■ President Vaira Viķe-Freiberga

This is an “unofficial” translation of the letter sent by the President of Latvia to the Latvian Parliament on  June 21, 2006.  Translation courtesy Katrîna Ðvarca and Juris Lavrikovs

RIGA, June 21, 2006  –  Today the President of Latvia, Vaira Vîíe-Freiberga, sent a letter to Ingrîda Ûdre, chair of the Latvian Saeima (Parliament), asking the Saeima to re-consider its recently passed “Amendment to the Law Law.” In her letter the president wrote:

“This year on 15 June the Saeima passed the law ‘Amendment to the Labour Law.’  After considering this bill in its third reading, the Saeima approved a measure to remove discrimination on the grounds of sexual orientation from the list of banned forms of discrimination.  This decision was justified on the basis of Article 91 of the Constitution, which bans discrimination in general, as well as Articles 7 and 29 of the Labour Law, which bans any form of discrimination not covered by other laws.  Apparently members of Parliament interpreted the latter as including discrimination on the grounds of sexual orientation.

I wish to bring some clarity to this matter and separate the discussion about the defence of traditional family values from the discussion about a person’s right to form legal employment relations.  The Labour Law specifically addresses a person’s right to freely choose a form and place of employment based on his/her abilities and qualifications, which is protected by Article 106 of the Constitution of the Republic of Latvia.  A person’s right to work must not be linked to a person’s private life, which, in turn, is protected by Article 96 of the Constitution.

Allow me to remind the members that during Latvia’s pre-accession negotiations with the European Union (henceforth – EU), as well as during the process of transposing EU directives, no objections were raised to recognising discrimination on the grounds of sexual orientation as a form of discrimination.  The executive branch has not objected to including a ban on this form of discrimination in national legislation.  Therefore, it is clear that Latvia is legally bound to implement Directive 2000/78/EK⁽¹⁾.  Considering the aforementioned, as well as the fact that banning discrimination on the grounds of sexual orientation would protect persons with a traditional sexual orientation as well as homosexuals, I consider it logical to identify this form of discrimination along with those already stated in the law, namely, discrimination on the grounds of race, colour, gender, age, disability, religion, political belief, nationality, class, wealth or family status.

Furthermore, both Latvia’s obligations as an EU member-state and the European Community’s legal precedent regarding the proper national harmonisation of the discrimination aspect of Directive 2000/78/EK indicate that “the requirements of the directive must be implemented precisely and clearly, so as not to endanger legal clarity.”⁽²⁾

While some of the nation’s representatives express the opinion that Latvia has the right not to include in national legislation some of the forms of discrimination identified in Directive 2000/78/EK and recognised in the EU context⁽³⁾, nonetheless I wish to point out that in the EU policy document the “Green Book,” the chapter on the obligations of new member states in the transposition of directives⁽⁴⁾ states that member states must transpose all bans on discrimination.  This is confirmed also by Barbara Nolan, director of the Discrimination Unit of the European Commission’s Directorate General for Employment and Social Affairs, in her interview on the Latvian internet portal ‘politika.lv’:  ‘We have certain problems in connection with Latvia; firstly, sexual orientation is not directly mentioned in the laws as a basis for banning discrimination.  The Commission maintains that every potential basis for discrimination must be specifically identified, and it is not sufficient to say that discrimination is banned on the basis of “other circumstance.”⁽⁵⁾

Moreover, the European Commission, which plays an important role in enforcing the implementation of Directive 2000/78/EK, has already alerted Latvia to the insufficient transposition of the requirements of that directive, that is, to the abovementioned fact that sexual orientation is not directly identified in Latvia’s laws as a basis for potentially banning discrimination.  This is also confirmed in the abovementioned legal precedent of the European Community.  In case C-187/98 (Commission v. Greece)⁽⁶⁾, the court has indicated that “national constitutional provisions, even if they are directly applicable, do not provide appropriate transposition of the directive’s requirements, since the principles  of legal coherence and protection of individuals require unified formulation”.

For all of these reasons, in my opinion the question of the effective protection of human rights remains open.  It is generally accepted that the protection of human rights is guaranteed by incorporating principles defined in international law and national constitutions into specific and directly implementable laws, such as the Labour Law is in the sphere of labour rights.  What EU member states may decide independently and in keeping with their own legal traditions is whether to implement the requirements of Directive 2000/78/EK by passing a special law, as Austria, Denmark, Ireland, Sweden, the Netherlands, Italy, Great Britain, Finland and Spain have done⁽⁷⁾, or to include the ban on discrimination on the grounds of sexual orientation in general laws regulating labour relations, as for example our neighbours Estonia⁽⁸⁾ and Lithuania⁽⁹⁾ have done.

Of course, as President I am pleased that the Latvian court, in hearing its first case on unequal treatment on the grounds of sexual orientation⁽¹⁰⁾,  has already succeeded in essentially applying the norms of the Labour Law.  However, given the literal approach to legal interpretation, inherited from the Soviet period, that still frequently characterises our legal system, and given the fact that implementation of the law begins at the level of relations between employer and employee, who do not always have the appropriate legal education and information about international legal precedent in matters of discrimination, I believe it is essential to clearly and unambiguously transpose the requirements of Directive 2000/78/EK and identify in national legislation the forms of banned discrimination included therein.

Considering all the abovementioned and based on Article 71 of the Constitution of the Republic of Latvia, I am returning to the Saeima the law ‘Amendment to the Labour Law,’ passed on June 15.”

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NOTES

1. European Council Directive 2000/78/EK (27 November 2000), which establishes a joint system for equal treatment in employment and profession.

2. Case C-159/99 Commission v. Italy (17 May 2001); case C-415/01 Commission v. Belgium (27 February 2003), et al.

3. Article 21 of the European Charter on Fundamental Rights

4. See the section on social employment of the official website of he European Commission,  http://ec.europa.eu

5. http://www.politika.lv

6. Case C-187/98, Commission v. Greece (28 October 1999).

7. Information provided by the Ministry of Welfare.

8. Article 10.3 of the Estonian Labour Law.

9. Article 2.4 and Article 129.3.4 of the Lithuanian Labour Code.

10.City of Riga Ziemeïu district court, ruling in case C32242904, CA – 1096/2, M. Sants v. Rîga Cultural High School.

LINK

President's Letter to Parliament in its original Latvian.