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Equality Law in Latvia: Current Trends and Challenges

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Equality Law in Latvia: Current Trends and Challenges 11 Equality Law in Latvia: Current Trends and Challenges Aleksejs Dimitrovs1 This article covers recent developments in islator for the Constitution (membership of equality law and practice in Latvia. It com- - ments on the latest trends and challenges in lar circumstances). For example, language legislation, case law, administrative practice isa politicalnot explicitly party, officialmentioned capacity, as a otherprohibited simi (in particular, the practice of the Ombuds- ground for discrimination in the Constitu- - tion or law. Nevertheless, discrimination on ception of those related to hate crimes. The the grounds of language is included in these timeman’s period Office) covered and public is from opinion, 1 January with the 2010 ex “other circumstances” referred to in norma- till 1 July 2012 (unless indicated otherwise). tive acts and the Constitutional Court has ruled that it is prohibited.3 I. General Legal Framework According to case-law and the legal doctrine,4 1) Constitution and Legislation the prohibition of discrimination in the Con- stitution may have a limited horizontal effect Article 91 of the Constitution of Latvia pro- vides that all human beings in Latvia shall be in sectoral legislation. For example, in 2003 equal before the law and the courts. Human the– in courtthe absence decreed of specificthat a particularlegal provisions black rights shall be realised without discrimina- applicant should be compensated for an of- tion of any kind. fence against his dignity, as a pre-election campaign advertisement incited negative at- The provision does not contain the list of titudes towards all black people.5 grounds on which discrimination shall be prohibited. Nevertheless, as established in The prohibition of discrimination in the Con- case-law and in the legal doctrine,2 Article stitution is developed in other legislative 91 covers at least the grounds mentioned acts. Under the Law on Free Development in Article 21(1) of the Charter of Funda- and Rights for Cultural Autonomy of National mental Rights of the European Union (sex, and Ethnic Groups, residents of the Repub- race, colour, ethnic or social origin, genetic lic of Latvia are guaranteed equal human features, language, religion or belief, politi- rights according to international standards cal or any other opinion, membership of a (section 1) regardless of their ethnic origin. national minority, property, birth, disability, Section 3 of the same law guarantees all per- age or sexual orientation) alongside with manent residents equal rights in the employ- other grounds initially suggested by the leg- ment sphere. The Equal Rights Review, Vol. Nine (2012) 12 Section 4(2) of the Law on Judicial Power also included in section 3(2) of the Children’s states that a court shall adjudicate a trial ir- Rights Protection Law. status, race or nationality, sex, education, The Law on Social Security (section 2(1)) language,respective attitude of the origin, towards social religion, and typefinancial and prohibits direct or indirect discrimination nature of occupation, place of residence, or in regard to race, ethnic origin, skin colour, the political or other views of a person. Simi- sex, age, disability, health, religious, political lar provisions are included in the Adminis- or other conviction, national or social origin, trative Procedure Law (section 6) and the or material, family or other status. It also Criminal Procedure Law (section 8). prohibits harassment and the instruction to discriminate. Similar bans are mentioned in Section 7 of the Labour Law guarantees eve- the Law on the Rights of Patients (section 3). ryone equal rights to employment, to an eq- uitable, safe work environment that is not The Advertising Law prohibits advertising harmful to health, and to fair payment for which expresses discrimination against a work; such rights are guaranteed without person on the grounds of race, skin colour, any direct or indirect discrimination in re- sex, age, religious, political or other con- gard to race, skin colour, sex, age, disability, victions, national or social origin, materi- religious, political or other conviction, eth- al status or other circumstances (section nic or social origin, material or family status, 4, Para 2(1)). sexual orientation or other status. This prin- ciple also applies to the state civil service The Consumers’ Rights Protection Law (sec- (section 2(4) of the State Civil Service Law). tion 3(1)) prohibits direct or indirect dis- crimination on the grounds of sex, racial or Section 29 of the Labour Law prohibits di- ethnic origin. It also prohibits harassment rect and indirect discrimination (Paras 5 and the instruction to discriminate. If the discrimination ban is violated, the law guar- form of discrimination (Para 7), and prohib- itsand the 6) instructionand also defines to discriminate harassment (Para as 4). a and moral damages (the sum of the compen- If the discrimination ban is violated, the law sationantees isfinancial set by the compensation court). The Lawfor pecuniary also pro- - hibits victimisation – the creation of adverse cuniary and moral damages, the sum of the consequences for a consumer due to the use guarantees financial compensation for pe of legal guarantees. Similar bans exist in the Section 9 also prohibits victimisation – the Law on the Prohibition of Discrimination creationcompensation of adverse being consequences defined by the for somecourt.- Concerning Natural Persons Who Are En- one as a reaction to his or her use of legal gaged in Business Activities and in the Sup- guarantees to obtain redress. port for Unemployed Persons and Persons Seeking Employment Law. Section 5(1) of Section 3 of the Education Law stipulates that the Law On Insurance Companies and Super- every resident shall be equally entitled to ac- vision Thereof prohibits discrimination on quire education irrespective of their social or grounds of sex. material status, race, ethnicity, sex, religious or political conviction, health, occupation or place of residence. A ban on discrimination is discrimination has been amended in recent The legislation aimed at fighting against The Equal Rights Review, Vol. Nine (2012) 13 years due to the transposition of several In accordance with section 11(2) of the Om- EU Directives.6 But Latvia adopted only the minimum standards and rejected the idea of - a more integrated approach, in particular the budsman Law, the Ombudsman’s Office is adoption of a framework law on discrimina- aresponsible civil lawsuit for or fighting administrative against discriminaapplication tion7 which would also take into considera- totion. a courtThe Ombudsmanto protect the has interests the right of toan filein- tion the conventions of the Council of Europe dividual who has suffered from discrimina- and the UN. tion (section 13, Paras 9-10). In 2010 the 2) Sanctions, Proof and Institutions complaints about discrimination,8 in 2011 – 72Ombudsman’s such complaints. Office9 received 63 written Apart from pecuniary sanctions, section 204(17) of the Administrative Violations II. Sex Code stipulates a fine of between LVL 100 (EUR 143) and LVL 500 (EUR 715) for vio- - lating the discrimination law. The Criminal lems have been mentioned in recent years in Law (section 149(1)) envisages fines for In the field of gender equality several prob repeated (within one year) discrimina- bodies. One group concerns direct discrimi- tion on the basis of racial or ethnic origin nationmedia, –surveys such as and references publications to a byparticular official or other discrimination prohibited by law, gender in job postings10 or different night but for the same deeds under aggravating club entry fees. The former is prohibited by circumstances (i.e. if it caused substantial section 32(1) of the Labour Law; the latter damage, or is connected with violence, de- – by section 3(1) of the Consumers’ Rights ception or threat, or is perpetrated by a Protection Law. The prohibition to enter group of persons or by civil servants, etc.) a shop with a pram or a pushchair is men- more serious punishment is envisaged – up tioned by the Ombudsman as a case of in- to two years’ imprisonment. direct discrimination against women (as in Latvia they are more often on parental leave, According to section 29(3) of the Labour compared with the men).11 Law, an employer shall bear the main burden of proof if there is alleged discrimination. In Latvia members of decision-making bod- The same principle can be found in the Con- ies of enterprises are not normally covered sumer’s Rights Protection Law and the Law by legal guarantees of the Labour Law, un- on the Prohibition of Discrimination Con- less they have a valid labour contract. In cerning Natural Persons Who Are Engaged turn, the Commercial Law does not contain in Business Activities. The burden of proof a discrimination ban. In 2010 the European in other civil cases rests with the plaintiff Court of Justice (ECJ) decided that EU law (section 93 of the Civil Procedure Law). The precludes Latvian legislation, which per- Administrative Procedure Law insists on im- mits a member of a capital company’s Board partial investigation (section 103); therefore of Directors to be removed from that post the burden of proof does not lie with the ap- without restriction, where the person con- plicant: the court decides which side has to cerned is a “pregnant worker” and the deci- prove certain facts and the court is itself en- sion to remove her was taken essentially on titled to search for evidence. account of her pregnancy.
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