Key issues
- A draft law, which makes the most severe forms of incitement to hatred and hate crimes punishable, has reached the Parliament.
- The selection process for the Gender Equality and Equal Treatment Commissioner has been made more transparent.
- The government plans to harmonise the protection of all characteristics related to discrimination in accordance with the Constitution.
Political and legislative developments
After winning the elections on 5 March 2023, the Reform Party formed a government coalition with Estonia 200 and the Social Democratic Party. An analysis of the pre-election promises revealed that all three parties had addressed the improvement of laws and practices in the field of equal treatment.[1] Several sectoral plans of the parties also made it into the coalition agreement. The agreement includes, for example, a commitment to uphold the principles of the rule of law and thereby ensure equal rights for all social groups.[2] In the social field, it is promised to implement policies that reduce inequality and the risk of poverty, as well as balance regional development in Estonia. The government’s action programme for 2023–2027 contains more detailed goals of the coalition, several of which have already been realised, such as marriage equalitys.[3]
The action programme also envisions better regulation of hate speech. Estonian NGOs and international organisations have criticised the country for years because the current provision on incitement to hatred in the Penal Code does not effectively protect minorities from hate speech.[4] For example, the independent European Commission against Racism and Intolerance (ECRI) has consistently drawn attention in its periodic evaluation reports to the fact that Estonia’s current criminal law regulation for preventing and punishing incitement to hatred is extremely limited and is almost not used at all.[5]
The spread of hate speech is a concern in Estonia, primarily on the internet. The Estonian Human Rights Centre, in collaboration with the European Commission, has been monitoring the occurrence of hate speech on Estonian social networks since 2017. The monitoring has shown that the main targets of hate speech are sexual minorities and refugees, but racist hate speech is also widespread.[6] Incitement to hatred is still prohibited in Estonia today, but the incitement to hatred provision in the Penal Code (§ 151) does not provide real protection for minority groups. Namely, the provision’s misdemeanour offence requires a specific consequence: a threat to life, health, or property.
On 12 June 2023, the government initiated a draft law amending the Penal Code, Code of Criminal Procedure, and Code of Misdemeanour Procedure (incitement to hatred and hate-motivated crimes), which passed the first reading in the Parliament on 27 September 2023. The draft law provides for the punishment of individuals who incite hatred in a manner that may endanger public order. According to the explanatory memorandum, such public calls that may reasonably lead to various offences, such as arson or property damage, as well as systematic intimidation, persecution, discrimination, or humiliation of individuals, endanger the security of society.[7]
Non-governmental organisations have criticised the insufficient inclusion process accompanying the draft law’s development. However, at the same time, the planned changes are seen as providing better protection for minorities. Disability has been added to the draft law as a new protected group, while the explanatory memorandum does not clarify why the current list has been supplemented only with the protected characteristic of disability, but it is not planned to add, for example, the characteristic of age contained in § 1 (1) of the Equal Treatment Act. The Equal Treatment Network has recommended that if there is already a plan to expand the list, consideration should be given to whether there are other categories that could be directly affected by incitement to hatred, such as gender identity.[8]
Similarly to the inadequate regulation of hate speech, both international organisations and Estonian NGOs have criticised the current Equal Treatment Act and its implementation for years.[9] Specifically, the Equal Treatment Act does not adhere to the general principle of equality set out in Article 12 of the Constitution, as the law does not provide equal protection for all minorities. Discrimination based on religion or other beliefs, age, disability, or sexual orientation is prohibited only in matters related to employment and vocational training. However, prohibition of discrimination based on nationality (ethnic origin), race, or skin colour is more extensive, and unequal treatment is also not allowed in access to social welfare, healthcare, social security and benefits, education, as well as goods and services offered to the public (including housing). The government’s action programme for 2023–2027, supplemented on 12 October 2023, foresees that in March 2024 a draft law amending the Equal Treatment Act and other related laws will be completed, harmonising the protection of all discrimination-related characteristics in accordance with the Constitution.[10]
In addition to the aim of harmonising protection against discrimination in the Equal Treatment Act, a debate emerged during the period under review regarding the possible merging of the Equal Treatment Act and the Gender Equality Act. In October 2022, the Ministry of Social Affairs completed an analysis on the topic, outlining the arguments for and against merging the laws.[11]
On 16 June 2023, Minister of Social Protection Signe Riisalo invited representatives of NGOs and institutions operating in the field to a discussion on the possible merger of the laws.[12] The event was followed by a written consultation round. An important debate in the field of equal treatment in Estonia continues, and the specific approach of the state will be revealed at the latest when the draft law is published in March 2024.
On 23 February 2023, the Government of the Republic approved the Welfare Development Plan 2023–2030, which sets the strategic goals for family, social, and labour policies and determines the necessary directions for achieving them. It is a continuation of the previous development plan with the same name, but this time, specific attention has been given to children, families, and the elderly as separate target groups. The development plan has five separate sub-goals, the fifth addressing gender equality and equal treatment.[13]
Institutional developments
According to the coalition agreement between the Reform Party, Estonia 200, and the Social Democratic Party, the government reorganised the distribution of responsibilities among ministers and ministries. While the area of equal treatment was previously under the responsibility of the Minister of Social Affairs, it is now within the competence of the Minister of Economic Affairs and Information Technology.[14]
On 16 February 2023, Christian Veske assumed the position of the new Gender Equality and Equal Treatment Commissioner. The selection process for the commissioner has raised questions in the past, even led to legal challenges.[15] This time, candidates had to go through document reviews, structured preliminary interviews, various tests, and demonstrate their public speaking skills. For the first time, representatives of different target groups were involved in the process as decision-makers. The expert commission included representatives from the Estonian Chamber of Disabled People, Ministry of Social Affairs’ strategic partners in the field of equal treatment and gender equality, Office of the Chancellor of Justice, Top Civil Service Excellence Centre of the Government Office, and Gender Equality Council.[16]
The commissioner’s scope of work also relates to a directive proposal published by the European Commission in December 2022. The directive aims to establish binding requirements for equality bodies, intending to increase their independence, resources, and rights to effectively address discrimination.[17] The Equal Treatment Network and Praxis Centre for Policy Studies jointly submitted an opinion to the Ministry of Social Affairs, recommending government support for the proposed directive to strengthen and ensure the independence of equality bodies across the EU.[18]
Case law
The Estonian Human Rights Centre, in collaboration with the law firm Liverte, is representing a young athlete Miia, who confidentially reported alleged sexual harassment by her coach, experienced as a minor, to the school principal. However, as a result, the coach filed a defamation lawsuit against Miia with a claim for damages. From the perspective of victim protection and legal considerations, there are several important aspects in this case. Firstly, defamation cases are resolved in civil court, meaning that the victim of harassment typically has to attend court proceedings together with the harasser and, if necessary, provide statements in the harasser’s presence. Secondly, resolving harassment cases within the context of defamation provisions of the Law of Obligations Act is problematic. The main purpose of the Law of Obligations Act § 1046 and § 1047 is to protect an individual from the disclosure of information and assessments damaging to their reputation to third parties. It is highly questionable whether the person or institution designated to receive reports of harassment incidents is a third party, reporting to whom could be considered “disclosure.”[19]
Additionally, there is reason to be concerned that the so-called defamation lawsuit may become a form of re-victimisation, which is prohibited in the handling of harassment cases. The potential liability in court in the event of loss could discourage victims from reporting harassment incidents in the future.
On 31 August 2022, Tartu County Court ruled that defamation provisions do not apply when reporting an harassment incident to the school principal.[20] On 17 May 2023, Tartu Circuit Court partially upheld the appeal.[21] The county court’s decision entered into force in the part where the county court rejected the plaintiff’s claim to refute false factual statements, meaning that, in the court’s opinion, Miia had the right to share the alleged harassment incident with the school principal since it cannot be considered disclosure of information to any third party under the Law of Obligations Act § 1047 (4). However, the circuit court sent the case back to the county court for further review regarding the fact that Miia also shared the harassment experience with her boyfriend and the content of the public court proceedings with the media.
Promising practices
The University of Tartu has developed a systematic approach to ensure equal treatment in academic activities and employment. The university has produced a guide on equal treatment, providing an overview of the meaning of equal treatment and workplace harassment. In addition, the university has established rules on how to internally report violations of the principle of equal treatment or seek immediate assistance in certain cases outside the university. To implement the system, the university established a network of equal treatment support persons in the spring of 2023, becoming the first Estonian higher education institution to do so. Support persons have undergone specific training, and their role is to listen to the concerns of students or employees and provide advice. Furthermore, both the concepts, guidelines, and the process of handling violations are presented through animations, offering a quick and comprehensive overview.[22]
Recommendations
- Move forward with amendments to the Equal Treatment Act in a manner that would make protection against discrimination equal for all minority groups, including in the case it is planned to merge the Equal Treatment Act and the Gender Equality Act.
- Adopt the law amending the Penal Code, Code of Criminal Procedure, and Code of Misdemeanour Procedure (incitement to hatred and hate-motivated crimes) currently in the proceedings and then focus on its actual implementation.
- Support the European Commission’s proposal for a directive aimed at establishing binding requirements for equality bodies.
[1] Eesti Inimõiguste Keskus. 2023. Valimislubaduste analüüs 2023, 15.02.2023
[2] Vabariigi Valitsus. 2023. Koalitsioonilepe 2023–2027.
[3] Vabariigi Valitsus. 2023. Vabariigi Valitsuse tegevusprogramm 2023–2027, 18.05.2023
[4] Võrdse kohtlemise võrgustik. 2020. Ühisaruanne Eesti kolmanda üldise korralise ülevaatuse (UPR) jaoks.
[5] Euroopa rassismi- ja sallimatuse vastu võitlemise komisjon (ECRI). 2022. ECRI aruanne Eesti kohta (kuues seiretsükkel), 29.03.2022.
[6] Euroopa Komisjon. The EU Code of conduct on countering illegal hate speech online. Monitoring rounds.
[7] Riigikogu. 2023. Karistusseadustiku, kriminaalmenetluse seadustiku ja väärteomenetluse seadustiku muutmise seadus (vaenu õhutamine ja vaenumotiiviga kuriteod) 232 SE.
[8] Võrdse kohtlemise võrgustik. 2023. Pöördumine justiitsministri poole, 30.05.2023.
[9] Võrdse kohtlemise võrgustik. 2020. Ühisaruanne Eesti kolmanda üldise korralise ülevaatuse (UPR) jaoks.
[10] Vabariigi Valitsus. 2023. Vabariigi Valitsuse tegevusprogramm 2023–2027, uuendatud 12.10.2023.
[11] Sotsiaalministeerium. 2022. Võrdse kohtlemise seaduse ja soolise võrdõiguslikkuse seaduse ühendamise analüüs.
[12] Sotsiaalkaitseminister. 2023. E-kiri: Kutse soolise võrdõiguslikkuse ja võrdse kohtlemise seaduse muutmise kaasamisüritusele, 31.05.2023 (autori valduses)
[13] Sotsiaalministeerium. 2023. Heaolu arengukava 2023–2030, 23.02.2023.
[14] Riigi Teataja. 2023. Ministrite pädevus ministeeriumi juhtimisel ja ministrite vastutusvaldkonnad, 19.04.2023.
[15] Vedler, S. 2015. Võrdõigusvoliniku valimine. Skandaali tagamaa, Eesti Ekspress, 23.09.2015.
[16] Sotsiaalministeerium. 2022. Võrdse kohtlemise volinikuks saab Christian Veske, 30.11.2022.
[17] Euroopa Komisjon. 2022. Võrdõiguslikkuse pakett – komisjon teeb ettepaneku tugevdada võrdõigusasutusi, et vähendada diskrimineerimist, 7.12.2023.
[18] PRAXIS ja võrdse kohtlemise võrgustik. 2023. E-kiri: Arvamuse avaldamine Eesti seisukohtade kujundamiseks võrdõigusasutuste direktiivide eelnõude kohta, 6.01.2023. (autori valduses)
[19] Eesti Inimõiguste Keskus. 2022. Õigus ahistamisest teavitada, 02.12.2022.
[20] Tartu Maakohtu 31.08.2022 otsus tsiviilasjas nr 2-21-6336.
[21] Tartu Ringkonnakohtu 17.05.2023 otsus tsiviilasjas nr 2-21-6336.
[22] Tartu Ülikool. 2022–2023. Võrdse kohtlemise valdkond.
