committee notes that the reference to boundless devotion to, inter alia, the Party has been omitted from the wording quoted by the Government. It hopes that the Decree has been accordingly amended and that the Government will supply a copy of the amending legislation, and of any statutory instrument defining more strictly what is to be understood by "high political conscience".
1590. As regards the provisions governing the engagement and promotion of civil aviation staff, which are laid down in articles 22 to 26 of the same Decree, the Committee notes that under article 23, persons to be promoted must fulfil, inter alia, the following conditions: ... (b) have a good political-ideological training; (c) give evidence of profound attachment to the socialist system and to the interests of the whole people; (d) apply with consistency the policy of Party and State.
1591. The Committee asks the Government to supply information also on any measures taken in this regard, in conformity with Article 3(c) of the Convention, to repeal those statutory provisions which are inconsistent with a policy of equality of opportunity and treatment, without any distinction, exclusion or preference made on the basis of political opinion or social origin.
1592. (b) The Committee previously also referred to article 62(s) of Act No. 5 of 1978 on the organisation and management of state socialist undertakings, inserted by Act No. 24 of 23 December 1981, which provides that decisions concerning promotion to management level in the enterprise are made by the general assembly of workers taking into account political training.
1593. In its report, the Government states that article 62(s) of the Act makes no decision but refers to the general assembly of workers which "pronounces itself" on proposals for promotion to management functions in the unit, taking into account the vocational and political training of those concerned and their contribution to the good deployment of its activity.
1594. The Committee again requests the Government to indicate any measures taken in this regard, in conformity with Article 3(c) of the Convention, to repeal those statutory provisions which are inconsistent with a policy of equality of opportunity and treatment without any distinction, exclusion or preference made on the basis of political opinion.
1595. 2. National extraction. The Committee has taken note of the Resolution 1989/75 on the Human Rights Situation in Romania, adopted in March 1989 by the United Nations Commission on Human Rights. In this Resolution, the Human Rights Commission, inter alia, notes that the Romanian Government's policy of rural systematisation, which involves forcible resettlement and affects long-standing traditions, would, if implemented, lead to a further violation of the human rights of large sectors of the population; the Human Rights Commission expresses its concern at the imposition of increasingly severe obstacles for Romania's national minorities to maintain their cultural identity.
1596. In its comments, the General Confederation of Labour "Force Ouvrière" refers to the Report on the Situation of the Hungarian Minority in Romania mentioned in the introductory paragraph of this observation, which contains, inter alia, the following indications:
1597. (a) The present number of Romanian citizens of Hungarian national extraction must be, according to conservative estimates, between 2.1 and 2.2 million, i.e. 9.5 per cent of the total population. The 1977 Census showed 22 per cent of the total population of Transylvania to be Hungarian. Other national minorities inhabiting this region in substantial numbers are Germans, South Slavs, Slovaks, Ukrainians, Jews and Gypsies.
1598. (b) Migration from Romanian-inhabited provinces to Transylvanian towns and centres is encouraged through resettlement allowances and other economic incentives, while Hungarian intellectuals and professionals from Transylvania, upon completing their studies, are assigned to solely Romanian-inhabited districts, under a strictly centralised system of work assignment which gives authorities far-reaching freedom of manipulation so that increasingly fewer Hungarian teachers, physicians, agronomists, etc., can find jobs in Hungarian-inhabited areas.
1599. (c) The controlled geographical location of industrial investments, the creation or suppression of jobs and workplaces, restricted employment (the use of a numerus clausus), the designation of cities "closed" to Hungarians, deliberate manipulation of permits for resettlement, home building and flat allocation, as well as the practice of "zoning", viz. the preferred development of some settlements and the hindering or destruction of others, are all used by the authorities within a policy of discrimination against national minorities.
1600. (d) In early 1988, the Government announced a programme to liquidate by force some 8,000 villages on the pretext of "modernising agriculture". If the scheme is implemented, it is bound to obliterate even the memory of the existence of smaller nationalities and will deal an irreparable blow to the large community of Transylvanian Hungarians as well. As a result, hundreds of settlements having a majority or a considerable number of Hungarian inhabitants in Hargita/Harghita, Kovászna/Covasna, Kolozs/Cluj, Bihar/Bihor, Maros/Mures, Fehér/Alba and other countries will disappear from the map.
1601. (e) There has been a steady decline in the ratio of Hungarians in intellectual professions since 1956, the reasons for this tendency being discrimination in admission to universities, the almost complete suppression of mother-tongue teaching in higher grades of education, and wholesale emigration.
1602. (f) The number of unemployed in Transylvania is estimated at 300,000 to 400,000, with Hungarians constituting a very high proportion. Under the new wage regulations, workers receive only a part of their salaries. In 1985 and 1986, the loss of income was compensated for in several enterprises by the payment of special premiums, but this extra allowance was granted to very few Hungarian workers.
1603. (g) The effect of constitutional and legislative provisions concerning minorities is determined by the politico-legal system which lacks genuine constitutionality relying on the principle of legality and the unequivocal administration of justice. Central and local party organs, whose heads are simultaneously leading officials of administrative agencies, the councils, are given a wide scope of arbitrary action. The interpretation of legal provisions and the manner of their application must be in accordance with party instructions, which may, and occasionally even do, revise the literal text of the provision in question. For this reason, many formally unrepealed laws cease to have effect in practice or, conversely, uncodified directives are strictly followed. An especially important regulatory role is played by secret directives, which are usually oral and, thus, non-documentable sources of illegal acts and other abuses. These can be detected only indirectly through their effect. This accounts, for example, for the steady decline in the number of students of Hungarian and other ethnic origins gaining admission to universities. A significant role in legal practice is played by the police authorities and by Securitate, the state security organ. Directives of the latter are sometimes decisive in administrative decisions or judgments handed down by courts of law, especially when political importance is attached to the case in question.
1604. (h) The Hungarian Nationality Workers' Council was set up in the late 1960s - parallel with a German body bearing a similar name - as an "agency of interest representation", whose members were appointed by the Government. To this day the Council does not have its own statutes, membership, and apparatus. Initially, it met once a year; later, only sporadically, at widely spaced intervals and exclusively in connection with international programmes. Its meetings are conducted in Romanian and only serve a demonstrative purpose. The Government has assigned the Council the function of representing the government position. In its meetings, the compulsorily appointed speakers often have to read out texts prepared for them. Those reluctant to do so (as it happened, for example, after the Council meeting held in early 1987) are called to account at their workplace or before the authorities.
1605. (i) By the middle of the 1980s, all officers of ethnic minority origin had been removed from military leadership, and the dismissal of lower-echelon officers is now in progress. Among senior officers of the para-military formations (Patriotic Guards, Homeland Falcons), it is virtually impossible to find persons of minority origin, even in those territories largely inhabited by a minority population. The state security service, Securitate, employs minority members as agents and informers, but its upper echelons remain exclusively in the hands of "pure Romanians" judged to be loyal to the regime. The secret police plays a particularly important role in the implementation of anti-minority policies.
1606. (j) As a consequence of restrictions, mother-tongue teaching today is confined almost exclusively to the level of primary education, but even there its possibilities have been drastically reduced. Since the middle of this decade, there has been no autonomous establishment of secondary or higher education teaching in Hungarian or any other minority language. Minority schools have thus become sections of educational institutions for mixed nationalities where, by means of internal (usually oral only) directives and intimidation, minority languages have been gradually phased out.
1607. (k) Legislative Decree No. 273/1973 on the organisational set up of educational establishments, issued by the Romanian State Council on 13 May 1973, is based on discrimination by language and nationality and is applicable to all minorities. It provides that "in townships where primary schools offer instruction in the languages of cohabiting nationalities ... sections or classes taught in Romanian shall be organised, irrespective of the number of students". The same decree stipulates also that the number of children shall be at least 25 in primary-school classes and 36 in secondary-school classes. Thus, a class taught in a minority language cannot be opened for less than 25 children at the primary level and 36 students in secondary schools, but there is no minimum number of students for Romanian classes. Romanian dominance can be enforced by this means even in places where national minorities constitute the majority. Elsewhere, school inspectorates were attached to different zones to ensure a Romanian majority in the given area, at the same time forbidding school children to move from one zone to another.
1608. (l) A special method of limiting vocational training for the minorities involves the education of skilled workers employed in new factories located in Transylvania in trade schools lying east of the Carpathians, since such specialised training is conducted only in those areas.
1609. (m) Act 6/1969 provides that, in the schools of cohabiting nationalities, education can be entrusted only to teaching staff familiar with the respective languages of instruction. In 1985 and 1986, however, on the basis of an oral directive of the Ministry of Education, the schools in Hargita/Harghita and Kovászna/Covasna counties, where Hungarians are in the overwhelming majority, were compelled to accept the appointment of Romanian teachers with virtually no knowledge of Hungarian. This measure has been one of the harshest ever attacks on mother-tongue education, as revealed in the following facts. In Hargita/Harghita county, where 86 per cent of the children attended Hungarian sections in 1982, 223 newly graduated teachers were posted in 1985. Of these, only eight were native Hungarian speakers, while 191 of the teachers not knowing Hungarian were assigned to Hungarian sections; according to the oral directive issued on this occasion, every teacher shall teach in the language with which he is the most familiar. In Kovászna/Covasna county, the number of teachers not knowing Hungarian who were assigned to Hungarian sections was 132 in 1985 and 150 in 1986. Until the autumn of 1986, all 23 secondary schools of Hargita/Harghita county had Hungarian headmasters. Romanians were then appointed to 17 of the schools. This was the start of the mass dismissal of Hungarian primary-school headmasters still employed in Transylvania. It becomes readily apparent that the Government is aiming at the eradication of minority education.
1610. (n) The Government makes use of the university numerus clausus against ethnic minorities. Between 1970 and 1980, the proportion of university students of minority origin - as seen in various official data concerning the nationality composition of students - ranged from 8.08 per cent to 8.32 per cent, and the corresponding proportion of Hungarian students for those years ranged between 5.38 per cent and 5.80 per cent. In comparison, the 1977 Census revealed the proportion of all minorities to be 10.9 per cent, and that of Hungarians, 7.9 per cent of the total population. Assuming, however, that the census of 1977 probably distorted the picture in favour of Romanians, even moderate estimates show the effective ratio of Hungarians to have been nearly 9.3 per cent. This would mean that at least 12,000, rather than 7,497, Hungarian day-students should have been attending universities in Romania in the year 1977.
1611. (o) The two most important intellectual centres for Hungarians in Romania are the universities of Kolozs/Cluj and Marosvásárhely/Tîrgu-Mures. The change in ethnic composition of the teaching staffs of these two institutions, as can be seen from official data presented, is additional proof of the under-representation of the Hungarian minority in higher levels of education in Romania.
1612. The Committee has taken due note of these indications. It hopes that the Government will supply a detailed answer, including information on measures taken or envisaged to give effect to the Convention with regard to equality of opportunity and treatment in employment and occupation, including access to training, for members of national minorities.
1613. APPENDIX III
1614. TEXT OF THE SUBSTANTIVE PROVISIONS OF THE DISCRIMINATION (EMPLOYMENT AND OCCUPATION) CONVENTION (NO. 111) AND RECOMMENDATION (NO. 111), 1958
1615. Convention 111
1616. Article 1
1617. 1. For the purpose of this Convention the term "discrimination" includes -
1618. (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
1619. (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies.
1620. 2. Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof shall not be deemed to be discrimination.
1621. 3. For the purpose of this Convention the terms "employment" and "occupation" include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.
1622. Article 2
1623. Each Member for which this Convention is in force undertakes to declare and pursue a national policy designed to promote, by methods appropriate to national conditions and practice, equality of opportunity and treatment in respect of employment and occupation, with a view to eliminating any discrimination in respect thereof.
1624. Article 3
1625. Each Member for which this Convention is in force undertakes, by methods appropriate to national conditions and practice -
1626. (a) to seek the co-operation of employers' and workers' organisations and other appropriate bodies in promoting the acceptance and observance of this policy;
1627. (b) to enact such legislation and to promote such educational programmes as may be calculated to secure the acceptance and observance of the policy;
1628. (c) to repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy;
1629. (d) to pursue the policy in respect of employment under the direct control of a national authority;
1630. (e) to ensure observance of the policy in the activities of vocational guidance, vocational training and placement services under the direction of a national authority;
1631. (f) to indicate in its annual reports on the application of the Convention the action taken in pursuance of the policy and the results secured by such action.
1632. Article 4
1633. Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State shall not be deemed to be discrimination, provided that the individual concerned shall have the right to appeal to a competent body established in accordance with national practice.
1634. Article 5
1635. 1. Special measures of protection or assistance provided for in other Conventions or Recommendations adopted by the International Labour Conference shall not be deemed to be discrimination.
1636. 2. Any Member may, after consultation with representative employers' and workers' organisations, where such exist, determine that other special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status, are generally recognised to require special protection or assistance, shall not be deemed to be discrimination.
1637. Recommendation 111
1638. I. DEFINITIONS
1639. 1. (1) For the purpose of this Recommendation the term "discrimination" includes -
1640. (a) any distinction, exclusion or preference made on the basis of race, colour, sex, religion, political opinion, national extraction or social origin, which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation;
1641. (b) such other distinction, exclusion or preference which has the effect of nullifying or impairing equality of opportunity or treatment in employment or occupation as may be determined by the Member concerned after consultation with representative employers' and workers' organisations, where such exist, and with other appropriate bodies.
1642. (2) Any distinction, exclusion or preference in respect of a particular job based on the inherent requirements thereof is not deemed to be discrimination.
1643. (3) For the purpose of this Recommendation the terms "employment" and "occupation" include access to vocational training, access to employment and to particular occupations, and terms and conditions of employment.
1644. II. FORMULATION AND APPLICATION OF POLICY
1645. 2. Each Member should formulate a national policy for the prevention of discrimination in employment and occupation. This policy should be applied by means of legislative measures, collective agreements between representative employers' and workers' organisations or in any other manner consistent with national conditions and practice, and should have regard to the following principles:
1646. (a) the promotion of equality of opportunity and treatment in employment and occupation is a matter of public concern;
1647. (b) all persons should, without discrimination, enjoy equality of opportunity and treatment in respect of -
1648. (i) access to vocational guidance and placement services;
1649. (ii) access to training and employment of their own choice on the basis of individual suitability for such training or employment;
1650. (iii) advancement in accordance with their individual character, experience, ability and diligence;
1651. (iv) security of tenure of employment;
1652. (v) remuneration for work of equal value;
1653. (vi) conditions of work including hours of work, rest periods, annual holidays with pay, occupational safety and occupational health measures, as well as social security measures and welfare facilities and benefits provided in connection with employment;
1654. (c) government agencies should apply non-discriminatory employment policies in all their activities;
1655. (d) employers should not practise or countenance discrimination in engaging or training any person for employment, in advancing or retaining such person in employment, or in fixing terms and conditions of employment; nor should any person or organisation obstruct or interfere, either directly or indirectly, with employers in pursuing this principle;
1656. (e) in collective regulations and industrial relations the parties should respect the principle of equality of opportunity and treatment in employment and occupation, and should ensure that collective agreements contain no provisions of a discriminatory character in respect of access to, training for, advancement in or retention of employment or in respect of the terms and conditions of employment;
1657. (f) employers' and workers' organisations should not practise or countenance discrimination in respect of admission, retention of membership or participation in their affairs.
1658. 3. Each Member should -
1659. (a) ensure application of the principles of non-discrimination -
1660. (i) in respect of employment under the direct control of a national authority;
1661. (ii) in the activities of vocational guidance, vocational training and placement services under the direction of a national authority;
1662. (b) promote their observance, where practicable and necessary, in respect of other employment and other vocational guidance, vocational training and placement services by such methods as -
1663. (i) encouraging state, provincial or local government departments or agencies and industries and undertakings operated under public ownership or control to ensure the application of the principles;
1664. (ii) making eligibility for contracts involving the expenditure of public funds dependent on observance of the principles;
1665. (iii) making eligibility for grants to training establishments and for a licence to operate a private employment agency or a private vocational guidance office dependent on observance of the principles.
1666. 4. Appropriate agencies, to be assisted where practicable by advisory committees composed of representatives of employers' and workers' organisations, where such exist, and of other interested bodies, should be established for the purpose of promoting application of the policy in all fields of public and private employment, and in particular -
1667. (a) to take all practicable measures to foster public understanding and acceptance of the principles of non-discrimination;
1668. (b) to receive, examine and investigate complaints that the policy is not being observed and, if necessary by conciliation, to secure the correction of any practices regarded as in conflict with the policy; and
1669. (c) to consider further any complaints which cannot be effectively settled by conciliation and to render opinions or issue decisions concerning the manner in which discriminatory practices revealed should be corrected.
1670. 5. Each Member should repeal any statutory provisions and modify any administrative instructions or practices which are inconsistent with the policy.
1671. 6. Application of the policy should not adversely affect special measures designed to meet the particular requirements of persons who, for reasons such as sex, age, disablement, family responsibilities or social or cultural status are generally recognised to require special protection or assistance.
1672. 7. Any measures affecting an individual who is justifiably suspected of, or engaged in, activities prejudicial to the security of the State should not be deemed to be discrimination, provided that the individual concerned has the right to appeal to a competent body established in accordance with national practice.
1673. 8. With respect to immigrant workers of foreign nationality and the members of their families, regard should be had to the provisions of the Migration for Employment Convention (Revised), 1949, relating to equality of treatment and the provisions of the Migration for Employment Recommendation (Revised), 1949, relating to the lifting of restrictions on access to employment.
1674. 9. There should be continuing co-operation between the competent authorities, representatives of employers and workers and appropriate bodies to consider what further positive measures may be necessary in the light of national conditions to put the principles of non-discrimination into effect.
1675. III. CO-ORDINATION OF MEASURES FOR THE PREVENTION OF DISCRIMINATION IN ALL FIELDS
1676. 10. The authorities responsible for action against discrimination in employment and occupation should co-operate closely and continuously with the authorities responsible for action against discrimination in other fields in order that measures taken in all fields may be co-ordinated.
1677. APPENDIX IV
1678. RULES FOR THE HEARING OF WITNESSES
1679. 1. The Commission will hear all witnesses suggested by the parties unless special derogation is allowed with reasons adduced; it will also invite other witnesses if it considers appropriate.
1680. 2. The Commission will hear all witnesses in private sittings, except on the joint request of the parties and as decided by the Commission. The information and evidence presented to the Commission therein is to be treated as fully confidential by all persons whom the Commission permits to be present.
1681. 3. The Government of Romania and the complainants will each be requested to designate a representative to act on their behalf before the Commission. The representatives will be expected to be present throughout the hearing of witnesses and will be responsible for the general presentation of their witnesses. The representatives of the parties will advise the Commission 48 hours in advance of the language in which their evidence will be given so as to ensure that interpretation, if necessary, can be arranged by the Commission.
1682. 4. Witnesses may not be present except when giving evidence.
1683. 5. The Commission reserves the right to consult the representatives in the course of or upon the completion of the hearings in respect of any matter on which it considers that their co-operation is necessary.
1684. 6. The opportunity to furnish evidence and to make statements is given only for the purpose of providing to the Commission factual information bearing on the case before it. The Commission will give witnesses all reasonable latitude to furnish information but it will not entertain any information or statements not relevant to the issues referred to it.
1685. 7. The Commission will require each witness to make a solemn declaration as follows:
1686. "I solemnly declare upon my honour and conscience that I will speak the truth, the whole truth and nothing but the truth.
1687. 8. Subject to the provisions of article 6 each witness will be given an opportunity to make a statement before questions are put to him. If a witness reads a statement six copies must be delivered to the Commission.
1688. 9. (a) All questioning of witnesses will be subject to control by the Commission.
1689. (b) The Commission or any of its members may at any time address questions to the witnesses.
1690. (c) The representatives present will be permitted to put questions to the witnesses compatible with the mandate of the Commission and in an order to be determined by the Commission.
1691. 10. Any failure on the part of a witness to reply satisfactorily to a question put will be noted by the Commission.
1692. 11. The Commission reserves the right to recall witnesses.
1693. APPENDIX V
1694. INDEX OF LEGISLATION CITED IN THE REPORT
1695. 1965 Constitution
1696. Paras. 10, 11, 104, 106, 108, 119, 126, 132.
1697. 1968 Penal Code
1698. Paras. 105, 196, 473, 500.
1699. 1972 Labour Code
1700. Paras. 10, 114, 235-238, 256, 260, 287, 296, 298, 324-326, 335, 338, 349-356, 363-365, 374-376, 379-383, 438, 442, 447-449, 461-462, 488, 504, 581.
1701. Act No. 86 of 7 February 1945 on the Nationalities Statute
1702. Paras. 113, 121-124, 138, 141, 157.
1703. Act No. 2/1968 respecting the administrative distribution of the territory of the Socialist Republic of Romania
1704. Paras. 400, 409.
1705. Act No. 57/1968 concerning the organisation and operation of people's councils
1706. Para. 107, 130.
1707. Act No. 58/1968 in respect of the organisation of judicial proceedings
1708. Para. 132.
1709. Act No. 6/1969 respecting the status of teaching staff in the Socialist Republic of Romania (à vérifier dans tous les)
1710. Paras. 112, 193, 208, 364.
1711. Act No. 57/1974 respecting remuneration based on the quantity and quality of work in State units, handicraft and consumer co-operatives
1712. Paras. 288-289, 291-292, 294, 310, 313, 445-446, 504.
1713. Act No. 58/1974 respecting territorial systematisation in urban and rural districts
1714. Paras. 403, 451.
1715. Act No. 24/1976 respecting the recruitment and allocation of manpower
1716. Paras. 113, 239, 248, 356.
1717. Act No. 25/1976 respecting the allocation of able-bodied persons to useful employment
1718. Paras. 235, 248, 253, 256-257, 260, 284, 356, 373, 438.
1719. Act No. 27/1976 respecting remuneration for work in agricultural co-operatives
1720. Paras. 290-291.
1721. Act No. 5/1978 respecting the organisation and management of state socialist units, as amended by Act No. 24/1981
1722. Paras. 12-13, 264, 339, 443, 580.
1723. Act No. 28/1978 on education and training
1724. Paras. 110, 126-129, 188-192, 212, 216, 238, 440, 443, 523, 580.
1725. Act No. 22/1981 obliging the activists of the party, the State and the mass organisations, the managers of socialist units, specialists in agriculture and other spheres of activity to reside in the localities where they carry on their activities
1726. Para. 532.
1727. Act No. 2/1983 respecting the basic principles of the further development of the system governing the remuneration of work and the distribution of income of workers
1728. Paras. 291-294, 297, 445-446.
1729. Act No. 3/1983 respecting labour contracts
1730. Paras, 236, 260, 291, 438.
1731. Act No. 2/1989 respecting local administrative organisation
1732. Para. 409.
1733. Act No. 5/1990 respecting territorial organisation
1734. Para. 541.
1735. Act No. 15/1990 on the reorganisation of state economic undertakings into independent authorities and trading companies
1736. Paras. 443, 491.
1737. Act No. 29/1990 on administrative actions
1738. Para. 605.
1739. Act No. 30/1990 concerning the recruitment of employees on the basis of their abilities
1740. Para. 581.
1741. Act No. 37/1990 on the organisation and operation of the Romanian Government
1742. Para. 450.
1743. Act No. 38/1990 to extend to persons deported after 23 August 1944 the provisions of Legislative Decree No. 118/1990
1744. Paras. 482, 617.
1745. Act No. 11/1991 on collective contracts
1746. Para. 616.
1747. Act No. 14/1991 on wages
1748. Para, 446.
1749. Act No. 15/1991 on collective labour disputes
1750. Para. 616.
1751. Act No. 18/1991 concerning land ownership
1752. Paras. 491, 499.
1753. Legislative Decree No. 1/1989 respecting the repeal of certain laws, decrees and other prescriptions
1754. Paras. 436, 441, 445.
1755. Legislative Decree No. 2/1989 concerning the constitution, organisation and function of the National Council and Territorial Councils of the National Salvation Front
1756. Paras. 435, 507.
1757. Legislative Decree No. 9/1989 respecting the repeal of certain prescriptions
1758. Paras. 393, 436, 438.
1759. Legislative Decree No. 3/1990 respecting amnesty for certain offences and remission of certain penalties
1760. Para. 473.
1761. Legislative Decree No. 14/1990 respecting the repeal of Decree No. 54/1975 concerning the allocation to production jobs of graduates of higher day-time education
1762. Para. 441.
1763. Legislative Decree No. 35/1990 concerning the modification of certain regulations on wages
1764. Paras. 445, 472, 504.
1765. Legislative Decree No. 38/1990 concerning the repeal of Act No. 2/1989 respecting local administrative organisation
1766. Para. 451.
1767. Legislative Decree No. 54/1990 on the organisation and implementation of economic activities based on free initiative
1768. Para. 470.
1769. Legislative Decree No. 81/1990 to establish the Provisional Council of National Unity
1770. Para. 512.
1771. Legislative Decree No. 82/1990 respecting the composition of the Provisional Council of National Unity and its Executive Board, and of the Council's specialised committees
1772. Paras. 474, 508.
1773. Legislative Decree No. 92/1990 respecting the election of members of Parliament and the President of Romania
1774. Paras. 450, 513, 553.
1775. Legislative Decree No. 100/1990 respecting the assignation and change of names
1776. Para. 550.
1777. Legislative Decree No. 118/1990 to grant rights to persons persecuted for political reasons by the dictatorship established on 6 March 1945
1778. Paras 478-495, 617.
1779. Legislative Decree No. 140/1990 respecting staff appointments and salaries in the Justice Department and Public Prosecutor's Office
1780. Para. 450.
1781. Legislative Decree No. 147/1990 respecting modification or repeal of various legal provisions restricting the right to work
1782. Paras. 436, 438, 447.
1783. Legislative Decree No. 149/1990 concerning the repeal of certain regulations
1784. Paras. 436, 443, 451.
1785. Decree No. 177/1948 on the general system of worship
1786. Para. 136.
1787. Decree No. 358/1948 prohibiting the Greek Catholic form of worship
1788. Para. 136, 452.
1789. Decree No. 1058/1967 respecting scientific qualificaitons, as amended by Decree No. 345/1973
1790. Para. 451.
1791. Decree No. 674/1969 relating to certain measures to direct, co-ordinate and control activity in the field of construction, architecture and systemisation
1792. Para. 451.
1793. Decree No. 153/1970 which provides for penalties in the case of certain offences against the rules of communal social life and public law and order, as amended by Decree No. 41/1980
1794. Paras. 92, 245, 261, 273, 373, 439, 606, 616.
1795. Decree No. 468/1971 concerning certain measures to improve activities in respect of the application and popularisation of legislation
1796. Para. 130.
1797. Decree No. 54/1975 concerning the allocation to production jobs of graduates of higher day-time education
1798. Paras. 240-241, 252, 253, 260, 280, 282, 284, 441.
1799. Decree No. 45/1976 on population and housing census operations
1800. Para. 141.
1801. Decree No. 68/1976 respecting change of domicile to other localities
1802. Paras, 253, 260, 277, 441.
1803. Decree No. 92/1976 concerning the work book
1804. Paras. 243, 444.
1805. Decree No. 436/1978 respecting the allocation to employment of higher medical and pharmaceutical college graduates
1806. Paras. 241, 280, 441.
1807. Decree No. 413/1979 approving the conditions of service of civil aviation staff
1808. Paras 12-13, 238, 443-444.
1809. Decree No. 367/1980 establishing certain measures for the rational utilisation of staff in socialist units (This text has never been published in the Official Bulletin.)
1810. Paras, 393-394.
1811. Decree No. 335/1983 respecting the application of forms of remuneration by global agreement and of other forms of remuneration specific to certain branches or activities
1812. Paras. 291, 295, 297, 446.
1813. Decree No. 336/1983 respecting the calculation, release and supervision of wage funds, specific regulations for the agricultural, foreign trade, building and transport sectors
1814. Paras. 291, 302, 446.
1815. Decree No. 337/1983 approving the content of the labour contracts for enterprises, industrial centres, ministries, central organisations and the executive committee of people's regional councils and the city of Bucharest
1816. Paras. 236, 443.
1817. Decree No. 151/1984 concerning the conditions for carrying out certain public works by organisations of the Communist Youth League and the League of Romanian Communist Students' unions
1818. Paras. 322, 452.
1819. Decree No. 408/1985 on State secrets (This text has never been published in the Official Bulletin.)
1820. Paras. 242, 394.
1821. Government Decision No. 475/1990 concerning post assignments for medical and pharmaceutical college graduates who have completed their internship, on the basis of a national competitive examination
1822. Para. 441.
1823. Decision No. 487/1990 to approve the standards concerning the appointment and transfer of teaching staff in pre-university teaching establishments for the academic year 1990-91
1824. Para. 532.
1825. Decision No. 521/1990 respecting the organisation and functioning of teaching in Romania for the (university) academic year 1990-91
1826. Paras. 440. 443, 523-528, 538, 598.
1827. Endnote 1
1828. GB.243/14/29.
1829. Endnote 2
1830. GB.244/4/20.
1831. Endnote 3
1832. GB.244/4/26.
1833. Endnote 4
1834. International Labour Conference, 76th Session, Geneva 1989, Record of Proceedings, 26/97-26/105.
1835. Endnote 5
1836. ibid., Record of Proceedings, 26/23.
1837. Endnote 6
1838. ibid., Record of Proceedings, 26/100.
1839. Endnote 7
1840. Adopted in 1944, the Declaration constitutes, under the provisions of article 1, paragraph 1, of the Constitution, the ILO's programme.
1841. Endnote 8
1842. ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 69th Session, Geneva, 1983, Report III (Part 4(A)), p. 208: the Committee pointed out that "the fact that discrimination laid down in a provision is put into effect not by administrative decision but by a court decision, even accompanied by procedural guarantees, does not remove it from the scope of the Convention".
1843. Endnote 9
1844. Equality in Employment and Occupation, General Survey by the Committee of Experts on the Application of Conventions and Recommendations, ILC, 75th Session, Geneva, 1988, Report III (Part 4(B)), para. 29.
1845. Endnote 10
1846. ibid., para. 31.
1847. Endnote 11
1848. ibid., para. 135.
1849. Endnote 12
1850. Discrimination in the field of employment and occupation, ILC, 40th Session, Geneva, 1957, Report VII(1) p. 1.
1851. Endnote 13
1852. The preparatory work of the Universal Declaration of Human Rights shows that the concept of national origin contained in this instrument does not cover foreign citizenship. See Commission on Human Rights: Sub-Commission on Prevention of Discrimination and Protection of Minorities, Report on the First Session, E/CN.4/52, 6 December 1947.
1853. Endnote 14
1854. Discrimination in the field of employment and occupation, ILC, 40th Session, Geneva, 1957, report cited, p. 17.
1855. Endnote 15
1856. Discrimination in the field of employment and occupation, ILC, 40th Session, Geneva, 1957, Report VII(2), pp. 16-32.
1857. Endnote 16
1858. Record of Proceedings, Seventh Item on the Agenda: Discrimination in the field of employment and occupation, ILC, 40th Session, Geneva, 1957, Report of the Committee on Discrimination, Appendix X, p. 741.
1859. Endnote 17
1860. Discrimination in the field of employment and occupation, ILC, 42nd Session, Geneva, 1958, Report IV(1), p. 26. The delegate was Mr. Córdova, Employers' delegate of Cuba.
1861. Endnote 18
1862. Discrimination in the field of employment and occupation, ILC, 42nd Session, Geneva, 1958, Report IV(2), p. 8.
1863. Endnote 19
1864. Record of Proceedings, Fourth Item on the Agenda, Discrimination in the field of employment and occupation, ILC, 42nd Session, Geneva, 1958, p. 710.
1865. Endnote 20
1866. Discrimination in respect of employment and occupation, ILC, 47th Session, Geneva, 1963, Report III(IV), paras. 27 and 28.
1867. Endnote 21
1868. General Survey on the Reports relating to the Discrimination (Employment and Occupation) Convention and Recommendation, 1958, ILC, 56th Session, Geneva, 1971, Report III (Part 4B), para. 18.
1869. Endnote 22
1870. Equality in employment and occupation, ILC, 75th Session, Geneva, 1988, Report III (Part 4B), para. 33.
1871. Endnote 23
1872. ibid., para. 37.
1873. Endnote 24
1874. ibid., para. 57.
1875. Endnote 25
1876. Report of the Commission of Inquiry appointed under article 26 of the Constitution of the International Labour Organisation to examine the observance of the Discrimination (Employment and Occupation) Convention, 1958, (No. 111), by the Federal Republic of Germany, cited in ILC, 75th Session, 1988, report cited, para. 57.
1877. Endnote 26
1878. See for example, ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 73rd Session, Geneva, 1987, Report III (Part 4A), p. 363.
1879. Endnote 27
1880. ILC, 47th Session, 1963, report cited, para. 33; ILC, 75th Session, 1988, report cited, para. 78.
1881. Endnote 28
1882. ILC, 75th Session, 1988, report cited, para. 159.
1883. Endnote 29
1884. ILC, 75th Session, 1988, report cited, para. 161.
1885. Endnote 30
1886. ILC, 75th Session, 1988, report cited, para. 186.
1887. Endnote 31
1888. See above, para. 1.
1889. Endnote 32
1890. Austria, Belgium, Bulgaria, Canada, Cyprus, Czechoslovakia, Denmark, Finland, France, German Democratic Republic, Federal Republic of Germany, Greece, Hungary, Iceland, Ireland, Italy, Luxembourg, Malta, Netherlands, Norway, Poland, Portugal, San Marino, Spain, Sweden, Switzerland, Turkey, United Kingdom, United States, USSR, Yugoslavia.
1891. Endnote 33
1892. International Confederation of Free Trade Unions, World Confederation of Labour, World Federation of Trade Unions, International Organisation of Employers.
1893. Endnote 34
1894. Amnesty International, International Commission of Jurists, International Federation of Human Rights, Minority Rights Group, Helsinki Watch.
1895. Endnote 35
1896. Country Reports on Human Rights Practices for 1989, Report submitted to the Committee on Foreign Affairs House of Representatives and the Committee on Foreign Relations United States Senate by the Department of State in accordance with sections 116(d) and 502B(b) of the Foreign Assistance Act of 1961, as amended, pp. 1228-1242.
1897. Endnote 36
1898. E/CN.4/1990/28 and Add. 1; E/CN.4/1991/30.
1899. Endnote 37
1900. Schöpflin, G.: "The Hungarians of Romania", a Minority Rights Group Report No. 37 (London, 1978).
1901. Endnote 38
1902. Schöpflin, G., Poulton, H.: "Romania's ethnic Hungarians", a Minority Rights Group Report, No. 37, new 1990 edition (London, 1990).
1903. Endnote 39
1904. Amnesty International: A briefing: Romania (London, 1980).
1905. Endnote 40
1906. Amnesty International: Romania - Human rights violations in the eighties (London, 1987).
1907. Endnote 41
1908. News from Helsinki Watch: News from Romania (January, 1990); Trials in Romania - A rush to appease ... and to conceal (March, 1990); News from Romania: Ethnic conflict in Tirgu-Mures (May, 1990); News from Romania: Election report (May, 1990).
1909. Endnote 42
1910. A Helsinki Watch report: Destroying ethnic identity - The Hungarians of Romania (New York, Washington, 1989).
1911. Endnote 43
1912. Two copies of the report of this meeting have been placed in the ILO library.
1913. Endnote 44
1914. Barbuta, N.: "Les nationalités cohabitantes en Roumanie socialiste", in Revue des Pays de l'Est, Centre d'Etude des Pays de l'Est, 1978, No. 1, p. 52.
1915. Endnote 45
1916. Unless otherwise indicated, the texts of laws and regulations cited by the Commission are the translation of texts found in "Collectie de legi, decrete, hotariri si alte acte normative" of the Minister of Justice, published annually by Editura Stiintifica, Bucharest, and since 23 December 1989 the texts published in the Official Bulletin "Monitorul Official al Romaniei". A chronological index of the legislation cited is found in Appendix V of the present report.
1917. Endnote 46
1918. CERD/C/76/Add.3, p. 3.
1919. Endnote 47
1920. loc. cit., ibid., p. 3.
1921. Endnote 48
1922. CERD/C/132/Add.4, para. 42.
1923. Endnote 49
1924. See, for example, the statement by N. Ceaucescu, President of the Republic and First Secretary of the Communist Party of Romania to the Congress on Political Education and Socialist Culture, of 2 June 1976.
1925. Endnote 50
1926. Ministry of Education: L'enseignement en République socialiste de Roumanie (Bucharest, 1986), p. 18.
1927. Endnote 51
1928. ibid., p. 21.
1929. Endnote 52
1930. United Nations: Yearbook on Human Rights for 1946 (Lake Success, New York, 1947), pp. 248-249.
1931. Endnote 53
1932. Labour Code of the Socialist Republic of Romania, Act No. 10 of 23 November 1972 (ILO, Geneva, 1973, LS 1972-Rom.1). All quotations from the Labour Code are based on ILO translations.
1933. Endnote 54
1934. CERD/C/76/Add.3, p. 7.
1935. Endnote 55
1936. Report of the Government of the Socialist Republic of Romania for the period ending 30 June 1976.
1937. Endnote 56
1938. Peace treaty entered into between the allied and associated powers and Hungary, Protocol and Declaration of 4 June 1920 (Trianon).
1939. Endnote 57
1940. Treaty between the Principal Allied and Associated Powers and Romania, signed at Paris, 9 December 1919, League of Nations, Treaty Series (Geneva, 1921), Vol. 5, pp. 336-347.
1941. Endnote 58
1942. Treaty of Peace with Romania, Paris, 10 February 1947, Treaty Series No. 55 (London, His Majesty's Stationery Office, 1948), pp. 2-34.
1943. Endnote 59
1944. Consiliul Legislativ, Repertoriul Legislatiei Republicii Socialiste Romania in vigoare la 1 ianuarie 1989 - Legi si decrete (Bucharest, 1989), p. 15.
1945. Endnote 60
1946. Schöpflin, op. cit., p. 15.
1947. Endnote 61
1948. United Nations: Yearbook on Human Rights for 1946, Lake Success, New York, 1947, pp. 248-249.
1949. Endnote 62
1950. CERD/C/132/Add.4, p. 8, para. 40.
1951. Endnote 63
1952. Schöpflin, op. cit., p. 14.
1953. Endnote 64
1954. See Romanian Parliament, Committee of Inquiry, Report on the events of Tirgu-Mures, 19-20 March 1990 (Bucharest, Jan. 1991), Vol. 3, Appendix XXVII/2, pp. 5-7.
1955. Endnote 65
1956. Communication made by the ICFTU dated 30 March 1990, The situation as regards professional discrimination in Romania (La situation en matière de discrimination professionnelle en Roumanie), p. 5.
1957. Endnote 66
1958. See interview with Vasile Ghetau, Romania Libera, 21 March 1990.
1959. Endnote 67
1960. Schöpflin, Poulton, op. cit., p. 6.
1961. Endnote 68
1962. Socialist Republic of Romania, Recensamintul populatiei si al locuintelor din 5 iannuarie 1977 (Central Statistical Office, Bucharest, 1980), Vols. I and II, table 17: Population by nationality and mother tongue, pp. 614-621.
1963. Endnote 69
1964. Preliminary census returns of 5 January 1977, Scinteia, No. 10829, Bucharest, 14 June 1977.
1965. Endnote 70
1966. Berindei, M.: "Les minorités nationales en Roumanie", L'Alternative, Supplement No. 20: "Roumanie, crise et répression 1977-1982" (Paris, 1983), pp. 56-66.
1967. Endnote 71
1968. Schöpflin, Poulton, op. cit., p. 6.
1969. Endnote 72
1970. Pfaff: VII/20: The Record of Proceedings of the interview of these witnesses has been filed in the ILO library. The roman numerals correspond to the session (from I to IX); the arabic numbers correspond to the pages.
1971. Endnote 73
1972. Gheorghe, VI/4.
1973. Endnote 74
1974. Schöpflin, Poulton, op. cit., p.3.
1975. Endnote 75
1976. Gheorge, VI/3, also interview with Mr. Cesba, Sebiu, 1 October 1990.
1977. Endnote 76
1978. Gheorge, VI/10.
1979. Endnote 77
1980. Radulescu, I.: L'homme en Roumanie, Editura Stiintifica si Enciclopedica (Bucharest, 1986), p. 109.
1981. Endnote 78
1982. Drimba, V.: "L'alphabet de la langue tatare parlée en Roumanie", cited by Alexandre Popovic in L'Islam balkanique (Berlin, 1986), p. 250.
1983. Endnote 79
1984. Maguesyan, P.: "Les Arméniens de Roumanie, une communauté en révolution", in France Arménie, No. 90, p. 13.
1985. Endnote 80
1986. Berindei, op. cit., p. 58.
1987. Endnote 81
1988. Robotos, E., Pruneanu, P.: "Applicarea invataturii marxist-leninist in problema nationala", in Zece ani de la Conferinta Nationala a PCR 1945-1955 (Editura de Stat pentru literatura politica, Bucharest, 1956), pp. 224-256 et seq.
1989. Endnote 82
1990. Institute of Political Sciences and Study of the National Problem, in "La nationalité hongroise en Roumanie" (Ed. Meridiane, Bucharest, 1976), pp. 10 et seq.
1991. Endnote 83
1992. ILO: Record of Proceedings, International Labour Conference, 76th Session, 1989 (Geneva, 1990), 26/96.
1993. Endnote 84
1994. Ceaucescu, N.: Address to the 11th Congress of the Romanian Communist Party.
1995. Endnote 85
1996. Ceaucescu, N.: La Roumanie sur la voie de l'édification de la société socialiste multilatéralement développée, Vol. XV (Bucharest, 1979), p. 617.
1997. Endnote 86
1998. Consiliul Legislativ, op. cit.
1999. Endnote 87
2000. GB.243/14/29.
2001. Endnote 88
2002. ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 76th Session, Geneva, Report III (Part 4A), pp. 397-402.
2003. Endnote 89
2004. Communication of 30 March 1990, op. cit., Appendix I, p. 5.
2005. Endnote 90
2006. Country Report on Human Rights Practices for 1989 (Washington, Feb., 1990), pp. 1238-1239.
2007. Endnote 91
2008. E/CN.4/1990/28, para. 186.
2009. Endnote 92
2010. ibid., para. 204.
2011. Endnote 93
2012. ibid., para. 229.
2013. Endnote 94
2014. Schöpflin, Poulton, op. cit., p. 13.
2015. Endnote 95
2016. Helsinki Watch: "The Hungarians of Romania", in Destroying ethnic identity, Feb. 1989.
2017. Endnote 96
2018. Kiraly, K.: "The ethnic question in Romania: The Hungarian view", in East European Reporter, Vol. 2, No. 3, 1987.
2019. Endnote 97
2020. Camarasan, VI/17 and VII/3-5.
2021. Endnote 98
2022. Gheorghe, VI/6.
2023. Endnote 99
2024. Statistical data provided by the Ministry of Education.
2025. Endnote 100
2026. ibid.
2027. Endnote 101
2028. Parliament of Romania, Committee of Inquiry: Rapport sur les événements de Tirgu-Mures - 19-20 Mar. 1990 (Bucarest, Jan. 1991), Vol. 1, p. 12.
2029. Endnote 102
2030. ILO: Report of the Committee of Experts on the Application of Conventions and Recommendations, ILC, 76th Session, Geneva 1989, Report III (Part 4A), p. 397.
2031. Endnote 103
2032. See para. 1 of this report.
2033. Endnote 104
2034. Letter of 30 March 1990, op. cit., p. 2.
2035. Endnote 105
2036. ibid., pp. 2 and 5.
2037. Endnote 106
2038. idem, Annex I, p. 1.
2039. Endnote 107
2040. idem, Annex I, p. 18.
2041. Endnote 108
2042. E/CN.4/1990/28, para. 204.
2043. Endnote 109
2044. Schöpflin, Poulton, op. cit., p. 15.
2045. Endnote 110
2046. ibid., p. 17.
2047. Endnote 111
2048. ibid., p. 16.
2049. Endnote 112
2050. See Appendix I of this report.
2051. Endnote 113
2052. Berindei, op. cit., p. 49.
2053. Endnote 114
2054. See ILC, 75th Session, Report III (4B), op. cit., para. 99.
2055. Endnote 115
2056. Poly-Planche, I/13.
2057. Endnote 116
2058. Letter from the Minister for Foreign Affairs to the Director-General of the ILO, dated 10 January 1990.
2059. Endnote 117
2060. Amnesty International: Romania - Human rights violation in the eighties (report cited), p. 16.
2061. Endnote 118
2062. Frauendorfer, II/221.
2063. Endnote 119
2064. ibid., II/221.
2065. Endnote 120
2066. ibid., II/28.
2067. Endnote 121
2068. Conversation with nine Members of Parliament, 8 October 1990, Parliament, Bucharest.
2069. Endnote 122
2070. Poly-Planche, I/12-13.
2071. Endnote 123
2072. Coja, VIII/4.
2073. Endnote 124
2074. Interview with nine parliamentarians, 11 October 1990, Parliament, Bucharest.
2075. Endnote 125
2076. Report on the events of Tirgu-Mures - 19-20 March 1990 (report cited), Vol. 2, Annex VI/1.
2077. Endnote 126
2078. Coja, VIII/4.
2079. Endnote 127
2080. Horvath, III/9.
2081. Endnote 128
2082. ibid., III/5 and 9.
2083. Endnote 129
2084. Gheorghe, VI/9.
2085. Endnote 130
2086. Camarasan, VI/18-19.
2087. Endnote 131
2088. Berindei, II/7-14.
2089. Endnote 132
2090. Frauendorfer, II/20.
2091. Endnote 133
2092. Frauendorfer, II/27.
2093. Endnote 134
2094. Interview at the Ministry of Education, Bucharest, 9 October 1990.
2095. Endnote 135
2096. Berindei, II/15.
2097. Endnote 136
2098. Frauendorfer, II/27.
2099. Endnote 137
2100. Frauendorfer, II/29.
2101. Endnote 138
2102. Consiliul de Stat al Republicii socialiste Romania: Retribuirea in accord global si alte forme de retribuire - Culegere de acte normative, 1984.
2103. Endnote 139
2104. See para. 1 of this report.
2105. Endnote 140
2106. Communication of 30 March 1990, op. cit., Appendix I.
2107. Endnote 141
2108. Berindei, M. Colas, A.: "L'abolition du salariat", in L'Alternative (Paris), No. 25, Jan.-Feb. 1984, reproduced in Appendix 3 of the communication noted in footnote 3 above.
2109. Endnote 142
2110. ibid., p. 39.
2111. Endnote 143
2112. ibid., p. 40.
2113. Endnote 144
2114. Communication of 30 March 1990, op. cit., Appendix I, pp. 8-9.
2115. Endnote 145
2116. ibid., pp. 13-14.
2117. Endnote 146
2118. ibid., p. 10.
2119. Endnote 147
2120. Schöpflin, Poulton, op. cit., pp. 15 and 17.
2121. Endnote 148
2122. Communication of the Romanian Government dated 20 June 1990.
2123. Endnote 149
2124. Delegation of Romania, CSCE Copenhagen: White paper concerning the actions taken for promoting fundamental human rights in Romania, p. 10.
2125. Endnote 150
2126. M. Pacuraru, II/12; M. Negrea, Appendix IV/3.
2127. Endnote 151
2128. Berindei, II/13.
2129. Endnote 152
2130. Cosmin, C.: "En réponse à Alexandru Danciu, Tzigane de Roumanie", "Roumanie - Crise et répression", in L'Alternative (Jan. 1983), p. 122.
2131. Endnote 153
2132. GB.243/14/29.
2133. Endnote 154
2134. Communication of 30 March 1990, op. cit., p. 4.
2135. Endnote 155
2136. The representative for the complainants requested that the anonymity of this person, the name of whom has been communicated to the Commission, be preserved. The Commission decided at its Second Session to comply with this request.
2137. Endnote 156
2138. Communication from the Government of Romania dated 20 June 1990, op. cit.
2139. Endnote 157
2140. Interview with the Deputy Mayor of Brasov (City Hall of Brasov), 10 October 1990.
2141. Endnote 158
2142. Interview with the Minister of Education, Bucharest, 9 October 1990.
2143. Endnote 159
2144. Coja, VII/11.
2145. Endnote 160
2146. Poly-Planche, I/12-13.
2147. Endnote 161
2148. Berindei, II/8.
2149. Endnote 162
2150. L'Alternative, op. cit., pp. 13-15.
2151. Endnote 163
2152. Interview with the Ministry of Education, Bucharest, 9 October 1990.
2153. Endnote 164
2154. Frauendorfer, II/25 and 28.
2155. Endnote 165
2156. Gheorghe, VI/11.
2157. Endnote 166
2158. Camarasan, VII/2-3.
2159. Endnote 167
2160. Interview at Timisoara, 10 October 1990.
2161. Endnote 168
2162. Interview at Timisoara, 11 October 1990.
2163. Endnote 169
2164. Interview at Brasov, 10 October 1990.
2165. Endnote 170
2166. Interview with Mr. Sandor Balasz and Mr. Karoly Vekov, Cluj, 11 October 1990.
2167. Endnote 171
2168. Interview at Timisoara, 10 October 1990.
2169. Endnote 172
2170. Coja, VIII/6.
2171. Endnote 173
2172. Gheorghe, VI/5.
2173. Endnote 174
2174. See para. 1 of this report.
2175. Endnote 175
2176. Letter from the Secretary General of the ICFTU addressed to the President of the Commission on behalf of the complainants, dated 30 March 1990.
2177. Endnote 176
2178. Communication dated 30 March 1990, op. cit., p. 2.
2179. Endnote 177
2180. ibid., Appendix 1, p. 14.
2181. Endnote 178
2182. ibid., Appendix 1, p. 2.
2183. Endnote 179
2184. ibid., p. 6, and Appendix 4.
2185. Endnote 180
2186. ibid., p. 10, and Appendix 5.
2187. Endnote 181
2188. ibid., Appendix 8.
2189. Endnote 182
2190. Iuhas, VIII/14.
2191. Endnote 183
2192. Country Reports on Human Rights Practices for 1989, report cited, pp. 1228-1242.
2193. Endnote 184
2194. E/CN.4/1990/28, op. cit., paras. 162-164.
2195. Endnote 185
2196. Amnesty International: Romania - Human Rights Violations in the Eighties, report cited, London.
2197. Endnote 186
2198. Helsinki Watch: Destroying ethnic identity: The Hungarians of Romania, report cited, pp. 43-44.
2199. Endnote 187
2200. See Appendix I of this report.
2201. Endnote 188
2202. Communication of the Government of Romania dated 20 June 1990.
2203. Endnote 189
2204. Iuhas, VIII/21.
2205. Endnote 190
2206. Frauendorfer, II/22.
2207. Endnote 191
2208. Pfaff, VII/22.
2209. Endnote 192
2210. Iuhas, VIII/13.
2211. Endnote 193
2212. Interview at Timisoara, Lehnau School, 10 October 1990.
2213. Endnote 194
2214. Frauendorfer, II/27.
2215. Endnote 195
2216. Pfaff, VII/22.
2217. Endnote 196
2218. Frauendorfer, II/28.
2219. Endnote 197
2220. Iuhas, VIII/14.
2221. Endnote 198
2222. Frauendorfer, II/28 and 29.
2223. Endnote 199
2224. Frauendorfer, II/29.
2225. Endnote 200
2226. Horvath, III/10.
2227. Endnote 201
2228. Berindei, II/8.
2229. Endnote 202
2230. Poly-Planche, I/13 and 21.
2231. Endnote 203
2232. Communication from the Government of Romania dated 20 June 1990.
2233. Endnote 204
2234. Interview with the Secretary of State, Mr. L. Stingu, Bucharest, 9 October 1990.
2235. Endnote 205
2236. Interview with the First Deputy of the Attorney-General, Mr. Nicolae Cochinescu, Bucharest, 9 October 1990.
2237. Endnote 206
2238. Schöpflin, Poulton, op. cit., p. 10.
2239. Endnote 207
2240. Consiliul de Stat al Republicii socialiste Romania: Retribuirea in accord global si alte forme de retribuire - Culegere de acte normative, s.l., 1984, pp. 9-27.
2241. Endnote 208
2242. Poly-Planche, I/12.
2243. Endnote 209
2244. Interview with nine Members of Parliament, Parliament, Bucharest, 8 October 1990.
2245. Endnote 210
2246. See in this connection Constantinescu, M., Stahl, H.H., Dragan, I.: Le processus d'urbanisation en Roumanie (Bucharest, 1974).
2247. Endnote 211
2248. UNESCO: Protection of the cultural heritage, Mission in Romania, August-September 1989, CAB-89/WS/3, p. 9.
2249. Endnote 212
2250. See para. 1 of this report.
2251. Endnote 213
2252. See Appendix I of this report.
2253. Endnote 214
2254. UNESCO, op. cit., p. 11.
2255. Endnote 215
2256. Hungarian Press of Transylvania (23 June 1988), Release No. 34/1988.
2257. Endnote 216
2258. US Commission on Security and Co-operation in Europe: Revolt against silence: The state of human rights in Romania (An update) (Washington, 1989), p. 2.
2259. Endnote 217
2260. Scinteia: "The rural resettlement plan: Four case studies", 22 June 1988, quoted in: Dan Ionescu, Radio Free Europe Research Studies, 16 Sep. 1988.
2261. Endnote 218
2262. UNESCO, op. cit., p. 7.
2263. Endnote 219
2264. Giriescu, D.: The razing of Romania's past (New York, 1989), p. 67, quoted in: US Commission on Security and Co-operation in Europe, op. cit., p. 2.
2265. Endnote 220
2266. UNESCO, op. cit., p. 5.
2267. Endnote 221
2268. Schöpflin, Poulton, op. cit., p. 18.
2269. Endnote 222
2270. See paras. 157 and 173 of this report.
2271. Endnote 223
2272. Rosière, S.: "Le programme de systématisation du territoire roumain", in Les Temps Modernes (Jan. 1990), No. 522, pp. 72-73.
2273. Endnote 224
2274. Helsinki Watch: Destroying ethnic identity - The Hungarians of Romania (report cited above).
2275. Endnote 225
2276. All the legislative texts adopted since 23 December 1989 have been published in "Monitorul Oficial al Romaniei", the only source used by the Commission.
2277. Endnote 226
2278. Consiliul Legislativ, op. cit.
2279. Endnote 227
2280. Manucu, IX/6-7.
2281. Endnote 228
2282. Document communicated to the parties at the hearing of 2 October 1990.
2283. Endnote 229
2284. Iuhas, VIII/15.
2285. Endnote 230
2286. Andreescu, VII/10.
2287. Endnote 231
2288. Poly-Planche, I/10.
2289. Endnote 232
2290. Preoteasa, IX/31-34.
2291. Endnote 233
2292. News from Helsinki Watch: News from Romania: Election Report (report cited).
2293. Endnote 234
2294. Candul Liber, Nos. 30 and 32, articles by Mr. Stefan Toderas.
2295. Endnote 235
2296. Iuhas, VIII/16.
2297. Endnote 236
2298. Interview with Mr. Sandor Balasz and Mr. Karoly Vekor, Cluj, 11 October 1990.
2299. Endnote 237
2300. Interview with the Secretary of State for Justice, L. Stingu, Bucharest, 9 October 1990.
2301. Endnote 238
2302. Andreescu, VII/8-9.
2303. Endnote 239
2304. ibid., VII/16.
2305. Endnote 240
2306. ibid., VII/17.
2307. Endnote 241
2308. This term refers to the iron guard movement which was an ultranationalist movement between the two World Wars.
2309. Endnote 242
2310. Act No. 3/1977 respecting state social insurance pensions and social assistance; Act No. 4/1977 respecting pensions and other social insurance entitlements for members of agricultural production co-operatives; Act No. 5/1977 respecting pensions and other social insurance entitlements for individual farmers not belonging to co-operatives.
2311. Endnote 243
2312. Delegation of Romania, CSCE Copenhagen: White Paper concerning the actions taken for promoting fundamental human rights in Romania, p. 11; document attached to the communication of 29 June 1990.
2313. Endnote 244
2314. Letter of the Minister of Labour and Social Security, dated 17 September 1990.
2315. Endnote 245
2316. Sevaciuc, IX/14-16.
2317. Endnote 246
2318. Monitorul Oficial al României, Part I, Year I, No. 1, 22 Dec. 1989, p. 2.
2319. Endnote 247
2320. The term "national minorities" has been used by the Government of Romania since December 1989, instead of the word "nationality".
2321. Endnote 248
2322. Decision of the Assembly of Deputies, No. 14, dated 27 June 1990.
2323. Endnote 249
2324. See para. 509 of this report.
2325. Endnote 250
2326. Parliament of Romania, Committee of Inquiry: Rapport sur les événements de Tirgu-Mures - 19-20 March 1990, report cited, Vol. 1, p. 12.
2327. Endnote 251
2328. Pfaff, VII/24.
2329. Endnote 252
2330. Report of the events in Tirgu-Mures, report cited, Annexes VI/3, Vol. 2, and XXXVI/1 and 2, Vol. 3.
2331. Endnote 253
2332. Interview with Mr. Sandor Balasz and Mr. Keroly Vekor, Cluj, 11 October 1990.
2333. Endnote 254
2334. Meeting with the Ministry of Education, Bucharest, 9 October 1990.
2335. Endnote 255
2336. Coja, VIII/6-7.
2337. Endnote 256
2338. Développement de l'education, National report of Romania by the Ministry of Teaching and Science (Bucharest, Aug. 1990).
2339. Endnote 257
2340. Intervention by Mr. Imre Andras, deputy from Satu Mare, interview with parliamentarians, Parliament Palace, Bucharest, 8 October 1990. See also E/CN.4/1991/30, op. cit., para. 118.
2341. Endnote 258
2342. Report of the events in Tirgu-Mures, report cited above, pp. 20-21.
2343. Endnote 259
2344. Report of the events of Tirgu-Mures, 19-20 March, cited above, Vol. II, Appendix VI/1, pp. 1-2.
2345. Endnote 260
2346. Report of the events of Tirgu-Mures, report cited, Vol. I, p. 57.
2347. Endnote 261
2348. Monitorul Oficial, Year II, No. 118, 30 Oct. 1990, p. 2.
2349. Endnote 262
2350. The procedure followed by the Commission is described in Chapter 4 of this report.
2351. Endnote 263
2352. Session of 4 July 1990, Geneva, Record of Proceedings, pp. 10-11.
2353. Endnote 264
2354. ibid., pp. 13-14.
2355. Endnote 265
2356. Report on the hearings of witnesses, III/19; see also foregoing paragraph 557.
2357. Endnote 266
2358. Report of the Commission appointed under article 26 of the Constitution of the ILO to examine the complaint filed by the Government of Portugal concerning the observance by the Government of Liberia of the Forced Labour Convention, 1930 (No. 29), ILO: Official Bulletin, Vol. XLVI, No. 2, Apr. 1963, Supplement II, para. 386, p. 155, and Report of the Commission instituted under article 26 of the Constitution of the ILO to examine the complaint on the observance by Poland of the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98), ILO: Official Bulletin, Vol. LXVII, 1984, Series B, Special Supplement, para. 468, p. 123.
2359. Endnote 267
2360. Report on the hearings of witnesses, II/14-15; VI/13, 15, 20, 21; VII/2, 4, 18.
2361. Endnote 268
2362. Conversation with Mr. Tärök Ernö, Brasov, 10 October 1990.
2363. Endnote 269
2364. E/CN.4/1991/30, op. cit., paras. 94-95.
2365. Endnote 270
2366. Report on the events of Tirgu-Mures - 19-20 March 1990, report cited, Vol. III, Appendix XXXIII/1.