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Participating Countries: Bulgaria, Czech Republic (host), Luxembourg, Spain, UK

Session 1 � Opening
Thursday evening welcoming by Isabelle Chopin of MPG and Barbara Cohen on behalf of Czech Human Rights Commissioner

Session 2 - General Introductions to the two international instruments
EU Race Equality Directive: Isabelle Chopin, MPG
Protocol 12 to the ECHR: Mariann Meier-Wang, Interights (see paper �A brief overview of Article 14 and Protocol No.12 to the ECHR�)

Session 3 � A personal account
Ivan Ivanov, staff attorney at European Roma Rights Center, described the treatment he has been subjected to since childhood

Session 4 � Definitions: Direct and indirect discrimination, harassment and victimisation
Barbora Bukovsk� of the Counselling Centre for Citizenship, Civil and Human Rights in the Czech Republic
Margarita Ilieva of the Legal Defence Programme of the Bulgarian Helsinki Committee

Combined Conclusions of Working Groups:

• The definitions of direct and indirect discrimination contain the words 'has been or would be treated less favourably' (direct discrimination) and 'would put persons of racial or ethnic origin at a particular disadvantage' (indirect discrimination). Therefore, there is no need to prove that a person has actually suffered discrimination.
• Definitions of discrimination must apply to cases of associational discrimination, i.e. a person who has suffered discrimination due to the fact that they associate with a minority, or on the grounds of an assumption that he or she is of a certain ethnic origin or race.
• By including express definitions of direct and indirect discrimination in any new legislation, adverse interpretations from the judiciary may be avoided.
• Should definitions be wide or narrow? If too narrow, societal changes may not be accounted for and consequently, cases may not fall within the scope of the definition.
• It was suggested it might be wise to expressly define 'unfavourable treatment' in any draft laws, as it is unclear what this phrase means.
• Supporting definitions of grounds such as 'sexual orientation' would also be welcomed by some delegates.
• The difference in approach required in drafting anti-discrimination law in countries with codified laws and those with common law was highlighted. For the former it is important to be exhaustive in drawing up any lists of grounds of discrimination, whereas under common law there is far more scope for judicial interpretation of statutes.
• Should 'victimization' be categorised as discrimination? If it were defined as discrimination, the reversal of the burden of proof would apply.
• It is important to ensure there are well-trained legal professionals who are knowledgeable about the issues.
• Community groups that support individuals also play a vital role.
• Access to justice for individuals must be secured.
• Although the Directive does not require that statistics be used to establish that indirect discrimination has taken place, many people felt that they would be useful.

Advocacy strategies include:

• Test litigation cases in conjunction with campaigns to change the law
• Dialogue with governments
• Build expertise of NGOs
• Use of parliamentary questions to ask governments what action they have taken to change the law.

Session 5 � Implementation: Independent/specialised bodies
Geraldine Hynes, solicitor, Equality Authority in Ireland (see paper �Equality Law in Ireland�).

Combined Conclusions of Working Groups:

• The Directive does not require the body itself to be independent, but simply that its functions are carried out independently.
• If the government is involved in selecting the members of the body, complete independence is not guaranteed.
• It is very difficult to create a body that is entirely independent, as it is likely that the funding of the body will ultimately come from the public purse.
• Control by NGOs is considered to go some way towards guaranteeing the independence of the body. Collaboration between the specialised body and NGOs is of extreme importance.
• Local branches should be created to maximise accessibility to those suffering from discrimination.
• Many people are in favour of an umbrella law covering multiple grounds of discrimination that is enforced by several bodies, each with a mandate for different grounds of discrimination, rather than one body covering multiple grounds. Others feel that one body should cover all grounds. There is concern that giving a body the mandate to cover several grounds of discrimination would lead to a reduction in resources to deal with the respective grounds.
• The body should be able to make use of civil, criminal and administrative sanctions (e.g. the revocation of bar or restaurant licenses).

Session 6 � Remedies and enforcement: Defence of rights, burden of proof and sanctions
Robin Allen QC, Cloisters Chambers, UK (see paper on Remedies and Enforcement)

Combined Conclusions of Working Groups:

• Under Article 8 of the Directive, the plaintiff has only to present facts from which it can be presumed that discrimination has occurred before the onus is shifted to the defendant to prove that it did not occur. However, what constitutes a prima facie case in one jurisdiction may differ from the next.
• In domestic courts it is often difficult to prove a prima facie case because it is difficult to establish racial motivation.
• Current sanctions - whether criminal, civil or administrative - are often viewed as symbolic and therefore ineffective.
• Administrative procedures have the advantage of being far less expensive than civil or criminal procedures.
• If the state is responsible for implementing administrative sanctions, they may act slowly.
• The choice of procedure depends to a large extent on the outcome sought: administrative procedures are likely to result in the internal change of the individual organisation, but it is important to ensure that the victim can be compensated if that is what he or she wants. In an effective system there should always be the additional threat of civil or criminal proceedings to back up administrative measures.
• The role of specialised bodies in the administrative procedures referred to in Article 7 of the Directive remains a point of confusion for many people. It was asked whether there might not be a potential breach of Article 6 ECHR where the specialised body set up under Article 13 of the Directive is given the power both to provide assistance and to adjudicate, since impartiality would not be guaranteed. It was thought that in this situation the European Court of Justice would be likely to find there to be a breach of the right to a fair trial, particularly in light of the guarantee of a fair trial in Article 47 of the Charter of Fundamental Rights of the European Union, which, despite its non-binding character, the Court is increasingly calling upon.
• In civil law remedies, the victim is more in control of proceedings, although in some countries procedural rules, that are seen to be weighted against the plaintiff, often hinder a level playing field.
• Class actions can constitute a useful remedy.
• In some countries (for example Bulgaria), civil law remedies require proof of almost as high a standard as that required in criminal cases. This makes it unlikely that statistical evidence would be accepted.

Session 7 � Genuine occupational requirements and positive action

Dick Houtzager of the National Bureau against Racial Discrimination in the Netherlands focused on three issues: Dutch equal treatment legislation, the concept of genuine occupational requirements, and the possibility of positive action foreseen in Article 5 of the Directive (see paper �Of Actors, Social Workers and the Disadvantaged�).

Combined Conclusions of Working Groups:

• Any lists of genuine occupational requirements in criminal law must be exhaustive lists in accordance with the principle of legal certainty that an offence must be clearly defined in law.
• It is the discretion of the Member States to implement positive action or not.
• Positive action should not be based on ethnicity alone, but on levelling the disadvantages faced by certain categories of persons, for example the disproportional access to educational institutions. The preamble of the Directive was referred to as being especially helpful, as it refers not only to the compensation of �disadvantages suffered by a group of persons� but also to measures with the aim of promoting the �special needs of those persons�.
• The need for good statistics and other evidence was highlighted.
• One problem that was identified in relation to the implementation of positive action is the potential invasive manner (perceived or actual) that may be used in attempts to remedy social problems in schools that are attended predominantly by minority children.
• There is some confusion as to the meaning of the term positive action, and how it is distinguished from affirmative action or positive discrimination. It must be made clear in both the European and national contexts what exactly is meant. NGOs must be involved in this process in order to have a common understanding of the measures that are allowed.

Session 8 � Regional and Domestic follow-up
The purpose of the final session was to identify the issues that dominated the workshop and to consider strategies for further cooperation. Warwick Maynard, currently working with the Czech Human Rights Commissioner, explained how the EU Twinning Projects work.

Overall key issues:

• Should there be one piece of legislation for all grounds of discrimination, or should each ground be dealt with individually? Similarly, should there be one specialised body dealing with all grounds or several?
• Should legislative provisions be detailed or more open to interpretation? Should there be a difference in approach between common and civil law jurisdictions?
• Drafters of new laws should ensure that protection is guaranteed also to persons who are discriminated against because they are presumed to be a certain race or part of a certain community, or because they are associated with (or presumed to be associated with) a person of a certain race.
• Good legislation must be accompanied by judicial training in order to ensure the correct and effective application of laws. As on the whole judges tend not to be highly interested in equality issues, it is important to ensure they know about any laws drafted with social goals. Thus far in some countries, NGOs have been far more effective in training the judiciary: governments must be willing to teach judges about the issues. If the EU institutions were to provide training for judges, it might be less threatening and perceived more favourably.
• Governmental and non-governmental actors must step up their cooperation.
• Lawyers and academics should support local NGOs promoting the correct transposition of the Directive. Governmental authorities should better inform NGOs about the measures they are taking, thereby increasing the transparency of their work.
• Public education and campaigning is required to tackle public perceptions firstly of victims� suffering (use of testing, gathering and presenting statistics to educate public), and secondly of assistance provided to them to overcome disadvantages (positive discrimination versus positive action).
• The independence of a specialised body is crucial, but how is this best achieved?
• Conciliation/ mediation should be used alongside civil and criminal law remedies. The type of procedures used should be selected according to the seriousness of alleged discrimination, and non-binding measures should always be backed-up by the threat of civil or criminal sanctions.
• Statistical evidence is extremely useful for context education, but gathering data extremely difficult in some jurisdictions. One solution to this is the anonymous collection of data. Better use could be made of any data collected by the European Union Monitoring Centre on Racism and Xenophobia, whose mandate it is �to provide the Community and its Member States with objective, reliable and comparable data at European level on the phenomena of racism, xenophobia and anti-Semitism in order to help them when they take measures or formulate courses of action within their respective spheres of competence�. It was argued that the EUMC should also collect data relating to candidate countries.

Closing of the Workshop
Participants were invited to turn to the project partners ERRC, Interights and MPG for further information, resources and advice.