6 - chapter

Prohibition of discrimination

Author: Kelly Grossthal

Key topics

  • Amendment to the Equal Treatment Act failed and all minorities still don’t have uniform protection.
  • The draft of the Names Act still largely fails to comply with the principles of human rights.
  • Eurobarometer’s public opinion survey on discrimination indicates that Estonian people have become significantly more tolerant in recent years.

Political developments

Parliamentary elections took place 3 March 2019, which were won by the Reform Party. The new government was formed by parties that had come second, third and fourth – the Centre Party, the Estonian Conservative People’s Party (EKRE) and Pro Patria. Jüri Ratas, who had been the head of the previous government continued as the Prime Minister. The coalition agreement aims to reduce social inequality and the chapter on internal security promises to ensure legal and effective protection of people’s fundamental rights and freedoms. At the same time, they are planning to hold a referendum during the 2021 municipal council elections on an amendment to the constitution that would define marriage as a union between a man and a woman.[1] This step has its own problem areas, for example, there is danger that negative attitude towards sexual minorities will increase[2] and the democratic states’ natural characteristic is the protection of minorities, which is why in states that respect human rights these are generally not regulated at referendums.[3]

Legislative development

The previous governments have repeatedly discussed the need to amend the Equal Treatment Act so that it would guarantee all minority groups uniform protection in all areas of life. In August 2017, the then Minister of Health and Labour Jevgeni Ossinovski, sent a draft law amending the Equal Treatment Act and an explanatory memorandum to be coordinated, so that application of the Act can be extended. The current Act provides protection against discrimination based on nationality (ethnicity), race or skin colour in almost areas of life, but on religion or belief, age, disability or sexual orientation only in employment. Therefore, the act sets up a hierarchy of minorities to be protected, which, among other things, is not in concordance with the equal treatment principle stated in the constitution. The purpose of the draft act was to ensure equal access to justice for all minorities and to extend the scope of application of the Equal Treatment Act.[4] This contradiction to the constitution has repeatedly been drawn attention to by the Estonian Human Rights Centre and the equal treatment network that the centre coordinates.[5]

Most ministries and NGOs supported the amendment to the Equal Treatment Act and the abolition of the graded nature of discrimination during the course of coordination in 2017–2018. The Ministry of Justice did not want the scope of the Act extended, nor was the draft supported by Estonian Women’s Associations Roundtable. The Estonian Council of Churches found that the planned amendments contain requirements, which are not in concordance with guaranteeing of constitutional freedom of religion. Possible situations concerning discrimination based on sexual orientation, but also based on religion or belief were pointed out especially. The Estonian Council of Churches also said that according to their belief, the religious society, the associated organisation as well as members of religious society must retain the right to decide on the use of their assets on the basis of principles and beliefs that they hold.[6] Currently the situation is essentially such, where a service provider (for example, renter of office space) can refuse to provide a service solely because of sexual orientation of a person, the draft act would have eliminated such a discriminatory situation.

On 28 May 2018 the draft act was submitted to the sitting of the Government, but on 21 February 2019 the Government Office stopped processing the draft due to the fact that the sittings of XIII composition of the Riigikogu had ended.[7] Therefore, the situation in equal treatment in Estonia is still such where all minorities are not guaranteed uniform protection by law.

In summer of 2019, the Ministry of the Interior sent a new and long-prepared-for draft of the Names Act for coordination. The purpose of the draft act, according to the persons who put it together, was to achieve a clearer, easier to understand and easier to apply Names Act, which considers the changes that have taken place in society in the past years. Among other things it explains that the increase of immigration and free movement of persons has brought many citizens from different cultures to Estonia, but the current act does not regulate situations, which would consider those person’s background or peculiarities of their country of origin.[8]

The draft act received its share of criticism from NGOs and national institutions. The Ministry of Social Affairs found that the draft act had not taken the interests of same-sex couples into consideration. The Ministry of Social Affairs, more specifically recommends the draft be amended throughout, in line with the possibilities provided for the Registered Partnership Act and take into account same-sex couples and the children growing up in their families. Liisa Pakosta, the Gender Equality and Equal Treatment Commissioner, touched upon the requirement in the draft that the first name must match the gender of the person. The Commissioner explained that in the Estonian name tradition the name does not have to refer to the gender. The Estonian Union for Child Welfare in its opinion draws attention to the fact that the term “Estonian name tradition” used in the draft creates uncertainty and has not been defined in the draft or in its explanatory memorandum. The Union also reminds the legislator that the right of the parents to choose the first and last name for their child belongs in the sphere of private life of the parents.[9]

The position of the Estonian Human Rights Centre is that the new Names Act largely does not conform to the principles of human rights, because in modern democratic societies, as a generally accepted principle, the identity of the person, including his or her nationality or religious affiliation, gender or sexual identity, and other parts of his or her identity are primarily up to the person himself or herself to define. The Centre explains in an opinion sent to the Population Minister Riina Solman that such human rights-based approach is also necessary in the area of regulating names, but the new pending act does not follow this principle.[10]

Institutions, statistics and surveys

There was no significant change in the work of the Gender Equality and Equal Treatment Commissioner in the observable period. As an independent and impartial official the commissioner advises and assists persons who suspect they have been discriminated against. The number of people that turned to the Commissioner in 2018 was 304. 137 of those instances had to do with discrimination on the basis of gender, 28 with disability, 30 with age, 25 had to do with nationality and ethnic belonging, in the rest of the cases a particular basis was involved in fewer than 10 cases, in 61 instances the issue was not in the Commissioner’s jurisdiction.[11]

The Chancellor of Justice received 20 petitions in her last accounting year (from 1 September 2018 until 31 August 2019), where people complained about discrimination. Seven of the petitions had to do with different treatment based on disability, three based on age, two based on sexual orientation, two based on language, nationality and citizenship and one based on origin. One petition, for example, had to do with police officers and age. The Police and Border Guard Act states that a person can work at the police service as a specialist until turning 55 years old and in a managerial position until turning 60 years old. The Chancellor of Justice found that despite the wording of the act of law no police officers should be relieved of their duty simply for exceeding the age, as the principle of equal treatment must be adhered to when applying the act of law. The decision must primarily be based on whether the person meets the physical and mental capacity requirements established for police officers by law.[12]

Labour dispute committees all over Estonia settle disputes that have arisen from employment relationships between employers and employees within the parameters of the submitted claim. Among other things, the cause of a labour dispute may be the unequal treatment or discrimination of an employee. On 1 January 2018 the new Labour Dispute Resolution Act entered into force and the limit of financial claim (which had been 10,000 euros) that had previously been in force disappeared. This amendment made it possible for the labour dispute committee to order 118,000 euros as compensation in a labour dispute that concerned discrimination. The decision of the labour dispute committee has not entered into force yet, the dispute continues in court.[13]

In 2018 labour dispute committees across Estonia settled a total of 19 appeals addressing issues either directly or indirectly related to discrimination or bullying at work. A year earlier there had been 26 appeals. In 2018, in the largest proportion of all cases, in 8 labour disputes the committee was asked to establish bullying at work. On three instances the issue was sexual harassment in work environment, in two cases the appeal concerned a person’s reduced capacity for work, in three instances the committee’s help was needed with discrimination based on family reasons, and in one instance regarding an employee’s sexual orientation. In two instances the appeal did not state what the unequal treatment was. In most cases the labour dispute committees did not identify discrimination.[14]

In autumn of 2019 the Eurobarometer public opinion study on discrimination was published. What stands out in the case of Estonia is that in comparison with the European average the people think that discrimination is not a widespread problem. 61% of Europeans believe that discrimination of Roma is common in their country, but in Estonia the corresponding figure is 23. There is also significant discrepancy with the European average in perceiving discrimination based on religion or belief. A European average of 47% of people think that such discrimination is widespread, but in Estonia just 17% think that, in other words, that discrimination based on religion is considered a rare phenomenon.

However, as a positive development, compared to results of the same study in 2015, Estonians have become significantly more tolerant in four years. For example, four years ago just 30% of respondents to the question “how comfortable would you feel if the highest elected position was occupied by a person from a different ethnic background?” said they felt “comfortable”, and now that was the response of 53% of respondents. A significant step towards acceptance has taken place with the answers to the same question regarding many more groups. For example, this year 82% of respondents said they felt comfortable with a woman occupying a high political office, while four years ago it was 57%, which lagged far behind the European average. An increase of that magnitude can perhaps be explained by the fact that in 2015 33% of respondents said they “didn’t care”, but this year only 8% said that.

According to Eurobarometer, differences in work environment are also increasingly accepted, with 40% responding with “comfortable” to the question “How comfortable would you feel if one of your colleagues were disabled?” four years ago, but already 75% saying that this year. Working with a black colleague was “comfortable” for 43% of respondents in 2015, but for 58% in 2019. Tolerance for gays and lesbians has also increased significantly with 34% feeling “comfortable” with colleagues belonging to that group in 2015, but 52% in 2019.[15]

Court practice

Festheart is Estonia’s first film festival focusing on the topic of sexual and gender minorities that takes place mainly in Rakvere since October 2017, where, in addition to thematic films, discussions on various topics concerning the LGBTI community also take place. Festheart film festival is funded from ticket sales, donations and project funding. Rakvere city government supports cultural events that take place there through a public project competition and Festheart submitted its project in 2018 as well as in 2019. According to the rules established by the city of Rakvere itself the city’s cultural committee assesses every submission and presents its decision to the municipal council for approval. The committee assessed the submission of the film festival to be worthy of support in both years and, according to the current procedure, presented it to the municipal council. The council, at the same time, reduced funding for Festheart, having approved all of the other decisions of the cultural committee regarding other applicants.

The organiser of the film festival, NGO Sevenbow considered these to have been unlawful and discriminatory decisions and took the decisions of the municipal council to court in both years. Jõhvi Courtcouse of Tartu administrative court passed positive decisions regarding Sevenbow and conceded that these had been unlawful decisions. The court explained that Rakvere city council, exercising its exclusive competence, had itself decided to establish a procedure which provides an important role for the cultural committee in assessing applications for support of cultural events and projects. Therefore, the council has no right to arbitrarily deviate from the decision submitted by the cultural committee. The court also made note of the fact that the Administrative Law Chamber had also emphasised that a democratically elected representative body may not make decisions arbitrarily and partially, but that choices must be based on rational arguments. The city of Rakvere did not appeal the decision of the administrative court and they came into force.[16]

Trends

The current situation in equal treatment area is predominantly characterised by stagnation. The Equal Treatment Act still does not provide equal opportunities in accessing legal protection for all minorities, placing persons experiencing discrimination outside of employment based on religion or beliefs, age, disability or sexual attraction in a particularly vulnerable position. Minister of Social Affairs Tanel Kiik has said that many of the provisions or principles in the field of equal treatment are outdated and the proposal to amend the Equal Treatment Act will probably be brought to the government’s table once again.[17]

At the same time, there is no real progress in the field of equal treatment in the current government and the earlier positions of coalition partners may prove an obstacle to the new attempts to amend the Equal Treatment Act. During the coordination of the Equal Treatment Act draft in 2017–2018 the then Minister of Justice and the current Minister of Foreign Affairs Urmas Reinsalu from Pro Patria did not support the complete elimination of gradual nature of discrimination from the act of law.[18] Guaranteeing equal treatment of minorities has not been the focus of the Estonian Conservative People’s Party so far either, their election programme contained a number of promises that are not in concordance with principles of human rights and the protection of minorities.[19] The entire situation is also compounded by the hostile rhetoric directed at some politicians and minorities of parties, therefore, the future prospects in the area regarding positive developments are not promising.

Recommendations

  • Pass amendments to the Equal Treatment Act eliminating differences between various bases for discrimination.
  • Nationally pay more attention to possible cases of discrimination in providing goods and services to the public as the Equal Treatment Act does not protect all minorities from discrimination in this area.
  • Take a human-rights-based approach in the new Names Act, in particular take into account that a person’s identity, including their nationality or religious affiliation, gender or sexual identity and other parts of a person’s identity are primarily for the person to define.

Case description

In March 2019 an incident occurred in a public space in central Tallinn, where Estonian head rabbi Shmuel Kot was on his way to the sabbath at the synagogue with his children. He was addressed by a male stranger speaking Estonian who, among other things, said to the rabbi: “What are you looking at, Jew, you’re going into an incinerator.” The municipal police explained that the incident took place in a situation where the municipal police was escorting a young man off the tram for riding without a ticket, to write him a fine. During the same incident the head rabbi passed the bus of the municipal police with his children and the verbal attack took place. The police initiated proceedings under the section of the Penal Code that handles incitement to hatred.[20] Harju County Court, however, convicted the man on the basis of section 262 of the Penal Code, which handles breach of public order and sentenced him to eight days of detention.[21]


[1] Eesti Keskerakonna, Eesti Konservatiivse Rahvaerakonna ning Isamaa Erakonna valitsusliidu aluspõhimõtted 2019-2023 [Founding principles of the governing coalition consisting of the Estonian Centre Party, The Estonian Conservative People’s Party and Pro Patria 2019–2023] https://www.valitsus.ee/sites/default/files/content-editors/pictures/eesmargid/eesti_keskerakonna_eesti_konservatiivse_rahvaerakonna_ning_isamaa_erakonna_valitsusliidu_aluspohimotted_2019-2023.pdf. 8 April 2019.

[2] See, for example, the conclusions of analyses of the 2019 Riigikogu election programmes by the Estonian Human Rights Centre https://humanrights.ee/2019/02/erakondade-valimisprogrammid-inimoiguste-vaates/. 11 February 2019.

[3] See, for example, the opinion of the Chancellor of Justice Ülle Madise. Ülle Madise: üldiselt leitakse, et inimõigustega seonduvat rahvahääletusele ei peaks panema [Ülle Madise: it is generally understood that human rights related matters should not be up for referendum] https://www.err.ee/521723/ulle-madise-uldiselt-leitakse-et-inimoigustega-seonduvat-rahvahaaletusele-ei-peaks-panema. 8 October 2014.

[4] Võrdse kohtlemise seaduse muutmise seadus [Act amending the Equal Treatment Act]. 2017. Draft acts’ information system, file no 17-0909.

[5] Arvamus võrdse kohtlemise seaduse muutmise seaduse eelnõu ja seletuskirja kohta [Opinion on the draft act amending the Equal Treatment Act and its memorandum] https://humanrights.ee/2017/08/arvamus-vordse-kohtlemise-seaduse-muutmise-seaduse-eelnou-ja-seletuskirja-kohta/. 29 August 2017.

[6] Võrdse kohtlemise seaduse muutmise seadus [Act amending the Equal Treatment Act]. 2017. Draft acts’ information system, file no 17-0909.

[7] Ibid.

[8] Nimeseadus [Names Act]. 2019. Draft acts’ information system, file no 19-0616.

[9] Koppel, K. Solmani plaan nimede andmisele piiranguid seada sai mitmelt liidult kriitikat [Solman’s plan to set limitations on giving names received criticism from several associations]. https://www.err.ee/963726/solmani-plaan-nimede-andmisele-piiranguid-seada-sai-mitmelt-liidult-kriitikat. 22 July 2019.

[10] Estonian Human Rights Centre. Nimeseaduse eelnõu: põhiseadusega vastuolus, ülereguleeriv, tarbetult kitsendav [Draft of the Names Act: in contradiction with the constitution, over-regulatory, needlessly narrow]. https://humanrights.ee/2019/07/nimeseaduse-eelnou-pohiseadusega-vastuolus-ulereguleeriv-tarbetult-kitsendav. 9 July 2019.

[11] Office of the Gender Equality and Equal Treatment Commissioner. 2018. report to the Constitutional Committee. https://www.volinik.ee/wp-content/uploads/2019/06/2018_aastaaruanne_voliniku-kantselei_.pdf. 10 June 2019.

[12] Õiguskantsleri aastaülevaade 2018/2019 [Chancellor of Justice’s annual report 2018/2019].https://www.oiguskantsler.ee/ylevaade2019/.

[13] Ibid.

[14] Labour disputes processed at labour dispute committees regarding unequal treatment. https://www.ti.ee/est/teavitustegevus-statistika/statistika/toovaidlused/

[15] Eurobarometer. Discrimination in the EU http://data.europa.eu/euodp/en/data/dataset/S2251_91_4_493_ENG. 28 October 2019.

[16] Both court cases and judgments are discussed in more detail on the website of the Estonian Human Rights Centre https://humanrights.ee/kaasused/lgbti-filmifestival-festheart/.

[17] Viik, K. Tanel Kiik: riigi roll on inimesi võrdselt kaitsta ja igakülgselt vaenukõnet taunida [Tanel Kiik: it is the state’s role to protect people equally and condemn hate speech in every way]. https://feministeerium.ee/tanel-kiik-riigi-roll-on-inimesi-vordselt-kaitsta-ja-igakulgselt-vaenukonet-taunida/. 28 June 2019.

[18] Võrdse kohtlemise seaduse muutmise [Act amending the Equal Treatment Act]. 2017. Draft acts’ information system, file no 19-0616

[19] See, for example, the conclusions of analyses of the 2019 Riigikogu election programmes by the Estonian Human Rights Centre https://humanrights.ee/2019/02/erakondade-valimisprogrammid-inimoiguste-vaates/. 11 February 2019.

[20] Viirand, L. Kohus karistas pearabi solvanud meest arestiga [The court punished the man offending the head rabi with arrest].  https://www.err.ee/921578/kohus-karistas-pearabi-solvanud-meest-arestiga. 19 March 2019.

[11] Tooming, M. Kohus karistas pakistanlast rünnanud meest kaheksa arestipäevaga [Court punished the man who attacked the Pakistani with eight days of arrest]. https://www.err.ee/945560/kohus-karistas-pakistanlast-runnanud-meest-kaheksa-arestipaevaga. 24 May 2019.


Author

  • Kelly Grossthal veab Eesti Inimõiguste Keskuses strateegilise hagelemise valdkonda ning panustab mitmesse keskuse projekti võrdse kohtlemise ning mitmekesisuse ja kaasatuse eksperdina. Vabatahtlikuna lööb Kelly kaasa mitmetes noortevaldkonna ettevõtmistes ning tegutseb ka inimõiguste hariduse koolitajana.

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