PROTECTING MINORITY RIGHTS – A Practical Guide to Developing Comprehensive Anti-Discrimination Legislation • Standard of proof. In many legal systems, the criminal standard of proof involves proving the facts beyond reasonable doubt.586 This standard of proof is much higher than the balance of probabilities standard commonly used in civil proceedings. As discussed in section III.B of this part, the standard of proof required by criminal law is not appropriate in discrimination cases, given the difficulty for the claimant in accessing the evidence necessary to meet the “beyond reasonable doubt” standard. • Rules of evidence and transfer of the burden of proof. As discussed in detail in section III.B.1 of this part, in order to ensure the effectiveness of the right to non-discrimination, anti-discrimination laws must provide for the “shift” or “transfer” of the burden of proof in discrimination cases. This reflects the fact that, in many cases, claimants will not have access to the evidence required to establish whether discrimination has occurred. The presumption of innocence in criminal law is a well-established and important principle that is incompatible with a shift in the burden of proof.587 • Incompatibility with an open-ended list of grounds. As noted in section I.A.1(a) of this part, comprehensive anti-discrimination law within the domains of civil and administrative law should prohibit discrimination on the basis of any “other status”. However, in criminal law – in which the consequences for a perpetrator are more severe – the requirement of foreseeability makes the use of such an open-ended list inappropriate. • Difficulties in affording all aspects of effective remedy for victims in criminal law. In general terms, the purpose of criminal law is to punish the perpetrator of an offence and to recognize the social harm caused by their actions, rather than to compensate the victim for the harm caused by a particular offence. In the context of discrimination claims, while criminal law offers the possibility of dissuasive sanction, it will frequently fail to provide effective remedy to victims. As the Committee on the Elimination of Racial Discrimination noted in B.J. v. Denmark, for example, acts of discrimination “may merit economic compensation and cannot always be adequately repaired or satisfied by merely imposing a criminal sanction on the perpetrator”.588 Thus, international best practice provides that, in order to ensure effective remedy and redress for manifestations of direct and indirect discrimination in most areas of life within the scope of comprehensive anti-discrimination legislation, sanctions should be included in civil and administrative law. Positive reform efforts by States will result in an enrichment of all relevant domains of law. B. Sanction: bringing perpetrators to justice Ensuring effective remedy for discrimination unequivocally requires bringing to justice those responsible and punishing the act of discrimination, as a means of both specific and general deterrence. Indeed, each of the human rights treaty bodies have explicitly referred to the need to ensure sanction for those responsible for discrimination.589 As noted above, the Committee on the Rights of Persons with Disabilities has emphasized that sanctions should be “effective, proportionate and dissuasive”.590 In systems where discrimination is a matter of civil or administrative law, sanctions will take the form of monetary fines or similar penalties. Indeed, in some jurisdictions, awards of compensation to claimants – itself a necessary element of victim-focused remedy – is considered a form of sanction. The question of what level of monetary fine is sufficient to meet the criteria of being “effective, proportionate and dissuasive” is a contextual one. In some jurisdictions, levels of damages have grown over time,591 as awareness of discrimination 78 586 Human Rights Committee, general comment No. 32 (2007), para. 30. 587 See, inter alia, International Covenant on Civil and Political Rights, art. 14 (2); and Human Rights Committee, general comment No. 32 (2007), para. 30. 588 Committee on the Elimination of Racial Discrimination, B.J. v. Denmark (CERD/C/56/D/17/1999), para. 6.3. 589 See, for example, Human Rights Committee, general comment No. 31 (2004), paras. 16 and 18; Committee on the Elimination of Discrimination against Women, general recommendation No. 28 (2010), paras. 17 and 33; and Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 31 (f). 590 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 31 (f). 591 For example, in the United States, in the mid-1970s, “settlements in discrimination cases involving the payment of several dollars … were generally considered substantial victories. However, by 1990, the Fair Housing Council of Greater Washington (FHCGW) had secured more than a dozen of settlements or verdicts of over $20,000 each, and recoveries in several cases have exceeded $100,000” (footnotes omitted). See Fitsum Alemu, “Testing to prove racial discrimination: methodology and application in Hungary”, European Roma Rights Centre, 3 October 2000. Available at www.errc.org/roma-rights-journal/testing-to-prove-racial-discrimination-methodology-andapplication-in-hungary.