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Equality Law in : 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 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 (sex, and Ethnic Groups, residents of the Repub- race, colour, ethnic or social origin, genetic lic of Latvia are guaranteed equal human features, language, 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.

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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) instruction and also definesto 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 thefor some court.- 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

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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 court The 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 – Ombudsman’s72 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. Even if the Board

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Member concerned is not a “pregnant work- their descendants who already resided in er”, the fact remains that the removal, on ac- Latvia in 1992), 173 were stateless persons, count of pregnancy or essentially on account and the rest were foreign citizens.17 of pregnancy, of a member of a Board of Di- rectors can affect only women and there- On 15 October 1991 the Latvian Parliament fore constitutes direct discrimination on passed the Decision “On the Renewal of the grounds of sex.12 The Senate of the Supreme Rights of the Citizens of the Republic of Latvia Court found, however, that the removal in and on the Fundamental Principles of Natu- the case was not essentially on account of ralisation”, which was based on the concept pregnancy.13 Nevertheless, it might be feasi- of the pre-war citizenship continuity: only ble to amend laws which are considered to those persons who had been citizens of inde- be lex specialis in relation to the Labour Law pendent Latvia in 1940, and their descend- (such as the Commercial Law and the Law ants, had their citizenship restored. The legal on Religious Organisations) in order to in- status of people who were not recognised as clude an explicit discrimination ban. citizens remained unclear until 1995, when the Law on the Status of Former USSR Citi- In 2010 the Senate of the Supreme Court zens Who Do Not Have the Citizenship of Lat- found that the provision of the Law on Un- via or of Any Other State was adopted. The employment Insurance contains indirect Law introduced a special legal status of “non- discrimination against women, since the Law did not take properly into account the who had registered domicile in Latvia on 1 situation of persons on maternity leave. As Julycitizens”. 1992 It and defined who the did status not have of those citizenship people a result, the unemployed persons who had of Latvia or any other country. The Constitu- previously been on maternity leave received tional Court declared that non-citizens are 14 The Law not Latvian nationals and are not considered has since been amended. stateless according to international law; it a lower unemployment benefit. also mentioned that the Republic of Latvia Following the recent verdict of ECJ concern- recognises a certain legal link with “non- ing the use of sex as a determining factor in citizens”, thus this status cannot be revoked the assessment of risk in the calculation of due to permanent residence abroad (unless a non-citizen receives a foreign nationality).18 15 it ispremiums also necessary and benefits to amend for the the Law purposes On Insur of- “Non-citizens” have rights akin to citizens, anceinsurance Companies and related and financialSupervision services, Thereof for example, the right to reside in Latvia before 21 December 2012. The government without visas or residence permits. Howev- has already sent a corresponding draft law to er, in accordance with some legislative acts, the Parliament.16 some rights and opportunities are reserved only for citizens. This includes political III. Nationality rights (the right to participate in elections, or establish political parties) and social As of 1 January 2012, the population of Lat- and economic rights (land property rights via was estimated to be 2,217,053, of whom in some territories, public and private sec- 1,844,741 (83.2%) were Latvian citizens, tor careers in some professions, or pension 312,189 (14.1%) were “non-citizens” (now for work periods accrued during the Soviet stateless former citizens of the USSR and period outside Latvia). Some of these rights

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are also guaranteed to EU citizens if they tion for the Protection of Human Rights and reside in Latvia, but they are not granted Fundamental Freedoms taken in conjunc- to “non-citizens”. As of October 2011, there tion with Article 1 of Protocol No. 1.22 How- were 80 differences in rights between citi- ever, the Law on State Pensions has not been zens and “non-citizens”, mainly relating to amended since. The Constitutional Court, careers in the public sector.19 when deciding on a subsequent similar com- plaint by several individuals, found that the In September 2008 the Ombudsman com- position of ECtHR should be read only in the pleted an investigation into the differences in context of a particular case (where the ap- rights between citizens and “non-citizens”.20 plicant was in fact working on the territory The Ombudsman found that some restric- of Latvia for an employer based outside Lat- tions on “non-citizens” are not proportional, via),23 thus suggesting a very narrow inter- such as the ban for “non-citizens” to work pretation of the ECtHR judgment.24 The ap- as advocates or patent attorneys, to receive plicants in the subsequent case decided by the Constitutional Court have submitted an or be head or member of the board in detec- application to ECtHR.25 tivethe firstagencies. category He also licence found for disproportional security work, restrictions on obtaining land property in Following the recent verdicts of ECJ concern- the cities by “non-citizens”. The Ombudsman ing the nationality of notaries26 it might ap- recommended verifying whether restric- pear necessary to amend the Notary Law – tions concerning those rights guaranteed for according to section 9(1) currently in force, EU citizens but denied to “non-citizens” are only Latvian nationals are entitled to work as notaries. Most probably the amendment, who was elected in March 2012 declared that if adopted, will cover other EU nationals, but thejustified. principle Nevertheless, of equality the requires new Ombudsman a differen- not non-citizens. tial treatment towards persons in legally dif- ferent situations, and that therefore the dif- IV. Racial or Ethnic Origin ference in rights between citizens and “non- citizens” is not of a discriminatory nature, As of 1 January 2012, the population of Lat- since the legal status of “non-citizens” is not via was estimated to be 2,217,053, of whom comparable with that of citizens.21 1,319,552 (59.5%) were ethnic , 603,125 (27.2%) Russians, 77,423 (3.5%) The most widely discussed difference in Belarusians, 54,041 (2.4%) Ukrainians, rights between citizens and “non-citizens” 50,498 (2.3%) Poles, 28,946 (1.3%) Lithu- concerns the calculation of pension for work anians, 9,418 (0.4%) Jews, and 8,482 (0.4%) periods accrued during the Soviet period Roma. In some regions of the country, ethnic outside Latvia – in other parts of the former Latvians were a minority: in , the capi- USSR. For citizens such periods are to be tal, ethnic Latvians were estimated at 42.4%, taken into account, whereas for non-citizens while Russians made up 40.3% of the city’s they are not (with minor exceptions). In population. In the second largest city in Lat- 2009 the European Court of Human Rights via, , 17.8% of the population (ECtHR) declared that such difference of were Latvians and 51.7% were Russians.27 treatment based exclusively on the ground of nationality is not compatible with the Latvia’s Population Register contains infor- requirements of Article 14 of the Conven- mation on the ethnic origin of each person

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(Population Register Law, section 10, Para Latvians was slightly higher than in the Pop- 1(9)). The registration is obligatory even for ulation Register – 62.1%, while the number new-borns: their ethnicity is recorded as be- of people belonging to minorities was lower ing the same as that of their parents. If the (Russians – 26.9%, Belarusians – 3.3%).28 parents are of different ethnicity, they can choose one of the two for their baby. The Per- The Population Census in 2011 once again

information about one’s ethnicity as sensi- tivesonal data Data (section Protection 2(8)) Law, and however, imposes qualifies certain Suchrevealed approach a discrepancy might create between problems the official both restrictions on access to such information. fromdata the on point ethnicity of view and of non-discrimination self-identification. law and minority rights (for example, Article The Law on the Free Development and 3(1) of the Framework Convention for the Rights to Cultural Autonomy for National Protection of National Minorities stipulates and Ethnic Groups guarantees any Latvian that every person belonging to a national mi- citizen or a permanent resident (if he or nority shall have the right to freely choose to she does not have citizenship of any other be treated or not to be treated as such and no country) the right to declare their ethnic disadvantage shall result from this choice or origin in compliance with their self-con- from the exercise of the rights which are con- sciousness (section 2). Nevertheless, the nected to that choice). Law on the Change of a Given Name, Sur- name and Ethnicity Record establishes the In 2011 the Ombudsman dealt with several blood principle of ethnic determination, complaints related to a higher entry fee for whereby ethnicity is traced back to an in- foreigners in some night clubs. The Om- dividual’s predecessors. Individuals seek- ing to change their official ethnicity record direct discrimination on grounds of racial (allowed once in a lifetime) are required to orbudsman’s ethnic origin. Office29 classified such cases as a provide evidence that an ancestor was of the desired ethnicity (with the exception The problem of discrimination against Roma of the Livs, a small autochthonous minor- (often unreported) remains the subject of ity – section 6, Para 2(1)). When changing concern. An opinion poll held in Riga in 2010 to Latvian ethnicity, the applicant must suggests that only 19% of respondents were also prove his/her command of the state ready to communicate with Roma as with (official) language (section 6, Para 2(5)). close relatives or friends. For the majority This approach is apparently motivated by of respondents there was a long social dis- certain privileges enjoyed by Latvians and tance with Roma – 17% even said that Roma Livs in accordance with the Citizenship should not enter Latvia at all.30 Law and the Repatriation Law. V. Language Since it has been mandatory to specify ethnic- ity in the Population Register in accordance 1) General Situation with the blood principle, information on the in com- As a result of the Soviet language policy pliance with their choice is not easily availa- in Latvia, most non-Russian minorities in ble.ethnic According self-identification to the 2011 of Population Latvians Census, Latvia accepted Latvian or Russian as their the number of people identifying as ethnic main language and were thus assimilated

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into the corresponding linguistic communi- ties. According to the 2011 census, 56.3% of to differentiate in such situations may be stitutional Court confirmed that the failure- - count that the persons belonging to ethnic ilythe language respondents was namedRussian, Latvian while 9.3% as their did first not minoritiesqualified as are discrimination, not in the same taking situation into acas family language, 33.8% said their31 Latvian first famwas those belonging to the majority, and this the native language for 95.6% of Latvians. difference is characterised by ethnic origin mentionRussian was their the first native language. language not only of and language.33 ethnic Russians but also of most ethnic Jews (79.1%), Belarusians (72.8%), Ukrainians 2) Professional Language Requirements (67.8%) and Poles (57.7%).32 Section 6 of the State Language Law states Since October 1998, Article 4 of the Consti- that employees of state and municipal insti- tution has been supplemented with a pro- tutions and enterprises must know and use vision stipulating that Latvian is the state the state language to the extent necessary language. The current State Language Law for the performance of their professional came into force in 1999. It stipulates that duties. Employees of private institutions, all other languages, except the Latvian lan- organisations and enterprises (compa- nies) must use the state language if their no exceptions for minority languages (sec- activities affect the legitimate interests of guage, are defined as foreign languages with autochthonous language enjoying some of- public functions. For such occupations the tion 5). The Liv language is defined as an the community or if they perform specific 34 for example, the Underficial support section (section 1(4) of 4). the State Language Cabinethighest levels of Ministers are compulsory defines for the advocates required Law, minorities have the right to choose languageand their assistants, proficiency; lawyers, psychologists, any language in the private domain. How- doctors, pilots, heads of companies, and ever, the Law permits proportional inter- members of boards and councils of enter- ference in the private sphere if legitimate prises, if the employee communicates with public interests, such as health, security or consumers or provides information. As re- public order, are at stake (section 2(2)). At gards the rest of the private sector, employ- the same time, the private use of languages ers and self-employed persons set their in unofficial communication between in- own requirements as to the state language dividuals, internal communication inside ethnic and national groups, as well as in months after starting business. The legisla- religious activities, cannot be regulated by tionproficiency does not of make their exceptions,employees withinnot even three for the Law (section 2(3)). the territories where minorities account for the majority of the population. The only ex- Given the strong correlation between native ception refers to foreign specialists and for- language and ethnic origin, it is almost in- eign business persons – they have to either evitable that in some cases the lack of dif- ferential treatment of persons who have the interpretation into Latvian. obtain the proficiency certificate or ensure mother tongue is analysed from the view- There is some controversy concerning the pointofficial of and indirect non-official discrimination. languages The as theirCon- status of members of the local councils and

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parliament – whether the elected repre- speakers, as in practice employers often re- sentatives are to be considered “employ- quire the knowledge of Russian. ees” for the purposes of the professional language requirements. Currently C2 level 3) Spelling of Personal Names (highest) is required for members of par- liament, and C1 (second highest) was re- Section 19 of the State Language Law stipu- quired for members of local councils until lates that personal names shall be repro- January 2012. Several members of the local duced in accordance with the Latvian lan- councils tried to contest the fines imposed guage traditions and shall be transliterated for poor use of Latvian, stating that the del- according to the accepted norms of the liter- egation to establish the level of proficiency ary language. In a person’s passport or birth covers only employees of municipal insti- tutions, but members are elected officials, reproduced in accordance with Latvian lan- not employees, therefore the government guagecertificate, norms the may person’s be supplemented name and surname by the has extended the limits of delegation. The historical form of the person’s surname or Administrative Regional Court rejected the original form of the person’s name in this argument referring to section 2(1) of another language transliterated in the Latin the State Language Law, which stipulates alphabet if the person or the parents of a that the state language shall be used and minor so desire and can provide verifying protected in the state and municipal insti- documents. tutions. In the court’s view, the notion “mu- nicipal employees” covers also elected mu- The Cabinet of Ministers has issued detailed nicipal officials, otherwise the legislator would provide for an exemption.35 Moreo- of First Names and Family Names.36 These ver, according to amendments to the Law Regulations establish on Spelling the andrules Identification for spelling on the Status of a Member of the Repub- lican City Council and Regional Council, should be used in Latvian and spelled and after the local elections in 2013 a regional first names and family names and how they court will be entitled to annul mandates of no exceptions for the names of the people elected members of local councils on ac- belongingidentified into officialminorities. documents. Foreign Theynames make and count of lack of state language proficiency, family names have to be spelled in the Lat- if after the municipality-paid courses and vian language (expressed with Latvian lan- within six months after the first check this guage sounds and letters) as close as pos- member cannot pass the exam (section 4). sible to their pronunciation in the original language. Besides, every name and family Interestingly, in June 2012, parliament ap- name has to have an ending corresponding proved amendments to the Labour Law, to the grammatical system which stipulate that the employer is not enti- (masculine or feminine endings according to the person’s gender). So, for instance, Ricar- (i.e., any language except for Latvian and Liv do Daniel Baranov Cardoso is changed to Ri- accordingtled to demand to section foreign 5 of language the State proficiency Language kardu Daniels Baranovs-Kardozu. Law) in a job posting, if the use of this lan- guage is not foreseen in the obligations of the In 2010 the UN Human Rights Committee employee. The reason for such amendment found a violation of the right to privacy was alleged discrimination against Latvian- (Article 17 of the International Covenant

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on Civil and Political Rights) with respect tion of National Minorities. The latter stipu- to the unilateral change of the author’s lates that the Parties undertake to recognise name by Latvia.37 The Committee decided that every person belonging to a national mi- not to address the issue of possible viola- nority has the right to use his or her surname tion of other provisions of the Covenant (the prohibition of discrimination and the rights of persons belonging to minorities). of(patronym) them, according and first to modalitiesnames in theprovided minority for Still, the law has not been amended. The inlanguage their legal and system. the right to official recognition author has applied for a revision of his case de novo to the Senate of the Supreme Court. VI. Religion The Senate declared that, in principle, the Views of the Committee can be considered Historically, the largest religious groups in as an adjudication of the European Court of Latvia are Lutheran, Roman Catholic and Human Rights or other international or su- Orthodox. As of 2012, the Register of Enter- pranational court for the purposes of revi- prises registered 1206 congregations. These sion on grounds of newly-discovered facts.38 included Lutheran congregations (306), However, it decided to dismiss the author’s Roman Catholic (254), Orthodox Christian (130), Baptist (108), Old Believers (75). Also, revised by competent administrative au- there were 14 Jewish and 23 Muslim regis- thoritiesapplication (in stating particular, that thethe caseState can Language first be tered congregations.43 Centre).39 Article 99 of the Constitution and the Law In the meantime, in a similar case the Sen- on Religious Organisations provide for the ate of the Supreme Court applied to the Con- separation of church and state, as well as for stitutional Court for a preliminary ruling freedom of religion and the right to establish asking to declare that the legislation in force religious organisations. No religion has the is not compatible with the Constitution, in- terpreted in light of the Views.40 The Consti- “traditional” have more opportuni- tutional Court has declined this request and tiesstatus than of official“new” ones.religion In particular,in Latvia. In only practice cler- stated that it is not necessary to reevaluate ics of the following religions have the right such compatibility, as the evaluation had to register marriages: Lutherans, Catholics, been made by the Constitutional Court in its Orthodox Christians, Old Believers, Baptists, previous case law. Nevertheless, the Consti- Methodists, Adventists and Jewish rabbis tutional Court has indicated that the Senate (section 53 of the Civil Law). of the Supreme Court is entitled to review the proportionality of interference with the In accordance with section 1 of the Law on right to privacy in a particular case.41 The Holidays, Commemoration Days and Cel- Senate has not found any weighty reasons ebratory Days, the non-working days are to depart from legislation in force and re- Christmas (December 24-26) and Easter. jected the application.42 Though the law does not mention the reli- gious character of these holidays, the dates Apart from this, there is also another subject used are those celebrated by Catholics and of debate: whether the legislation currently Protestants but not Orthodox Christians in force is compatible with Article 11(1) of (who use the Julian calendar). The Law pro- the Framework Convention for the Protec- vides that Orthodox, Old Believers and be-

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lievers of other confessions celebrate Christ- in job postings,48 prohibited explicitly by sec- mas and Easter on the days set by their con- tion 32(2) of the Labour Law. fessions. However, if an employee wants to take a day off on one of these days, his or her The Ombudsman also examined a complaint employer is not obliged to pay him as if they concerning the possible extension of age lim- were holidays. Thus, Orthodox, Old Believers itation for the presence in casinos and other and members of non-Christian communities places where gambling is taking place – from are in a position of inequality. 18 to 21 years old. The Ombudsman found the new limitation proportional.49 VII. Disability IX. Sexual Orientation

the Rights of Persons with Disabilities and The issue of discrimination on grounds of itsIn 2010Optional Latvia Protocol ratified and the adopted Convention a new on sexual orientation is a “hot potato” issue for Disability Law. Article 7(3) of the Labour Latvian society given a high level of intoler- Law provides for the employer’s obligation ance towards sexual minorities. In particu- of reasonable accommodation. lar, in a recent survey 23.2% answered that both homosexual persons and homosexual Still, the issue of reasonable accommodation relations are to be condemned, 27.6% de- both within employment and outside repre- clared that they tolerate homosexual per- sons, but not the relations, 30% answered discovered by the Ombudsman that only 26% that neither homosexual persons nor ho- ofsents municipal a significant services challenge. are fully available In 2010 itto wasdis- mosexual relations are to be condemned, abled persons.44 Also the lack of access to oth- 18.9% could not answer.50 er services (such as night clubs) is reported.45 - The government’s regulations on the stand- ed the adoption of the Registered Partnership ards applicable to public buildings pre- LawIn 2011 which the LGBTwould NGO allow “Mozaīka” regulating recommend personal scribe the need to guarantee access for and property relations of homosexual couples. disabled persons.46 But the standards are Nevertheless, the draft has not been examined. applicable only to new and reconstructed Even the Ombudsman has not provided sup- public buildings; the old ones frequently re- port to the new legal regulation – with a refer- main without access. Nevertheless, the pub- ence to a public opinion which does not wel- lic services are to be guaranteed also with- come homosexual relations. The Ombudsman out such access. The Senate of the Supreme suggested instead amending sectoral laws – Court decided that the failure to provide such as the Law on the Rights of Patients, anti- such guarantees can be contested in court corruption laws, procedural laws, the laws as the failure to act.47 rights of unregistered partners in both homo- VIII. Age sexualon social and benefits heterosexual – in order relations. to recognise51 the

X. Conclusion mentioned in recent years in media, surveys In the field of age several problems have been Despite a low number of reported and exam- widely cited is references to a particular age ined cases, discrimination remains a matter and publications by official bodies. The most

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of concern for Latvia. At the level of legisla- needed in the fields where discrimination tion it is necessary to establish a comprehen- is based on prejudices and stereotypes of sive legal framework covering all grounds the society (for example, against Roma and sexual minorities). Also the issue of of a framework law on discrimination. At the linguistic rights of minorities should be leveland allof practice fields – it preferably is important via that the all adoption public analysed from the viewpoint of potential institutions (in particular, the Ombudsman’s indirect discrimination. - ing against discrimination – both through The issue of discrimination has not been awarenessOffice) take raising a proactive and legal position sanctions. in fight very high on the agenda of policy makers in recent years. Probably a more active stance Structural problems are to be addressed of the EU institutions could help to activate more effectively – for example, reason- debate at the domestic level – as it was the able accommodation is required in order case in 2003-2004, before the EU accession to prevent discrimination against disa- of Latvia, when some progress in legislation bled persons. Especially strong action is and awareness was clearly observed.

1 Aleksejs Dimitrovs, Mg. iur., is adviser on fundamental rights, justice and home affairs for the Greens/EFA group in the European Parliament, Brussels. The opinions expressed are those of the author and do not necessarily represent the views of the institutions for which he works. 2 Levits, E., “91.pants”, in Latvijas Republikas Satversmes komentāri. VIII nodaļa. Cilvēka pamattiesības, ed. Balo-

3dis, R.,Judgment Riga: Latvijas of the ConstitutionalVēstnesis, 2011, Court pp. 98-104., 14 September 2005, case no. 2005-02-0106. 4 See above, note 2, pp. 92-94. 5 Judgment of the Riga District Court, 8 September 2003, case no. C29240503. 6 Council Directive 2000/43/EC of 29 June 2000 implementing the principle of equal treatment between per- sons irrespective of racial or ethnic origin; Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation; Council Directive 2004/113/EC of 13 De- cember 2004 implementing the principle of equal treatment between men and women in the access to and supply of goods and services; Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of em- ployment and occupation (recast); Directive 2010/41/EU of the European Parliament and of the Council of 7 July 2010 on the application of the principle of equal treatment between men and women engaged in an activity in a self-employed capacity and repealing Council Directive 86/613/EEC.

7 8 Draft law “Diskriminācijas novēršanasGada ziņojums: likums” (reģ.nr.2010, 2011, 741). p. 142. 9 Latvijas Republikas tiesībsargs, Gada ziņojums: 2011, 2012, p. 149. 10 LatvijasIbid., p. 112. Republikas tiesībsargs, 11 Ibid., pp. 116-117. 12 Case C-232/09 Danosa [2010].

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13 Judgment of the Supreme Court, 19 January 2011, case no. SKC-1/2011. 14 Judgment of the Supreme Court, 15 October 2010, case no. SKA-480/2010. 15 Case C-236/09 Association Belge des Consommateurs Test-Achats and Others [2011].

17 Data of the Population Register is available at: http://www.pmlp.gov.lv/lv/statistika/iedzivotaju.html. 16 Draft law “Grozījumi Apdrošināšanas sabiedrību un to uzraudzības likumā” (TA-1305). 18 Judgment of the Constitutional Court, 7 March 2005, case no. 2004-15-0106. 19 Latvian Human Rights Committee, Citizens of a Non-Existent State, 2011, pp. 29-33. 20 at: - . Atzinums pārbaudes lietā, available http://www.tiesibsargs.lv/files/downloads/Par_pilsonu_un_nepil 21sonu_atskiribam_Latvija.doc See above, note 9, p.122. 22 Andrejeva v Latvia [GC], Application no. 55707/00, ECHR 2009. 23 Judgment of the Constitutional Court, 17 February 2011, case no. 2010-20-0106. 24 against Racism and Intolerance, Fourth Report on Latvia, 2012, Para 130. 25 Savickis and Others v Latvia, Application no. 49270/11. 26 See, for example, Case C-47/08 Commission/Belgium [2011]. 27 See above, note 17. 28 Data of the 2011 Population Census, available at: gada%20tautas%20skait%C4%AB%C5%A1anas%20gal%C4%ABgie%20rezult%C4%81ti/2011.gada%20tau- tas%20skait%C4%AB%C5%A1anas%20gal%C4%ABgie%20rezult%C4%81ti.asphttp://data.csb.gov.lv/DATABASE/tautassk_11/2011.. 29 See above, note 9, p. 116. 30 TNS Latvia, Sabiedrības integrācija Rīgā, 2010, available at: http://www.riga.lv/NR/rdonlyres/E27BFA8D- ).

3129AF-45AA-9D93-7F8D5A612DB4/30374/2473_RD_iedz_aptauja_2010_isais_var.pdf See above, note 28. 32

33 JudgmentValsts valodas of the politikas Constitutional pamatnostādnes Court, 13 2005.-2014.May 2005, case gadam, no. 2004-18-0106. p. 8. 34

07.07.2009. MK noteikumi Nr. 733 “Noteikumi par valsts valodas zināšanu apjomu un valsts valodas prasmes pārbaudes kārtību profesionālo un amata pienākumu veikšanai, pastāvīgās uzturēšanās atļaujas saņemšanai un 35Eiropas Judgment Kopienas of the pastāvīgā Administrative iedzīvotāja Regional statusa Court, iegūšanai 14 May un 2012,valsts casenodevu no. parA420558710 valsts valodas. prasmes pārbaudi”. 36

02.03.2004 MK noteikumi Nr.114 “Noteikumi par personvārdu rakstību un lietošanu latviešu valodā, kā arī to identifikāciju”.37 Human Rights Committee, Views with regard to communication No.1621/2007 (Raihman v Latvia, adopted on 30 November 2010). 38 Decision of the Supreme Court, 12 May 2011, case no.SJA-8/2011. 39 Decision of the Supreme Court, 15 June 2011, case no.SJA-8/2011. 40 Decision of the Supreme Court, 27 April 2012, case no.SKA-184/2012. 41 Procedural decision of the Constitutional Court, 30 May 2012. 42 Judgment of the Supreme Court, 7 July 2012, case no.SKA-184/2012. 43 Data of the Register of Enterprises, available at: http://www.ur.gov.lv/?a=1142. 44 See above, note 8, pp. 74-75. 45 See above, note 9, p. 116.

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47 Decision of the Supreme Court, 8 July 2010, case no. SKA-635/2010. 46 21.07.2008. MK noteikumi Nr.567 “Noteikumi par Latvijas būvnormatīvu” LBN 208-08. 48 See above, note 9, p. 112. 49 -

Tiesībsarga atzinums pārbaudes lietā Nr.2011-263-26C par likumprojektā “Azartspēļu un izložu likums” pare 50 dzēto aizliegumu azartspēļu organizēšanas vietās atrasties personām, kas nav sasniegušas 21 gada vec Tirgus un sabiedriskās domas pētījumu centrs SKDS, Latvijas iedzīvotāju aptauja „Attieksme pret seksuālajām minoritātēm”,51 See above, 2011, note 9,p. pp.22. 120-121.

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