Discrimination prohibition was established by §12 of the Constitution:

Everyone is equal before the law. No one shall be discriminated against based on their nationality, race, colour, sex, language, origin, religion, political or other opinion, property or social status, or on other grounds.

 The same provision of the Constitution also prohibits the incitement of hatred:

The incitement of national, racial, religious or political hatred, violence, or discrimination shall, by law, be prohibited and punishable. The incitement of hatred, violence, or discrimination between social strata shall, by law, also be prohibited and punishable.

 This is also confirmed by §151 of the Criminal Code that specified a fine of up to three hundred fine units or detention as punishment.

In addition, the legal instruments regulating specific spheres of life (e.g. in the Employment Contract Act) include provisions that prohibit discrimination or require the promotion of equal treatment. In 2007, the discussion gained momentum regarding the passage of an Equality of Treatment Act, which would establish discrimination prohibition and obligations and rights related thereto. However, the given law was not passed and it dropped out of the proceedings of the parliament of Estonia during the current year.[1]

The principal legislation regulating the inequality of treatment is the Gender Equality Act.[2] Pursuant to this, the institution of a Gender Equality Representative has been created, who has adopted a strict interpretation in the implementation of the law and rejected all petitions that do not deal with gender equality.

The Supreme Court has defined the concept of equal treatment in legislative drafting, which was confirmed in 2007 in the settlement of two cases on the topic of unequal treatment:

 “Equality of legislative drafting requires that laws also substantively treat all people in similar situations in the same manner. The idea of substantive equality is expressed in this principle: equals must be treated equally and those that are not equal unequally. However, not all unequal treatment of equals is a violation of the right of equality. The prohibition of treating equals unequally is violated when two persons, groups of persons, or circumstances are arbitrarily treated unequally. Unequal treatment can be considered arbitrary if no good reason can be found. If there is a good and relevant reason, unequal treatment in legislative drafting is reasoned.”[3]

The year 2007 was declared the Year of Equal Opportunities throughout the European Union. Within its framework, several events that were mostly co-ordinated by the Ministry of Social Affairs took place. Conferences, seminars, forums and cultural festivals were organized, the compilation of many study materials was financed, and studies and questionnaires were conducted.

The Ministry of Justice published a study on the Estonian population’s legal awareness. In the course of the study, the question of discrimination was also covered. Among other things, the following question was posed: “How much do you agree or disagree that in today’s Estonia the fundamental rights of all people are equally protected regardless of their gender, nationality, age, financial status, social status, physical or mental disability, residence, or political views?” According to this study, the majority of people think that fundamental rights are “relatively equally guaranteed for men and women, young and old, and for Estonians and the representatives of minority nationalities”.[4]

 

Gender discrimination[5]

A memorandum from the Commissioner for Human Rights of the Council of Europe with recommendations for implementation was published in 2007. This included an overview and recommendations regarding topics related to discrimination.

In 2007, a discussion about the Estonian report also took place in the Committee on the Elimination of Discrimination against Women – CEDAW), the function of which was to execute the monitoring of the implementation of the Convention for the Liquidation of All Forms of Discrimination against Women in the contacting parties.

Both the Commission and CEDAW praised the institution of the Gender Equality Representative (GER).[6] According to Estonia’s written answers to the questions of the CEDAW, the GER office has one employee in addition to the representative, and the 2007 budget for the institution totalled 887,550 EEK.[7] Based thereon, the Commissioner was worried about how the effectiveness of the work of the GER would be guaranteed.[8] The CEDAW was also sceptical about whether the GER has “sufficient economic and human resources to effectively fulfil the tasks assigned to it by the Gender Equality Act”.[9] The Committee has similar doubts about the Gender Equality Department of the Ministry of Social Affairs:

“The Committee expresses concern that the state institution for improving the situation of women, i.e. the Gender Equality Department of the Ministry of Social Affairs, may be lacking sufficient authority, decision-making power and monetary and human resources to effectively co-ordinate the work of the government in the promotion of gender equality and the total implementation of the Convention.”[10]

 They were also concerned that, although the Gender Equality Act provides for the creation of a Gender Equality Council, the purpose of which would be to advise the government, this council has not yet been created.[11] In discussions with the CEDAW, the Estonian delegation confirmed that they hope to arrive at the council during the first half of 2008.[12]

In addition, the CEDAW criticised Estonia because the optional protocol of the Convention has not yet been ratified, according to which individuals would be able to submit complaints directly to the Committee.[13] Here too, the Estonian delegation confirmed that this question is already in domestic proceedings and will soon be submitted to the government and then to the parliament of Estonia, after which it will be ratified at the first opportunity.[14]

The Commissioner of the Council of Europe, in turn, reminded the government that Estonia has not ratified Protocol 12 of the European Human Rights Convention, which provides for a general discrimination prohibition, and has also not acceded to the Additional Protocol of the European Social Charter.[15] The Estonian delegation to the CEDAW agreed with the criticism, but noted that since the last report, the situation in Estonia in all spheres of life has improved and this development should continue in any case.[16]

In Estonia, it is possible to petition the GER and the Chancellor of Justice regarding equality issues, whose work is firstly to prevent, although also to process complaints and to demand the cessation of identified discrimination.[17] In addition, it is also possible to petition the court for the protection of one’s rights, because the right to equal treatment is provided by numerous legislation (e.g. the Constitution and the Employment Contracts Act).

Although studies have shown that 31% of women and 19% of men have experienced sexual harassment,[18] the law enforcement authorities have not dealt with any violations of gender equality. To date, the courts have not heard any cases the content of which are gender discrimination or sexual harassment.[19] The Chancellor of Justice’s practice also lacks any examples of violations of gender equality. One person petitioned the Chancellor of Justice to start a conciliation procedure, but since the deadline for submitting the complaint had passed, it was not possible for the Chancellor of Justice to start proceedings and he directed it to the Gender Equality Representative.[20]

The CEDAW has also been concerned that “women do not sufficiently use legal remedies in the case of violations of their rights, including the possibility of judicial remedies or the possibility of petitioning to the Chancellor of Justice.” Based thereon, the CEDAW recommended that a campaign should also be carried out among judges, prosecutors, and jurists.[21]

As of April 2007, 72 written petitions have been received by the GER.[22] Unfortunately, the representative does not maintain a public database regarding the complaints that it has processed. Therefore, this review must rely on its review of activities in 2005/2006 that was published in 2007. The 2007 review of activities has not yet been published.

At the legislative level, general equality is guaranteed at a minimal level, but the low level use of all the opportunities demonstrates the unsuccessful implementation of the laws, which is caused by problems with the laws itself, with social attitudes, or insufficient awareness of one’s rights. The state must take several practical steps to guarantee an implementation that serves the objectives.

Awareness and activities for increasing awareness

One of the principal tasks of the Gender Equality Representative is increasing awareness. To achieve this, the Representative makes use of the received petitions, by forwarding its recommendations to the parties and providing consulting to governmental agencies, as well as public appearances at conferences, seminars, and other similar events.[23]

In its summarising the comments about the Estonian report, the UN Committee for the Elimination of Discrimination against Women noted, “The Committee continues to be concerned about the persistence of patriarchal attitudes and deeply rooted stereotypes in Estonian families and society regarding the roles and responsibilities of men and women, which is expressed in women’s educational choices, their situation in the job market and their underrepresentation in political and public life as well as by their right to make decisions at their jobs.”[24] In connection therewith, the CEDAW recommended that “a campaign be directed to women and men to increase awareness and the contracting party be helped to develop a positive image of women, as well as the equal status and equal responsibilities of women and men in the private and public sector, in the media of the contracting party.”[25]

In 2007, the GER and the Ministry of Social Affairs carried out several campaigns, with the goal of increasing awareness about discrimination issues. For example, the Representative participated in the project entitled “The intensive expansion of gender equality in local governments.” In 2007-2008, the Ministry of Social Affairs carried out an Estonian-French project entitled “Gender equality of men and women—the principle and objective of productive and sustainable companies”, which is being partially financed by the European Union Transition Fund.[26] In 2006-2008, an international project is taking place, in which also the Association of Estonian Cities will participate. During the course of this project, there are plans to introduce the “Charter of the Equal Treatment of Men and Women in Local Life” to the local governments and to call them up to accede thereto. It is noteworthy that introducing the project, the Association of Estonian Cities admitted that, although already in the EU’s initial treaty, “the role of the local governments…in the decision-making process of equal participation and in social life…and in guaranteeing the fight against stereotypes was specified”, it has not been possible to fulfil these objectives. “According to the papers, we should have achieved equality a long time ago, but unfortunately, in reality this is not true.”

An aspect here is that the CEDAW found that public opinion must not always be considered to the full extent. The question deals directly with the implementation of a quota system to achieve equality. Namely, the CEDAW members were aware that the Estonian public does not support the use of such a system to increase, for instance, the proportion of women at the parliamentary and local government levels. The Committee members thought that although such information is valuable, the state should not use this as an argument, in order not to fulfil the obligations resulting from the Convention to implement a temporary measure, if it is necessary to get over the discrimination of women, which results from deeply rooted historical templates.[27] Equal opportunities and treatment may not necessarily result in equality, which is why the different treatment of men and women may be necessary in order to achieve gender equality.[28]

The GER also favours using temporary measures in certain questions. In the processing of several petitions, it has been confirmed that a different treatment can be justified in order to promote the underrepresented gender.[29]

In respect to increasing awareness, the government lacks a systematic plan of action, single projects are supported or participated in, the productivity of which is difficult to assess. Based on the extremely limited resources that are allocated to the GER, they are not able to influence the attitudes of society more broadly and, therefore, to fulfil their assignments effectively.

 

Labour market and work relationships

The labour market, concerning recruiting, remuneration, and working conditions, has become one of the most problematic fields of activity regarding the guaranteeing of gender equality,[30] regardless of the fact that, in addition to the Gender Equality Act, the principle of equality is specifically mentioned in the legislation regulating work relationships, such as the Employment Contracts Act and the Wages Act.[31]

Two large-scale studies on the position of women in the workplace were carried out in the field of work relationships in 2007. AS Emor conducted a questionnaire among private enterprises, in which the awareness of entrepreneurs and workers was examined. The results of the study showed that “55% of the respondents thought that the status of women on the labour market is low.” Whereas, “52% of the respondents…thought, that Estonian entrepreneurs should turn more attention to the issue of the equal treatment of women and men in companies”, while “28% did not think this necessary.”^[32]

In connection with the Year of Equal Opportunities, Praxis conducted a study entitled “The Situation of Women from Minority Nationalities in the Estonian Labour Market”. According to the study, in the case of women from minority nationalities, a role is played by the so-called “dual factor” of gender and nationality (ethnic heritage). For instance, it was discovered that there are salary differences between Estonian women and those from minority nationalities, although their jobs are located in the same region.[33]

 

Recruitment process

 The GER has acknowledged that many petitions that have reached them are “very illustrative” and helped to ascertain those aspects that need to be clarified for the public the most. One such aspect is the implementation of the principle of equality already at the first contact of the recruitment process, when the work relationship between the individual and employer has not yet started.[34]

In the recruitment process, most problems develop for women who are pregnant or who have small children.

In its activities report, the GER describes a case where, as a result of an employment interview, a woman was offered a higher position than the one she had initially applied for. A larger salary was also mentioned. After she told them about her pregnancy, the offer of the better job was rescinded and the salary that was offered was reduced by more than 50%, which was 64% less than other people working in similar jobs.[35] In another case, after becoming aware of a pregnancy, the person was offered a fixed-term contract instead of a contract without a term.[36]

The GER adopted an explicit stand in these cases—“Since only women become pregnant, differentiating on this basis is based on gender in any case” and, therefore, is potentially seen as gender discrimination.[37] Pursuant to the law, pregnant women are under special protection, that companies must guarantee and that they can broaden themselves. At the same time, “protection related to pregnancy and giving birth must not lead to the discrimination of women in the labour market under any conditions”. A company may not rescind an offer upon finding out about a pregnancy by using the justification that this is being done in order to protect the interests of the pregnant woman. In this case, this would not be a case of providing an advantage to the pregnant person, but rather putting her in a less advantageous position, which is classified as gender discrimination. “If the employer already considered the candidate to be suitable for the position, the (subsequent) decision … is for the job applicant to make.”[38]

Moreover, on quite a few occasions, when women return to work after the birth of their child, they discover that they are “forced to agree to lower job offers”. [39] The GER handled two cases in which the woman did not get the job—the companies justified their decisions by stating that the woman had a small child and, therefore, she apparently would not be able to dedicate herself totally to her job without her family life suffering.[40]

The GER’s position is that such cases, in addition to being direct gender discrimination, this is also unequal treatment based on being a parent, which is often blended together for companies. Pursuant to both the Constitution (§27 (3)) and the Family Act (§59 (1)), both parents have the equal right and obligation to raise their child and care for him or her, which is why the assumption that a woman who has a child is less able to be dedicated to her work than a man who has a child is the case of directly making differences based on gender, which is “based on … gender stereotypes”. This also contradicts the principle of the inviolability of family and private life (Constitution §26). “The decision of whether or not to go to work when one has a small child is for the job applicant to make. Therefore, reasons based on private life made by the employer regarding the selection of a person for a job are irrelevant.”

The GER confirmed that “the employer has the right to select the most competent and suitable person. When making the decision, the person’s employment history, education, work experience, and other skills that are necessary for the job, as well as other skills and reasons that may provide clear advantages are taken into account.” Other circumstances must not influence hiring. Pursuant to the Gender Equality Act, the company has “a positive obligation, while promoting gender equality, to make the combination of work and family life more effective, and to also take the employee’s needs into account.” [41]

The aforementioned cases are understandable in light of why one of the petitioners approached the GER with the question of whether the compulsory fields on the CV applications submitted electronically through the job search portal that ask for the gender of the person, number of children, and family status are not gender discrimination. The GER found that in the given case, this is not gender discrimination, because male job applicants must also fill out the same fields and the given portal treats everyone equally, regardless of their gender, family status, or number of children. If the information entered in these fields affects the companies in their choices, then the discriminator is the company and not the job search portal.[42]

 

Wages

 The principle of gender equality in paying wages is separately established in the Wages Act, although this aspect of the work relationship is still problematic. The GER has noted:

“According to the principle of equal pay, different conditions for paying for the same or equal work may not be established due to gender … Work assignments and other conditions affecting payments [need not] be similar or identical … The equality of different jobs are assessed based on four criteria: (1) qualification, (2) work results, (3) work assignments (including responsibilities) and (4) work conditions.”[43] 

 In its summary of comments, the UN Committee for the Elimination of Discrimination against Women expressed its concern about the continued “differentiation between men and women in the labour market and the disparity in wages.”[44] The GER is of the same opinion.[45] These opinions are supported by statistics, in which the disparity in wages paid to men and women is apparent. The disparity also persists in a situation where the level of unemployment among men and women is equalised.[46]

The GER considers one of the most cases in its practice to be a petition that demonstrated that outwardly equal pay might turn out to be unequal when certain working conditions are established.[47] The case dealt with the compilation of a working schedule so that the female worker ended up with lower wages than her male colleagues because the latter were given more night work and overtime. Here too, as in a few of the job recruitment cases, the employer justified their activity with the desire to protect and help the workers, because the latter took care of a disabled child and sick husband. The employer knew that in such a situation, the agreement of the person is required for the assignment of night work or overtime. At the same time, the GER found that the employer did not actually ask for this agreement, but automatically assumed it would not be forthcoming. “The decision that the worker requires special protection is for the worker, not the employer, to decide. Otherwise, the employer’s knowledge about the person’s familial responsibilities hinders self-determination and limits the right to equal treatment.” Although a worker cannot demand overtime, if a need for overtime develops, she/he must be considered on an equal basis with her colleagues.[48]

 

Parental leave

 Parental leave has brought about many questions. In 2007, it turned out that the Public Service Act provides less protection to fathers on parental leave than the Employment Contracts Act, which prohibits the parent being dismissed from work. The equal provision is lacking from the Public Service Act.[49]

A mother on parental leave approached the GER with a complaint that in the case of acquiring professional qualification, parental leave is not equated with other forms of leave. As a result, the work experience of a parent on parental leave is interrupted and when returning from leave, he/she must restart the acquisition of experience, which puts her/him in a worse position when compared to others. According to the GER, the worse treatment of a person in connection with being a parent is considered gender discrimination based on the Gender Equality Act.

Termination of the work relationship

 In 2007, a separate question arose about the provision of the Employment Contracts Act, according to which the mothers of small children may terminate employment contracts at their own initiative under special conditions. The contract lacks an equivalent provision regarding fathers. The GER confirmed that this is a vestige and in reality, the provision expands to cover to both parents.[50]

Public life and politics

The same gender stereotypes also dominate in public and political life. The Estonian delegation to the CEDAW admitted that recent studies have shown that it is less likely that women will be elected in local and national elections. The media fixes the stereotype that has developed, and top female politicians continue to feel that their position is weaker compared to their male colleagues.[51]

At the same time, statistics confirm that the ratio of women in elections has increased and more women have been elected in the last few years than in previous elections.

There is a higher ratio of women than men who work at governmental agencies—women 62.9% versus men 37.1%. 55.1% of these women are higher officials, 64.8% senior officials, and 65.8% junior officials. That is why it is even more surprising that only three ministers are female, and only 24% of the Parliament of Estonia is female. There are not nearly enough women in leading positions in the Parliament of Estonia committees. The Estonian delegation to the CEDAW admitted that women should be given more encouragement to run for leading positions.[52]

In their review of activities, the GER stressed the important role of women in political life along with men:

“The balanced participation of the genders in politics makes the decision-making process more representative. The formation of one’s political identity, principles and value judgements consist of various components—urban or rural roots, social status, old or young, educational level and profession, experience as a family person or pensioner, entrepreneur or unemployed, etc.—which also includes experience as men and women. The more varied decision makers’ backgrounds are, the more these differences are taken into consideration in decision making and this diversity strengthens democracy. A democracy, or the execution of the people’s power by the people and for the people, must take the opinions of societal members into account and provide the possibility for everyone to be involved.”[53]   

 

Marriage and family life

According to the 2007 statistics as highlighted by the GER, gender stereotypes also pervade marriage and family life.[54]

In families where children have been born, a special role is played by parental benefits and other monetary benefits, which accompany the birth and rearing of children. Just as in how the Constitution requires the equality of the parents in respect to the rearing of children, there must also be equality in respect to the benefits that are paid to the parents. On 1 September 2007, an amendment to the Parental Benefits Act came into force, the goal of which was to make the regulation more equal concerning fathers. If previously, fathers did not develop the right to benefits until six months after the child’s birth, then now this develops 70 days after the child’s birth. A certain inequality was preserved based on the dominant understanding that from the viewpoint of a mother and child’s health, “close emotional contact is important” between them as well as the breastfeeding regime that develops during the first three months. However, the given law provides families with more possibilities for organising their lives.[55]

The topic of an infant’s childbirth allowance was treated by the Chancellor of Justice, although this only dealt directly with the childbirth allowance that is paid by the City of Tallinn.[56] At first, only a child’s mother could apply for this allowance. According to the city, the goal of this restriction was “to protect the child’s interests in the best possible way and to prevent a situation where fathers could satisfy only their rights in regards to the child, while not fulfilling their obligations to the child.” The Chancellor of Justice found that this violates the equality between spouses and parents based on the Constitution and the Family Act. “It is improper to assume that the child’s interests are only represented by the mother, while the father’s primary interest is only related to the acquisition of rights related to the child (such as the right to parental leave, allowances, etc.). Assuming that a person is acting in bad faith and justifying the creation of inequality, with this criterion it is not permissible in a democratic system of government.”

Based on the opinion of the Chancellor of Justice, Tallinn changed the procedure for paying allowances, so that both parents can now apply.

A separate question was raised by the concern of the CEDAW regarding the lack of regulation regarding unregistered cohabitation, whereby the rights of women may suffer.[57] The Estonian delegation confirmed that the Ministry of Justice is planning to regulate the ownership rights of people in these relationships.[58]

 

Educational life and hobby activities

Education is one of the most important topics covered by the discussion of the Estonian report at the CEDAW. The committee members were primarily interested in school textbooks and study materials, in respect to which the Minister of Education and Research issued a regulation in 2005, which required the elimination of stereotypes. In its summary, the CEDAW expressed its concern that this regulation has still not been implemented.[59] The CEDAW also recommended that Estonia pay more attention to the training of teaching personnel in issues related to gender equality, because they found that it would be most effective to promote gender equality through the educational system.[60]

The concern of the CEDAW seems to be very appropriate in light of the GER’s practices. The Representative’s attention was attracted by a case in which a secondary school organised entrance exams for three science-based classes, whereas two of them were reserved for boys and one for girls, regardless of their exam results.[61] A similar situation occurred with the “Boys’ Day” that was promoted by an institution, in which the invitation indicated, “the event is for all small and big boys”, where the “smaller boys could make matchbox cars and paper busses”. The GER’s attention was also directed towards a kindergarten that advertised diversified activities for children, whereas woodworking and wrestling was provided for the boys and rhythmic gymnastics for the girls.[62]

Undoubtedly, we are dealing with gender discrimination if girls are not allowed to learn or take part in activities since these are intended for boys and vice versa. Pursuant to §8 of the Gender Equality Act, “the discriminatory provision of work or training that is directed at only one gender is also prohibited.” Pursuant to §10 of the same law, “educational institutions must guarantee equal treatment for men and women (and also boys and girls) when obtaining an education”. In addition, they must also promote gender equality. The GER’s position is that, if one class or group unintentionally becomes gender-centred, then one should make sure that this situation does not foster the total exclusion of the other gender, if interest exists.[63]

Based on the petitions, the GER has treated the given issue in depth, and highlighted the short- and long-term consequences of such segregation:

“When teaching based on gender differences, one must keep in mind that the differences between men and women result, on the one hand, from biology, and on the other hand, from social structure.

 Biological gender includes biological differences, based on which human beings are differentiated into male and female individuals. Social gender means the traits and gender roles assigned to the male and female genders. Gender roles are a socially learned behaviour that determines which activities, jobs, and obligations are perceived as belonging to men and women. If biological gender is a constant trait, then gender roles change in time in connection with changing economic and political circumstances, as well as in connection with the social development of society. Therefore, the implementation of gender roles should not hinder free self-determination.

 It is very sad to instil the idea in children at an early age that there are activities that are, or are not, suitable for them, depending on whether they are boys or girls. Being forced into such roles inhibits the harmonious development of children. The task of education must be to ascertain every person’s individual abilities and skills (independent of gender) and the areas that he or she is interested in. …

 However, by reproducing the archaic gender roles in the teaching process, every educational system helps to preserve gender inequality in society. Although, according to the law, men and women have equal opportunities for acquiring education and studying various subjects, the choices of young people are actually much more limited due to the expectation placed on them due to gender. The result is gender segregation in vocational and higher education, and later on in the labour market. …

 [The result in turn is a situation in which we must]intensively search for capable male teachers even after twenty years, who would be able to make education and the provision of examples more balanced and diversified and who are missed even in kindergarten.”[64]

 The Estonian delegation confirmed for the discussion of the Estonian report in the CEDAW that new textbooks are being prepared that will pay more attention to the issue of gender.[65]In the written answer to the CEDAW’s questions, it was noted that the national curriculum for basic and secondary schools is being reworked. The chapters on human, environmental and social studies deal with prejudices and discrimination. An important part of the new curriculum is the training of teaching staff in the given topic.[66] At the same time, it was added that in March 2007, the Minister of Education and Research issued a regulation that prohibits stereotypes based on gender, nationality, culture, race, and other prejudices.[67]   

 In addition to general education schools, the CEDAW was also concerned about the universities, where the committee members felt the number of female faculty members was disproportionately small.[68]According to the information provided by the Estonian delegation, that number has increased, and instead of the 16% in 2003/2004, the percentage is now 17%.[69]

 

Miscellaneous

In addition to the aforementioned, in the GER’s practice, other questions have also arisen. A person approached the representative who wanted to know whether the practice of allowing women free admission into clubs, when men must pay, is gender discrimination. The GER found that this is actually gender discrimination, since night clubs are public spaces “which the public has the right to enter and receive equal treatment related to gender”. This is similar to the position taken in many other countries.[70]

The GER was also approached with the question of whether compulsory military service for men could be considered gender discrimination. The representative had to admit that according to the Gender Equality Act, this is not discrimination. This has also been confirmed by the Chancellor of Justice, who found that unequal treatment is based on good reasons and, therefore, is also not in violation of the Constitution.[71]

 

Discrimination based on nationality

Estonia is a small country, but over 100 nationalities live here, whether they are immigrants or those who have historically lived here. The national programme approved by the government entitled “Integration into Estonian Society 2000-2007” has concretised the concepts of “national minorities” and “ethnic minorities” based on historical origins:

“Since the concept of national minorities is applied in population studies to those national communities that have constantly lived in a given territory for a long time, then a differentiation should be made between the larger national communities that have traditionally lived in various regions of Estonia (in 1934, 92,600 Russian, 16,300 German, 7,600 Swedes, 5,400 Latvians, and 4,400 Jews) as national minorities and the representatives of those nationalities that came to live in Estonia as the result of post-WW II immigration as ethnic minorities.”[72]

 A separate societal group that has come to Estonia from elsewhere (from the European Union and third countries) who have lived in Estonia for less than three years are considered new immigrants.[73]

A National Minorities Cultural Autonomy Act is valid in Estonia, which was passed by the Parliament of Estonia on 12 June 1993, based on the right provided by §50 of the Constitution “to create self-government based on national cultural interests”. The National Minorities Cultural Autonomy Act defines the concept of “minority nationality” and gives the people included under this concept the right “to form cultural self-governments for realising the culture-related rights provided by the Constitution”.[74] It also narrows the circle of individuals who can form such governments, by giving this right only to people from the German, Russian, Swedish, and Jewish national minorities and to those that have over 3,000 members (§2 (2)).

Pursuant to §4 of the National Minorities Cultural Autonomy Act, the minority nationalities have the right to form and support national cultural and educational institutions and religious congregations; to create national organisations; to perform national traditions and religious customs, if they do not damage public order, health, or morality; to use their native language in conducting their affairs within the limits as established by the Language Act; to publish printed materials in their national languages; to conclude co-operation agreements between national cultural and educational institutions and religious congregations; to distribute and exchange information in their native language.

In 2007, the cultural self-government of the Estonian-Swedes was added to the cultural self-government of Ingerian Finns, which was established in 2004 and was the only one operating to date—the elections for the cultural council for the Swedish minority was held on 2-4 February 2007. Cultural self-government provides “ethno-cultural minority groups with legal status in its direct relations with the state and also the right to apply for support for their activities from the national budget.”

In addition, the situation of national minorities in Estonia is affected by the Council of Europe Framework Convention for the Protection of National Minorities that was passed in Strasbourg on 5 November 1992 and entered into force in Estonia on 1 February 1998. Since this is an international agreement, then pursuant to §3 and §123 of the Constitution, it is a part of the Estonian legal system and is placed higher than ordinary laws in the legal hierarchy.[75] Pursuant to the Framework Convention, Estonia is obligated to regularly submit reports on its fulfilment. To date, two reports have been submitted and the Advisory Committee on the Framework Convention has made recommendations to Estonia based thereon.[76]

The Advisory Committee on the Framework Convention for the Protection of National Minorities continues to criticise the National Minorities Cultural Autonomy Act and its implementation. In its second opinion regarding Estonia, the committee noted that “Estonia has made changes to the legislation related to national minorities in important areas of activity, but the legislation that has been compiled directly for national minorities has remained unchanged to a great extent. For instance, the National Minorities Cultural Autonomy Act has not been amended, although it is generally considered ineffective and impractical…”.

In addition, the committee recommended that Estonia review the definition of national minorities and “weigh the application of the Framework Convention to the people belonging to the remaining minorities, first of all to non-citizens.”[77] The Advisory Committee also recommended that “Estonia should continue making citizenship more accessible, by, among other things, exempting older applicants from the language requirement of the Citizenship Act [,] … to provide more free Estonian language instruction to people with limited financial means, who plan to take their citizenship exams or who want to improve their state language proficiency for other purposes that support integration.”[78]

In 2007, several proposals to amend the Citizenship Act were made, in which the simplification of the proceedings to acquire citizenship were suggested. All of the proposals made to the Parliament of Estonia to date have been rejected.[79] The Government of the Republic passed a regulation that, among other things, provided conditions for being exempted from the examination on the Citizenship Act and Constitution. However, the change is not based directly on belonging to a national minority, but rather the person’s state of health.[80]

In addition to the aforementioned, the Advisory Committee on the Framework Convention for the Protection of National Minorities noted the lack of an Equality of Treatment Act as an additional shortcoming.[81] In 2007, this law was actively processed based on pressure from European institutions, without arriving at the passage of the law. At the end of 2006 and the beginning of 2007, the European Commission sent two official letters, in which it refers to the fact that directives 2000/43/EC (29 June 2000) and 2000/78/EC (27 November 2000) that deal with the prohibition of discrimination in the workplace, have not been correctly adopted by Estonia. The purpose of the Equality of Treatment Act is the introduction of these directives into Estonian law. Since the official letter from the European Commission “marks the first formal step in the infringement proceedings pursuant to article 226 of the Treaty establishing the European Community” then, based thereon, the passage of the draft of the Equality of Treatment Act is extremely important. Despite the constant changes in the draft and the fact that the third version of this draft is being processed in 2008, it still has not been passed.

The UNESCO Convention on the Protection and Promotion of the Diversity of Cultural Expressions[82], which came into force in 2007, also deals with the situation of national minorities. The Ministry of Culture was assigned to be the monitoring institution in respect to the implementation of the Convention. In connection with the implementation of the Convention, the position of Deputy Secretary General for Cultural Diversity was created at the Ministry of Culture.

No important changes took place in 2007 in the regulations related to the rights of national minorities.

At the same time, the passage of the Estonian Public Broadcasting Act should be noted, which in §5(8) specifies that one of the assignments of the Estonian Public Broadcasting (EPB) is to broadcast programmes that “within the limits of the Estonian Public Broadcasting’s possibilities, correspond to the information needs of all population groups, including minorities.”[83] The EPB has one Russian-language radio station (Raadio 4) and one Russian-language news portal Novosti.

Support for the culture of national minorities

Support for the culture of national minorities continued primarily with financial resources. This is also noted in the report on the fulfilment of the Framework Convention for the Protection of National Minorities. Activities also continued to increase the involvement of national minorities and their organisations in decision-making processes.[84] However, the Advisory Committee on the Framework Convention for the Protection of National Minorities still emphasised that continual financing, which is not dependent on individual projects, is also important.[85] A positive example is the financing of the Sunday schools of national minorities, which the Ministry of Education and Research has financed since 2004 through the Integration Foundation. According to the Integration Foundation, Sunday schools of the national cultural societies of 14 different nationalities were registered in 2007.

The Advisory Committee on the Framework Convention for the Protection of National Minorities provided suggestions as to how to more effectively finance the organisations of national minorities. According to the Committee, all the materials related to the financing of projects, primarily those that “are related to the European Union financing plans for this area of activity”, should be made available to the national minorities in their native language. Here, the East-Viru and Lake Peipsi region were emphasised.[86]

The information directed towards the national cultural societies about the project competitions and informational days of the Integration Foundation are easily accessible to the societies. In addition, consultations related to enterprise are also available from the East-Viru County Enterprise Centre on an individual basis. The corresponding information from Enterprise Estonia is available on the Internet in both Estonian and Russian. Information about other funds is not as accessible to the Russian-speaking population in their native language. Information on governmental agencies is available in Russian on the Internet, although, due to insufficient publicity, the existence of this information is not generally known.

Educational opportunities for non-Estonian-speaking children in Estonia

Via international agreements (for example article 28 of the Convention on the Rights of the Child) and domestic legal instruments, Estonia has accepted the obligation to guarantee access to elementary education to all children that live in Estonia. This right and obligation is established by §37 of the Constitution and §8 of the Education Act.[87] Pursuant to the latter, education is compulsory for all children from the age of 7 until they acquire a basic education or become 17 years old. This obligation applies to all children that live in Estonia, regardless of their citizenship, except for the children of the representatives of foreign countries. This state obligation does not cause any problems if the child speaks sufficient Estonian or speaks Russian.

Estonia’s public educational institutions are currently in a transition phase, according to which the schools that have had Russian-language curriculum to date must adopt an Estonian-language curriculum. §52(2) of the Basic and Upper Secondary School Act[88] specifies that all public schools must start the transition to Estonian-language teaching as of 1 September 2007. The gradual transition was started based on the Development Plan for the General Education System for 2007-2013, according to which the process must be completed by 2012. Gradually, Estonian literature, social studies, geography, music, and Estonian history will start to be taught in Estonian. In addition to these five subjects, the school must choose two more subjects. The transition started with the teaching of one subject in Estonian, to which an additional subject is added during the subsequent academic year. It is possible to transfer to Estonian language instruction faster than the law demands, assuming that the school, students, and teachers are ready for this. For the most painless possible start for the process, and to increase the competitiveness of teachers that have taught based on a Russian-language curriculum under the conditions of an Estonian-language curriculum, numerous informational days, conferences and training programmes were carried out in 2007. These compulsory changes only affect public educational institutions and not private schools.

In the case of children that do not speak Estonian or Russian at a level that would allow them to participate in studies, the state itself has difficulties in fulfilling its obligations. A separate system should be created for these children that would enable a large part of the teaching to be translated into a language that they understand. In Estonia, this possibility exists only for two or three languages, due to both financial and human resources limitations.[89]

The topic of ethnic relations in research and through the eyes of outside observers

The events that broke out in April 2007, in connection with the removal of the Bronze Soldier, notably increased the attention paid to the ethnic relations situation in Estonia. Numerous studies were conducted and the international public expressed their interest.

In 2007, the Office of the Minister for Population and Ethnic Affairs ordered two sociological studies to be conducted, the principal topic of which was ethnic relations and integration after the April events. From May to June, Saar Poll and the researchers at the University of Tartu conducted a study entitled “Challenges of Ethnic Relations and Integration Policies after the Bronze Soldier Crisis” wherein 1,487 people aged 15 to 74 participated. At the same time, upon the order of the Minister for Population and Ethnic Affairs, the social scientists at Tallinn University conducted a study entitled “The Feasibility of the Integration of Estonian Society after the Bronze Night”.

The Estonian Human Development Report for 2007[90] also includes information about the ethnic relations in Estonia. The chapter devoted to the situation involving non-Estonians approaches these issues from the economic aspect and they arrive at the conclusion that, despite economic growth, the salary differences between Estonians and non-Estonians is becoming increasingly great. At the same time, the “glass ceiling” effect is appearing in the labour market, in which the position of non-Estonians is worse than that of Estonians with the same level of education, and they have fewer opportunities to find work in their field of specialisation. This in turn negatively affects the social status of non-Estonians and their self-esteem. Professor Marju Lauristin, who is the author of the chapter devoted to the situation of non-Estonians, has acknowledged that a large percentage of the Russian-speaking population has experienced discrimination. At the same time, Professor Lauristin notes that “if we start to dissect the situation in more detail, it turns out that it is not discrimination in the legal sense, although people perceive aversion, distrust, and the drawing of boundaries between “us” and “them” as discrimination.”[91]

In 2007:

 

At the international level, the situation in Estonia was under discussion in several organisations. In 2007, Estonia was visited by René van der Linden, the President of the Parliamentary Assembly of the Council of Europe (September 2007) and Human Rights Commissioner Thomas Hammarberg (June 2007) and UN Special Rapporteur on Racial Discrimination Doudou Diène (September 2007). All of them gave their assessment of integration to date and commented the April events. The international observers noted that Estonia’s politicians, society, and mass media appreciate the developed situation with sufficient seriousness and a sense of responsibility. For instance, Special Rapporteur on Racial Discrimination Doudou Diène, whose critical assessments during his visit to Estonia caused sharp feedback and commentaries in the media, acknowledged in his report on his visit to Estonia that positive changes are taking place in Estonia and noted the increasing tolerance in Estonian society.[92]

Discrimination based on sexual orientation

In 2007, significant progress was not made in respect to the protection of the right of LGBT persons. At the beginning of 2008, with the help of HRC experts and based on an order from the European Union Agency for Fundamental Rights, a legal study on the topic of homophobia and discrimination based on sexual orientation was carried out. From the results, it turned out that Estonian agencies do not pay enough attention to combating discrimination based on sexual orientation, and that both statistics and practices are inadequate, from which it can be concluded that sexual minorities do not feel sufficiently secure in Estonia to stand up in defence of their rights.

In respect to combating discrimination based on sexual orientation, Estonia still needs to take several steps in order to comply with the minimum European requirements related to human rights, including the European Union acquis. European Union Council Directive 2000/78/EC, which was supposed to be transposed at the latest by Estonia’s accession to the European Union (i.e. 1 May 2004), was still not totally implemented by the end of 2007. The draft of the Equality and Equal Treatment Act, which significantly improves the protection provided against discrimination based on sexual orientation and that was accepted by the Parliament of Estonia on 25 January 2007, still had not passed by the end of 2007 due to political dissension.

Marriages between people of the same sex are still not contracted in Estonia, and the recognition of same-sex marriages contracted in foreign countries is also doubtful.[93] The state also does not recognise the cohabitation between same-sex couples, and social and other guarantees that legally accompany marriage do not include them.[94] This also leads to possible problems with the implementation of the principle of the free movement of people in the European Union: the rights of same-sex couples that have legally registered their cohabitation in their country of origin are not recognised by the Estonian authorities. The implementation of the requirement provided by article 3(2) (b) of Council Directive 2004/38/EC to facilitate entry into EU member states and living in EU member states for the partners of persons “who have a constant and properly verified relationship with a citizen of the Union” by the Estonian legal system is doubtful.

In 2007, the issue of sexual orientation arose more broadly in connection with the organisation of the Gay Pride event. The organisers and Amnesty International were quite critical of the activities of the Estonian authorities in respect to the similar events in previous years that ended in violence, especially as related to the control of the homophobic counter demonstrators. In respect to the 2008 parade, the organisers of the event blamed both the city authorities as well as the police for placing bureaucratic barriers and refusing co-operation. In the recommendation that was sent to Police Prefect Raivo Kütti for the observation of legality and good administrative practices, the Chancellor of Justice found that, although the requirement to involve a security company was lawful, this could not have a legally binding effect on the granting of the permit for the organisation of the event.[95]

§151 of the Criminal Code also criminalises homophobic declarations:

“For activities that have publicly incited hatred, violence or discrimination in connection with nationality, race, skin colour, gender, language, heritage, religion, sexual orientation, political convictions or financial or social standing, if this has caused a threat to the life, health or property of a person, …”

 At the same time, the given provision regarding hatred, violence and discrimination related to sexual orientation has not been implemented in practice, which is why its effectiveness cannot be adequately assessed or the provision lacks any effect.

Problems related to transgender persons have not attracted attention or been dealt with in Estonia. The legal regulation dealing with the rights of transgender persons and changing gender are dispersed among several different laws and regulations, which is why these persons lack an overview of their rights and obligations.

In December 2007, the final report of the study entitled “The Unequal Treatment of GLBT Persons in Estonia”, was published by the research fellows of the University of Tartu Institute of Sociology and Social Policy and carried out upon an order from the Ministry of Social Affairs and support from the European Commission. Among other things, the study shows that unequal treatment appears at the state, society and individual level and that “contradictions occur in the laws: one law declares equal rights and the right of the equality of treatment, while other laws restrict these rights and even differentiate certain groups of people.”[96] In addition, it was found that GLBT people are themselves often not aware of their rights.

 

Proposals of the research fellows to the policymakers: