Discrimination Commission Member Esen Fikri: Bulgaria's Discrimination Court Practice Is in Developing Stage

Esen Fikri. Photo by KZD

Interview with Esen Fikri from the Commission for Protection against Discrimination, a member of the team examining the "Season of the Watermelons" case.

In September 2008, 13 women filed an official complaint with the Commission for Protection against Discrimination over the advertising campaign of Bulgaria's alcohol producer "Peshtera" known as the "Season of the Watermelons" and "Passion in Crystals."

According to the claimants, the commercials and the billboards featuring pop folk stars in skimpy bikinis generously pouring alcohol to men at a beach are filled with sexual hints and innuendos and discriminate them as women "deeply and lastingly, in all their forms and appearance". They believe that the advertisement campaign violates the European principle of equal treatment of women and men in the access to and supply of goods and services.

The complaint was filed in the beginning of September 2008. The first decision of the Commission had been to send the case over to the Consumers' Protection Commission with the argument the issue was a consumers', not a discrimination one.

The claimants appealed before the Supreme Administrative Court, which ruled in favor of the 13 women. In February 2009, the case was returned to the Commission for Protection against Discrimination as the competent authority to examine the issue.

Three months later, the Commission scheduled a trial date but had to reschedule it because the subpoenas were not sent on time.

In June 2009, the Commission met again. The Commission's members decided then they needed further clarification and appointed a panel of a sexologist, psychologist and an advertising expert to report if the commercials have indeed elements of sexual harassment and bias.

Esen Fikri, the person behind the proposal to appoint the panel, agreed to speak for novinite.com.

Tell us more about yourself?

I am a member of the Commission for Protection against Discrimination since 2005. Since April 2008, I am also a member of the Executive Board of the European Network of Equality Bodies, EQUINET.

Between 1999 and 2005, I worked as a lawyer at the Lawyers' Association both in the cities of Dobrich and Varna.

I am a graduate of the Foreign Language High School in Dobrich, have a Master's Degree in Law and post-graduate qualifications at the Economy University in Sofia in Development and Management of Projects Financed by the European Commission (EC) and Auditing of Systems for Quality Control. In June 2008, I attended the Academy of European Law in Trier, Germany for a course in European Anti-discrimination Law.

I also have numerous participations, both as lecturer and planner, in international seminars and conferences, organized by the European Commission, the Council of Europe, EQUINET.

On the local level I have taken part in national events focused on protection against discrimination, equal rights; have participated in several projects financed by the EC.

I am also co-author of the following publications of the Commission for Protection against Discrimination: a manual on "How to Initiate proceedings with the Commission for Protection against Discrimination", "Court Practice in the Application of the Protection against Discrimination Act, "Practices of the Commission for Protection against Discrimination."

Why is the Commission for Protection against Discrimination delaying the decision regarding the "Season of the Watermelons" complaint? It has been filed in the beginning of September 2008, and had not been examined for months?

The proceedings before the Commission for Protection against Discrimination are subject to general and procedural rules and the adherence to them, of course, takes time.

Allow me to clarify that the complaint had been examined, and in a decision, dating from December 2008, the Commission for Protection against Discrimination members considered the complaints in the above case to be outside of the competencies of the Commission. For this reason my colleagues dismissed the procedure and sent it to the Commission for Consumers' Protection for examination and for ruling on the case.

The claimants were unsatisfied with this decision and appealed before the Supreme Administrative Court. In February 2008, the Court returned the case to the Commission for Protection against Discrimination. Later, around this time, two of the Commission's members withdrew from examining the case and were replaced by two other members.

After the Court returned the case, the preliminary research has been concluded and the parties were given the opportunity to examine the collected material. We held two open sessions, the third is scheduled for September. All these activities took place in a matter of several months.

It was my proposal that the Commission appoints an expert team of four professionals in different areas - advertisement, electronic media, and psychology. A sexologist is also part of the team. We observed the gender balance when assembling the team - it has two women and two men. I expect that in September the experts will present their conclusions before the Commission for Protection against Discrimination.

How would you comment on the decision of the Commission for Protection against Discrimination to sent the complaint to the Commission for Consumers' Rights Protection?

This decision has its logical explanation in the current practice. Even given the fact that complaints about discriminatory advertisements are not that many, the Commission for Protection against Discrimination had already examined such complaints and had ruled on them.

We had cases when the Commission for Protection against Discrimination had ruled that an advertisement is indeed discriminatory. Two decisions of the Commission for Protection against Discrimination had been appealed before the Court and were dismissed with the motif that the ethical rules in preparing the ads were not a subject to be discussed and sanctioned by the Commission for Protection against Discrimination because there is another institution dealing with the protection of the consumer against such advertisements.

After the Court, in two occasions, decided that the Commission for Protection against Discrimination did not have the authority to sanction moral and other, determined by the society, norms when ads and their messages are involved, it seems there is not even room for further comment.

And the one of the Supreme Administrative Court to return the Case to the Commission for Protection against Discrimination ?

The Court's decisions are rather subject to adherence, not to commentaries. This decision is indeed an expression of a different view regarding the issue compared to the one in the two preceding cases.

The Court practice involving the Protection against Discrimination Act is still in a developing stage and is often accompanied by different approaches.

Do you think the expert team of a sexologist, psychologist and advertisement specialist would be able to respond to the questions raised by the Commission i.e. do these commercials contain sexual elements, how they influence women, the adolescents and what perceptions and attitudes do they form?

I am convinced the experts will answer those questions. I find such expertise very necessary in this case, because the issues the complaint raises require deep knowledge in different areas. In order to rule correctly we need proof to base our conclusions regarding the grounds of the complaint.

Is there an explanation why two of the members of the team appointed to examine the complaint withdrew from the case?

The colleagues had stated their motifs. They decided they must remove themselves from the case because previously they had been members of gender organizations. I do not see such move as a reason for alarm because they obviously declared their will to dissipate any doubts regarding their objectivity and the independence of the Commission for Protection against Discrimination.

When could we expect the rule of the Commission?

Maybe in October, but this however depends on the hearing of the experts in September, their answers to our questions and their conclusions. There is a possibility that the need of additional assignments could arise...

 

 

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