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Neutral or indifferent?
One of the striking difference between Unisa and the VMRI to be establish lies in the assignment. Jog chum Vrielinck, expert on discrimination law and involved as a consultant in the set-up of the VMRI, explain that broadly speaking there are two type of equality bodies (anti-discrimination institutions): the first is explicitly aim at promoting equality and combating discrimination, the second is more aim at strengthening and clarifying jurisprudence in this area. Type one starts from complaints and seeks legal assistance for the victims, type two aims at motivated judgements.
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Practice shows that almost all institutions have their own combination of both types, but the VMRI must clearly profile itself as type two. A Disputes Chamber will have to guarantee this. Unisa is accuse by right-wing part of activism, which would divide society and reduce support for human right. But many human rights experts believe that equality bodies and human rights institutions should fully focus on promoting rights and defending victims. Because in terms of human rights, neutrality seems dangerously close to indifference.
The “activism” that both N-VA and Lamas Belong stumble upon is mainly the possibility of taking legal action, which means that the organization can decide to also bring individual complaints to court without demonstrable collective interest. Any organization can go to court for cases that do have a demonstrable collective interest.
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Julie Pascoe of the European Network Against Racism also expects that the new European directive, which will be publish this autumn, will require the institution to function primarily as a service and assistance for victim. For this, she says, sufficient resources and appropriate guidance must be available, because victims often cannot cope with the high costs that a lawsuit entails. often no match for the high costs that a lawsuit entails.
The contradiction between opting for the defense of victims’ rights on the one hand and mediation and reparation on the other also turns out to be a false one. Unisa provided 515 negotiated solutions in 2021. Director Els Katzman: ‘We are indeed on the side of the victims, because we want to rectify the power imbalance between an often vulnerable citizen and structure or organization that are much better equip to deal with legal proceeding.
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An imp or interim office, a company or a government has legal advisors and lawyers, citizens often cannot afford that. But we are very proud of the high number of negotiated solutions. Especially since these are not easy excuses, but clear statements. They are often accompanied by a settlement, which also includes agreements for compensation and for structural improvements.’
Minister Somers refers to the small number of lawsuits (exactly four) that Unisa is conducting under the Flemish Equal Opportunities Decree. But he does not mention that Unisa puts a lot of effort into negotiated solutions. ‘The most important thing’, says Katzman, ‘is that the reporter is properly assist by a partner with knowledge of anti-discrimination legislation, throughout the entire procedure.’