Observación (CEACR) - Adopción: 2001, Publicación: 90ª reunión CIT (2002)

The Committee notes the report of the Government and the replies provided to several points raised by the Committee of Experts in its previous comments.

1. Discrimination on the ground of national extraction. In its previous comments the Committee had expressed concern that some of the provisions of the 1999 State Language Act might have a discriminatory effect on the employment or work of the large Russian-speaking minority in the country. It had asked the Government to take into account its comments in the drafting of a new Act. The Committee notes that the State Language Act entered into force on 1 September 2000. It notes that some of the provisions of concern to the Committee had been revised while others had not.

2. The Committee recalls that the establishment of Latvian as the official state language and the regulation of its use do not, per se, contravene the Convention. However, language restrictions that are intended to, or in fact operate to, deprive ethnic minority groups of equality of opportunity and treatment in respect of their employment and occupation without being related to the inherent requirements of a particular job would constitute discrimination on the ground of national extraction under the Convention. The Committee notes that article 114 of the Constitution provides that persons belonging to ethnic minorities have the right to preserve and develop their language and their ethnic and cultural identity, and under article 91 human rights shall be realized without discrimination of any kind. Moreover, section 1 of the Labour Code provides equal rights in legal employment relations regardless of sex, race, colour, age, religious, political or other persuasion, national or social origin, or material situation.

3. The Committee notes that section 2(2) of the State Language Act provides that the use of language in private institutions, organizations and enterprises (or companies) and the use of language with regard to self-employed persons shall be regulated in cases when their activities concern legitimate public interests. The Committee notes the additional element added to section 2(2) of the Act, providing that the use of language in private bodies shall be regulated to the extent that the restriction applied to ensure legitimate public interests is balanced with the rights and interests of private institutions, organizations, enterprises (or companies). Legitimate public interest is broadly defined as including public safety, health, morals, health care, protection of consumer rights and labour rights, workplace safety and public administrative supervision. Section 6(3) provides that employees of private institutions, organizations and enterprises (or companies), as well as self-employed persons who, as required by law or other normative acts, perform certain public functions must know and use the state language to the extent necessary for the performance of their functions. Section 8(2) provides that employees of private institutions, organizations, enterprises (or companies), as well as self-employed persons, shall use the state language in record-keeping and documents if their activities relate to legitimate public interests. Section 8(3) states that private institutions, organizations and enterprises (or companies), as well as self-employed persons who perform public functions as required by law or other normative acts shall use the state language in record-keeping and documents which are required for performing their functions.

4. The Committee notes that the new State Language Act retains a very broad definition of public interest. The Committee understands that the Government has enacted several regulations under the State Language Act and it requests the Government to supply in its next report the texts of the regulations, as well as detailed information on the Act’s practical application, including criteria used to determine legitimate public interest, administrative and judicial procedural protections and sanctions imposed for violations of the Act. The Committee is particularly interested in the impact of the Act on Latvia’s ethnic and linguistic minority groups in respect of their employment and occupational opportunities, including the number of persons who may have lost their jobs or income due to the implementation of the Act. The Committee also requests the Government to provide clarification as to the meaning of "the rights and interests of private institutions, organizations and enterprises (companies)" as set out in section 2(2) of the State Language Act.

5. Discrimination on the ground of political opinion. The Committee notes that one of the mandatory requirements established by the 2000 State Civil Service Act in order to qualify as a candidate for a position in the civil service is that the person concerned "is not or has not been in a permanent staff position in the state security service, intelligence or counter-intelligence service of the USSR, the Latvian SSR or some foreign State" (section 7(8)). A similar provision is found in the Act on Police of 1999, stating that "the police shall not employ a person who is or has been a permanent or temporary staff employee of the security service (intelligence or counter-intelligence service) of the USSR, Latvian SSR or some foreign State; an agent, a resident or keeper of safe house (under any form of cover organization)" (section 28, fourth sentence) on the basis of employment in security forces of the former political regime.

6. The Committee recalls that requirements of a political nature can be set for a particular job, but to ensure that they are not contrary to the Convention, they should be limited to the characteristics of a particular post and be in proportion to its labour requirements. The Committee notes that the above established exclusions by the provisions under examination apply broadly to the entire civil service and police rather than to specific jobs, functions or tasks. The Committee is concerned that these provisions appear to go beyond justifiable exclusions in respect of a particular job based on its inherent requirements as provided for under Article 1(2) of the Convention. The Committee recalls that for measures not to be deemed discriminatory under Article 4, they must be measures affecting an individual on account of activities he or she is justifiably suspected or proven to be engaged in which are prejudicial to the security of the State. Article 4 of the Convention does not exclude from the definition of discrimination measures taken by reason of membership of a particular group or community. The Committee also notes that in cases where persons are deemed to be justifiably suspected of or engaged in activities prejudicial to the security of the State, the individual concerned shall have the right to appeal to a competent body in accordance with national practice.

7. In the light of the above, the Committee considers the exclusions from being a candidate for any civil service position and from being employed by the police are not sufficiently well defined and delimited to ensure that they do not become discrimination in employment and occupation based on political opinion. The Committee hopes the Government will revise the provisions concerned, and, in doing so, will have recourse to the indications provided by the Committee in its General Survey on equality in employment and occupation of 1988, in particular paragraphs 126, and 135 to 137, and of paragraphs 192 to 202 of the Special Survey of 1996. The Government is further requested to provide detailed information in its next report on the application of the provisions, including the number of persons and their levels who have been dismissed or excluded from being a candidate for a civil service position based on section 7(8) of the State Civil Service Act and from being employed by the police based on section 28 of the Act on Police. Please also indicate the procedural protections of appellate review available to affected persons, the criteria used for determining the basis of exclusion or dismissal and any administrative or judicial decisions relevant to the application of these provisions. Please also supply information on whether the conformity of this Act with the Constitution or with the Convention has been challenged before the Constitutional Court.

The Committee is addressing a request directly to the Government on other points.