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The introduction of a civil Councillor for Equality

The Councillor as plaintiff Equality

Mr. Lamanna Roberto - Chairman of the National Association of Democratic Lawyers

Report held in the course of anti-discrimination law ( http://www.ordineavvocatitorino.it/UserFiles/File/convegni/comm_scientifica/CONVEGNI_ORDINE/ANNO_2010/PROGRAMMA_DIRITTO_ANTIDISCRIMINATORIO__3_1.pdf ) in Turin, the lesson of 14.05.2010, "The code equal opportunities'. Sexual harassment in the workplace. Criminal protection and civil protection. Practical Case Studies. "

Source: http://www.giuristidemocratici.it/post/20100531183805/post_html

The appointment of a Councillor for Equality, already provided for by Legislative Decree 196/00 has been reproduced above. 15 of the Code of Equal Opportunities issued by the Legislative Decree 198/06, with the changes now introduced by Legislative Decree No 25/1/10 5.

The previous reports we have already explained the general content of the legislation, as well as more practical cases

frequently presented themselves over the years.

I deal only affects the part of the criminal law issue and, therefore, in particular, the possibility of a civil Councillor for Equality in the open cases for offenses relating to gender discrimination as being of a criminal.

The gender discrimination that occur in the workplace, and therefore the responsibility of the Councillor of a tie, according to Art. 1 CEDAW (Convention on the Elimination and the discrimination against women) ratified by the L. 132 of 14 March 1985 and is valuable source of supranational consist "Any distinction, exclusion or restriction based on gender, which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by for women, irrespective of their marital status, human rights and fundamental freedoms in the political, economic, social, cultural, civil or any other field, on the basis of paritàtra man and woman. "

may, therefore, integrate discriminatory criminal case:

- Violence private

- abuse in the workplace

- sexual harassment

- harassment or insults

- sexual violence

- persecution

- beatings

- personal injury

- murder

- procured abortion

And, generally, any relevant criminal conduct that is committed within the working relationship, both by the employer as a colleague, and hit the woman for the female gender specific to its membership, going to affect, impair or limit the enjoyment of his rights or the exercise of fundamental freedoms "as a woman."

should be noted that the Councillor for Equality legislation contains no reference to the possibility or not to Councillor for Equality to get in criminal cases, in fact, Articles. 36 and 37 of Legislative Decree 198/06, even with the changes and additions made by the Legislative Decree No 25/1/10 5, are only referred to the possibility for Councillor for Equality of appeal to the Court according to Judge of the Labour or the competent Regional Administrative Court.

It is, therefore, to interpret the law, inadequate on the specific point, in light of general principles.

Sulla questione, per quanto mi consta, non esistevano precedenti sino al momento in cui la Consigliera di Parità della Regione Piemonte ha deciso, tramite i suoi difensori, di tentare la costituzione di parte civile in un procedimento penale per molestie sessuali promosso da tre dipendenti della SAGAT nei confronti di tre dipendenti della Società stessa.

All'udienza preliminare per due dei tre imputati (il terzo era stato giudicato separatamente), dunque, la Consigliera di Parità ha depositato atto di costituzione di parte civile, evidenziando il proprio buon diritto alla costituzione in presenza di reati integranti fattispecie discriminatorie that the activity of the Councillor is aimed at combating institutionally, in his capacity as an institutional entity in charge of monitoring the observance of grandmothers on gender discrimination and to promote initiatives to achieve equal opportunities in employment, including, therefore, the 'judicial initiative, to protect a real subjective right of that Councillor for Equality, violated by the Board of those crimes with a discriminatory nature.

preliminary hearing constituted, then, is discrimination of the affected workers, and their Auditors Organisation of belonging, both Councillor Regional Equality.

Against the opposition of the defense of the defendants to a civil, is the union of both the Director of Equality, the GUP, with a brief motivation, he said that * institutional purposes in respective areas of competence, on the one hand the trade unions in relation to health protection and personal dignity of workers and therefore their own and other directors of the regional Equal to the protection and also to promoting the principles of equal opportunity and sexual non-discrimination between men and women in the workplace, gives both the right costituirsi nei processi nei quali si ritengano violate norme poste a tutela di questi diritti, indipendentemente rivestita all'interno dell'ambiente di lavoro.".

La vicenda ebbe limitato risalto, poiché gli imputati definirono il procedimento a loro carico con il patteggiamento e, dunque, il GUP si limitò a liquidare alle parti civili costituite le spese di costituzione.

La vicenda, sotto il profilo penale, sembrava definita, ed invece uno degli imputati propose ricorso per Cassazione avverso la sentenza di patteggiamento solo ed esclusivamente in relazione all'avvenuta liquidazione delle spese di costituzione di parte civile, e nei confronti of one Councillor for Equality.

Thanks to this appeal, therefore, the Supreme Court was called upon to decide for the first time on the admissibility of a civil party in criminal proceedings by the Councillor for Equality.

The Supreme Court has addressed this problem both legitimatio causam to be that of a civil Councillor for Equality, claiming a right jure right.

In the first case, the Supreme Court ruled that the right is simply the result of the provisions

from above. 37 subsections 1 and 2 of Legislative Decree 198/2006, which recognizes Councillor for Equality to enforce the law in court once the claim to damages in cases where it is found "the existence of documents, agreements or discriminatory conduct direct or indirect collective nature "'.

So, the question arises whether the conduct alleged against the defendants constitute discriminatory conduct, whether direct or indirect, with respect to which the Code confers ownership of Equal Opportunities Councillor for Equality.

and behavior, in this case, consisted in the imposition of sentences scurrilous, sexual content, continuoriferimento in the qualities of sexual harassment, repeated advances in respect of employees, also flatly rejected, which was Following the refusal to grant leave or permission or the assignment of duties more onerous than those carried out by other workers, so in one of those behaviors I listed above.

The Supreme Court Sec. VI criminal, the sentence no 266, 5702/2009, considered realize that such situations are "undoubtedly unwanted behavior, put in place for reasons related to sex and in any case having the purpose or effect of violating the dignity of a work ... and creating an intimidating, hostile, degrading, humiliating or offensive " as predicted. 26 paragraph 1 of the Code of Equal Opportunity.

There is therefore no doubt that those behaviors which are considered integral to the crime of ill-treatment, constitute a situation where Councillor can, and indeed must, act.

from commission of the acts of crime claims to the accused and integrating the violation of the rules that protect workers from discrimination on grounds of sex, and hence also from sexual harassment, then comes an infringement of rights expressly conferred by the legislature Councillor for Equality, in its capacity as holder of the right to 'compliance legislation.

But, as I said, the Supreme Court went even further, stating, and is the first time, to my knowledge, that Councillor Parity party with a real individual right that legitimate to a civil right ture.

On this point, the Supreme Court expressly states that "... Councillor is entitled to a civil, not as a representative body of common interests but as" damaged "by the crime of ill-treatment committed in to more workers, finally get the rest of the non-pecuniary damage

immediately. "

In other words, this is the implementation of that action in the civil penal code that specifically attaches to the Equal Opportunities Councillor for Equality on the Labour Court or TAR, in public employment.

If, that is, Councillor Parity is entitled to appeal to the Labour Court in respect of damages from abuse - harassment of a sexual nature, there seems no reason why the same can not transfer such action within the criminal proceedings arising in the meantime.

The Supreme Court has gone even further the residual hypothesis that I proposed as a defender in the sense that I argued that, in any case, the entitlement to a civil Councillor for Equality was allowed the exponential as a subject of common interest, but the Supreme Court , as seen, welcomed, indeed, the main thesis, which aims to give the Councillor for Equality

position in their damaged.

The Supreme Court, then, also addresses the issue of compensation for non-pecuniary damage, given the known decisions of the United Sections of I I/11/2008, in concluding that that the Councillor for Equality has the right to "get the non-pecuniary damage jure part of his criminal trial for the realization of the rights and interests that the law expressly recognizes and protects the .

therefore no problems can arise even in relation to the Recoverability of non-pecuniary damage Councillor for Equality, since the Supreme Court reiterated that, according to a constitutionally-oriented, non-pecuniary damage is reparable, the various possible hypotheses, when the tort is an abstract constitutes an offense, and in this case, not only the facts appeared to be configurable as a crime, but its proceedings are concluded with an application of the death sentence.

This can be further added, for more detailed information, that the rights of women were considered, since 1995, the Fourth World Conference on Women United Nations, human rights and violence against women seen as abuse, oppression, restrictions on personal freedoms, inequality of treatment and opportunity abduction, violation of rights is a violation of fundamental rights

of the person, affecting not only personal but also social and public.

To complete the examination of the particular case of which I treated, I add that later, and just a few days ago, it was also finally concluded the lawsuit filed by workers on the employment tribunal and in which Councillor for Equality has intervened, is lent its support to the position of the harassed worker, both on their own, pushing that right, this time in civil, acknowledged by the Court of Cassation.

And in fact, has reached a friendly settlement of the dispute with the recognition of a sum of money as well as actresses, including Councillor for Equality, as compensation for the non-pecuniary damage suffered by it and this is the full proof of the effectiveness of the damage suffered by ture its Board of Equal.

It was, as mentioned, a ruling from the Supreme Court is extremely important because innovative possibilities that the law attaches to Consiglerà Equality, extending even to the criminal field.

The ruling follows in the wake of a series of decisions that had affected, especially in the last decade, the possibility of entering the criminal trial of associations, institutions or organizations union, which had been excluded by an exclusively individualistic principle of the damage, in respect of which have grown up a address jurisprudence now constant, which recognizes the same, and in particular the trade unions, the right to a civil action not only as bearers of collective interests, but also on his own, to protect rights and principles under which the unions were born Organizations and stipulated in their statutes.

Recent events and processes Thyssen Eternit, where she was admitted to a civil union of organizations, in Turin, are proof, as well as a recent ruling of the Court of Chivasso that in a case concerning the death of 5 to asbestos workers, whose families, among others, and further confirmation that we were discussing a proper law of Trade Union Organizations, had already been fully compensated, recognized and quantified the damage 30.000,00 Euro their trade union organization, as well as some recent decisions of the Court of Cassation, which confirmed not only the right to a civil action, but also the existence of a real damage ture own dismissed by lower courts on an equitable basis.

And the position of Director of Equality and, in some ways, be considered even stronger than that of Organizations Unions and associations or bodies because its legitimacy should not even be sought in the coincidence between the interests and rights violated and the statutory purposes of the same, but derives directly, as I said earlier, by law and is inserted, therefore, on public side of the damage caused by discriminatory acts.

So, in a prosecution for crimes that concern discrimination such as harassment and sexual harassment, the Equality Councillor may claim the right to compensation:

- in relation to the unequal and unlawful injury rights to the rules for the protection of workers and workers from discrimination and harassment, particularly with regard to sexual and consequent protection and guarantee of their dignity and for their moral, for the exercise of such rights the working men and women use to express the laws of representation given to the Councillor for Equality;

- in relation to the equally unjust impairment of the right to freely pursue the institutional goals mentioned above, resulting in injury image and credibility of the institution itself, as the subject for the above exponential exposed the community of workers operating on its territory.

not be denied, then, that those associations can claim the same right that acknowledge their statutory purposes of the defense of women against discrimination, harassment and gender violence: In this regard, I like to remember as the ' Association, which I chair, the Democratic Lawyers, has been admitted as a civil party by GUP of Perugia, in a proceeding for the murder (or, to use a term that we have helped to spread in Italy, femicide) of a young pregnant woman by her husband, and this stable base of its presence in the Charter of principles designed to protect against gender discrimination and the concrete work done by the association to pursue that specific purpose, and only a problem of lack of requirement of territoriality, ie the non-existence, at the time of a membership structure of the GD then led the Court Assizes to oust Democratic Lawyers as a civil party, but the fact remains that the principle has been affirmed.

Quell'ammissione, in fact, is to represent as femicide and domestic violence does not only represent a "fact" of women, but constitutes a deep wound to society, injury against which, consequently, can act independently also those associations that have their status in the protection of women and who have actively worked in the defense of that protection.

Therefore, personal protection, social and public, which includes a full position of Councillor for Equality.

We can therefore conclude that we are dealing with an appropriate extension of the duties and functions vested by law to the Councillor for Equality, with a significant expansion of its sphere of action.

A similar interpretation can be made more effective and enhances the role of Councillor Equal promote positive action plans and promoting the principle of real equality and against the backdrop of renewed attention, both by the Italian legislature (which, being constrained by the existence of EC directives in this regard), and by the judiciary, for one of the fundamental aspects of the human person, such as discrimination based on sexual orientation.

Just the inclusion of sexual harassment or discrimination on sex, contained in art. 26 of Legislative Decree

198/2006 extends the protection of working women in terms of discrimination, including

case where it was previously excluded.

Today, therefore, Councillor for Equality, in situations in which compromises are collective rights of workers, he is faced with a choice between the establishment of a civil suit in which to request damages just as well to support the claim of the worker discrimination / harassment and the criminal proceedings pending in the eventual entry through the institution of co

civil action.

And all this can only lead to a most positive assessment of the sensitivity of the judiciary in respect of human rights and in particular to the principle of equality between the sexes.

is now to follow up this opening, developing interventions Councillor for Equality in all those charged with criminal matters that exhibit the characteristics discriminatory and, therefore, even sexual harassment, with obvious strengthening position of the individual we operate.

I known that, unfortunately, the budget available to the Director of Equality have been reduced over time, with

un'evidente contraddizione rispetto all'ampliamento dei compiti voluto dalla nuova normativa di attuazione della Direttiva Europea 2006/54/CE, con ciò rendendo più complicato ed arduo il compito alla stessa affidato dalla legge, ma proprio l'ottenimento di un risarcimento ture proprio potrebbe consentire un maggior attivismo da parte della Consigliera, e dunque, in definitiva, anche una maggior attenzione alle problematiche della discriminazione di genere.

Torino, 14 aprile 2010.

Aw. Roberto Lamacchia