Development of anti-discrimination legislation and practice in Latvia: EU accession and remaining challenges

Transcription

1 Development of anti-discrimination legislation and practice in Latvia: EU accession and remaining challenges ILZE BRANDS KEHRIS LATVIAN CENTRE FOR HUMAN RIGHTS SEPTEMBER 2008 EMILIE - A European approach to multicultural citizenship: Legal, political and educational challenges.

2 EMILIE is a three-year research project funded by the European Commission Research DG, Sixth Framework Programme ( ). EMILIE A European Approach to Multicultural Citizenship. Legal, Political and Educational Challenges EMILIE examines the migration and integration experiences of nine EU Member States and attempts to respond to the so-called crisis of multiculturalism currently affecting Europe. EMILIE studies the challenges posed by migration-related diversity in three important areas: Education; Discrimination in the workplace; Voting rights and civic participation, in Belgium, Denmark, France, Germany, Greece, Latvia, Poland, Spain and the UK. EMILIE aims to track the relationship between postimmigration diversity and citizenship, i.e. multicultural citizenship, across these EU countries, and to identify what kind(s) of, if any, multicultural citizenship is emerging and whether there is/are distinctive European pattern(s). EMILIE Project Reports, Events and Research Briefs are available at The Hellenic Foundation for European and Foreign Policy (ELIAMEP) is the coordinating institution of the EMILIE consortium. EMILIE Partners include the University of Bristol, the University of Aarhus, the University of Liege, the Centre for International Relations (CMR) in Warsaw, the Latvian Centre for Human Rights, the Universitat Pompeu Fabra in Barcelona, the European University Viadrina, in Frankfurt a.o., the National Institute of Demographic Studies (INED) in Paris. The Latvian Centre for Human Rights (LCHR) is an NGO based in Riga, Latvia. The LCHR was established in 1993 as an institution with a broad human rights agenda, with special focus on political and civic rights. Since the beginning, one of the main directions of LCHR work has been minority rights and the situation of national minorities in Latvia, but in the last decade, much attention has also been devoted to anti-discrimination, fundamental freedoms, and the situation with regards to intolerance and racism. LCHR applies a multi-disciplinary approach to its work, in which legal analysis combines with sociological and political science methods of research. The organisation staff members conduct research, produce reports and expert opinions, provide trainings and seminars, as well as legal consultations to victims of human rights violations. For more information, see Ilze Brands Kehris is the director of LCHR. She is a political scientist whose work has included a focus on minority rights and citizenship issues. She has been actively involved in work of the Council of Europe (the Framework Convention for the Protection of National Minorities), the EU Fundamental Rights Agency (member of the Management and Executive Boards), and has also participated in the work of various OSCE structures.

3 Table of contents 1. Introduction Current legislation and development Situation before the EU accession period Transposition of EU directives slow process and remaining issues Employment Discrimination outside employment Education Housing and health Public goods and services Case law Key actors and institutional competences and practice State Labour Inspectorate Ombudsman Institution (previously National Human Rights Office) Secretariat of the Special Assignment Minister for Social Integration (IUMSILS) Welfare Ministry Non-state actors: trade unions, employers organizations, NGOs Public awareness : attitudes, research and public discourse Specific issues Religion Protection against discrimination and hate speech based on religion Traditional religions Discrimination on the basis of religion perceptions and experience Directive exception to discrimination: religious ethos Shifting of burden of proof Proof and admissible evidence: statistical data and testing Proof in court Data collection Effective, proportional and dissuasive sanctions Access to remedies Positive action Conclusions...28

4 A European Approach to Multicultural Citizenship: Legal, Political and Education Challenges EMILIE Contract No. CIT5-CT Work package 4: D5 Report 1. Introduction Legislative challenges to migrant and ethnic minority discrimination in the field of employment is a key area in need of follow-up in the EU as a whole and in all EU member states. Discrimination is one of the main barriers to labour market integration and this in turn a key element of the full participation in all spheres of social, economic, political and cultural life. 1 Nevertheless, although employment is often perceived by both experts as well as the public at large as the main issue for inclusion and equal treatment, it is clear that a holistic approach to discrimination is essential, as the discrimination in fields such as education, health, housing will have an effect also on discrimination in employment. In addition, past discrimination in any of the related fields also contributes to discriminatory outcomes in the present, even if no direct discrimination in employment may be present ( past-in-present discrimination according to typology of Wrench, 2007). Therefore the legislative challenges in focus in this paper are primarily in employment, but the other fields included in the EU Council directive 2000/43/EC will also be included in the review. In the case of Latvia it is clear that developments of an anti-discrimination legislative framework is an EU-driven process, and there is little information to date on the situation of various vulnerable groups, including in employment. Nevertheless, for the purposes of multiculturalism, the relevant prohibited grounds of discrimination are, at a minimum, race, ethnicity and religion, although in certain cases other grounds may also be discussed. The existence of the different ethnic groups, belonging to national minorities, remains the most visible issue the situation of Russians, Belorussinas, Ukrainians, Poles, etc. in employment and beyond. It will come as no surprise that the clearly most vulnerable ethnic group in Latvia in terms of discrimination is the Roma. However, in this thematic area there is a visibility of increasingly mobility-related issues, which may not be as salient in other sections, due to the relatively small number of newcomers. However, even small numbers of labor migrants, asylum seekers and refugees, not to speak of irregulars, are quite exposed to discrimination, especially when they are visually or audibly, in the Latvian language-focused context easily identified as different from the majority. Despite increasing signs of labour shortages in certain geographical areas and sectors of the economy, access to employment, as elsewhere in Europe, and integration into 1 cf. EC High Level Group report on social and labour market integration of ethnic minorities and Council of Europe Advisory Committee to the Framework Convention for the Protection of National Minorities commentary on effective participation in economic, social, cultural life and public affairs.

5 the Latvian labour market for third country nationals 2 remain restricted. In the mapping of the situation in all EU member states regarding these issues, Latvia scored poorly in terms of measures taken for labour market integration of third country nationals, with no targeted policies for such integration. (Niessen, Huddleston and Citron, 2007) Thus, although the Latvian employment anti-discrimination legislation in Latvia applies equally to all, regardless of nationality, this provides protection only once barriers such as access to the territory and working permits have been overcome, and even then, it is not clear to what extent the vulnerable newcomers, sometimes with unstable legal status, are inclined to even try to seek protection or remedy when facing less scrupulous employers. Information of the situation of such newcomers is still scarce, as the first research including field work is in process. Nevertheless, even though official statistics still show low absolute numbers of work invitations to third country nationals, the number increased from 1058 in 2006 to 3143 in The main countries of origin for these were Ukraine, Moldova and Uzbekistan, and the workers were mostly employed in the construction sector, followed by the manufacturing sector. 3 In addition, there are small but also increasing numbers of asylum seekers from African and South and South-East Asian countries. One of the challenges in Latvia is thus to set up legal framework and workable system for protection against discrimination for all, including newcomers and most vulnerable minority groups, especially in employment, but also in areas such as education, social security, goods and services, especially housing and health. The system should prevent discrimination, but also provide accessible and effective remedies for all in case of breaches. A second key challenge for Latvia is to move beyond the individual protection and remedy, which has been the main focus in the developments up to date, to address also policy-making in the area of effective equality and to begin to tackle issues such as institutional and structural discrimination, which has not yet been done at all. For this, the issue of data collection is especially important. Ultimately, the question is to what extent this new legal system and policies put in place by state and local authorities, as well as private sphere actors, will adequately protect newcomers in various categories against discrimination. Anti-discrimination developments have taken place on all 6 EU directive grounds and in some cases also including on others, but the focus in this paper will primarily be on race, ethnic origin, and religion, although in the case of Latvia it is also essential to pay attention to possible discrimination on grounds of language (which according to the EU directives would be treated as indirect ethnic discrimination) as well as the question of nationality (even if the EU equality directives explicitly exclude nationality. The focus on these grounds as the key ones for migration-related and ethnic minority discrimination does not imply the downgrading of the importance of the other grounds. Indeed, apart from the need to mainstream the gender dimension into any actual analysis of the situation in employment of minorities, the other grounds including age, disability, sexual orientation not only have equal 2 This does not refer to the third country nationals with residence status, among whom the by far most numerous are Russian citizens (29,182), followed by Ukrainians (3,063) and Belorussians (1,954), US citizens (586) and Moldovans (536). 3 State Employment Agency data, accessed

6 significance in terms of discrimination (i.e. the no hierarchy of grounds argument), but are also possible factors which can be directly intertwined with ethnic or religious discrimination as growing awareness of multiple discrimination indicates. 4 The adoption of anti-discrimination standards and practice is in Latvia clearly an EUdriven development. Much legislation is already in place and the remainder will presumably be adopted, even if the slow pace indicates the lack of priority attached to this field. The missing link to effective application of these norms is the domestic ownership, which is developing over time, but primarily among NGOs and within the Ombudsman institution. The case of Latvia, similarly as several other newer EU member states, provides an interesting approach to development of antidiscrimination, as the usual pattern of awareness of a problem growing first among experts and activists, and only eventually reach a policy-level and leads to a development of new legal norms was here turned on its head. Development started with legislation which had to be adopted regardless of the level of understanding of it or the need for it. Only then were the experts and activists mobilized, while the policy-makers are not necessarily committed to the internalization and institutionalization of the norms. Until awareness is raised more generally and priority attached to the struggle against discrimination, the barriers to inclusion caused by discrimination of migrants and minorities in employment and elsewhere stand no chance of being removed. This paper aims to provide an overview of legal developments relating to anti-discrimination before and after EU accession, describe the current situation in terms of legislation and its implementation in practice, and identify some remaining problems and questions that need to be addressed if discrimination-related obstacles to integration and full participation of migrants and minorities are to be overcome. 2. Current legislation and development 2.1. Situation before the EU accession period Equality is a constitutional principle, and Article 91 of the Satversme (Constitution) reads: All persons in Latvia are equal before the law and the courts. Human rights are implemented without discrimination of any kind. This article is interpreted as ensuring equal treatment in all legislation, and several legislative and regulatory acts with legal force have been successfully challenged in Constitutional Court. The interpretation of this principle implies that it is not necessary to prove discrimination on a specific ground, but simply unequal treatment of a physical or legal person in comparison to the treatment of others. Constitutional Court decisions have dealt both with ground-specific applications (age, gender), but also simply unequal treatment (e.g. cases of business insurance requirements). There is no case law from this court finding discrimination based on ethnicity or religion, although a few applications have included such claims, but the legal norm challenged was either found incompatible with the Constitution on other grounds, thus rendering unnecessary the examination of compatibility with this article, or as not violating this article. 4 Bielefeldt, Hanne, Danish Institute for Human Rights, 2007.

7 There were also anti-discrimination clauses in several laws, but they were largely declarative, including different lists of grounds (some exhaustive, some open-ended), but contained no specific definitions and foresaw no mechanisms for their implementation. Several of these have been retained as they were and some new laws have also included anti-discrimination clauses in this declarative, non-specific vein. 5 The Labour Code in force before 2002 also included prohibition of discrimination, and two cases of gender discrimination were confirmed by court decisions in and , respectively. Although the courts decided in favor of the claimant, the damage awarded, as was foreseen by that law, covered only actual losses of income in the first case, and in the second case the non-hiring of a woman as a prison guard was found discriminatory, but eventual apologies by the Central Prison services expressed at the hearings were found sufficient compensation. The very success if these cases in court, but ensuing limited remedy they provided for the claimants and marginal costs for the respondents illustrated well the need for more effective legislation and protection of rights foreseen in laws. There were no discrimination cases brought to court under the formed Labour Code on other grounds of discrimination. In addition to the general constitutional principle and declarative clauses in various laws, there were also penal code provisions relating to discrimination. These were related to incitement to hatred and discrimination on grounds of ethnicity and race (Section 78), and there was also a section dealing with discrimination based on attitude toward religion and offense to religious feelings (Section 150) 8. These will not be dealt with here in any detail, as they go beyond the discrimination targeted by the EU directives. It is also should be noted that the Section 150 has never been applied in practice, while Section 78, with its high threshold for proving that acts were committed with the intention of inciting or discriminating, has been applied in a small number of cases, but never on the discrimination part of the section. Nevertheless, it is important to take note of these norms and their formulation, as such clauses were standard in most socialist countries and certainly in the Soviet republics, and in some cases their wording and background arguably has led to confusion in adopting and implementing contemporary EU-wide incitement and hate crime legislation. In addition, the penal code in the section on incitement to hatred, worded broadly as 5 E.g. general equality clauses in the law On Police, the Law on National Security, the Law on Fire Safety and Fire Fighting, the law on Border Guards, the Law on Scientific Activity, the Law on the Protection of Children, the Law on Education, the Law on the Bar Association and the laws on criminal and administrative procedures. 6 Case D. Abramova vs. SIA Latgales druka. 7 I. Muhina vs Central Prison of the Prison Services Adminstiration of the Justice Ministry of the Republic of Latvia 8 The Criminal Law Section 150 read: For a person who commits direct or indirect restriction of the rights of persons or creation of whatsoever preferences for persons, on the basis of the attitudes of such persons attitude towards religion, excepting activities within the institutions of a religious denomination, or offends the religious sensitivities of persons or incites hatred in connection with the attitudes of such persons toward religion or atheism, the applicable sentence is deprivation of liberty for a term not exceeding two years, or community service, or a fine not exceeding forty times the minimum monthly wage.

8 commits acts knowingly directed at instigating ethnic 9 or racial hatred or enmity, also included a general prohibition of discrimination, defined as knowingly commits the restricting, directly or indirectly, of economic, political or social rights of individuals or the creating, directly or indirectly, of privileges for individuals based on their racial or ethnic origin. This wording is significant, as it survives in many postsocialist countries penal codes, and in some cases is interpreted as precluding the adoption of positive action or special measures. In terms of institutions, there was only a rudimentary set-up. The courts were theoretically accessible for victims of discrimination, especially in labour relations and possibly in incitement to ethnic hatred cases, depending on a prosecutor s decision, but the effectiveness and of this remedy was questionable at best. The Constitutional Court could evaluate compatibility with Article 91, if an application challenging a legal norm to this effect was received, and the National Human Rights Office (NHRO) had since its establishment also discrimination within its mandate as part of human rights. Among all the human rights complaints the NHRO received, there were also a small number of complaints regarding discrimination. Legislation prohibiting discrimination thus existed before the process of transposition of the EU directives, and in fact stems from several generations of legislation some of it Soviet, some of it from the 1990s (including the Constitutional section on human rights,. which was added in 1998). Grounds differ across the laws, but generally are open-ended and broader than the equality directive requirements. A mixture of Soviet legacy and growing awareness of the importance of human rights in the 1990s, reflected in the legislation adopted in that decade, may well explain both the general declarative aspect of these, as well as the broad and open lists of grounds. Among the many grounds it could be argued that the ones most relevant for migration and ethnic minority related diversity include race, ethnic origin, colour, language, religion, and also nationality or national origin Transposition of EU directives slow process and remaining issues Real movement toward elaboration of specific anti-discrimination legislation started in connection with the aspirations to join the EU. The equality directives from 2000 were taken into account when the new Labour Law was elaborated, and the law which entered into force in 2002 already included, for the first time in Latvian law, more specific references to aspects of discrimination. Nevertheless, as EU accession was approaching, the process to complete the transposition of both directives gradually -- albeit slowly, as there were huge and very different areas of the acquis communautaire which still needed the attention -- gained increased priority by decision-makers and legislators. 9 The term used is national or racial hatred, and national origin, but as this had nothing to do with citizenship or the concept of national state, the translation as ethnicity is closer to the meaning in the context of these laws.

9 The first official working group on transposition of both council directives was established in 2002, and it included representatives from the ministry of welfare, ministry of justice, ministry for foreign affairs, ministry of education, state reform ministry, and also the national human rights office and the European integration bureau. At the end of 2002, a new ministerial position was established the Special Assignments Minister for Social Integration Affairs, and the Secretariat (IUMSILS in Latvian acronym) to go with it (since it was not and still is not a full-fledged ministry). This Secretariat was tasked with ensuring the transposition of the Race Directive into national legislation, while the Welfare Ministry was responsible for the implementation of the Employment Equality directive and hence the other grounds of prohibited discrimination (but focusing largely on gender). It was generally held that the Labour Law already transposed most requirements of the Employment directive, and only minor amendments such as completing the listed grounds of discrimination were seen as outstanding. It seems that no serious analysis of the completeness of the transposition of this directive was made during this period. The Racial Equality Directive, it was admitted, required more substantial work. IUMSILS legal expert analyzed Latvian legislation to identify shortcomings in the compliance with Racial Directive requirements, and based on this work a working group established in 2004 (that is less than half a year before the deadline for transposing was up) under the auspices of the IUMSILS, which included legal experts also from other ministries, the National Human Rights Office, and also from an NGO. This working group was tasked with proposing the best solution for the transposition into Latvian law of the directive so that this process could be completed until the deadline the accession date of Latvia to the EU, 1 May Generally agreeing that the patchwork approach to anti-discrimination, with scattered norms in various laws does not constitute a good approach, this working group elaborated a comprehensive anti-discrimination law, which aimed to take into account all binding international anti-discrimination standards and provide protection against discrimination across grounds in various fields. The draft law thus not only went beyond the strict minimum of the Racial Equality directive, but also was quite ambitious in providing across the board protection equally on a number of grounds. The law was passed in parliament in a first reading on 7 April 2004, but when the responsible parliamentary committee (Human Rights and Public Affairs Committee) and the Parliamentary legal bureau criticized the draft law mainly based on the argument that it went beyond the minimum requirements of the directives, the draft law was dropped. Instead, following the line taken by the parliament, the minimum transposition approach was chosen, and a package of separate amendments to 8 separate laws was elaborated. Thus proposed amendments to the Civil Code, the Law on Social Security, the Law of Civil Service, the Law on Consumers Protection, the Law on Associations and Foundations, the Law on the National Human Rights Office, the Criminal Law and the Administrative Violations Code were proposed to parliament. 10 These various proposals, although submitted simultaneously and with the same purpose of transposing the Racial Equality directive, were not treated as a package of amendments, but were forwarded separately to several different 10 Diskriminācijas novēršana Latvijā: likumi, institūcijas un tiesu prakse, LCHR, 2007, 8.

10 committees, thus encumbering the monitoring of the transposition process. It also became clear that even adoption of these proposed amendments would not suffice to fully transpose the Racial Equality Directive, e.g. in education (Pūce 2007). Some of these draft amendments were adopted at various stages between 2005 and 2008, but until April 2008 four years after the directives should have been fully transposed -- not all of the eight have been adopted. In addition, other shortcomings of existing legislation have become apparent to experts. The patchiness of antidiscrimination legislation thus remains, and the locus of responsibility for different aspects of anti-discrimination legislative proposals and policy, divided amongst several ministries and corresponding parliamentary committees, also remains a challenge for formulating and implementing any coherent policy. Infringement procedures As part of the process of possible infringement procedures, Latvia has received several communications from the European Commission. The European Commission on 27 June 2007 sent a formal request to Latvia, in which shortcomings in the Racial Equality directive transposition were pointed out. These included questions on the scope of protection against discrimination within the field of social security and social advantages, concern that ethnic origin was not explicitly included among the listed prohibited grounds of discrimination in the Law on social security, and a series of questions concerning the material scope, especially the apparent non-coverage of employment in the public sector and in self-employment. On 31 January 2008 sent a complementary letter of formal notice regarding the Employment Directive to the Latvian government regarding the too restrictive definition of discrimination and the too broad exceptions provided for age discrimination in Latvian law. The response from the Latvian government has been mixed: basically a rather defensive position, arguing against the EC position, while also proceeding to pass additional amendments to rectify the shortcomings identified by the EC. As an example, the IUMSILS prepared a response, in which it was argued that ethnic origin was indeed covered in the Law on social security through the open-ended other circumstances, but nevertheless made a pledge to elaborate amendments to the law to include this ground in the list explicitly for adoption in Such draft amendments were submitted to parliament and were passed in a first reading in December The response also listed amendments which had been passed since the previous government response was provided to the EC (25 September 2006), and also refers to the proposed amendments to Consumer Protection law and Civil law, which, it was argued, it was planned to adopt until the end of 2007 (but as of April 2008 this has not yet been done). The letter to the EC did not include the comment included in the information to the government by IUMSIL, where it was explicitly mentioned that the amendments to the civil law, which were adopted in a first reading on 23 November 2006, were since pending in parliament, due to discussions and serious concerns expressed on whether such changes in the civil law would unacceptably restrict freedom to conclude contracts Informatīvais ziņojums Par Latvijas Republikas nostājas par Eiropas Komisijas gada 27. jūnija argumentētā atzinuma Nr. K(2007)2872 par pārkāpuma procedūru lietā Nr. 2006/2253 apstiprināšanu

11 The Latvian government response to the January 2008 letter was not known at the time of writing this paper, but it is likely that the issues brought to the attention of the government were received with less preparedness than the ones concerning the Racial Equality directive, where there was pre-exiting awareness of shortcomings in the transposition due to amendments still pending in parliament. Nevertheless, as actual infringement procedures are looming ever larger, with the possibility of a potentially embarrassing and also costly review in the European Court of Justice, the incentive to put pressure among the ruling coalition partners for the speedy adoption of the outstanding legislative amendments has also increased. After a brief review of the current legislative situation in employment and also in other areas, case law, institutional and policy set-up, we will turn to public awareness issues. Finally we will focus on a few specific issues of concern stemming from transposition process and shortcomings or weaknesses in legislation, which have hampered and possibly still pose obstacles to the successful development of a legislative framework with effective mechanisms for the protection against discrimination, especially of the target groups of the present paper Employment Labour Law After amendments adopted in 2004 to the Labour Law the main aspects of the Employment directive were arguably transposed, and the law included prohibition of direct and indirect discrimination, harassment and instruction to discriminate as discrimination, prohibition of victimization and reasonable accommodation for disability. All phases of the employment cycle were covered (except retirement): job advertisement, job interview, establishment of employment relations, firing during trial period, equal pay, working conditions, professional education or promotion and firing. The list of prohibited grounds included gender, race, colour of skin, age, disability, religion, political or other conviction, national or social origin, property or family situation or other circumstances. Thus, grounds were included that went beyond the Employment directive, and the list was open-ended. Nevertheless, sexual orientation was not explicitly included, although the exclusion was initially done without great public debate. It is also interesting to note that although language is included in some Latvian legislation as a discrimination ground, this is not the case in the Labour Law precisely where issues of potentially discriminating state language proficiency requirements, if they are not proportionate to the real need when exercising an occupation -- are susceptible to be raised. Discrimination based on language would according to the EU directives, of course, have to be treated as indirect ethnic discrimination, and that possibility remains open within Latvian legislation as well (or even direct discrimination as coming under the other circumstances ). Nevertheless, this sensitivity on language is an issue that reappears in all minority and migration-related policies and debates, and poses a potential problematic area for new migrants, as the proficiency requirements and expectations have been set using the long-term Russian-speaking minorities as a starting point. In 2006 additional amendments to the Labour law were adopted, which after harsh parliamentary discussion by opponents finally included also sexual orientation

12 explicitly among the prohibited discrimination grounds. The amendments also included an additional part 10 to Section 29, which purports to transpose the exception permitted under the Employment Directive Article 4.2. for difference of treatment based on a person s religion or belief if by reason of the nature of these activities or of the context in which they are carried out, a person s religion or belief constitute a genuine, legitimate and justified occupational requirement, having regard to the organisation s ethos. The wording of the adopted Labour Law amendments, however, while repeating this part of the article does not include the additional specification that such organizations, acting in conformity with national constitutions and laws should not be precluded to require individuals working for them to act in good faith and with loyalty to the organisation s ethos. The Latvian law also does not specify that discrimination on no other ground is acceptable for such organizations, and thus risks allowing for too broad an interpretation of the religious ethos exception. Although the transposition of the Employment directive generally was completed through these gradual amendments, there were still clear gaps in terms of employment that did not fall under that law. The relevant law for one of these areas civil servants, who are not employed on the basis of an employment contract the State Civil Service Law since November 2006 has included the prohibition of discrimination, but instead of defining and specifying this, the law was amended to include simply a reference to the applicability of the norms of labour relation regulatory acts, which determine the equal rights principle, the principle of prohibited differential treatment (Article 2) There are remaining outstanding issues still in the employment area, notably the area of self-employment, which may be significant for migrants and minorities. Amendments to relevant laws are foreseen and have presently been submitted for review to parliamentary committees Discrimination outside employment Education The Law on Education article concerning the right to education (Section 3) reads: Every citizen of the Republic of Latvia and person, who has the right to a non-citizen passport issued by the Republic of Latvia, person who has received a permanent residence status, as well as European Union citizens, who have received a temporary residence permit, and their children have equal rights to receive education regardless of property and social status, race, ethnicity, gender, religious and political conviction, health situation, occupation and place of residence. Third country nationals without a permanent residence permit are thus excluded, and the list of prohibited grounds of discrimination is exhaustive. The law on education applies to both the private and public sphere. The equal rights to gain education does not include specific definitions of discrimination, nor is it clear whether the scope includes all aspects of education. In practice, there is clear evidence that Roma

13 children experience discrimination in education 12, but there is little evidence available otherwise and no attempt has been made to date to produce a comprehensive analysis of the equal treatment in education in practice. There have been two cases reviewed by the Constitutional Court in which the claimants 20 MPs from opposition parties -- challenged norm included in the Law on Education on several constitutional articles, including the equality principle: the transition to an increased amount of state language instruction in the so-called Russian-language schools, and the provision of state funding for private schools only if their language of instruction was Latvian. In the first case, the court found that the norm was compatible with the Constitution, as long as monitoring of the quality of education following the reform was performed as a matter of duty of the state, and as long as the results would not show disadvantages and lowered educational quality due to the reform. 13 In the second case, however, the court did find the norm unconstitutional on the basis that it violated the equality principle -- if state funding was provided to private schools, then it should be done so without discriminating (including on the basis of the language of instruction) and decided that the norm of the law was not proportional to the legitimate aim the strengthening of the state language Housing and health The Law on housing rentals adopted on 16 February 1993, does not contain antidiscrimination clause, but the constitutional protection from article 91 applies also to this area, if the renting agent/owner is public. This means that housing in the private sphere is not covered, and the provision of goods and services as well as the civil code amendments are urgently needed to cover this important area. For health care, the legislation also remains incomplete in terms of protection against discrimination. Although in addition to the constitutional guarantees for equal treatment there are also provisions guaranteeing basic medical care for everyone (Article 111), but this does not apply to private medical care and leaves open the question of how basic is basic, and what happens beyond. The Medical Care Law lists the groups of persons according to their legal status who are entitled to me3dical care guaranteed by the state (beyond urgent care), but the law does not include an anti-discrimination clause. The 2005 amendments to the Law on Social security include a broadened definition of social services as measures ensured by state or municipality as monetary or material support or other services to promote the full realization of a person s social rights, which and also contains in 2.1. a prohibition of differentiated treatment on an open-ended list of grounds, which include race, colour religious or other conviction, national or social origin etc., which presumably therefore applies also to medical services. Nevertheless, private sphere health care is clearly not covered by this. 12 Cf the Situation of Roma in Latvia, Riga: Latvian Centre for Human Rights, The Ombudsman institution representative reported in interview that one complaint on discrimination in education had been received for the first time in 2007, and this concerned a Romani girl. 13 Decision of the Constitutional Court of 13 May 2005 in the case No Decision of the Constitutioal Court of 14 September 2005 in the case No

14 Amendments to the Law on Patients Rights, which IUMSILS in the answer to the European Commission stated would be prepared, were passed by parliament in a second reading in December These amendments include the prohibition to discriminate, including on the ground of race or ethnicity Public goods and services Amendments to the Law on Social Security were adopted on 1 December 2005, aiming to transpose the Race Directive. Access to public goods and services in the private sphere is presently not covered by Latvian legislation, which in this regard is clearly in breach of the Racial Equality directive. Draft amendments to the Civil Law were adopted in a first reading by parliament in November 2006, but have not yet been adopted in a second reading. These amendments foresee the prohibition of differential treatment when offering goods or services to the public, as well as when executing a legally formulated transaction, on the grounds of gender, age, race, colour, ethnic affiliation, religious conviction, political or other convictions and other circumstances. It also specifically includes the shifting burden of proof, which until now is not part of civil proceedings beyond those covered by the Labour law, since the Civil procedure law actually provides that both sides have to prove their case. This amendment is thus essential both for actually covering provision of goods and services in the private sphere, but also in order to make more effective the protection against discrimination by not requiring full proof of discrimination by the claimant. At the same time, it is the amendment which has created most opposition and debate (apart from the inclusion of sexual orientation on the list of prohibited discrimination grounds in Labour Law), based on the fears that it may overly restrict contracting freedom in the private sphere. There have reportedly been new attempts to elaborate different amendments to replace the proposed ones, and this remains a question not likely to be resolved without additional struggles. Amendments to the Law on Consumer Protection were elaborated and reviewed by the Cabinet of Ministers on 4 March 2008, and they will shortly be referred to parliament. These amendments prohibit discrimination on the grounds of race/ethnicity and gender (thus transposing also the directive 2004/113/EC) in the field of consumer protection. The proposed amendments include direct and indirect discrimination as well as harassment (which until now is prohibited only in employment under Labour Law) and foresees also the shifting of the burden of proof and prohibition of victimization, as well as a discriminated consumer s right to compensation of harm as well as moral compensation. Since the Criminal law amendments of July 2007, the inclusion of a separate Section 149 on the violation of the prohibition to discriminate it could be argued also that this section, at least when it comes to race and ethnicity (ground which is given preeminence) 15 does include such discrimination also in the provision of goods and services in the private sphere, and actually define such discrimination as a criminal 15 Part 1 of the section 149 reads For discrimination on grounds of race or ethnic belonging, or for other violation of the prohibition to discriminate determined in normative acts, if it is done repeatedly within one year the punishment is a fine up to 30 minimum salaries.

15 offense if it is done repeatedly within one year. There is no corresponding court practice, however, and it is doubtful whether this would provide enough protection for an individual whose rights to equal treatment have been violated. Also, the criminal offense does not carry with it any possibilities for compensation of the victim, and the case would have to be initiated by the public prosecutor. 3. Case law There is little national case law on discrimination to date. Apart from Constitutional court, where legal norms incompatibility with the constitutional equality principle and international binding norms can be reviewed, both administrative and general jurisdiction courts have their own competences to review discrimination applications. Although administrative courts have jurisdiction over discrimination complaints against public authorities, no such cases had yet been reported by 2007 (the administrative courts were established in 2004). Discrimination on grounds of sexual orientation was mentioned as an additional factor in one case on freedom of assembly (prohibition by the Riga City authorities to organize a Gay Pride parade in 2005), while the prohibition the following year was challenged again in administrative court, but this time the decision of the appeals court which found in favor of the applicants and thereby annulled the decision of the first instance court, gave a detailed argumentation on freedom of assembly, but did not go into arguments of discrimination. Complaints that come under the Labour law are reviewed by general jurisdiction courts 16, and since the new Labour Law came into force in 2002 there have been six cases reviewed (some of these in several instances) where discrimination in employment was alleged, all in 2005 and 2006: one on the ground of sexual orientation (non-hiring of a homosexual man) 17, four on the ground of gender (one non-hiring, 18 one for differential bonus payment, 19 one on unequal pay for same job, 20 one on victimization 21 ) and one on ground of ethnicity (non-hiring of a Romani woman). 16 There have also been three cases based on defamation clauses of the Civil law, which relate to discrimination two different cases in 2003 related to a racist television advertisement made by a political party with two African musicians, one case in 2005, where a person in a wheelchair successfully claimed offence against dignity and honour and discrimination on the basis of disability by a night club, where he was not let in and one in 2006, where offence to honour and dignity was unsuccessfully argued by the claimants for offensive homophobic statements made in the context of the Riga Gay Pride in M.Sants v Kultūru vidusskolu (2005 in Riga city Ziemelu district court; 2006 appeal in the Riga regional court; 2006 cassation in Supreme Court Senate). 18 A. Stūriņa v Straupe local council (2005 in Cēsu district court) 19 I. G. V Emila Darzina mūzikas vidusskola (2006 Riga city Kurzeme district court, appeal in 2006 Riga regional court, 2007 cassation in Supreme Court Senate) 20 V. Č. v Falck Apsargs (2006 in Riga city Vidzeme district court, appeal in 2007 in Riga regional court, appeal in 2007 in Supreme Court Senate, review 2007 Riga regional court) 21 R. K. V Valsts meža dienestu (2005 in Riga Centre districtcourt, 2006 Riga regional court, 2006 Supreme Court Senate)

16 S. Kozlovska v SIA Palso (25 May 2006, Jelgava court) The National Human Rights Office represented the plaintiff S. Kozlovska, a Romani woman, arguing that she had been discriminated based on ethnicity and requesting moral compensation to be paid by the employer. The applicant had been referred to the employer for an interview for the position of a salesperson through the State Employment Agency. The job applicant had received education in a Latvian language school, but the employer did not request any documentation as proof of qualification for the position. The prospective employer did not hire the applicant, noting in the rejection document the reason does not correspond to the occupation requirements due to accent. The plaintiff argued that the employer had used a subjective criterion when not hiring the applicant, and argued that the reason used constituted indirect discrimination on grounds of ethnicity. Although the employer during the course of the court proceedings referred to different reasons for not hiring the applicant (careless dress, appearance). The Court found that the reason given for the refusal was indeed indirect discrimination on the basis of ethnicity, as speaking with an accent indicates that a person is not a native speaker of the language in question, i.e. Latvian. The fact that the prospective employer had not requested any documents on qualifications, it was argued by the court, was also an indication that the true reason for the refusal was the Romani origin of the applicant. The Court awarded moral compensation in the amount of Ls 1000 (approx 1400 Euros), and specifically argued that this is just and proportional compensation, which also would serve a dissuasive function as a sign to other employers. The respondent appealed the decision, but the appeal was never reviewed, since the respondent repeatedly did not show up for the court hearings, and the first instance decision was left in force. Although the court found discrimination on the basis of ethnicity by using the argument that language is an indirect reference to ethnicity, it is interesting to note that no attempt was made to refer to overwhelming statistical evidence regarding the non-hiring and discrimination in employment of Roma a very direct form discrimination based on ethnicity. Also, as time has passed the initial positive evaluation of the effect of the case in bringing much needed public attention to the issue, and also increased awareness of the not uncommon discrimination of Roma, as well as the expectation that this successful challenge in court would encourage people to believe in the possibility of finding remedies to discrimination and thus to file complaints, then over time this unfortunately appears overoptimistic. The victim of discrimination has not been able to find employment since, and the case has not served as encouragement to file more complaints on similar cases. It is thereby also questionable whether the dissuasive effect on other employers has taken place. Apart from serving as an indication of the need for additional follow-up work by the Ombudsman office when handling court cases (although to date this is the only discrimination court case in which the Ombudsman represented a plaintiff), the case may actually also point to another shortcoming in Latvian legislation, regarding victimization. Although victimization has been explicitly prohibited in the Labour Law, the formulation of it as punishment or negative consequences by the employer to the person having exercised their rights shows that victimization by non-hiring by other employers cannot be challenged under this definition of victimization, as it can in the UK. Also, the victimization according to Latvian law can only be experienced

17 by the plaintiff personally, not by employees, as stated in the directive. (Bell, M., Chopin, I. and Palmer, F., 2007, 58-59). 4. Key actors and institutional competences and practice State Labour Inspectorate This institution is responsible for monitoring the compliance with employment legislation and observing the rights of employees. It can receive complaints, including on discrimination in employment, and can investigate an employer. It has the competence to issue warnings or instructions to the employer, to inform the prosecutor s office and state and local institutions about violations of law, and it can also levy an administrative fine of up to 250Ls for certain types of violations, including Labour Law violations (and thus also discrimination). Although representatives of the Inspectorate in 2007 informally reported having dealt with a handful of complaints regarding discrimination (including one case of having engaged in conciliation discussions, which were deemed as successful when the employer admitted to having discriminated and therefore no fine was imposed), a representative of that institution reported not having received any complaints on discrimination on grounds of race/ethnicity, language or religion in employment in Ombudsman Institution (previously National Human Rights Office) The National Human Rights Office has been operating on the basis of a law adopted at the end of It was set up to be an independent institution responsible for monitoring human rights in Latvia, and among its tasks were reviewing complaints of human rights violations, engaging in conciliation work, providing recommendations, and identifying and advising on conflicts among legal norms or the incompatibility with constitutional or international standards. The NHRO had not enforcement mechanisms, however, nor could it apply fines or administrative violations. The broad human rights mandate thus include discrimination, but with amendments to the law, adopted on 15 December 2005 based on the Race directive requirements, the NHRO became the designated specialized equality body, and was also given the powers to not only review a case in the field of equality, but also, with the consent of the victim, to represent the victim in civil or administrative court proceedings. This is not a duty, however, and to date, the NHRO has only done so in the case described above. On 1 January 2007 the NHRO officially became the Ombudsman institution, and its mandate was broadened even further retaining the broad human rights mandate as well as the designation as the Latvian equality body, but adding also the field of good governance. The functions of the equality body are supposed to be filled by the antidiscrimination unit, in which there are presently 4 staff positions. The respective role and authority of the head of this department, as compared with the Ombudsman 22 There are other relevant actors in cases of discrimination, such as the Consumer Rights Protection Centre, which on 17 April 2007 issued decision No. E03-RIG-132, where based on the Administrative violations code it fined the company FAMAR-DEST 5000 Ls (approx 7000 Euro) for commercial advertisement using racially offensive image and text. Nevertheless, since this goes beyond the area of employment, it is not included in the main text here.