6 - Chapter

Prohibition of discrimination

Author: Kelly Grossthal

The situation has remained the same.

Key topics:

  • The field of equal treatment is characterised by stagnation within the period which is under review. Although the government’s plans include promising initiatives, no significant steps have been reached in terms of the more important sectoral legislative changes.
  • The state does not pay enough attention to the incitement of hatred towards minorities, while legal recourse to restrict and better regulate hate speech through the amendment of the Penal Code has stalled.
  • The marriage equality petition collected 35,805 signatures. Subsequently the petition underwent consideration by Riigikogu. The committee responsible for this decided not to initiate a bill to amend the ‘Family Law Act’, with the decision being criticised by society at large.

Political and institutional developments

On 26 January 2021, a new governing coalition took office. It consisted of the Estonian Reform Party and the Estonian Centre Party, and was led by Kaja Kallas, Estonia’s first female prime minister. An important principle in the coalition agreement is the promise to stand up for the rights of all people in Estonia, including minorities. It also aims to support the greater inclusion of people who have disabilities in the labour market, and to promote gender equality, as well as reduce the gender pay gap in order to ensure equal treatment and opportunities for men and women. Protection against discrimination and the implementation of the principles of equal treatment are also planned across sectors.[1]

The action programme which is being followed by the country’s government for 2021-2023 also contains various activities which relate to the field of equal treatment, including a proposal regarding preparation of the ‘Welfare Development Plan’ for 2023-2030.[2] The forthcoming document will bring together strategic objectives for 2023-2030 in various policy areas, such as social inequality and poverty reduction, gender equality and greater social inclusion, the promotion of equal opportunities for persons who belong to minorities, the areas of employment, a long working life expectancy which can be lived to a high level of quality, population policy, and the well-being of the elderly as well as that of children and families.[3] The current ‘Welfare Development Plan’ brings together those strategic objectives which are contained within the employment policy, the social protection policy, and the gender equality and equal treatment policy, for the period between 2016-2023.

In compiling the new development plan, those goals which have been set out in the country’s long-term development strategy, ‘Estonia 2035’, have also been taken into account, with the general part of this being adopted by the Riigikogu on 12 May 2021, and with its action plan being updated by the government on an annual basis. This development strategy sets out as one of the basic principles the qualification that everyone in Estonia must have equal opportunities for self-fulfilment and participation in society, regardless of individual characteristics and needs, to be able to belong to various social groups, to enjoy a fair degree of socio-economic capacity, and to be able to select one’s own place of residence.[4]

Legislative developments

On 19 October 2020, the then-opposition Estonian Reform Party faction initiated an amendment to the ‘Penal Code’ and the ‘Criminal Procedure Code’ to comply with a 2008 council decision to combat racism and xenophobia by means of enacting criminal legal acts (Council Framework Decision 2008/913/JHA). An amendment to the act which is in line with the framework decision would have meant that an aggravating circumstance would be taken into account in the case of a criminal offence if the crime was committed in the form of hostility being displayed against a minority group as specified by law. In addition, the amendment to the act was intended to remove the requirement for there to be the presence of any direct danger in cases relating to incitement to hatred. The ‘Penal Code’ has the stipulation of § 151 (1) which is in force to cover the possibility of incitement to hatred being punished only if there is a direct threat to the life, health, or property of the person who has been targeted by such an act of incitement to hatred.[5]

Non-governmental organisations and international organisations have long criticised today’s regulation.[6] Kari Käsper, a jurist and former head of the Estonian Centre for Human Rights, has stated: ‘It is very difficult to prove causally that words of hate which are directed towards an individual based on a particular trait can really serve to endanger someone else’s life, health, or property. Therefore official statistics tend to show an unrealistically small number of prosecutions’.[7] Therefore the draft by the Estonian Reform Party can be considered as being a step in the right direction, although on 16 December 2020 the bill was rejected by the Riigikogu.

At the same time, on 30 October 2020, the European Commission launched infringement proceedings against Estonia for failing to properly transpose Framework Decision 2008/913/JHA.[8] The Kaja Kallas government, which assumed office on 26 January 2021, added the ‘Draft Act Amending the Penal Code’, the ‘Criminal Procedure Code’, and the ‘Misdemeanour Procedure Code’ to their action programme.[9] However, the available information indicates that the draft, which was scheduled to be completed in April 2021, has not progressed. On the other hand, the Ministry of Justice is carrying out a related analysis in connection with the draft act.[10]

The Ministry of Social Affairs has begun to develop draft amendments to the ‘Equal Treatment Act’ (VõrdKS).[11] The related planning is also included in the government’s action programme.[12] For more than a decade, NGOs and various institutions and international organisations which have been involved have all been drawing attention to the hierarchy involved in the protection of individual rights as they are contained in the ‘Equality Act’,[13] but so far the act has not been amended despite several plans to bring it into force.

However, the current Equality Act does not comply with the principle behind the general, fundamental right to equality which has been provided in § 12 of the constitution, as its scope is not the same for all minorities. Discrimination on the grounds of religion or belief, age, disability, or sexual orientation is prohibited only in matters of employment and vocational training. The prohibition of discrimination on the grounds of nationality (ethnicity), race, or skin colour is more extensive. Unequal treatment of individuals who fall into these categories is also prohibited within the areas of social welfare, health, social security services and benefits, education, and access to goods and services which are provided to the public (including housing). The aforementioned hierarchy in the law has arisen primarily due to the fact that the obligations which have been provided in Directives 2000/43/EC and 2000/78/EC were transposed into Estonian law by VõrdKS, and yet the principle of the right to equality which is contained in the Estonian constitution, according to which the extent of discrimination cannot be distinguished on the basis of the characteristics which are attributed to individuals, has not been taken into account.

Regarding the conflict with the constitution, the Chancellor of Justice already noted a decade ago that the purpose of the ‘Equal Treatment Act’ cannot be limited to transposing the minimum requirements of the relevant European Union directives. Instead the constitution must also be taken into account when designing legal regulations. The opinion of the Chancellor of Justice stated that the explicit distinction of the degree of protection which may be granted to individuals on the basis of § 12 of the constitution requires very strong reasons from the legislator but, within the scope of application for the ‘Equation Act’, the Chancellor of Justice sees no justification for this.[14]

The amendment by VõrdKS has been the main goal since establishment in 2013 in terms of the protection of interests by means of the equal treatment network managing to unite Estonian NGOs. The network has repeatedly made related appeals and recommendations to the state. In May 2021, Estonia’s third regular review was held at the UN Human Rights Council, in which the network presented its shadow report. The report again drew attention to the incomplete scope of the law, recommending that the state amend the current legal acts in this regard.[15]

Case study

In October 2020, the Estonian Green Party drafted a petition to amend the ‘Family Law Act’. The purpose of collecting signatures was to apply to the Riigikogu to provide for marriage as it is outlined in the ‘Family Act’ to consist of a union between two adults, regardless of their gender. At the same time, according to the initiators, such a change would guarantee the constitutional right to equal treatment for same-sex couples. The initiative collected a total of 35,805 signatures.[16]

On 20 May 2021, the Riigikogu accepted the appeal and, on 9 November, the committee on legal affairs discussed the merits of the petition. In the reply to the Greens when it announced the results of its discussion, the committee was able to make it clear that marriage equality is already guaranteed within Estonia in terms both of content and form for all persons who are capable of entering into a state of marriage. In addition, it has been noted that the ‘Family Law Act’ which is currently in force within Estonia is in conformity with the constitution and does not discriminate against anyone. Separately, in its reply, the commission commented on the content of the whole people’s initiative, stating that ‘as a working legislative body, we cannot engage in any substantively unbalanced policy initiatives which only serve to widen the social divide and which do not offer any satisfactory solutions’. The committee on legal affairs also declared that no bill to amend the ‘Family Code’ would be initiated on the basis of the petition.[17]

This approach by the committee has been criticised in society in general, as the declared recognition of pre-existing marital equality does not apply to same-sex families. As prescribed by the ‘Family Law Act’, only two people who are not of the same sex can marry in Estonia. Aili Kala, head of ‘Protecting the interests of the Estonian LGBT Association’, noted that the wording of the Legal Affairs Committee is ignorant and arrogant, with the wider community expecting the legislature to stop politicising human rights and to truly guarantee the same rights for everyone.[18]

Historian Taavi Koppel, one of the spokespersons within the field, expressed the opinion that the discussion in the committee on legal affairs was void of meaning. In addition, Koppel finds that the opinion of the Legal Affairs Committee, namely that the Riigikogu should not put bills to a vote where such bills are related to value issues, is somewhat surprising. In his opinion, such an approach would make it meaningless to submit any appeals to the Riigikogu. Koppel also reminded everyone that there is already widespread support in society for marital equality. In the spring of 2021, a total of 47 percent of the Estonian population was found to be in favour of allowing same-sex couples to marry (while 46% were against it).[19]

Recommendations:

  • Make the scope of the ‘Equal Treatment Act’ the same for all minority groups.
  • Move forwards by regulating provisions which relate to incitement to hatred in the ‘Penal Code’ in such a way which ensures effective protection.
  • Pay more attention to issues which relate to equal treatment and avoid degrading approaches to minorities when dealing with issues which concern them, as was the case in the committee on legal affairs in the case of the petition to amend the ‘Family Law Act’.

[1] Vabariigi Valitsus. Eesti Reformierakonna ja Eesti Keskerakonna valitsuse moodustamise kokkulepe ja valitsusliidu koostööleping aastateks 2021-2023.

[2] Vabariigi Valitsus. 2021. Tegevusprogramm aastateks 2021-2023, 23.02.2021.

[3] Sotsiaalministeerium. 2021. Heaolu arengukava 2023–2030 mustandversioon, e-kiri, 04.11.2021.

[4] Vabariigi Valitsus. Strateegia „Eesti 2035“.

[5] Riigikogu. 2020. Karistusseadustiku ja kriminaalmenetluse seadustiku muutmise seadus (vihakuritegude vastu võitlemine) 276 SE.

[6] Euroopa rassismi- ja sallimatuse vastu võitlemise komisjon (ECRI). 2015. ECRI aruanne Eesti kohta (viies seiretsükkel), 13.10.2015.

[7] Käsper, K. Vaenu õhutamine pole sõnavabaduse kasutamine, ERR, 08.05.2019.

[8] Euroopa Komisjon. 2020. October infringements package: key decisions, 20.10.2020. [Oktoobri rikkumisvastaste meetmete pakett: peamised otsused].

[9] Vabariigi Valitsus. 2021. Valitsus kinnitas tegevusprogrammi aastateks 2021-2023, 23.02.2021.

[10] Justiitsministeerium. 2021. Vastus küsimustele Euroopa Põhiõiguste Ameti 2022. aasta põhiõiguste aruande sisendi koostamiseks, e-kiri, 04.10.2021.

[11] Sotsiaalministeerium. 2021. Vastus küsimustele Euroopa Põhiõiguste Ameti 2022. aasta põhiõiguste aruande sisendi koostamiseks, e-kiri, 30.09.2021.

[12] Vabariigi Valitsus. 2021. Valitsus kinnitas tegevusprogrammi aastateks 2021-2023, 23.02.2021.

[13] Euroopa rassismi- ja sallimatuse vastu võitlemise komisjon (ECRI). 2015. ECRI aruanne Eesti kohta (viies seiretsükkel), 13.10.2015.

[14] Õiguskantsler. 2011. Soovitus õiguspärasuse ja hea halduse tava järgimiseks ning märgukiri seaduseelnõu algatamiseks, nr 7-4/101419/1100981, 6-8/110288/1100981, 09.05.2011.

[15] Eesti võrdse kohtlemise võrgustik. 2021. Ühisaruanne Eesti kolmanda üldise korralise ülevaatuse (UPR) jaoks.

[16] Erakond Eestimaa Rohelised. 2020. Petitsioon perekonnaseaduse muutmiseks, 19.10.2020.

[17] Õiguskomisjon. Kollektiivne pöördumine „Petitsioon perekonnaseaduse muutmiseks“, nr 1-6/21-72/2, 12.11.2021.

[18] Kala, A. 2021. Riigikogu, lõpetage oma ignorantne üleolevus samast soost paaride vastu, Eesti Päevaleht, 12.11.2021.

[19] Koppel, T. 2021. Kuidas riigikogu õiguskomisjon petitsioonist farsi kujundas, ERR, 19.11.2021.


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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