Latvia is a multiethnic country. Of its almost 2.4 million inhabitants 58.1% are Latvians, 29.3% Russians, 4% Belarussians, 2.6% Ukrainians, 2.5% Poles, 1.4% Lithuanians, 0.4% Jews, 0.1% Estonians and 1.6% others1. The years under the Soviet regime brought considerable demographic changes - since 1935 the number of Latvians has decreased and the number of Russians increased by approximately 20%, the number Jews and Germans decreased by 4% and 3% respectively, while the number of Belarussians and Ukrainians increased by approximately 3%.2
Latvian citizens constitute only 75.9% of the whole population, while the rest of the population is made up of non-citizens - 22.7% and foreigners (citizens of other countries, stateless persons and refugees) - 1.3%.3 Non-citizens is a specific category of persons in Latvia who were citizens of the former USSR, permanently residing in Latvia on 1 July 1991 and who have not obtained citizenship of any country. Non-citizens can become citizens through the naturalisation procedure, where they have to pass examinations in the Latvian language and history.
Remedying the consequences of the Russification that took place during the Soviet times, demographic composition and the large number of persons without Latvian citizenship living in country this is the context within which issues of non-discrimination are to be examined in Latvia. Although not directly connected with the Race Directive, restrictions on political and, on some occasions, on civil, economic and social rights of non-citizens compared to those of the citizens is one of the main problem areas in the field of prohibition of discrimination. The other problem relates to the use of minority languages. The official language in Latvia is the Latvian language and the legislation requires knowledge of the official language in order to take positions in the public and on, some occasions, also in the private sphere, as well as for communications in the public sphere. As a consequence, the representation of minorities in public authorities is low4 and minority representatives consider themselves to be discriminated against on the grounds of ethnic origin much more often than Latvians.5
Although all 42% of persons of ethnic origin other than Latvian should not be regarded automatically as national minority, the Latvian legislation does not contain a definition of a minority. Article 114 of the Latvian Constitution states that "persons belonging to minorities have the right to preserve and to develop their language and their ethnic and cultural identity", however, its contents has yet to be clarified as the chapter on human rights was added to the Constitution only in October 1998. In general, this provision covers most of the non-citizens, whose ethnic composition is as follows: Russians 66.7%, Belorussians 12.8%, Ukrainians 9.3%, Poles 3.4%, Lithuanians 2.8%, Jews 0.6%, Latvians 0.6%, Estonians 0.1%6, as well as part of the citizens. Issues related to minority definition, citizenship and language are highly politicised in Latvia this is why sometimes decisions concerning them are not taken in a constructive way.
Where anti-discrimination legislation is in place, what is the gap between the formal legislation and its actual implementation? Has research been done at national level that explains this gap?
Despite the general equality clause in Satversme (the Constitution) and non-discrimination clauses in various other laws, interviews with the representatives of NGOs, as well as with state officials conducted in the course of the research, and also public opinion surveys7 indicate the existence of a significant gap between the legislation and its implementation, despite the nearly total lack of any discrimination-related case law. While some research has been done analysing the Latvian legislation from the gender perspective8 and also the factual situation in this field9, no research has been done analysing the situation in the sphere of discrimination based on racial and ethnic origin, and thus there are no studies of this gap either.
Is there any legal framework at national level that puts into effect the principle of equal treatment, or that is designed to combat discrimination on the basis of racial or ethnic origin and/or on the basis of nationality and/or on the basis of religion or belief? If so, what is the nature of this framework?
In addition to Latvia being bound by the European Convention of Human Rights and its Article 14 concerning enjoyment of rights guaranteed by the Convention, Article 26 of the International Covenant on Civil and political Rights and other international human rights treaties directly applicable in Latvia, Article 91 of the Satversme (the Constitution) contains a general equality clause stating that:
"All persons in Latvia shall be equal before the law and the courts. Human rights shall be observed without discrimination of any kind."
This principle is further elaborated in a number of laws. For example, Article 1 of the Labour Code10 currently in force states that:
"In the Republic of Latvia equal rights in the employment relationships are guaranteed to natural persons regardless of race, colour, gender, age, religious, political or other opinions, ethnic or social origin, and property status."
Article 7 of the Labour law11 that will replace the Labour Code provides that:
1. Everyone has equal rights to employment, fair, safe and healthy working conditions, as well as to fair remuneration for work.
2. The rights in part 1 of this Article have to be ensured without any direct or indirect discrimination based on persons race, colour, gender, age, disability, religious, political or other opinions, national or social origin, property and family status and other circumstances."
Article 3 of the Education Law12 provides that:
"Every citizen of the Republic of Latvia and every person who has the right to a passport of non-citizen13 issued by Latvia, person to whom a permanent residence permit has been issued, as well as citizens of the European Union states to whom temporary residence permits have been issued, and their children have equal rights to receive education independently from property and social status, race, ethnicity, gender, religious or political opinions, health condition, occupation and place of residence."14
Article 4(2) of the Judicial Powers Law15 provides that:
"Judgements shall be delivered by the court irrespective of persons origin, social or property status, race and ethnicity, gender, education, language, religious affiliation, type and nature of occupation, place of residence, political or other views."
Law On the Unrestricted Development and Right to Cultural Autonomy of Latvias Nationalities and Ethnic Groups16 declares that the residents of the Republic of Latvia are guaranteed, regardless of their national origin, equal human rights, which correspond to international standards (Article 1). However, Article 3 of the law specifically provides for equality in the employment sphere:
"The Republic of Latvia guarantees to all its permanent residents, regardless or their national origin, equal rights to work and remuneration for work. Any direct or indirect actions to restrict, based on national origin, the opportunities of permanent residents to choose their profession or, based their skills and qualifications, occupy a position, are prohibited."
It must be noted that the data on, inter alia, persons race and ethnic origin, are regarded as sensitive data by the Personal Data Protection Law17, which prohibits the processing of sensitive personal data except with the consent of the data subject and for limited other purposes. While this provision is not considered to preclude the recording of such data also for statistical purposes, the practical collection of same, while still observing the requirements for the processing of sensitive data, is difficult to envisage18, although passports in Latvia currently contain a non-optional entry on the persons national origin which is thus easily identifiable.
From these examples it can be seen, first, that they are more specific as to the grounds on which person cannot be discriminated against, and, secondly, that these grounds are listed without much consistency. Importantly, with the exception of the out-dated Law On the Unrestricted Development and Right to Cultural Autonomy of Latvias Nationalities and Ethnic Groups whose norms are rather declaratory and do not provide for an enforcement mechanism, there are no laws targeting specifically discrimination on the basis of racial or ethnic origin, or nationality. However, all laws and subordinate acts have to conform to the equality clause of Article 91 of Satversme as the highest legal norm, lest they be unconstitutional.
Thus, it can be said there is framework on the national level, and at the very highest constitutional level - prohibiting discrimination of any kind, thus also including discrimination based on racial and ethnic origin. In addition particular laws do contain equality clauses, but there is currently none specifically promoting equality or targeting discrimination based on racial and ethnic origin except the one already mentioned19.
Article 2.1 and Article 2.2(a) and 2.2(b)
Is there a definition of direct and indirect discrimination in your national legal system? Is there a need to introduce definitions of direct and indirect discrimination, as defined in Article 2.2(a) and 2.2(b) of the Directive, into national legislation?
Are there comparable definitions in national law in relation to gender discrimination?
While Article 1 of the Labour Code contains a general equality clause, Article 15 prohibits direct and indirect restrictions of rights or creation of direct or indirect advantages depending on, inter alia, persons race, gender and religious opinions, except where these restrictions or advantages have been provided for by statute or other normative acts, in establishing the labour relationship. This, as well as in Article 3 of the Law On the Unrestricted Development and Right to Cultural Autonomy of Latvias Nationalities and Ethnic Groups and Article 78 of the Criminal Law20, are the only mentions of direct or indirect discrimination, without, however, any definition of it having been given in the Labour Code or any other law, and, moreover, being restricted largely to the specific case of labour relationship.
Article 7 of the Labour Law, in addition to stating that Everyone has equal rights to employment, fair, safe and healthy working conditions, as well as to fair remuneration for work, also requires that these rights be ensured without any direct or indirect discrimination based on persons race, colour, gender, age, disability, religious, political or other opinions, national or social origin, property and family status and other circumstances. Article 29(4) dealing with prohibition of differences in treatment on grounds of gender concerning access to employment and during the existence of employment relationship, in particular concerning promotion, pay, vocational training and dismissal, defines indirect discrimination as occurring when
"apparently neutral provisions, criteria or practice create disadvantages to a substantially larger proportion of persons of one gender, unless these provisions, criteria or practice are appropriate and necessary and can be justified by objective circumstances that are not related to gender".
Article 29(5) applies the prohibition of differences in treatment, as well as the definition of indirect discrimination, also to differences of treatment on grounds of persons race, colour, gender, age, disability, religious, political or other opinions, ethnic or social origin, property or family status and other circumstances. It must be noted that the original draft prohibited also differences in treatment on ground of citizenship and sexual orientation, but these grounds were later dropped.
Thus, while it is technically desirable that the national legislation defines the concept of direct discrimination21, the definition of indirect discrimination is - or, rather, will be in place, once the Labour Law enters into force, closely following definition of Article 2.2(b) of the Race Directive and applying to both gender and race-based discrimination. However, it will be applied in relation to access to employment and employment-related claims only.
Is unlawful harassment an identifiable concept in national law? Is there a definition of harassment in the national law that corresponds to that in the Directive? Is it necessary to introduce such a definition into national legislation?
Are there comparable definitions in national law in relation to gender discrimination?
The concept of unlawful harassment does not exist in national law either in relation to racial or ethnic origin or in relation to gender discrimination, and hence there is also no definition of it. However, Article 100 of the Labour Law dealing with the right of the employee to announce to the employer his wish to terminate the employment contract and generally requiring that this be done one month in advance, permits the non-observation of this term if the employee has an important reason for such action. Article 100(5) also states that any condition that, based on considerations of morality and fairness, does not permit the continuation of employment relationship, qualifies as such an important reason. Obviously, cases of harassment might also be subsumed under this formulation. Also, Article 94 permits the employee to submit a complaint to the designated official or institution in order to protect his violated rights or interests, without, however, referring specifically to the cases of harassment, and this institution has to take a decision within 7 days. Thus, it can be concluded that the Labour Law does provide for some limited protection against harassment, although not mentioning it explicitly, but it is not viewed in the context of discrimination. The introduction of the concept of harassment into the legislation is not being seriously considered, probably because it is felt to be a controversial issue where, moreover, it would be difficult to draw the line as to where harassment begins. However, as it is doubtful whether the protection offered by the Labour Law and the criminal sanctions discussed below constitute adequate protection, the possibility and desirability of introducing the concept of harassment should be further studied.
The Criminal Law22 contains Article 156 that provides for punishment in cases of intentional violation of persons dignity or degrading her orally, in writing or by action. It is thought that this Article could be applied also in cases of degrading the person or violating her dignity because of her membership of a group23. Offences based on the ethnic or racial origin of the person could be subsumed under this Article, and thus it covers at least theoretically and at least in part the cases of harassment as defined in Article 2.3 of the Race Directive. However, there are no actual cases confirming this interpretation; it is less likely that the Article could or would be applied to gender-based harassment cases. The same considerations apply also to Article 157 of the Criminal Law dealing with cases of intentional defamation, and Article 158 covering violation of persons dignity and defamation if done by using mass media. However, there is no Article 156, 157 or 158 case law related to persons racial or ethnic origin or gender.
Article 78 of Criminal Law criminalises actions that are intentionally directed towards inciting of national or racial hatred or discord or intentionally limit directly or indirectly a persons economic, political or social rights or create direct or indirect advantages because of persons race or ethnicity; there is no comparable provision in relation to gender.24
Is it unlawful under national law to give instruction to discriminate on the grounds of racial or ethnic origin or religion and belief? Is it deemed to be discrimination? Is there a need to introduce a similar principle in national law?
Are there comparable definitions in national law in relation to gender discrimination?
Article 78 of the Criminal Law providing for punishment of actions that, inter alia, intentionally limit directly or indirectly a persons economic, political or social rights or create direct or indirect advantages because of a persons race or ethnicity, together with Article 20, speaking of various forms of accomplices (the organiser, inciter and supporter), make the instruction to discriminate on ground of racial or ethnic origin a punishable crime, without explicitly qualifying it as discrimination, although the title of the article speaks, inter alia, of violation of ethnic and racial equality. There is no relevant case law, however.
There is no comparable provision in the Criminal Law or elsewhere in relation to gender discrimination, and hence also no case law. The only other protection against discrimination in Criminal Law is offered by Article 150 prohibiting differential treatment based on persons attitude towards religion.
Does the definition of racial and ethnic discrimination and discrimination on the grounds of religion and belief apply to all the fields of application listed in Article 3, both in the private and the public sectors?
To which other fields of application does the definition apply? (Compare with the fields of application listed in Protocol Nº 12)
Is gender discrimination covered in the same fields?
As already indicated, there is the paramount general equality clause contained in Article 91 of Satversme. This covers all fields unless there are valid reasons for particular differential treatment, which thus cannot be deemed to be discriminatory.; However, from the point of view of enforcing one's rights it is clearly desirable, and particularly important in the private sphere, since Article 91 in principle cannot be applied in relation to actions by private persons, that the person be able to refer also to a statute, which establishes them firmly.
There is the general equality clause concerning equality in labour relationships, in Article 1 of the Labour Code. In addition there is the more specific Article 15 which deals with equality and prohibition of direct or indirect restrictions and advantages concerning access to employment. Presumably, the legislator felt that Article 1 applies only once the person has been employed and the employment relationship already created, equality in access to employment thus needing to be reiterated separately. As a result, in regards to everything else that is covered by the employment relationship, including promotion, pay, employment conditions, dismissals etc., without specifying it, the Article 1 guarantee applies, covering Article 3.1(a-c) of the Race Directive both to race and gender-based discrimination. This is the case whether it is the public or private sector and whenever the employment relationship is based on employment contract.
The situation in the civil service, however, is problematic. The State Civil Service Law25, without formally containing any equality clause, refers to the Labour Code, in Article 2(4) stating that unless this law provides differently, in the state civil service relationships the norms regulating employment relationship concerning work time, time for rest and pay apply. Unfortunately, this wording seems to exclude the application of Article 1 guarantees, so one has to look further into the Satversme to find that the non-discrimination requirement applies also to the state civil service.
Once the Labour Law enters into force, the situation with employment relationships will be slightly different as the Labour Law contains several specific equality clauses, and also one attempting to cover everything pertaining to employment relationship. Thus, Article 7(1) states that Everyone has equal rights to employment, fair, safe and healthy working conditions, as well as to fair remuneration for work, with Article 7(2) specifying that this has to be guaranteed without direct or indirect discrimination based on, inter alia, persons race, colour or gender. Article 29 aims at encompassing everything, at the same time mentioning also specific fields, prohibiting differences in treatment on grounds of gender concerning access to employment and during the existence of an employment relationship, in particular concerning promotion, work conditions, pay, vocational training and dismissal. The prohibition is also applied to differences based on, inter alia, race, colour and national origin. Article 32, speaking of vacancies advertisements, prohibits requiring a specific gender (except when it is an objective and justified occupational requirement) or mentioning age restrictions. However, Article 33, prohibiting directly or indirectly discriminating questions during the job interview, among marital status, religious or political affiliation et al., mentions those about national or ethnic origin.26 Article 60 specifically speaks about equal pay to women and men for equal work or work of equal value; no prohibition of differential pay on other grounds is made here, so we have to look back into the more encompassing Article 29. Māris Badovskis, Deputy Director of the Labour Department of the Ministry of Welfare, explained that it was felt that there was a need to repeatedly emphasise equal pay independently of gender as this was one of the most problematic areas in practice. Article 95 once more reiterates the prohibition of differential treatment, without mentioning its grounds, concerning promotion and determining work conditions.
As to the other fields of application listed in Article 3 of the Race Directive, the peculiarity is that, as a rule, laws regulating these spheres are not explicit as to prohibition of discrimination, on grounds of either racial or ethnic origin or gender; they either speak of rights of everyone, or refer to persons citizenship or legal status in Latvia, or sometimes to other criteria. Thus, Article 14 of the Law on the Bar27 makes access to self-employment as a sworn advocate dependant on the person being a Latvian citizen. The Education Law in Article 3 covering questions of both academic and vocational education and training refers to a persons citizenship or status, at the same time containing also equality provision28. The Law on Trade Unions29 in Article 2 refers to the right of all persons residing in Latvia, who are employed or study, to establish trade unions, and this right is reiterated in Article 229 of the Labour Code. Social protection again is status-linked, dependent on a persons being socially insured and this has to be done in relation to everyone covered by law, although without explicitly mentioning that it has to be done without discrimination, or a persons legal status in Latvia. Thus, Law On Social Aid30 in Article 5(1) lists as entitled to social aid Latvian citizens, non-citizens, and stateless persons and third-country nationals who have been issued with a personal ID number, with the exception of persons in possession of temporary residence permits. All these laws are applied in practice if the person does not satisfy the precondition of the citizenship or status contained in the law, the person does not have access to the particular type of service or activity.
Whenever the law is silent as to prohibition of discrimination we have to look into the constitutional guarantee of equality, which is binding on all public bodies. However, the situation is more complicated as far as private discrimination is concerned. For example, the Law on Housing31 that applies both to public and private housing, does not contain any anti-discrimination clause, and the only way to discover that private discrimination is prohibited is by turning to Article 78 of the Criminal Law criminalising direct or indirect limitations of persons economic, political or social rights because of a persons race or ethnicity. Such a situation is unsatisfactory not only because it complicates the issue of remedies, but it does not promote the transparency in the legal system either.32
Summing up, while it can be said that in none of the fields covered by Article 3 of the Race Directive is discrimination considered legal, in a number of cases specific prohibition is desirable, especially to preclude private discrimination.
To what extent, if any, does national legislation go beyond the Directive in prohibiting discrimination on the ground of nationality?
National legislation does not go beyond Article 3(2). In fact, Article 3 of the Education Law, quoted already, specifically conditions the right of a person to education on her citizenship or legal status in Latvia. In addition a number of professions such as, for example, notary-public, sworn advocate, or civil servant can be exercised only by Latvian citizens, thus excluding from such positions not only third-country nationals, but also non-citizens permanently residing in Latvia.
Do exemptions relating to genuine and determining occupational requirements exist at national level? Is it necessary to restrict any exemptions to those defined in Article 4?
Article 29(2) of the Labour Law provides that differences in treatment based on persons gender are permissible only if belonging to a certain gender is an objective and justified occupational requirement. Article 29(5) applies this exception also to cases of differences of treatment based on persons race, colour, gender, age, disability, religious, political or other opinions, ethnic or social origin, property or family status or other circumstances. According to Article 29(3), the burden of proving that belonging to a certain gender is an objective and justified occupational requirement is put on the employer. In addition Article 32 prohibits requiring a specific gender when publishing job advertisements, except where belonging to a certain gender is an objective and justified occupational requirement. Taken in conjunction with Article 29(1) prohibiting differences in treatment concerning access to employment and during the existence of employment relationship, and Article 29(5), this would also prohibit advertising jobs requiring specific race or national origin.
Article 15 of the Labour Code currently in force prohibits, when establishing labour relationship, direct and indirect restrictions of rights or creation of direct or indirect advantages depending on persons race, colour, gender, age, religious, political or other opinions, ethnic or social origin and property status, except where these restrictions or advantages have been provided for by statute and other normative acts. There is a list of Hard Jobs and Jobs in a Harmful Environment Where it is Forbidden to Employ Women33 (and also a list of jobs where it is forbidden to employ persons under the age of 1834), adopted in accordance with the requirements of Article 168 of the Labour Code. This list certainly is disadvantaging women in the labour market as there is a whole range of jobs they cannot take up. Looking at this list, it can be seen that the idea behind it is the protection of womens health and in some cases also the assumption that a woman is physically incapable of coping with a particular job. There are no similar lists in relation to race or ethnic origin.
Since there are no legal norms providing for such exemptions, it cannot be said that there is a need to restrict them to those listed in Article 4 of the Race Directive. However, it must be noted that since Article 15 of the Labour Code does not contain any substantive requirements, but only the formal one namely, that such exemptions be provided for by statute or other normative acts, theoretically the statute or normative act might disregard the requirement of genuine and determining occupational requirement. The already mentioned list of Hard Jobs and Jobs in a Harmful Environment Where it is Forbidden to Employ Women, although adopted pursuant to specific authorisation of Article 168 of the Labour Code containing prohibition on employing women in hard and harmful jobs, is a good example of this, certainly raising doubts as to the constitutionality of some of the entries on this list, especially in the situation of growing unemployment. This cause for concern will be removed when the Labour Law reiterating the objective and justified occupational requirement as a condition for such exceptions enters into force.
Currently there is one case in the process of being brought to the court where a woman, Inga Muhina, was refused employment as a prison ward because of her gender. When Muhina appealed to the higher official the Head of the Department of Places of Confinement, - she received an answer where the refusal was substantiated by the physically hard work and specific requirements that apply for employing persons at the places of confinement, however, such positions are not included in the above-mentioned list of positions where women cannot be employed. In addition Muhina presented a number of documents proving that her qualifications meet the requirements for work she had applied for.35 Since, as already noted, Article 15 of the Labour Code contains only the formal requirement (which is not met in this case) that the restrictions be provided for by law or other normative act, this might become a landmark case and the first pure case of gender-based discrimination.
Are there any specific measures that aim to ensure or promote full equality or to compensate for disadvantages linked with racial or ethnic origin and religion or belief? Is the government considering adopting such measures?
Are there are comparable measures in relation to gender discrimination?
No specific measures designed to promote full equality or compensate for the disadvantages linked with racial or ethnic origin currently exist in Latvia.
The government is not considering adopting such measures.
The same applies also to measures in relation with gender discrimination. However, the National Employment Action Plan 200136 adopted by the Cabinet of Ministers on 6th February 2001 considers women in pre-pension age, who are perceived as one of the most disadvantaged groups in the labour market, as one of its target groups, but it cannot be considered to amount to positive action. In her paper Review and analysis of public policy from a gender perspective prepared in 1999 for the Ministry of Welfare and UNDP Latvia, the national consultant Astrīda Neimane recommended the adoption of policies that actually promote gender equality, and even affirmative action policies37. Also the Framework Document on the Implementation of Gender Equality prepared by the Ministry of Welfare refers to the possibility of positive action, however, without offering any concrete measures.
Thus, there are no specific measures to promote gender equality or to compensate for gender-related disadvantages, but there is some governmental activity indicating an acceptance of the need for such measures.
Are there any measures that protect the principle of equal treatment at national level that go beyond the minimum requirements of the Directive?
Although Article 91 of the Satversme contains a general equality clause, as already mentioned, there are no laws targeting specifically discrimination on the grounds of racial or ethnic origin. There is currently no concept of harassment in the national legislation, nor definitions of direct or indirect discrimination. Article 15 of the Labour Code permits restrictions or advantages that have been provided for by statute and other normative acts, without requiring that these constitute a genuine and determining occupational requirement, and, until the Labour Law enters into force, there is no reversal of the burden of proof in cases where discrimination is alleged. Thus, it cannot be said that the provisions currently in force in Latvia are more favourable to the principle of equal treatment than those of the Race Directive, and, judging from the Labour Law, there will be no provisions exceeding the scope of the Race Directive after its entry into force.
Are legal procedures available for the enforcement of the obligations under the Directive for those who consider themselves wronged?
Currently a number of remedies are available to persons who consider themselves wronged by differential treatment, however, none of them is specifically aimed at ensuring equal treatment.38 The institutions to which such persons can turn to are:
1) The same public institution that has treated the person differently, or a higher institution, or public prosecutors office.
The Law On Procedure by Which State and Local Government Institutions Examine Submissions, Complaints or Proposals39 obliges the institution to examine the complaint, submission or proposal made by the person, and to provide an answer in terms established by law (15 or 30 days). The Cabinet of Ministers Regulations on Procedure of Administrative Acts40, Articles 73 and 74, permit a challenge to the administrative act at a higher institution, and then in the court. Article 16 of the Law On Public Prosecutors Office41 provides for prosecutors involvement in the protection of rights and lawful interests of disabled, under-aged and other such persons who have limited possibilities to protect their own rights. The result of prosecutors involvement can be not only a warning to the culprit or opening of a criminal case, but he may also initiate a civil case. There is no data available as to whether there have been complaints about race or gender-based discrimination amongst such complaints.
2) State Labour Inspection
The State Labour Inspection was established by the Law on the renewal of the force of the 28th of April, 1939 law On Labour Inspection42. Among its functions are the monitoring of compliance with the legislation regulating the sphere of employment and the observance of the rights of employees. Employees can turn to the Inspectorate with their complaints, which the Inspectorate investigates; it can issue a warning or an instruction to the employer, apply administrative penalties, or inform the prosecutors office and state and local government institutions about violations of law. Within the purview of the Inspectorate are also complaints about discrimination.43
3) National Human Rights Office
The National Human Rights Office was established in 1995 and the Law on the National Human Rights Office was adopted on 5th December 1996.44 The NHRO is an independent ombudsman-like institution entrusted with the task of promoting the observance of human rights. Article 2 of the Law on the National Human Rights Office obliges it, inter alia, to examine and review complaints concerning human rights violations, and to react to such violations. The Office then has to attempt to resolve the conflict through conciliation. If this fails, the Office advises the parties of its opinion and proposals in the form of recommendations, and also presents its suggestions and recommendations for the prevention of human rights violations to the relevant institution or official. The Office has also standing to initiate a case in the Constitutional Court concerning the conformity of legal norms with the norms of higher force and conformity of national legal norms with the international treaties binding on Latvia; it has no standing to bring concrete review cases.45
4) Courts of general jurisdiction
The provision of Article 92 of the Satversme stating that Everyone has the right to defend their rights and lawful interests in an impartial court has been further elaborated by Judicial Powers Law. Article 5 provides that, in civil cases, the court shall hear cases related to the protection of civil rights, labour rights, family rights, and other rights and lawful interests of individuals and legal entities. Article 7 provides that in administrative cases the court shall, inter alia, hear complaints filed by individuals concerning acts of institutions of state authority and state officials. The procedure for adjudicating such cases is determined by the Civil Procedure Law46, and it must be noted that the case also can be initiated by the public prosecutor for the protection of rights of disabled, under-aged and other such persons who have limited possibilities to protect their own rights. The reimbursement of the court expenses, as well as the state duty are waived in cases based on employment relationship and also when the case has been initiated by the prosecutor (Article 43(1), paras.1 and 5 of the Civil Procedure Law, Article 218 of the Labour Code).
5) Constitutional Court.
The Constitutional Court was established in 1996 and it examines compliance of laws and other legal norms with the Constitution, as well as other cases under its jurisdiction. It has the right to declare provisions found not in compliance with a higher legal norm to be null and void. According to Article 17 of the Constitutional Court Law47, the following have the right to apply to the Constitutional Court regarding compliance of laws and international treaties signed or ratified by Latvia with Satversme, compliance of other legal acts with the legal norms (acts) of higher legal force, as well as compliance of national legal norms of Latvia with the international agreements entered into by Latvia: the President; the Saeima; not less than twenty members of the Saeima; the Cabinet of Ministers; the Prosecutor General; the Council of the State Control; the Council of a municipality; the National Human Rights Office; a court, when reviewing an administrative, civil or criminal case; a judge of the Land Registry when entering real estate - or thus confirming property rights on it - in the Land Book; and an individual whose fundamental rights established by Satversme have been violated. Constitutional complaint and judicial referral mechanisms were established by the amendments adopted in 2000. Constitutional complaint can be submitted by a person who considers that her basic rights have been violated by a legal norm that contradicts a higher norm. The complaint may be submitted only after all other remedies have been exhausted (in exceptional cases the Court may decide to accept the complaint even if this has not been done) and within 6 months after the last decision in the case. There is a scarcity of case law in relation to constitutional complaints so far, as the norm establishing constitutional complaint mechanism entered into force only on 1st July 2001, but it can be expected that complaints alleging discrimination on the grounds of citizenship and challenging differences in treatment between citizens and non-citizens, and on the grounds of language will be submitted.48
Is it possible for national associations or other legal entities to engage in legal proceedings for the enforcement of rights under the Directive?
Neither the Civil Procedure Law, nor any other law currently permits any associations, organisations or other entities to formally engage in judicial or administrative procedures on behalf or in support of a complainant, except in the capacity of a witness. The organisation may, of course, provide legal aid to the plaintiff, by offering him the services of a sworn advocate or other lawyer (in the latter case it is up to the court to decide whether to admit him as the representative of the person49, but this is usually granted), but there will not be any formal links to the organisation. The only exception are trade unions Article 14 of the Law on Trade Unions permits the trade unions to represent and defend the rights and interests of their members in the state institutions, including bringing a case in the court.
What time limits apply to the bringing of an action?
Article 217 of the Labour Code sets a time limit of one month from the day when the employee discovered, or ought to have discovered, that his rights had been violated, for turning to the commission of labour disputes50, or to the court in cases of dismissals. In the Abramova v. Latgales Druka51 case the non-observation of the one month time limit was one of the issues, however, the Supreme Court Senate when reviewing the case on the points of law in its appeal capacity, pointed out that this limit concerns only the commission of labour disputes, and thus is inapplicable where no such commission has been established and the employee turns directly to the court (with the exception of dismissals cases)52. In regard to other claims, no specific time limits are set and thus the general provision of ten years prescription provided for in Article 1895 of Civil Law53 applies. However in cases where the enjoyment of rights by natural and legal persons has been hindered in full or in part by illegal action or act of state or local government institution or official and discrimination in certain cases might come under this heading the complaint has to be submitted to the court within one month after a negative answer of higher official or institution has been received, or, if no answer has been received, one month from the time when it ought to have been received (i.e., one month after the day the complaint was submitted).
The Labour Law in Article 31 sets a 2 year time limit for claims resulting from employment relationships, but if the employer has not issued an account in writing, as he is supposed to, the time limit is 3 years counted from the day when the account ought to have been issued. A special time limit of one month from the day of the refusal to establish employment relationship is set by Article 34 for bringing a case to the court if the employment relationship has not been established in violation of the prohibition of differential treatment - whether the person was treated differently on the ground of race, gender, or any other prohibited ground. Article 95, which deals with violations of the prohibition of differential treatment in promotion or setting employment conditions sets a time limit of one month from the day when the employee found out or ought to have found out about the violation of the prohibition of differential treatment.
Article19.2(4) of the Constitutional Court Law sets a time limit of 6 months from the day the last decision in the case was adopted, for submitting a constitutional complaint. Thus, we can see that currently there are no time limits specific to equality of treatment claims, but the situation will change after the Labour Law enters into force, but only in relation to a small category of cases.
Does the principle of the reversal or easing of the burden of proof in cases of racial and religious discrimination exist in national law?
Are there comparable provisions in national law in relation to gender discrimination?
According to Article 28 of the Constitutional Court Law proceedings before the Constitutional Court are opened by the report of a judge, followed by the applicants presentation on the circumstances of the case and legal argument (30 minutes), then the floor is given to the defendant (30 minutes), experts if needed, and concluded by the Courts debates and announcement of the date when the judgement will be pronounced. There are no exceptions from the general principle of evaluating arguments of the parties and making its own assessment of the legal provisions by the Constitutional Court in cases of alleged discrimination.
Theoretically, employees who consider themselves to be discriminated against on the grounds of race, ethnicity or gender contrary to the provisions of Labour Code may apply to the court and claim compensation of damages or other remedy. Disputes concerning the labour relationship are reviewed by the courts according to the procedure established by the Civil Procedure Law. This law lays down the principle of equality of parties (Article 9), as well as the principle of contest between the parties (Article 10). According to the latter principle, the applicant has to prove the facts substantiating the claim, whereas the defendant has to prove reasonableness of his/her objections (Article 93). The main forms of producing evidence are testimonies of witnesses and written documents. There are no special provisions, including reversal or easing of the burden of proof, in discrimination cases.
A different approach has been taken in the Labour Law. Article 29(1) of this law provides for the prohibition of differential treatment on the grounds of gender when entering into labour relationships, during the existence of the labour relationships and when terminating the labour relationships. If employee indicates circumstances which might form direct or indirect discrimination on the grounds of gender, Article 29(3) puts the burden of proof on the employer whose "obligation is to prove that the differential treatment is based on objective circumstances not connected to the gender of employee or that the gender of employee is an objective and reasonable precondition for performing the relevant work". Article 29(5) extends the aforementioned provisions to differential treatment on the grounds, inter alia, of race and ethnic origin. The right to claim compensation when an employer cannot prove objective and reasonable differentiation on the grounds of race, ethnic origin and gender is provided for on three occasions: in relation to establishing labour relationships (Article 34), promotion and determining conditions of work (Article 95). In these cases amount of compensation is decided by the court. In the case the employment contract has been terminated unlawfully, the employer bears the burden of proof (Article 125) but the employee may claim only compensation in the form of an average salary for the period absent from the work (Article 126(1)).
A different regime is applicable to civil servants. The State Civil Service Law determines that persons performing specified duties in the State Chancellery, Secretariat of the Deputy Prime Minister, Secretariat of the Minister of Special Tasks, ministries, administrative authorities subordinated to or supervised by the Minister of Special Tasks or Deputy Prime Minister have the status of civil servants. Besides this, the status of specialised civil servants is afforded to persons who perform specified functions in diplomatic and consular establishments, State Revenue Service, police, border guard forces, State Fire Fighting and Rescue Service, Department of the Places of Confinement (Article 3). There is no prohibition of discrimination expressly spelled out in the State Civil Service Law, however, the general principle of the prohibition of discrimination provided for in Article 91 of Satversme applies to all decisions concerning appointment, dismissal or other decisions affecting the rights of a civil servant. If a person considers that she has been discriminated against, that person has the right to submit a complaint to the State Civil Service Board. If the person is not satisfied with the decision of the Board, she may appeal against that decision of the Board to the court and go through all three court instances.
The procedure for issuing administrative decisions (acts) and for reviewing the appealed administrative decisions before administrative bodies, is regulated by the Regulations of the Administrative Acts Procedure adopted by the Cabinet of Ministers on 13th June 1995. As to the review of the appealed administrative decisions, the administrative authority reconsiders the case on the substance and it may affirm the disputed decision, revoke it or issue a new administrative decision. The general provisions of issuing administrative decisions apply, where there are no special provisions easing the burden of proof for applicant. In every case, an individual has the right to appeal against administrative decision to the court.
The procedure of appeal against administrative decisions (acts) before the courts is regulated by the Civil Procedure Code. Although the new Civil Procedure Law replacing the old Civil Procedure Code has been adopted in 1998, Article 11 of its Transitional Provisions states that, inter alia, Chapter 24 A Reviewing of complaints about unlawful acts (decisions) of administrative authorities and municipal institutions and officials, by whom the rights of natural and legal persons have been violated remains in force. Article 239.1 of the Civil Procedure Code54 entitles natural and legal persons to challenge, before the court, administrative decisions that allegedly violates persons rights. As to the burden of proof and evaluation of evidence, provision of the Civil Procedure Law described above apply. Thus, there are no special provisions concerning reversal or easing of the burden of proof in cases, where, for example, a candidate to a position of a civil servant has been rejected on the basis of his/her ethnic origin. Such a claim would be considered by the court in accordance with the principle of contest between parties. Such a principle, which lies at the heart of private law disputes and where the court takes a decision solely on the bases of the evidence produced by the parties, is not appropriate in proceedings concerning administrative decisions where an individual is going against the state.
Currently a new Administrative Procedure Law is being drafted. This law will regulate all aspects of taking administrative decisions and their appeal before administrative bodies, as well as before the courts by replacing Regulations on Procedure of Administrative Acts as well as the Civil Procedure Code. As to the procedure before the court, Article 95 of the Draft Administrative Procedure Law55 introduces the principle of objective examination in the administrative procedure. According to this principle, the task of the court will be to exercise control over the lawfulness, and justification, of the administrative act or factual conduct of the administrative body. This means that the decision of the court will not be taken within a framework of the evidence produced by the parties, but on the objective evaluation of the circumstances of the case and on the evidence collected on its own initiative, if needed. The whole procedure before the court will put the burden of proof upon the administrative body. Article 140 of the Draft Administrative Procedure Law states that the administrative body has to prove the circumstances upon which its objections rest. In doing this, it may only refer to those justifications, which are cited in the administrative act and the petitioner must participate in the collection of evidence only to the best of the petitioner's ability. An individual will be entitled to claim compensation for material and non-pecuniary damages caused by, inter alia, discriminatory decisions according to Article 90.
The described administrative procedure is applicable not only in relation to civil servants, who may challenge discriminatory decisions, but to any administrative decision that may have a direct or indirect discriminatory effect upon an individual within the framework of the Race Directive.
Outside the scope covered by the Race Directive, there are exemptions from the civil law principle of sharing the burden of proof. One of the provisions related to non-discrimination issues is Article 2352a(1) of the Civil Law stating that:
"Everybody has the right before the court to revoke information offending his honour and reputation unless the distributor of the information proves that the information is true."
Once the applicant has made a claim, the burden of proof shifts to the defendant who has the onus of proving the truthfulness of the information. The applicant may claim compensation of non-pecuniary damages, the amount of which is decided by the court. Although subject to the requirement of false information, this provision in theory could be invoked also in cases when person's honour is offended by racially motivated remarks. However, no such cases have yet been reported.56
All of the examined legal provisions equally apply to cases of discrimination on the grounds of race and ethnic origin as well as of the gender.
It has been admitted by Andris Guļāns, the Chairman of the Supreme Court that there has been only one case considered by the courts of general jurisdiction in Latvia, where the issue of discrimination has been extensively analysed.57 This is a case Abramova v Latgales Druka, however, it does not contain provisions relating to the easing of the burden of proof and it is discussed in relation to the concept of victimisation below.
Consequently, there are no special provisions in the existing legislation that would shift or ease the burden of proof in issues covered by the Race Directive in relation to constitutional, civil and administrative proceedings. However, Labour Law will provide for the reversal of the burden of proof in cases of establishing, maintaining and terminating labour relationships. The Draft Administrative Procedure Law puts the burden of proof upon the administrative authority in proceedings before the court in all cases, including discrimination on the grounds of gender, race and ethnic origin. The requirements of the Race Directive will be satisfied only in areas of labour law and administrative procedure once the respective laws will enter into force.
Is the Directives definition of victimisation to be found in national law?
Are there comparable definitions in national law in relation to gender discrimination?
Neither the Labour Code nor other existing legislation contain a definition or specific provisions in relation to victimisation. However, two provisions in the Labour Law must be mentioned. Article 8(2) of the Labour Law states that membership of a the trade union or the desire to join it shall not serve as a cause for not concluding a labour agreement, dismissal of the person or other restrictions of the employers rights. Article 9 contains a definition of victimisation:
"Infliction of a punishment on an employee as well as creation of direct or indirect unfavourable consequences to the employee, due to the fact that the employee within the framework of labour relationships enjoys his/her rights in a permissible manner, shall be prohibited."
This definition includes cases where the employee has been victimised as a result of complaining about violations of the principle of equal treatment on the grounds of race, ethnic origin or gender.
The plaintiff Dagmara Abramova worked as a printer in the printing house - a private company Latgales druka. In 1998 she was dismissed in accordance with Article 33(1(2)) of the Labour Code as a result of the reduction of the number of employees. Later that year she was reinstated in her position by the decision of the court of first instance. On 11th January 1999 Abramova and Latgales Druka signed amendments to her labour contract and agreed on the monthly salary of LVL 60. On 3 August 1999 Abramova submitted a complaint to the court that she was misled when she signed the amendments, she asked for an annulment of the amendments as well as the recovery of the LVL 2791 that she would have received if the amendments had not been adopted. She claimed that she had been discriminated against due to her activities in the trade union. She also indicated that she was the only employee whose salary was dependant not on the work performed but her salary remained constantly low. Abramova received a positive decision in the court of the first instance and her claim was rejected in the court of appeal. The Supreme Court found that the Latgale Regional Court did not consider certain evidence in the case as indicated by the applicant. The Supreme Court, inter alia, pointed out that the court of appeal had not considered whether the principle of equal treatment as provided for by Article 1 of the Labour Code had or had not been violated given that the system of payment was changed only in relation to Abramova. As a result the court sent the case back for reconsideration.58 Latgale Regional Court reaffirmed the findings of the court of first instance that the discrimination here is against Abramova as an employee who defends her rights and it is the result of a conflict with the employer, even Abramovas representative pointed to this.59 So the Latgale Regional Court found violation of the principle of equality guaranteed by Article 1 of the Labour Code and of the principle of equal pay for equal work, referring to Article 23 of the Universal Declaration of Human Rights. Interestingly, the discrimination was found to be on the grounds of victimisation due to the fact of defence of her rights - this ground is not listed in the exhaustive list of grounds prohibiting discrimination in Article 1 of the Labour Code, whereas the Supreme Court urged the lower courts to examine whether the discrimination on the grounds of gender had taken place.
There are no cases reported concerning victimisation within the framework of Race Directive. However, the case Abramova v Latgales Druka leads to conclusion that Latvian courts may extend protection to the persons who have been subject to victimisation even in the absence of any specific legal provisions. This case also suggests that the Latvian courts could be expected to find a violation of Article 1 of the Labour Code, if employees were victimised on the grounds of fighting against their racial, ethnic or sexual discrimination.
To conclude, at the legislative level, the Race Directive will be complied with only in the field of labour law and this only when the respective provisions enter into force.
Which steps are necessary to ensure sufficient public awareness of existing laws? What arrangements currently exist to ensure that anti-discrimination legislation has been or will be brought to the attention of the public?
Does the government need to act to ensure that by means of information and training, and where necessary by effective sanctions, all officials and other representatives of the public authorities at every level abstain from any racially or religiously discriminatory speech or behaviour in the exercise of their functions?
Public survey conducted in 2000 shows that 24% of all respondents have suffered violations of their human rights and discrimination, with the following breakdown: 18% of Latvian origin and 31% of other ethnic origin, or 20% Latvian citizens and 33% non- Latvian citizens, or 25% men and 22% women.60 From those respondents who acknowledged violation of their rights, the largest group - 28% indicated their ethnic origin as a ground for the violations against them, with the following breakdown: 11% Latvians and 40% of other ethnic origin, or 17% Latvian citizens and 43% of not Latvian citizens. The next most usual ground for human rights violations indicated by 24% of respondents was language, with the following breakdown: 7% Latvians and 40% of other ethnic origin, or 15% Latvian citizens and 37% non -Latvian citizens. As for to violations based on the grounds of gender, a relatively small number of respondents - only 2% acknowledged its existence. These statistics are confirmed by another survey carried out in 2001. 3% of citizens and 46% of non-citizens consider citizenship to be the main cause for their human rights violations, 7% of citizens and 39% of non-citizens see language as a ground for human rights violations and 6% of citizens and 31% of non-citizens consider ethnic origin as a ground for violations against them.61
These figures show, firstly, that persons of other ethnic origin than Latvian consider themselves to be discriminated against on the grounds of ethnicity four times as often as Latvians. Secondly, this could mean that a proportion of the persons of other ethnic origin than Latvian consider legislative provisions restricting their rights in the field of use of minority languages and restrictions based on the lack of citizenship to be discriminatory. Third, these figures do point to the existence of discrimination in the public and private sector: the two most acknowledged spheres of human rights violations are labour relationship (43% citizens and 49% non-citizens) and social security (31% citizens and 30% non-citizens).62
It is difficult to judge the scale of discrimination as only one fourth of those, who consider their rights to be violated, are ready to look for help. The main reasons for not appealing for help were given as following: did not trust to the relevant institutions - 38%, difficult to say - 30%, did not know where to appeal - 14%.63
These figures suggest that, first, residents need to be informed about what is discrimination. It is interesting to note that the discrimination against women in relation to labour relationships, particularly in private sector, is reported to be widespread in Latvia64, while only 2% of the respondents acknowledged violations on the grounds of gender. Second, it is necessary to inform the residents about the existing legal mechanisms for the protection of their rights in the case of discrimination. If the Government does not highlight issues of discrimination, the residents will remain passive and reluctant to defend their rights.
The measures of informing the population on issues of non-discrimination in general or in specific areas such as labour relationships or pensions so far have included publishing a number of information brochures with the involvement of the Government as well as with an extensive involvement of private donor organisations. No brochure, however, has been specifically devoted to the issue of the prohibition of discrimination on the grounds of race, ethnic origin or gender, but these issues have been dealt with amongst others when informing about the principle of equality in labour relationships. Other general measures include occasional explanatory comments of public officials in the mass media, and occasional public discussions related to gender equality.
It is clear that the attention of the public must be concentrated on the issues of discrimination by all the above-mentioned means. In addition to these means, the fulfilment of the recommendations of the Committee on the Elimination of Racial Discrimination, namely, publishing and widely disseminating Latvia's joint Initial, Second and Third Periodic Report as well as Concluding Observations under the Convention on the Elimination of Racial Discrimination and accepting individual complaints procedure in accordance with Article 14 of the said convention65 would be a considerable contribution to the awareness raising among the population.
Discriminatory speech or behaviour of representatives of public authorities is not unknown in Latvia. For example, in 1999, a member of home guard forces which forms part of the National Military Forces, hired by an owner of a private cafe to perform security functions, denied access to a cafe to a young person of Roma origin. The home guard had stated that the owner of the cafe had ordered that Roma should not be allowed to enter. Later the home guard denied that the reason for not allowing entrance to the cafe was ethnic origin and the owner denied giving any instructions related to ethnic origin. The National Human Rights Office asked for explanations from the home guard leadership and in the reply it was said that the mother of the said home guard was Russian and one of his grandparents was Roma, therefore it is doubtful that this person could have acted in a discriminatory way. Besides, it was said that the home guard acted in accordance with internal regulations made by the owner of a cafe so the latter bore all the responsibility.66 A file for a criminal case was not opened.
In another case in 2000, the national TV news programme reported that a woman allegedly of Roma origin had swindled a young woman out of jewels and money. The TV reporter warned the audience not to look into the eyes of Roma and a police officer asked all Roma in Latvia to help in recovering the stolen goods.67 The Parliamentary Commission of Human Rights protested and the National Human Rights Office conducted debates on this issue. Again a file for a criminal case was not opened.
In spring 2001, Aivars Garda, the director of a private publishing house announced a competition of essays on topics containing ideas of building ethnically clean Latvian state and encouraging repatriation of colonists, i.e., Russians. The competition resulted in a publication of a book a containing a spirit and remarks offending the honour primarily of persons of Russian ethnic origin. Two members of the Parliament from the right wing party "For the Fatherland and Freedom" participated in the presentation of the book. An MP from the Social Democratic party signed the letter prepared by Aivars Garda and submitted to Guenter Verheugen, EU Commissioner for Enlargement, where integration of society in Latvia was called a "crime against humanity". After this an open letter signed by 29 representatives of the intelligentsia was published urging the leaders of the relevant political parties to condemn publicly activities of their members, however only the Social Democratic party distanced itself from the acts of its member. A file for a criminal case was not opened in relation to Garda's activities, as the law enforcement authorities did not find that Garda acted with a purpose of inciting to racial hatred.
Article 78 of the Criminal Law provides for the liability of all state officials for intended incitement to ethnic or racial hatred and for direct or indirect restrictions of the rights or creation of advantages to persons on the grounds of race or ethnic origin, inter alia. Since the restoration of independence in 1990, not a single public official has been convicted of the offences provided for in Article 78 of the Criminal Law.68
To summarise, so far the issue of discrimination has really not been a point of focus when disseminating information to residents on their rights or when training representatives of public authorities. However, there exists a real need, on the one hand, to raise awareness of the population about the substance of the prohibition of discrimination, but necessarily within a context of diminishing the overall distrust in the public authorities. On the other hand, it is essential that public authorities dealing with application of legal norms, namely, labour inspectors, National Human Rights Office personnel, prosecutors, judges, are specially trained in the content and application of national and international standards prohibiting discrimination.
Are there any measures to promote the social dialogue on the issues of the Directive at national level?
Social dialogue in Latvia is conducted within the framework of the National Tripartite Co-operation Council (further - "the NTCC"). The latest Regulations on the National Tripartite Co-operation Council were adopted by the Resolution of the President of Ministers on 30th October 1998.69 The NTCC is made up of an equal number of representatives from the Government, the Latvian Confederation of Employers and the Latvian Union of the Independent Trade Unions. The NTCC examines drafts of the framework documents, programmes, laws and other legal acts and submits its proposals to the relevant ministries in relation to wide range of social and economic issues. Four sub-councils have been established on the following issues: social insurance, professional education and employment, health care, labour issues. The latter - Labour Tripartite Co-operation Sub-Council started its work on 28th September 2000 and it deals with issues of labour law, labour protection and equal opportunities. If one of the parties to the Sub-Council disagrees with the relevant provisions, the decision must by taken by the NTCC.
According to Sarmīte Catlaka, Secretary to the National Tripartite Co-operation Council, Latvia is still in the process of establishing tradition in the discussion of equality related issues amongst the representatives of trade unions, employers and the Government. Issues of racial and ethnic discrimination have been discussed in the work of the sub-councils and the NTCC only as far as the Labour Law affects them. Issues of gender related discrimination have been examined more closely since the Framework Document on the Implementation of Gender Equality was formulated by the Ministry of Welfare at the end of 2000, discussed in the Labour Tripartite Co-operation Sub-Council and is currently being prepared for the submission to the Cabinet of Ministers. The Framework Document on the Implementation of Gender Equality sets five goals: the establishment of an effective institutional mechanism, educational and awareness raising activities, improvement of legislation, elaboration of the implementation strategy until the year 2002, and carrying out supervision and evaluation.70 Thus, while the social dialogue concerning gender related issues is at its very initial stage, it has not been undertaken yet in relation to racial or ethnic discrimination.
Are there any measures to promote the dialogue with non-governmental organisations at national level?
It must be born in mind that the process of civic participation and self-organisation in NGOs in Latvia has started relatively recently and it has been observed that stable collaboration in a wide range of areas between NGOs, local governments and state institutions does not yet exist71. The most successful example of wide involvement of NGOs in dialogue with the Government concerned discussions on the Framework Document for a National Programme on the Integration of Society in 1999. This document outlined social integration policy on such issues as civic participation, education, language and culture. The National Programme: Integration of Society in Latvia was adopted by the Cabinet of Ministers on 6th February 2001.72 However, racial and ethnic discrimination issues are only indirectly linked with this programme.
Representatives of several NGOs active in the relevant field - Nils Muiţnieks, Director of the Centre for Human Rights and Ethnic Studies, Normunds Rudevičs, President of the Latvian Roma Association, Haisam Abu Abda, Head of the Latvian Foreigners Association, Genadij Kotov, Member of the Latvian Human Rights Committee, almost all acknowledged involvement in the discussions concerning National Integration Programme. However, none of those interviewed recalled that they had ever been invited by the state authorities to discuss issues related to discrimination based on the race or ethnic origin. Non-existence of such dialogue could point to the fact that the Government does not link issues of discrimination with the integration of society in Latvia, although they are connected, and that the Government has not yet included the relevant issues in its agenda.
More has been achieved in the field of gender equality. Inese Ķikule, Executive Director of the Latvian Gender Equality Association, acknowledged that members of the Association have been invited by the Ministry of Welfare to participate, as experts, in the formulation of the Framework Document on the Implementation of Gender Equality. Besides, the issue of future co-operation and dialogue between NGOs and the Government formed the basis of one of the discussions in the conference organised by the Ministry of Welfare in co-operation with the Latvian Gender Equality Association at the end of May 2001, which was devoted to the Framework Document. The Latvian Gender Equality Association is an umbrella organisation for NGOs active in this field. Currently it has 22 NGOs as members as well as about 50 individual members most of whom are members of other NGOs.
Is there a specialised body to promote equal treatment, irrespective of race or ethnic origin at national level? If so, what are its powers and duties? Is such a body effective?
If not, would the government need to act in order to give this body such specific powers? What would be the procedure?
According to Article 2 of the Law on the National Human Rights Office, the NHRO has the following functions: (1) to provide information to and raise awareness, of the public on human rights; (2) to inquire into any individual complaint related to human rights violation; (3) to take immediate measures in cases of human rights violations and to identify situations causing human rights violations on its own initiative; (4) to monitor human rights situation in the country, to prepare and promote programmes for the promotion of observance of human rights; (5) to carry out an analysis of the legislation; and (6) to report annually to the Parliament. The Parliament may have an influence upon the independence of the NHRO in two ways - when approving/dismissing the Director and when adopting the budget.
The NHRO has performed a few activities indirectly related to the issues covered by the Race Directive. In 1997, an analysis of the restrictions on the rights of Latvian non-citizens was carried out and nine restrictions were identified - to work as a private detective, security guard, advocate and assistant advocate, crew member in the aeroplane, fire-fighter, pharmacist, as well as to be employed in elected body of a religious congregation and to be pardoned by the President of the State.73 The latter five restrictions have been abolished.74
In 1999, the NHRO examined compliance of the State Language Law with the international standards and expressed its concern about several of its provisions. The President of the State did not proclaim the law and the new law that was adopted was in conformity with the international standards according to the NHRO.75 Discussion within the framework of the Advisory Board to the NHRO about the TV news programme concerning Roma held in 2000 must also be mentioned.
The NHRO is entitled to review individual complaints, to acquire the necessary information and to strive for a friendly settlement. The NHRO does not have power to enforce its recommendations. In 1998, the NHRO received 5 written complaints concerning alleged discrimination, 2 of them were dismissed, 2 were under consideration and 30 oral consultations were given.76 In 2000 these figures were as follows: 1 written complaint received, 2 cases solved, 1 complaint dismissed, 1 case closed with adoption of a recommendation, 2 complaints under consideration, 60 oral consultations given.77 These statistics concern discrimination on any ground. It was explained by Līga Bikseniece, the lawyer of the NHRO, that there have been no complaints of alleged racial discrimination and that cases of discrimination on the grounds of ethnic origin are rare.
As to gender discrimination, the main activities of the NHRO include a survey of employment advertisements in 1997. In 1997, the NHRO also organised an international symposium "Women and men in dialogue" that served as a catalyst for starting a debate on gender issues in Latvia at all levels. Research on gender equality in Latvia was carried out in co-operation with several NGOs in 1999. A number of recommendations to eliminate provisions in the Latvian legislation containing discrimination on the grounds of gender were drawn up and submitted to the Ministry of Welfare.78 In March 2001, public discussion was organised where the NHRO appealed to women who considered themselves to be discriminated against to submit complaints to the NHRO.
The NHRO has not made effective use of its mandate in order to bring a case before the Constitutional Court. So far only one case on compliance with the Cabinet of Ministers Regulations to statutes adopted by the Parliament, in the sphere of compensating the lost property of the politically repressed as submitted by the NHRO, has been considered by the Constitutional Court. The explanations for this lack of action are firstly restricted financial resources, and secondly the mandate disallowing any challenge concerning the compatibility of the statutes with Satversme as it was prior to amendments made to the Constitutional Court Law in 2000.
It must be said that so far the NHRO has not examined closely issues of racial and ethnic discrimination. Besides, the effectiveness of its work in general has been undermined by frequent changes of personnel, inadequate distribution of the work force, insufficient funding and an excessive workload.79
Another governmental institution whose mandate partially falls under Article 13 of the Race Directive is the State Labour Inspectorate. It has a mandate to consider individual complaints concerning violations of labour law, employment, labour protection and of "other legal acts" done either by public or private employers. In 2000 it received 1820 complaints and the number is constantly increasing - there were 1166 complaints in 1997, 1362 in 1998, 1748 in 1999. The highest number of complaints in 2000 concerned issues of pay - 770, dismissal - 326, labour contracts - 241. Unfortunately, the statistics do not identify complaints concerning discrimination. However, Karīna Platā, Legal Advisor to the Director of the State Labour Inspectorate, acknowledged that women are more active in complaining, but there has not been a single written complaint lodged alleging discrimination on the grounds of race, ethnic origin or gender. However, oral consultations over the telephone have been sought concerning the discrimination on the grounds of ethnic origin and gender. One of the main obstacles given for not lodging complaints before the court was the difficulty in proving the fact of discrimination, including the excessive reliance on documentary evidence and not on the testimonies of witnesses by the courts.
In comparison with the NHRO, the State Labour Inspectorate may impose a fine of up to Lats 250 (approximately USD 400) for four administrative violations included in the Code of Administrative Violations. These include Article 41, which provides for a general liability for violations of legal acts regulating areas of labour relationship and labour protection. Theoretically, employers who discriminate against a person on the grounds of the persons race, ethnic origin or gender in refusing to conclude a labour contract, dismissing or during the term of the contract can be punished. Moreover, if the employer refuses to fulfil the instructions of the labour inspector, the court may impose a fine of up to LVL 250 in accordance with Article 175.2 of the Code of Administrative Violations. Criminal liability is only provided for violating labour protection requirements under Article 146 of the Criminal Law.
Increasing the efficiency of the existing mechanisms involves a whole complex of activities. First, awareness about the existing anti-discrimination standards and mechanisms must be raised. Second, procedural provisions must be changed in order to make it easier to prove the fact of discrimination (in the area of labour relationship this will happen with the entry into force of the Labour Law) and this also involves the training of judges. Third, special attention must be paid to the individual acts of discrimination by institutions entrusted to deal with individual complaints.
In the case of the NHRO, it is doubtful if the rise in the number of complaints in the specific area of discrimination could be dealt with effectively. In 2000, the NHRO received 816 complaints in total and 424 were under consideration by the end of year 2000.80 The personnel and financial capacity of the organisation needs to be substantially increased.
The State Labour Inspectorate experiences similar difficulties also, out of 180 positions for inspectors one third is vacant. Besides, the State Labour Inspectorate is part of the executive and cannot be considered as an independent body. What appears to be most important is to train the inspectors to detect and fight against the discrimination. The inspectors have the advantage of not only reacting to complaints, but also of conducting inspections into private and public establishments (except in relation to civil servants they are subjected to supervision by Civil Service Board) on their own initiative.
Recently discussions have started on the reform of the NHRO and introducing an institute of an ombudsman instead. A working group under the auspices of the President of the State formulated a framework document in 2001. The working paper provides for five ombudsman persons on the following issues: rights of a child; local governments; justice, internal and military affairs; general issues.81
While there are a lot of issues to be resolved at this early stage, no thought has yet been given to having an ombudsman on discrimination issues. Considering the large number of persons belonging to minorities in Latvia, as well as alleged existence of discrimination on the grounds of ethnic origin, the establishment of an ombudsman who would concentrate on discrimination issues by examining complaints, carrying out researches and proposing legislative amendments is more than desirable.
The Framework Document on the Implementation of Gender Equality, as one of the elements in the implementing mechanism, provides for an institution entitled to deal with disputes on gender equality issues. There are two possible institutions mentioned: the NHRO or an Ombudsman. Notwithstanding which of the models will be chosen, this institution is intended to supervise observance of legal norms, provide advice and recommendations, examine complaints in the field of gender equality and non-discrimination.82 It would be desirable to treat the issues of discrimination on the grounds of race, ethnic origin and gender together. The establishment of an ombudsman on discrimination issues would allow for the fulfilment of the requirements of Article 13 of the Race Directive, which are not met at present.
Is action needed to ensure that national law guaranteeing equal treatment between individuals, irrespective of racial or ethnic origin and religion or belief, takes priority over other laws, regulations or administrative provisions?
Do national legislative or administrative procedures provide for declaring null and void those provisions in agreements, contracts or rules that relate to professional activity, workers and employers that are contrary to the principle of equal treatment?
Article 91 of the Satversme establishes the principle of equal treatment and prohibition of discrimination. Such grounds as race, ethnic origin and gender, although not expressly listed, are covered by this Article. International human rights treaties binding upon Latvia have the force of law and in the case of a conflict between the norm of a law and an international treaty, the latter takes priority. A number of national laws contain prohibition of discrimination. Practitioners, when applying legal norms, must consider the compliance of a lower norm with a higher ranking norm. If a conflict between the legal norms is detected, the norm of higher rank must be applied. In fact, the prohibition of discrimination enjoys the highest legal ranking in Latvia.
Article 91 of the Satversme does not expressly define indirect discrimination. It can be argued that indirect discrimination is, at least partially, implied in Article 91. The Constitutional Court recently approved a doctrine developed by scholars stating that the norms of the Satversme as far as possible must be interpreted in the light of the international human rights standards binding on Latvia.83 This means, that the definition of discrimination in Article 91 must be interpreted in line with, e.g. the definition of discrimination under Article 1 of the International Convention on the elimination of All Forms of Racial Discrimination, which contains a prohibition of indirect discrimination. However, this has not yet been tested in practice and from the point of clarity and predictability of a law, it would be desirable to supplement Article 91 of the Satversme with the definition of indirect discrimination. Due to the laconic spirit and letter of the Satversme, other amendments to ensure implementation of non-discrimination norms required would be a matter for ordinary legislation.
According to Article 7(1) of the Labour Code, provisions of an employment contract which lead to a deterioration in the conditions of employment, contrary to the law (Article 6 of the Labour Law extends this principle to collective agreements, regulations and orders issued by the employer) are not enforceable. General jurisdiction courts are vested with a power to declare such provisions null and void. According to Article 43(1) of the Civil Procedure Law claims concerning labour disputes are exempted from judicial costs, it means that the applicant does not have to pay state duty or other costs directly related to the proceedings. However, this does not include fees for lawyers. There is no formal mechanism by which persons in need can be granted free legal assistance in court proceedings. It is possible to claim compensation for the costs of remunerating a lawyer, however, Article 44(1) of the Civil Procedure Law limits this compensation to 5% of the total amount awarded by the court, which in some cases could be too low and this would make it difficult to hire a lawyer.
Similar provisions apply to administrative procedures by which administrative decisions restricting the rights of a civil servant or of any person in the field of economic and social rights are challenged before the administrative authority. Currently the Regulations on the Administrative Procedure Acts does not provide for free legal assistance and once an individual appeals against the decision before a court, the procedure described in Civil Procedure Law applies. However, Article 18 of the Draft Administrative Procedure Law establishes a principle according to which the work of the representative of an individual in complex cases can be reimbursed from the state budget through a decision of an administrative authority or court. Amount and the procedure is subject to determination by the Cabinet of Ministers.
The Constitutional Court may declare null and void legal norms that are contrary to the norms of a higher legal force up to the Satversme. Thus, when a person considers that, e.g., provisions of a labour agreement are based on discriminatory legal norm, she may initiate proceedings in the courts of general jurisdiction. If she is not satisfied with the decisions of the courts, since 1st July 2001, the individual may, within 6 months from the last decision of the highest court instance, lodge a constitutional complaint with the Constitutional Court. There is no mechanism for providing free legal assistance or for compensating legal costs before the Constitutional Court. Theoretically, if individual receives positive decision, it is possible to claim compensation from the state for the costs related to the proceedings before the Constitutional Court by submitting a separate claim before a general jurisdiction court. However, this mechanism is not easily accessible and it involves complex issues related to the hiring of a lawyer.
In general, the legislation has the capacity to have provisions of a law or a labour contract declared null and void. The problematic issues concern provision of free legal aid, training of practitioners in implementation of the principle of non-discrimination and activating individuals to complain about cases of discrimination.
Is there a need for further effective and proportionate sanctions, penalties and remedies?
Do equivalent provisions already exist on the national level in other areas?
Latvia has been criticised for not bringing to justice individuals involved in the dissemination of ideas of ethnic superiority or hatred or the use of defamatory language based on such ideas.84 Article 78 of the Criminal Law is the central provision in this regard:
(1) The committing of acts knowingly directed towards promoting ethnic or racial hatred or enmity, knowingly restricting directly or indirectly, economic, political, or social rights of individuals or creating, directly or indirectly, privileges for individuals based on their racial or ethnic origin, shall be punished by the deprivation of liberty for a term not exceeding three years or a fine not exceeding sixty times the minimum monthly wage.
(2) The committing of the same acts, if they are associated with violence, fraud or threats, as well as if they have been committed by a group of persons, a public official, or a managing employee of an enterprise (company) or organisation, shall be punished by the deprivation of liberty for a term not exceeding ten years.
The process of investigating cases and convicting persons in relation to stirring up racial and ethnic hatred started in late 90s. On 29th May 2000, Riga Regional Court delivered a judgement in a case where 9 members of a pro-nazi organisation Pērkonkrusts were convicted of a number of offences blowing up a water main, attempting to blow up a monument, assault, inciting to ethnic hatred and others. Incitement to ethnic hatred took the form of printing and distributing leaflets of anti-Semitic character and urging the establishment of an ethnically pure state. All were given prison sentences from 1-3 years, four of them received suspended sentences. In addition, they were ordered to pay the damages of approx. USD 40 000. On 16th January 2001, the Supreme Court reduced the punishment to some members of the group due to misclassification of their offences by the Riga Regional Court and also revoked the order to pay damages for approx. USD 35 000 because of the lack of documentation proving this particular amount of damage to the monument.
The leader of this group Juris Rečs was tried separately as he managed to avoid the arrest for two years. On 28th December 2000, the Riga Zemgale District Court found him guilty on six accounts, including incitement to ethnic hatred as he was proved to be the organiser of the printing and distributing the above-mentioned leaflets. He was sentenced to 3 years in prison.
On 12th January 2001, Guntars Landmanis, editor of the newsletter Patriots was convicted to 8 months in prison by Liepāja Court. He had published three editions of the newsletter all of whom were acknowledged to contain anti-Semitic and racist material. He is the first person to be convicted of incitement to ethnic and racial hatred solely under Article 78 of the Criminal Law (or Article 69 in the previous Criminal Code) since the restoration of independence in 1990.85
When guided by stereotypes, individuals often do not have the intention to discriminate against somebody, but the discrimination is the actual result of their actions. As there is no intention, the individual cannot be held criminally responsible under Article 78 and the law enforcement authorities have set quite a high threshold for proving the intent.86 This is one of the explanations why there are so few cases.
As to the disciplinary penalties for civil servants, there are no provisions specifically relating to cases of discrimination on the grounds of race, ethnic origin or gender. For discriminatory activities, a civil servant may be punished on the basis of general provisions, e.g., Article 17 of the Cabinet of Ministers Regulations On Disciplinary Punishments of Civil Servants87 provides for liability for unreasonably failing in the obligations of a civil servant. If this has caused substantial detriment to the civil service or to individual, the civil servant may be punished by dismissal from the civil service. Another article related to cases of discrimination is Article 30 allowing for the punishing of a civil servant for impolite or intolerant attitudes towards individual or colleagues. However, the disciplinary punishment in this case can be reproof or reprimand. Thus, the punishment of a civil servant for acts of discrimination is subject to the interpretation of the respective disciplinary provisions and, in order to apply them effectively, the awareness of civil servants, including those who can impose punishments, must be raised.
In the case of discrimination, individuals may file a complaint to the following: the State Labour Inspectorate (in relation to labour relationships), where the outcome of the proceedings can be a halt to the discrimination and the restoration of equality; the National Human Rights Office (in relation to discrimination by representative of public authorities in all areas) where the outcome can be a friendly settlement; or the court (in relation to discrimination in all spheres). In the court individuals may seek a halt to the discriminatory practices (of either a representative of the public authorities or a private person), restoration of violated rights or status and compensation for damages if one can prove their existence. Labour Law provides for the possible claim for non-pecuniary damages in relation to discrimination when establishing labour relationships, promotion or determining conditions of work.88 The Draft Administrative Procedure Law also provides for a possible claim for non-pecuniary damages in a case where a discriminatory administrative decision was taken.89
The Race Directive requires that the sanctions be effective, proportionate and dissuasive. In practice, however, if the law enforcement authorities do not find that discriminatory speech has reached the threshold of Article 78, this is the end of the story. As for the criminal law, in the context of Latvia it would be desirable to introduce liability, possibly on a level of administrative violations and not criminal law, for actions without intent but having a considerable discriminatory effect on individual. This is already required by Article 4 of the International Convention on the Elimination of All Forms of Racial Discrimination to which Latvia is a state party.90
As for the civil law, the case law does not yet provide an answer to the question whether an individual could invoke Article 2352a of the Civil Law in cases when that individual feels offended by discriminatory remarks.91 The crucial question here is whether courts would be ready to consider e.g. swearing at a person because of her ethnic origin as dissemination of false information about the person required by Article 2352a. If the answer were positive, individuals would have an effective tool for the public revoking of the disseminated information and compensation of non-pecuniary damages awarded by the court. If the answer is negative, then amendments to the law must be introduced as the possibility of bringing a claim for compensation of non-pecuniary damages is one of the most effective remedies, which also has a considerable preventive effect. Currently existing sanctions cannot be considered as effective and dissuasive.
What action (if any) has already been taken in order to comply with the Directive?
No specific activities have been undertaken to ensure compliance with the Race Directive. However, activities that have the effect of promoting compliance with the Race Directive worthy of mentioning include reversal of the burden of proof in the Labour Law and the Draft Administrative Procedure Law (Article 8 of the Race Directive), establishing definitions of indirect discrimination and victimisation in the Labour Law (Articles 2.2b and 9 of the Race Directive), providing for the right to compensation for non-pecuniary damages in the Labour Law and the Draft Administrative Procedure Law (Article 15 of the Race Directive).
As for activities in relation to the prohibition of the discrimination on the grounds of gender, some planned actions have been undertaken. According to Māris Badovskis, Deputy Director of the Labour Department of the Ministry of Welfare, the following Directives were taken into account during formulation of the Draft Labour Law: Directive 75/117/EEC on equal pay, 76/207/EEC on equal access to employment, vocational training, promotion and working conditions, 92/85/EEC on safe and healthy conditions for women before and after the birth of a child, 96/34/EC on parental leave, and 97/80/EC on the burden of proof. The issues of the gender equality have been included in the Governments agenda. The Framework Document on the Implementation of Gender Equality refers to a long list of EU and other international instruments, including the above-mentioned Directives, that must be taken into account when formulating a strategy for the implementation of gender equality and further amendments to the national laws.
a) Has your government signed Protocol N° 12?
b) Does your government intend to ratify Protocol N° 12?
c) What are the obstacles to the ratification of Protocol N° 12 by your country? Are these obstacles political or legal? In the case of obstacles in national legislation, what are these?
Latvia signed the Protocol N° 12 on 4th November 2000.92
According to Kristīne Maļinovska, Head of the Legal Department of the Ministry of Foreign Affairs and the Representative of the Cabinet of Ministers to the International Human Rights Institutions, the Government is in the process of examining the jurisprudence of Strasbourg institutions in relation to the non-discrimination clause in Article 14 of the European Convention of Human Rights in order to provide MPs with the background information on the existing trends in relation to the application of the non-discrimination principle. As the Protocol N° 12 involves constitutional changes in the whole system of the European Convention of Human Rights, a proper analysis of the future obligations must be done. When the examination is completed, this information together with the draft law on ratification of the Protocol N° 12 will be submitted to the Parliament. The laws providing for the ratification of international treaties are considered in two readings. No dates for the possible submission to the Parliament or the ratification were provided.
According to Kristīne Maļinovska, theSatversme establishes the principles of equal treatment and non-discrimination. As the Satversme has the highest force of law in Latvia, all other national legal norms must be in conformity with these principles. Therefore, there is a legislative basis for ensuring compliance with the non-discrimination principle as established by the Protocol N° 12. Before signing of the Protocol N° 12, opinions were asked from the relevant ministries and the responses were positive. However, at this stage it is difficult to evaluate the scale of the obligations arising from the Protocol N° 12 as there have been no guidelines established in the form of considered cases yet. In addition, none of the complaints submitted against Latvia related to issues of discrimination has been considered by the European Court of Human Rights.
Indeed, Article 91 of the Satversme contains guarantees against discrimination. Moreover, the Satversme must be interpreted in line with the minimum requirements ofbinding international standards.93 However, a number of legal provisions in Latvia, particularly concerning differences in treatment between citizens and non-citizens, as well as restrictions on the use of non-official languages in all spheres of life could provide a test for the European Convention of Human Rights system as they are capable of bringing up aspects of the Convention's rights that have not been considered so far. To mention some of the examples: under Article 19(5) of the Radio and Television Law94 only 25% of the transmissions can be made by private organisations in a language other than the official Latvian language. According to Article 10 of the State Language Law95 all submissions to the public authorities must be made in the official - Latvian language and there have been reported cases when complaints from imprisoned persons who do not have a command of the Latvian language and access to an interpreter have been rejected on these grounds.96 According to Article 3 of the Law on Firearms and the Special Means for Self-defence97 only Latvian citizens have a right to obtain firearms, non-citizens who are permanent residents of Latvia in accordance with Article 4 may only obtain gas pistols for their self-defence. According to Article 1 of the Transitional Provisions to the Law on State Pensions98 there are some differences in calculating pensions between those citizens and non-citizens who have worked outside Latvia.
The external process of examining Latvian legislation has started and this can make a considerable contribution towards examining Latvian legislation in the field of non-discrimination within international human rights standards. Since Latvia ratified the European Convention on Human Rights only in June 1997, there has not been a single judgement delivered yet. However, on 25th July 2001, UN Human Rights Committee found Latvia in violation of Article 25 in connection with Article 2 of the International Covenant on Civil and Political Rights.99 In this case Antoņina Ignatāne, who had received a certificate for her knowledge of the official language on the required level, was struck off of the list of candidates to municipal elections. Shortly before the elections she was re-examined by a Language Inspector who considered her knowledge of the official language to be lower than the level indicated in the certificate. This served as the basis for the decision of the Central Election Commission to struck her off the list. The Human Rights Committee found that the annulment of the authors candidacy pursuant to a review that was not based on objective criteria and which the State party has not demonstrated to be procedurally correct is not compatible with the State partys obligations under Article 25 of the Covenant and concluded that the author was a victim, on the basis of language, of a violation of the right to stand for election. In fact, views of the Human Rights Committee indicated that inappropriate procedural regulation may lead to discrimination on the basis of language.
The internal process of examining lawfulness of differential treatment is underway. Thus, the Constitutional Court found that the restrictions on the right to stand as a candidate in elections for those Latvian citizens, who were active members in those organisations listed in the law and acting against the restoration of the state's independence in the beginning of nineties are not contrary to Article 89100 and 101101 of the Satversme. In addition such action was not contrary to Article 14 and Article 3 of the First Protocol to the European Convention on Human Rights and Article 25 of the International Covenant on Civil and Political Rights.102
The Constitutional Court also dealt with the issue of compliance of the Article 1 of the Transitional Provisions to the Law on State Pensions together with Articles 89, 91 and 109103 of the Satversme as well as with Article 14 and Article 1 of the Protocol 1 to the European Convention on Human Rights.104 According to the Transitional Provisions, the time period within which foreign citizens, stateless persons and Latvian non-citizens have worked outside territory of Latvia before 1st January 1991 is not taken into account when calculating amount of pensions whereas such a period is taken into account in relation to citizens. After analysis of the Latvian pension system the Constitutional Court found that the work of persons, who are not Latvian citizens, outside the territory of Latvia is subject to regulation by bilateral agreements and not the law. The Constitutional Court analysed this issue only in relation to stateless persons and foreign citizens, as only these categories of residents were mentioned in the relevant article. In relation to non-citizens, the Constitutional Court concluded that it does not have a mandate to examine the compatibility of a non-existent legal norm with the Satversme. This judgement indicates that the Constitutional Court interprets its mandate in a restrictive manner as in theory it might be possible to examine constitutionality of the parliament not fulfilling its positive duty to regulate by law the right of all residents, including non-citizens, to social security. However, the issue of deciding on the limits of its competence rests with the Constitutional Court and there is as yet no similar jurisprudence in order to draw more sophisticated conclusions. This and the previously examined case were submitted by 20 opposition MPs. During the first month of the existence of constitutional complaint procedure the Constitutional Court initiated 5 cases following submissions by individuals. This avenue will no doubt considerably contribute to the internal examination of the legislation, including non-discrimination issues.
It could be said that there are legal obstacles for the ratification of the Protocol N° 12 and, in some cases, particularly relating to the realm of the use of languages, if discrepancies are identified with the principle of non-discrimination, it may also raise political obstacles for the ratification of the Protocol N° 12. However, it must also be pointed out that the standards already binding upon Latvia, in particular Article 26 of the International Covenant on Civil and Political Rights as well as the Convention on the Elimination of Racial Discrimination disallow legislation or any practice which is contrary to them. Therefore, it would be only logical if the process was directed towards streamlining the national legislation and practice within the international standards. Protocol N° 12 could make a useful contribution towards this end.
1Data as to 1 July 2001 provided by the Department of Citizenship and Migration Affairs can be found on http://www.np.gov.lv/fakti/index.htm
2Data on demographic changes see in the Statistical Yearbook of Latvia 2000, Central Statistical Bureau of Latvia 2001, 45.
3Calculation performed on the basis of data provided by the Department of Citizenship and Migration Affairs, see note 1.
4For example, in the Ministry of Economy (central apparatus) 86% of the employees are Latvians, 11% - Russians and 3% - others. In Riga Regional Court (the largest of the second instance courts) 90.6% of judges are Latvians and 9.4% Russians. Data taken from the ongoing research Discrimination in the Light of the European Standards by Artis Pabriks, planned to be complete in December 2001.
5See data under Article 10 below.
6Calculation performed on the basis of data provided by the Department of Citizenship and Migration Affairs, see note 1.
7See the statistics under analysis of Article 10 below.
8Dace Kavasa, Analysis of Latvian Legislation in Gender Perspective, not published.
9Koncepcija dzimumu līdztiesības īstenošanai [Framework Document on the Implementation of Gender Equality], Ministry of Welfare of the Republic of Latvia, 2000, unpublished.
10Darba likumu kodekss [Labour Code], Augstākās Padomes un Ministru Padomes Ziņotājs [Official Reporter], No.16, 1st January 1972.
11Darba likums [Labour Law], adopted by the Saeima (the Parliament) on June 20, 2001, scheduled to enter into force on 1st June 2002.
12Izglītības likums [Education Law], Latvijas Vēstnesis [Official Gazette] No.343/344 17th January 1998.
13Legal status of non-citizens is governed by the special law Likums par to bijušās PSRS pilsoņu statusu, kuriem nav Latvijas vai citas valsts pilsonības [Law on the Status of Those Former USSR Citizens Who are not Citizens of Latvia or Any Other State], Latvijas Vēstnesis [Official Gazette] No.63, 25th April 1995. On the definition see Introduction. On restrictions of their rights see analysis under Article 10 and Protocol N° 12 below.
14The Education law has, however, been criticised for granting preferential treatment to one category of aliens, namely the citizens of EU states with temporary residence permits. Other areas of concern are Art. 59 of the Law that entitles to state subsidies only those private schools with the Latvian language of instruction (it must be noted, though, that there are no restrictions on public schools with the minority educational programmes, which have to comply with the requirement that certain subjects be taught in Latvian) and Art.50 which permits only persons with the highest level of proficiency in the Latvian language to work as a teacher in state and municipal schools; to the extent that ensuring the status of Latvian as the official language can be regarded as legitimate interest of the state, these articles are in line with the aim pursued and do not appear disproportionate.
15Likums par tiesu varu [Law on Judicial Power], Ziņotājs [Official Reporter] No.1/2, 1993.
16Likums Par Latvijas nacionālo un etnisko grupu brīvu attīstību un tiesībām un kultūras autonomiju [Law On the Unrestricted Development and Right to Cultural Autonomy of Latvias Nationalities and Ethnic Groups], Ziņotājs [Official Reporter] No. 21, 1991.
17Fizisko personu datu aizsardzības likums [Personal Data Protection Law], Latvijas Vēstnesis [Official Gazette] No.123/124 6 April 2000.
18Interview with Māris Ruķers, Advisor to the Head of the Data Protection Inspection.
19The Framework Document on the Implementation of Gender Equality, produced by the Ministry of Welfare in 2000 that is meant to actually promote gender equality, at present is the only working document of its kind documents have not been drafted in relation to other grounds for discrimination.
20See the text of Article 78 of the Criminal Law under analysis of Article 15 below.
21One of the principal subjects of concern expressed by the Committee on the Elimination of Racial discrimination related to the absence of an explicit definition of racial discrimination in Latvia. Concluding Observations of the Committee on the Elimination of Racial Discrimination: Latvia, CERD/C/55/Misc.39/Rev.4, FUTURE CERD/C/55/CRP.1/Add.14, 24th August 1999, par.10.
22Krimināllikums [Criminal Law], Latvijas Vēstnesis [Official Gazette], No.199/200, 8th July 1998.
23Article 69 of the Latvijas Kriminālkodekss [Latvian Criminal Code] which was in force until 1st April 1999 when the Criminal Law substituted for it, contained a specific offence of violating and degrading persons ethnic dignity, and thus was more explicit on this issue.
24See the text of Article 78 and analysis of its application under Article 15 below.
25Valsts civildienesta likums [State Civil Service Law], Latvijas Vēstnesis [Official Gazette] No.331/333, 22nd September 2000. See also analysis under Article 8 below on the categories of employees covered by this law.
26There is a total inconsistency in Latvian legislation using terms ethnic origin, national origin or nationality in the Latvian language as synonyms, not in the meaning of citizenship. Thus, in Article 30 of the Labour Law both terms have the same meaning of ethnic origin.
27Advokatūras Likums [Law on the Bar], Ziņotājs [Official Reporter], No.28, 1993.
28See the text of Article 3 under analysis of Article 1 above.
29Likums par arodbiedrībām [Law on Trade Unions], Ziņotājs [Official Reporter], No.3, 1991.
30Likums par sociālo palīdzību [Law On Social Aid], Latvijas Vēstnesis [Official Gazette] No.176, 14 Novemeber 1995.
31Likums Par dzīvojamo telpu īri, [Law On Housing], Ziņotājs [Official Reporter], No.7, 1993.
32The supervision in the sphere of housing, particularly in private sector almost does not exist. An expert group after analysis of the work of the National Human Rights Office even suggested that possibility of setting up of interim institution dealing exclusively with housing issues in Latvia should be considered. Ekspertu grupas ziņojums par Valsts cilvēktiesību biroja un ombuda funkcijām Latvijā [Report of the Group of Experts on the Functions of the National Human Rights Office and Ombudsman in Latvia], May 2001, published in Latvijas Vēstnesis [Official Gazette] No.212, 19th June 2001.
33Smagie darbi un kaitīgos darba apstākļos veicamie darbi, kuros aizliegts nodarbināt sievietes [Hard Jobs and Jobs in a Harmful Environment Where it is Forbidden to Employ Women] adopted by the Decision of the Council of Ministers No.292, 24 July 1992, Ziņotājs [Official Reporter] No.42, 1992.
34Smagie darbi un kaitīgos darba apstākļos veicamie darbi, kuros aizliegts nodarbināt personas, kas jaunākas par astoņpadsmit gadiem [Hard Jobs and Jobs in a Harmful Environment Where it is Forbidden to Employ Persons Below Eighteen Years of Age] adopted by the Decision of the Council of Ministers No.292, 24 July 1992, Ziņotājs [Official Reporter] No.42, 1992.
35Petition submitted to the Riga City Latgale District Court, April 2001.
36Nacionālās nodarbinātības plāns 2001 [National Employment Action Plan 2001], Home Page of the Cabinet on Ministers http://www.mk.gov.lv/lat/ministrukabinets/tie_akti/koncep/032001/plans.doc
37Astrīda Neimane Review and analysis of public policy from a gender perspective, 1999, not published, p.30 and passim.
38See further analysis on the work of institutions entitled to deal with discrimination issues under Article 13.
39Likums Iesniegumu, sūdzību un priekšlikumu izskatīšanas kārtīb valsts un pašvaldību institūcijās [Law On Procedure by Which State and Local Government Institutions Examine Submissions, Complaints or Proposals], Latvijas Vēstnesis [Official gazette], No.130, 5th November 1994.
40Administratīvo aktu procesa noteikumi [Regulations on Procedure of Administrative Acts], Latvijas Vēstnesis [Official gazette], No.154, 4th July 1995.
41Prokuratūras likums [Law On Public Prosecutors Office], Latvijas Vēstnesis [Official gazette], No.65, 2 June 1994.
42"Par Latvijas Republikas 1939.gada 28.aprīļa likuma "Par darba inspekciju" spēka atjaunošanu" [On the renewal of the force of the 28th of April, 1939 law On Labour Inspection], Ziņotājs [Official Reporter], No.20/21, 27th May 1993.
43See also analysis on the State Labour Inspection under Article 13 below.
44Likums par Valsts cilvēktiesību biroju [Law on the National Human Rights Office], Latvijas Vēstnesis [Official Gazette] No.221, 17th December 1996.
45See also analysis on the National Human Rights Office under Article 13 below.
46Civilprocesa likums [Civil Procedure Law], Latvijas Vēstnesis [Official Gazette], No.326/330, 3rd November 1998.
47Satversmes tiesas likums [Constitutional Court Law], Latvijas Vēstnesis [Official Gazette] No.103, 14th June 1996.
48On the case law from the Constitutional Court related to discrimination issues see analysis under Protocol No.12 below.
49Article 83(4) of the Civil Procedure Law.
50According to Article 208 of the Labour Code, such commissions can be established by the employees and the employers and are the first instance for labour disputes, with the exception of cases that according to law go directly to the court; however, in reality such commissions exist only in the law and not in real life and therefore were not mentioned when answering questions about article 7.1. See Cilvēktiesības pasaulē un Latvijā [Human rights in the world and in Latvia], Ineta Ziemele, ed., Riga, 2000, 302.
51Case No.2-268 A, 1st November 2000. On Abramova v. Latgales Druka case see analysis under Article 9 below.
52Case No. SKC - 415, 27th September 2000.
53Civillikums [Civil Law], Ziņotājs [Official Reporter] No.1, 14th January 1993.
54Civilprocesa kodekss [Civil Procedure Code], Ziņotājs [Official Reporter], No.1, 1964.
55Draft Administrative Procedure Law, passed the second reading in the Parliament in June 2000, English translation, not published.
56See further analysis under Article 15 below.
57Andris Guļāns Anti-Discrimination provisions in Latvian Constitution and in Judicial Practice Report presented in the Inauguration Seminar at the Riga Graduate School of Law Discrimination: New Trends in European Legal Framework, 8th March 2001, Riga, Latvia, unpublished. It is worth noting that this seminar was the first public event ever organised in Latvia to discuss issues of racial and ethnic discrimination.
58Case No.SKC-415, 27 September 2000.
59Case No.2-268 A, 1 November 2000.
60Baltic Data House, January 2000, 1040 respondents all around Latvia, 36-39.
61Report on the public survey "On the Way to a Civic Society - 2000", 2009 respondents all around Latvia, the Baltic Institute of Social Sciences, Riga, 2001, 90.
62Report on the public survey "On the Way to a Civic Society - 2000", 2009 respondents all around Latvia, the Baltic Institute of Social Sciences, Riga, 2001, 89.
63Baltic Data House, January 2000, 50.
64See, e.g., Report on Human Rights Practices 1999: Latvia, US Department of State.
65Concluding Observations of the Committee on the Elimination of Racial Discrimination: Latvia, CERD/C/55/Misc.39/Rev.4, FUTURE CERD/C/55/CRP.1/Add.14, 24th August 1999, par.28, 30.
66Human Rights in Latvia in 1999, Annual Report of the Latvian Centre for Human Rights and Ethnic Studies, 41.
67Human Rights in Latvia in 2000, Annual Report of the Latvian Centre for Human Rights and Ethnic Studies, 45.
68On further analysis of Article 78 see analysis under Article 15 below.
69Nacionālās trīspusējās sadarbības padomes nolikums [Regulations on the National Tripartite Co-operation Council], Latvijas Vēstnesis [Official Gazette], No.343, 17th November 1998.
70Framework Document on the Implementation of Gender Equality, Ministry of Welfare of the Republic of Latvia, 2000, unpublished, 15-16.
71Latvia: Human Development Report 1998, UNDP, Riga, 1998, 51.
72Valsts programma: sabiedrības integrācija Latvijā [National Programme: Integration of Society in Latvia], Riga, 2001. In English available on internet http://www.np.gov.lv/en/fjas/arhivs/SIP.rtf
73Opinion on the Differences Between the Rights of Citizens and Non-citizens in Latvia, The National Human Rights Office, 18 December 1996.
74However, this survey did not identify all distinctions and a few more have been added. On the list of differences provided for by the Latvian Human Rights Committee see www.riga.lv/minelres/count/non_cit-rights_2.htm
75The National Human Rights Office: Report 1999, 36-37.
76The National Human Rights Office: Report 1998, 59.
77The National Human Rights Office: Report 2000, 52. Only in the years 1998 and 2000 complaints on alleged discrimination on any ground were singled out.
78The National Human Rights Office: Report 1999, 20-21.
79Interview with Artis Pabriks, co-author of the evaluation project of the work of the National Human Rights Office carried out by the UN Development Programme in 2000.
80The National Human Rights Office: Report 2000, 52.
81Koncepcija ombuda institūcijas ieviešanai Latvijā [Framework Document for the Establishment of an Ombudsman Institution in Latvia] in Likums un Tiesības No.1(17), January 2001.
82Framework Document on the Implementation of Gender Equality, Ministry of Welfare of the Republic of Latvia, 2000, unpublished, 20.
83Judgement No.2000-03-01, 30th August 2000, para.5. For the English text of the Judgement see www.satv.tiesa.gov.lv/Eng/Spriedumi/03-01(00).htm
84Concluding Observations of the Committee on the Elimination of Racial Discrimination: Latvia, CERD/C/55/Misc.39/Rev.4, FUTURE CERD/C/55/CRP.1/Add.14, 24th August 1999, par.11.
85Overviews of the mentioned cases see in the Human Rights in Latvia in 2000, Annual Report of the Latvian Centre for Human Rights and Ethnic Studies, 43-44, and Human Rights in Latvia 1st January 2001 30th June 2001, Report of the Latvian Centre for Human Rights and Ethnic Studies, 5-7.
86See examples of discriminatory speech under Article 10 above where files in criminal cases were not opened.
87Noteikumi par ierēdņu disciplinārsodiem [Regulations on Disciplinary Punishments for Civil Servants], Ziņotājs [Official Reporter] No.18, 22nd August 1994.
88See also analysis under Article 8 above.
90On the interpretation of states obligations to punish acts of hate speech by the Committee on the Elimination of Racial Discrimination see e.g. David Harris Cases and Materials on International Law, 5th edition, London: Sweet & Maxwell, 1998, 703-705.
91See the text of Article 2352a under analysis of Article 8 above.
92The Council of Europe Home Page, http://conventions.coe.int/treaty/EN/serachsig.asp?NT=177&CM=8&
93See analysis under Article 14 above.
94Radio un televīzijas likums [Radio and Television Law], Latvijas Vēstnesis [Official Gazette], No.137, 8th September 1995.
95Valsts valodas likums [State Language Law], Latvijas Vēstnesis [Official Gazette], No.428/433, 21st Decemeber 1999.
96Human Rights in Latvia in 2000, Annual Report of the Latvian Centre for Human Rights and Ethnic Studies, 41.
97Likums par šaujamieročiem un speciālajiem līdzekļiem pašaizsardzībai [Law on Firearms and the Special Means for Self-defence], Ziņotājs [Official Reporter], No.11, 1993.
98Valsts pensiju likums [Law on State Pensions] Latvijas Vēstnesis [Official Gazette], No.182, 23 November 1995.
99CCPR/C/72/D/884/1999, the text of the decision in English can be seen at http://www.riga.lv/minelres/un/cases/UNHRC_Ignatane_2001.html
100Article 89 reads: "the State shall recognise and protect fundamental human rights in accordance with this Satversme, laws and international agreements binding upon Latvia."
101Article 101 reads: "Every citizen of Latvia has the right, as provided for by law, to participate in the activities of the State and of local government, and to hold a position in the civil service."
102Judgement No.2000-03-01, 30 August 2000. It is worth noting that the Judgement concludes with the following statement: "However, the legislator, periodically evaluating the political situation in the state as well as the necessity and validity of the restrictions should decide on determining the term of the restrictions in the disputable norms, as such restrictions to the passive voting rights may last only for a certain period of time". Moreover, decision was taken by a margin of one vote. For the English text of the Judgement and dissenting opinion of three judges see www.satv.tiesa.gov.lv/Eng/Spriedumi/03-01(00).htm
103Article 109 reads: "Everyone has the right to social security in old age, for work disability, for unemployment and in other cases provided by law."
104Judgement No.2001-02-0106, 26th June 2001, For the English text of the Judgement see http://www.satv.tiesa.gov.lv/Eng/Spriedumi/02-0106(01).htm