Published on 19 April 2021
FOURTH SECTION
Application no. 47358/20
Ileana CĂRBUNAR
against Romania
lodged on 8 October 2020
communicated on 31 March 2021
SUBJECT MATTER OF THE CASE
The application concerns the State’s response to allegations of sexual harassment in the workplace.
The applicant was working for a company offering cleaning services. She was assigned to perform her job in a railway station. She accused the manager of that railway station of repeatedly trying to force himself on her, over a period of two years, despite her rejection. When she complained to his superiors, she was forced to take her annual leave and eventually dismissed from her job.
The applicant lodged a criminal complaint against the alleged offender. The prosecutor’s office attached to the Timişoara District Court heard witness statements and private recordings made by the applicant of several discussions with sexual content having taken place between her and the manager. The complaint was dismissed on the grounds that the applicant had failed to prove that she had felt intimidated or humiliated by those acts (prosecutor’s decision of 22 October 2019). The prosecutor in chief of the same prosecutor’s office upheld the above decision, on the grounds that the acts in question had not been committed with the degree of criminal liability required by the applicable law (decision of 13 December 2019).
In a final decision of 11 July 2020 the Timişoara District Court upheld the prosecutors’ decisions and concluded that the applicant had not been intimidated or humiliated by the acts reproached to the manager, for the following reasons: (1) in the recordings she had not seemed embarrassed by the discussions with her alleged aggressor; (2) the latter had declared during the investigation that, in the past, they had had sexual intercourse on one occasion; and (3) according to the witness statements the applicant had only sometimes seemed sad whereas other times she had seemed rather cheerful after encounters with the alleged offender.
The applicant relies on Article 6 of the Convention and complains that the domestic authorities dismissed her complaint.
QUESTIONS TO THE PARTIES
1. Has there been a violation of the applicant’s right to respect for her private life, contrary to Article 8 of the Convention? In particular:
(a) Was the mechanism put in place by the domestic authorities to protect the applicant against sexual harassment in the workplace sufficient to allow her to bring her grievances to the authorities’ attention and to obtain appropriate redress?
(b) Did the authorities take all the measures that can be reasonably expected of them to protect the applicant’s private life, with regard to the manner in which they conducted the investigation?
(c) Was the manner in which the authorities interpreted the requirement for the alleged victim to prove intimidation or humiliation compatible with the respect for the applicant’s private life?
(d) What is a person in the applicant’s situation required to produce as evidence in order to prove allegations of sexual harassment in the workplace?
(e) Did the authorities give relevant and sufficient reasons for dismissing the applicant’s allegations of sexual harassment (decisions of 22 October and 13 December 2019 of the prosecutor’s office attached to the Timişoara District Court and decision of 11 July 2020 of the Timişoara District Court)?
(f) Regard having had to the manner in which the investigation was conducted, and in particular to the fact that the applicant was confronted with the alleged offender during the investigation, were the applicant’s interests as a victim adequately protected within the framework of the investigation (see, notably, Y. v. Slovenia, no. 41107/10, § 103, ECHR 2015 (extracts))?
2. Has the applicant suffered discrimination on the grounds of gender/sex, contrary to Article 14 of the Convention read in conjunction with Article 8 of the Convention? Was the applicant in a vulnerable situation by virtue of the nature of the acts allegedly committed against her, namely sexual harassment of a woman in the workplace (see, mutatis mutandis, Opuz v. Turkey, no. 33401/02, § 200, ECHR 2009, and Eremia v. the Republic of Moldova, no. 3564/11, § 85, 28 May 2013)?
The Government is invited to submit domestic case-law from courts or other bodies with jurisdiction in the matter (for instance the National Council for Combatting Discrimination) concerning sexual harassment in the workplace.
Full & Egal Universal Law Academy