Merle Albrant

The prohibition of discrimination in Estonia is stated in the Constitution. In addition to that it is also regulated in a more specific manner in the Gender Equality Act[1] and the Equal Treatment Act[2]. Prohibition of discrimination is also stated in several other acts, for example the Employment Contracts Act, the Public Service Act and the Penal Code.

So far the characteristic feature of the Gender Equality Act and the Equal Treatment Act has been the lack of case law. The lack of practice is confirmed by absence of any cases in the court statistics database that would be based on the Gender Equality Act and the Equal Treatment Act. The criminal policy surveys “Crime in Estonia 2009” and “Survey of crime victims 2009” published by the Ministry of Justice in 2010 show that no cases based on Gender Equality Act and the Equal Treatment Act had been brought to court.

However, in 2010 the Administrative Chamber of the Supreme Court did pass a judgment concerning implementation of Equal Treatment Act (17 May 2010 judgment no. 3-3-1-13-10).[3] It was analysed in that particular case whether the administrative court would need to additionally apply Equal Treatment Act upon solving an alleged incident of discrimination in a service relationship, which is regulated by § 36¹(2) of Public Service Act. The Administrative Chamber of the Supreme Court found that the Trade Unions Act regulates unequal treatment of public servants and points out circumstances that are not considered unequal treatment. On the other hand, the Trade Unions Act does not regulate attributes, bases or principles of unequal treatment, nor does it create an integrated regulation for solving disputes of discrimination, but Equal Treatment Act does precisely that. The Chamber thus adopted a position respectively based on § 2(3) of the Equal Treatment Act in conjunction with § 36¹(2) of the Public Service Act that the public servant is to refrain from discriminating in vocational training, career counselling, in the course of enabling retraining or continuing education or in gathering practical work experience because of the fact that the public servant represents the interest of the workers or belongs to a workers’ union. This Supreme Court judgment is a positive step towards emergence of court practice based on the Equal Treatment Act. This judgment confirms that it is important to consider the Equal Treatment Act and the principles, traits and bases for equal treatment contained within, in addition to other acts.

The Chancellor of Justice has also detected unequal treatment in his practice. In 2010 the Chancellor of Justice gave an overview of his activities, pointing out the occurrence of unequal treatment in provision of housing services.

 “The partial absence of necessary regulations for provision of housing services in several local governments has proved to be a general problem. There may also be constitutional problems with dissimilar treatment of persons receiving the service, which is often hard to explain with a reasonable and relevant cause.”

§ 2(1) point 7 of the Equal Treatment Act states that discrimination of persons is prohibited on the grounds of nationality (ethnic origin), race or colour in relation to access to supply of goods and services available to the public including housing. Unfortunately, it isn’t stated in the overview of the Chancellor of Justice what the grounds for discrimination of these persons in relation to access to services were.

Age

Another issue of the publication by the Statistics Estonia titled “Social Trends” was published in 2010. The fifth issue of the publication concentrated on older people on the labour market. The survey counted on the probable retreat of the older workers from the labour market (retirement) which may have several outputs: reaching the retirement age, voluntary retreat from work before reaching the retirement age (incl. going on an early-retirement pension) and forced leave from work (also because of discrimination).

The survey of Statistics Estonia comes to the following conclusion:

 “The labour market position of older workers can be evaluated in two ways. High employment indicators, which prior to the arrival of retirement age (55–64 years) are comparable with those of the people in their prime working age and also exceed significantly (60%) the goals set in the Lisbon Strategy for the EU (50%), should be pointed out. On the other hand, workers in the age group 50–64 are undervalued by their employers. Economic and social restructuring in Estonia has resulted, among other things, in younger people achieving rather good positions on the labour market, since they were preferred to older workers. Transition to the market economy came with risen importance of human capital and education. However, employers considered the quality of education acquired at the end of the 1980s and at the beginning of the 1990s to be better than the one acquired earlier than that and a better position on the labour market was taken by younger persons who were preferred to older people. Lower labour force positions of older people can now be due to statistical discrimination characteristic of developed countries, and the employee motivation and productivity related prejudices. Results show that despite education, occupation, gender and ethnic nationality, age is a major influencing factor, when it comes to pay. Also, Estonians had better pay opportunities than non-Estonians and the males compared to females.”

The results of the analysis demonstrate the persistence of stereotypes about older employees that may cause discrimination of older employees in the labour market.

Equality in access to education[4]

The Praxis survey “Fair access to higher education in Estonia” was published in 2010. The experts who were interviewed stated that adults in Estonia do not have the opportunity for bringing their knowledge up to the necessary level in subjects that are prerequisite to studying in technical departments, if these subjects necessitate reminding knowledge from upper secondary school. This gives the upper secondary school graduates the advantage. Therefore, a certain group of people is not able to acquire a certain kind of education because the state has not created a measure to support it. Departments were pointed out that were clearly dominated by adults (humanitarian and social sciences subjects). Access to fields that state affords priority to, such as natural and exact sciences and technological, manufacturing and engineering fields seems to be harder for the adult student. This appears to be precisely because of the need to recall the knowledge acquired in the upper secondary school.

The survey also established that a young person’s belonging to a minority (cultural, ethnic, language etc) or the status of an immigrant also influences his or her equal access to higher education. A mere quarter of people belonging to Russian minority evaluate their opportunities for access to higher education equal to ethnic Estonians, mostly because of the language barrier. It stems from the analysis that young Russian persons are less likely to study on non-state budget places of public universities. Students of Russian ethnicity also evaluate the economic situation of their parents as somewhat lower than that of parents of students of Estonian ethnicity, which may partially influence educational choices for ethnic Russians of lower socio-economic status, especially when it comes to studying on non-state budget places. September 2010 issue of the publication of the Estonian Chamber of Disabled People titled “Sinuga” emphasised that everyone including people with disabilities should have access to education. Acquiring a higher education cannot and should not be obstructed by inaccessibility. Institutions of higher education have often failed to figure out an integrated system for allowing every student and employee to be a valuable member of the institution of higher education and to take part in all of the offered services – participate in work that takes place in lecture rooms, visit the library and move about freely in various buildings of the institution of higher education, sit exams and obtain attainable study materials.

Chair person of the board of Estonian Chamber of Disabled People, Monika Haukanõmm emphasised in her December 3rd, 2010 interview to the television news program “Aktuaalne kaamera” that one of the negative consequences of the economic depression is the increasingly obstructed availability of supporting services for persons with disabilities. The conference devoted to the International Day of People with Disabilities titled “Persons with disabilities today and in the future” discussed the problems of persons with disabilities and the fact that people with disabilities are waiting for the state to ratify the convention, which would obligate the society to fill the requirements of people with disabilities and help them with problem solving.

The Commissioner and the implementation of the Equal Treatment Act

A new Gender Equality and Equal Treatment Commissioner was installed in 2010. From 2005 to 2010 Margit Sarv had filled the post of Gender Equality and Equal Treatment Commissioner. The Minister of Social Affairs appointed Mari-Liis Sepper, who had previously worked as the adviser to the commissioner the new Gender Equality and Equal Treatment Commissioner.

The commissioner observes the implementation of the Equal Treatment Act and councils persons who suspect they have been discriminated against. In order to deliver an opinion, the commissioner has the right to receive comprehensive information (including information concerning earnings) from the persons involved to ascertain the circumstances of the discrimination case. The Labour Inspectorate which has the right to perform state supervision in certain areas (regulated by § 115 of the Employment Contracts Act) does not have the right to perform supervision in implementation of principles of equal treatment. This arrangement requires the alleged victim of a discrimination to be the one who becomes aware of the fact that s/he has been discriminated against and seek help for the protection of his or her rights. This, however, implies a high level of awareness of the people. The principle that a private person has to monitor whether he is being discriminated against in an employment relationship was confirmed by the Minister of Justice Rein Lang (the interpellation of February 7th, 2011 regarding working conditions):

 “I do not see the need or the legal possibility, within the current legal framework, to give the state more right to control legal relationships between private persons – there is adequate protection for the rights of the parties already. As long as the Reform Party is in the government, there will be no national bureaucracy obsessively checking whether a discriminating employment relationship is in effect somewhere. It is up to the private subjects to make sure the contracts are adhered to. If there is reason to believe discrimination is taking place, the opportunities for legal protection in Estonia are quite adequate.”

It can therefore be concluded from the speech of the Ministry of Justice that from his point of view the legal protection available to the victims of discrimination in Estonia is completely adequate. Unfortunately, it isn’t possible to contrast the standpoints of the victims to the statement of the Ministry of Justice as not one victim of discrimination has yet turned to the respective instances (including law enforcement authorities) for the protection of his or her rights. Therefore, there isn’t yet any court practice discussing cases including the Equal Treatment Act that could be relied on.

Information and awareness

On May 22nd, 2010 the European Commission partnership project event “Party on Wheels” (POW) took place. The commission was represented by an information campaign “For differences. Against discrimination.” at the whole family event on Tallinn Song Festival Grounds. The objective was to emphasise the equality of all citizens and increase awareness of citizens to notice potential discrimination cases. The event combining music, sport and art carried the message of advantages of a diverse society.

The Law School of the Tallinn University of Technology did its part in informing people of their fundamental and human rights by carrying out a project in 2010 that had the objective to increase awareness of Estonia’s society in matters of equal treatment and to fight against intolerance. In 2010 the focus lied on the fight against racism and homophobia, which saw several events take place, including the international conference “Diversity Enriches”. The role of the principle of equal treatment in Estonian legal system was discussed at the conference, as well as the question whether the Equal Treatment Act has brought about changes in everyday life or whether it has remained a set of rules without any practical effect adopted on the pressure of the European Union.

Reports on Estonia by international organisations

There are three relevant report-recommendations regarding the topic of prohibition of discrimination that have been passed on to Estonia by various international organisations. On March 2nd, 2010 the European Commission against Racism and Intolerance (ECRI) published a report on Estonia (fourth monitoring cycle), which described the situation up to July 3rd, 2009. The Estonian delegation presented the UN Human Rights Committee the third periodic report on Estonia on the measures undertaken to implement the provisions of the International Covenant on Civil and Political Rights in Geneva on July 12–13th, 2010. On August 4th, 2010 the UN Human Rights Committee (CCPR) published a consideration of reports submitted. In addition, on September 23rd the Committee on the Elimination of Racial Discrimination (CERD) published concluding observations based on Estonia’s ninth and tenth periodic report.

These organisations made several suggestions to Estonia.

  • ECRI suggested Estonia amended the Equal Treatment Act to include discrimination based on language and citizenship. Protection from discrimination based on religion and other beliefs should also be extended to access to social protection and education as well as the possibility to use public goods and services (ECRI).
  • It was advised to develop the independence of the Gender Equality and Equal Treatment Commissioner. The Commissioner should be allocated sufficient resources: financial resources as well as adequate employee resources in order to increase the efficiency of her function (ECRI, CCPR). It would be advisable to include legal and various other help to the victims in the jurisdiction of the commissioner (ECRI).
  • It was advised to employ measures to train judges, prosecutors, employers, employment agencies, officers and lawyers in order to acquaint them with the Equal Treatment Act and ensure it is implemented in practice in the full. The judges, prosecutors and police authorities should be trained to recognise racist motives in criminal offences. Police officers should be trained in human rights, including the right to be free from racism and racist discrimination, in order to fight against discrimination in police forces. Further steps should be taken to increase awareness of the Equal Treatment Act in public; also measures should be implemented that are specifically aimed at minorities (ECRI).
  • Data should be gathered for improvement of the situation of the minorities, a consistent and diverse data gathering system (regarding ethnicity, language, religion and citizenship) should be created. Potential double or multiple discrimination should be considered (ECRI, CERD).
  • The prejudice of the society must be fought to reduce racial discrimination and inciting hatred, this includes ensuring the right to go to court against those who incite hatred (including the media) according to § 151 of the Penal Code. At the moment incitement of hatred is punishable only in the case of substantial damage to the rights of the victim, if it results in danger to the person’s life, health or property. Therefore, the Penal Code does not have a punishment for inciting hatred irrespective of specific consequences. The Penal Code should be amended to qualify ordinary criminal offences based on racism as racist crimes. The Penal Code should have a clearly stated punishment for all racist crimes and a special provision prohibiting racist organisations (ECRI, CERD). Special attention should be paid to cyber crimes, racist and xenophobic acts via the internet should be criminalised (CERD).
  • Solving the problems of the Roma should be paid attention to. There are still stereotypes and prejudices in force about them, which the media sometimes enforces. The Roma are especially vulnerable to discrimination in employment. The children of the Roma have been sent to special schools even when there has been no objective reason for it. The Roma children without disabilities should be removed from special schools and it should be ensure that such unfounded placements will not occur in the future (ECRI, CERD).

Summary

Equal treatment and discrimination are being discussed more and more in the society. As the Estonian legal system requires the individuals to be highly aware of their rights, it is essential to inform people of their fundamental rights and specifically of the right not to be discriminated against. The individuals need to know that discrimination is any such activity, which results in one person being treated worse because of the attributes of the person. Such attributes may be the colour of their skin, race, age, disability, gender, political convictions, creed or sexual orientation.

As there is no national court practice regarding discrimination, it is impossible to make any conclusions about implementation of the Equal Treatment Act in the courts. The absence of court practice may refer to victims’ low level of awareness of their rights, the fear of retribution, the lack of trust for the police and the legal system or the low level of attention of the authorities for discrimination cases.

Recommendations

  • Greater attention should be paid to increasing people’s awareness (including those belonging to minorities) not to be discriminated against and to presenting the Equal Treatment Act. Special training on the implementation of the Equal Treatment Act should also be given judges, prosecutors, employers, officials and lawyers.
  • The activity of the Gender Equality and Equal Treatment Commissioner should be supported in every way, especially financially, and the restriction of the commissioner’s activity by tightening the resources must be stopped.
  • Prejudices regarding minorities prevalent in the society should be addressed. People should be ensured the right to turn to court against those who incite hatred, including the media. The punishment for incitement of hatred should not be contingent on the consequences on the person’s life.

[1] Gender Equality Act. RT I 2004, 27, 181 … RT I 2009, 48, 323.

[2] Equal Treatment Act. RT I 2008, 56, 315 … RT I 2009, 48, 323.

[3] Administrative Chamber of the Supreme Court judgment in administrative case 3-3-1-13-10 (17.05.2010).

[4] See also chapter 10 on right to education and chapter 12 (Integration and ethnic cohesion in the Estonian society).

Cart
  • No products in the cart.