PART TWO: CONTENT OF COMPREHENSIVE ANTI-DISCRIMINATION LAW of compensation to victims may not have any real effect in terms of changing the approach and that States should also implement “forward-looking, non-pecuniary remedies” in their legislation.579 A. Remedies in different branches of law PART TWO – II Historically, legal orders in many jurisdictions included prohibitions on discrimination in the constitution and in criminal law. As understanding of the field of anti-discrimination law has developed, it has become increasingly recognized that, if States are to ensure effective remedy –particularly if they are to discharge the obligation to ensure compensation and restitution for claimants – prohibitions on discrimination should be provided in the civil or administrative branches of law. Clear exceptions arise in respect of discriminatory violence and other criminal acts with a bias motive, which should be the subject of specific criminal sanction; these areas of law are discussed in part four. States with advanced, well-developed bans on discrimination elaborated in the national system provide relevant and appropriate remedies in administrative, civil (including particular domains, such as labour and media law) and criminal law. The use of civil law remedies has been presented as starting from the premise that discrimination is an infringement of personal rights and, as such, civil remedies are frequently deemed the appropriate framework for relief and redress.580 Conversely, some countries have chosen to sanction discrimination as a criminal offence, in an apparent effort to reflect the impact of discrimination in “affecting not only the dignity of the victim but also in eroding the social fabric”.581 However, a comparative study on the effectiveness of different approaches to remedy and sanction in Europe found significant limitations of the criminal law in practice.582 More broadly, while the Committee on the Elimination of Racial Discrimination has held that criminal penalties may be important in providing effective remedy for certain forms of racial discrimination,583 it is increasingly acknowledged that civil and administrative law provide the most effective remedies and sanctions for direct and indirect discrimination and failure to make reasonable accommodation. 584 Indeed, criminal law provides both an inappropriate and an inadequate means to remedy these forms of discrimination, for a number of reasons: • No need for intent or malicious motive. First, a finding of discrimination does not necessitate malicious motive or intent to discriminate.585 As discussed in section I.A.2(a) of this part, discrimination may be both intentional or unintentional or may occur because of the maintenance of rules, policies or procedures that – despite pursuing a legitimate aim – have a disproportionate impact on those sharing a particular characteristic (see sect. I.A.2(b)). Criminal prosecution for discrimination in cases in which discrimination is unintentional or indirect will be disproportionate and unjustified. 579 Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 22. 580 As noted by Romaniţa Iordache and Iustina Ionescu: “Civil remedies are victim-focused and include remedies of a personal nature that benefit the victim of discrimination by bringing discrimination to an end, restoring the status quo antes and ensuring compensation and damages for harm incurred as well as for future loss of earnings. They might also include the victim’s reinstatement in his or her position prior to discrimination in cases of discrimination in employment.” See Romaniţa Iordache and Iustina Ionescu, “Discrimination and its sanctions – symbolic vs. effective remedies in European anti-discrimination law”, European Anti-Discrimination Law Review, No. 19 (2014), p. 13. 581 Iordache and Ionescu, “Discrimination and its sanctions”, p. 15. See therein for examples from within the European Union. 582 Ibid., p. 17. “The comparative survey … [found] limitations of the punitive mechanisms put in place: limited standing for initiating a criminal or administrative case and limited powers of the authorities mandated to respond to discrimination. The research also shows that the administrative remedies provided for are often inadequate or are available only for particular forms of discrimination”. 583 Committee on the Elimination of Racial Discrimination, Lacko v. Slovak Republic (CERD/C/59/D/11/1998). 584 The approach to harassment is more complicated: in some jurisdictions, harassment is prohibited both in civil and criminal law. In the United Kingdom, for example, both the Equality Act, 2010, and the Protection from Harassment Act, 1997, prohibit harassment. Section 26 (1) of the Equality Act states: “A person (A) harasses another (B) if – (a) A engages in unwanted conduct related to a relevant protected characteristic, and (b) the conduct has the purpose or effect of – (i) violating B’s dignity, or (ii) creating an intimidating, hostile, degrading, humiliating or offensive environment for B.” While the Protection from Harassment Act does not define harassment, it has been interpreted as covering the same forms of harm. 585 See also Committee on the Rights of Persons with Disabilities, general comment No. 6 (2018), para. 18 (a); and Human Rights Committee, general comment No. 18 (1989), para. 7. 77