Observation (CEACR) - adoptée 2023, publiée 112ème session CIT (2024)

Convention (n° 111) concernant la discrimination (emploi et profession), 1958 - Lettonie (Ratification: 1992)

Autre commentaire sur C111

Observation

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Article 1(2) of the Convention. Discrimination on the basis of national extraction. Inherent requirements of the job. The Committee recalls that, for many years, it has been expressing concern at the discriminatory impact that the language requirements set out in the Law on State Language of 1999 may have on the employment or occupational opportunities of minority groups, in particular the large Russian-speaking minority. Section 6(2) of the Law provides that employees of private institutions, organizations and enterprises, and self-employed persons, shall use the official language if their activities affect the “lawful interests of the public”. The Committee observed that this requirement affects a large number of posts and occupations (public security, health, morality, health care, protection of consumer rights and employment rights, safety in the workplace and supervision of public administration). Consequently, the Committee requested the Government to consider drawing up a list of occupations for which the use of the official language is required under section 6(2) of the Law on State Language, so as to limit it to cases where language is an inherent requirement of the job. It notes with regret the absence of information in the report of the Government on measures taken to limit the list of occupations for which the use of the official language is required under the Law. The Committee notes that, in the 2020 survey published by the Ombudsman entitled, ‘On the prevalence of discrimination in employment: comparative report 2011 and 2020’, it was found that Russian speakers participating in the study stressed ethnic origin and language proficiency more frequently than other respondents as the most widespread ground of discrimination in employment. It also takes note of: (1) the Constitutional court cases from 2019 and 2020 which found the Law on State Language to be constitutional; (2) the detailed information provided by the Government on the various Latvian language learning programmes and courses provided to children and adults by some municipalities, the State Employment Agency and the Latvian Language Agency (LLA); and (3) the Government plans to provide schools, affected by the reform, with a wide range of support measures aimed at improving Latvian language skills, including through extra training for 4,040 pedagogical staff from 2022 to 2026; professional development courses and master classes for teachers on successful inclusion; tailor-made supporting materials for minority students; and digitization of materials for teaching Latvian as second language. The Committee further notes that the LLA will continue to provide freely available materials of methodology for teaching Latvian as a second or foreign language and implements various support measures for educational institutions, and that a learning and teaching Latvian resource page is now available online. Finally, it notes that Language acquisition courses for different audiences and methodology courses for teachers are organized every year. The Committee again wishes to underline that discrimination based on national extraction can occur when legislation, imposing a state language for employment in public and private sector activities, is interpreted and implemented too broadly and disproportionately and adversely affects the employment and occupational opportunities of minority language groups. It wishes to recall once again that, to come within the scope of the exception provided for in Article 1(2) of the Convention, any limitation regarding access to employment must be required by the characteristics of the particular job, and in proportion to its inherent requirements (2012 General Survey on the fundamental Conventions, paragraphs 764 and 827–831). The Committee urges once again the Government to take the necessary steps to avoid any undue limitation on employment and occupational opportunities for any group by limiting the number of occupations in which proficiency in Latvian is considered to be an inherent requirement of the job. It further asks the Government to continue providing information on activities carried out to ensure that its national legislation regarding the language of instruction does not create in practice direct or indirect discrimination in access to education and employment for minority groups, in particular the large Russian-speaking minority.

Articles 1(2) and 4. Discrimination on the basis of political opinion. Inherent requirements of the job. Activities prejudicial to the security of the State. For many years, the Committee has been referring to the mandatory requirements set out in the Law on the State Civil Service of 2000, which provides that, in order to qualify as a candidate for any civil service position, the person concerned may not be or have been “in a permanent staff position, in the state security service, intelligence or counterintelligence service of the Union of Socialist Soviet Republics (USSR), the Latvian Soviet Socialist Republic (SSR) or some foreign State” (section 7(8)), or “a member of organizations banned by laws or court rulings” (section 7(9)). The Committee has been drawing the Government’s attention to the fact that the Law applies to any state civil service position and to employment by specified services irrespective of the level of responsibility, and has requested the Government to amend section 7(8) and (9) of the Law or to take steps to clearly stipulate and define the functions to which these provisions apply. The Committee recalls the Government’s repeated statement that the purpose of such restrictions is to prevent persons from entering the public service who are not loyal to the State and who could constitute a threat to national security. It recalls the 2019 Ministry of Justice report on the necessity and appropriateness of the restrictions imposed by the Law on the State Civil Service on former employees of the Latvian SSR National Security Committee, which acknowledged that, while such restrictions should be maintained in order to “ensure a loyal, professional and politically neutral State civil service”, it would be more appropriate for a democratic country to assess the individual circumstances in each case and adopt a decision based on such assessment of the degree of past cooperation, the nature of the work, etc. The Committee notes the Government’s indication that the Ministry of Justice will be making another assessment report next year and that there are no plans now to amend this section given the current national security matters. The Committee notes the Government’s continued indication that data regarding the application of section 7(8) and (9) of the State Civil Service Law is not available and that no information is available about relevant cases when an application has been rejected pursuant to this section. The Committee takes note of the Government’s understandable concerns over state security and would like to again draw its attention to the fact that the Law applies to any state civil service position irrespective of the level of responsibility. It again recalls that, to come under the scope of the exception provided for in Article 1(2) of the Convention, any limitation regarding access to employment should be interpreted strictly in order to avoid any undue limitations on the protection which the Convention seeks to guarantee. It adds that criteria such as political opinion may be considered as an inherent requirement, under Article 1(2) of the Convention, only for certain posts involving special responsibilities directly concerned with developing government policy. Moreover, for measures not to be discriminatory under Article 4 of the Convention, they must: (1) affect an individual on account of activities he or she is justifiably suspected or proven to have undertaken, and that such measures become discriminatory when taken simply by reason of membership of a particular group or community; (2) refer to activities qualifiable as prejudicial to the security of the State; and (3) be sufficiently well defined and precise to ensure that they do not become instruments of discrimination on the basis of political opinion. In addition to these substantive conditions, the legitimate application of this exception must respect the right of the person affected by the measures to appeal to a competent body established in accordance with national practice (2012 General Survey on the fundamental Conventions, paragraphs 832–835). The Committee once again reiterates its request to the Government to take the necessary steps to amend section 7(8) and (9) of the Law on the State Civil Service to limit their scope of application to specific functions and positions in the State civil service, in conformity with the provisions of the Convention. It further requests the Government; (i) to provide information on any progress made in that regard and the findings of the next Ministry of Justice report on the necessity and appropriateness of the restrictions imposed by the Law on the State Civil Service on former employees of the Latvian SSR National Security Committee; and, in the meantime, (ii) to consider taking steps to collect data on the application of section 7(8) and (9) in practice, including on the number of persons whose applications have been rejected pursuant to this section, the reasons for these decisions and the functions concerned, as well as any appeals lodged against such decisions.

The Committee is raising other matters in a request addressed directly to the Government.