Compliance and enforcement aspects (horizontal provisions of all directives)

• Author: Anu Laas
• Pages: 73-81

73

11 Compliance and enforcement aspects (horizontal provisions of all

directives)

11.1 General (legal) context

11.1.1 Surveys and reports about the particular difficulties related to obtaining legal

redress

Legal studies from a gender equality perspective are scarce in Estonia.

Naaber (2014) has considered whether there is an opportunity in the Estonian legal system

for the employee to claim for effective, proportionate and dissuasive damages when

his/her rights have been violated based on his/her sex.208 Naaber found that in Estonian

case law, the court has a power to follow rules set by Article 18 of the Directive

2006/54/EC. Imposing compensation that has a dissuasive effect should be an inseparable

part of non-pecuniary damage in sex discrimination disputes. The law does not state the

scope of this type of compensation. Dissuasion is accomplished only when the means of

remedy are suitable for the employee and they have a dissuasive effect on the employer.

Article 13(2) of the Gender Equality Act and Article 134(6) of the Law of Obligations Act

allow the court to award the employee who has been discriminated against in accordance

to Directive 2006/54/EC Article 18, compensation that is efficient, proportional and

dissuasive for the offender. Naaber concludes that awarding dissuasive compensation

should be a rule, not an exception.

11.1.2 Other issues related to the pursuit of a discrimination claim

Judges have access to training and an obligation to undertake it, but gender issues are

not taught. Jud ges have a high workloa d. The term ‘gender’ is missing from the Code of

Civil Procedure (CCP).209 However, Article 7 stipulates that the administration of justice

must take place on the basis of equality (‘the parties and other persons are equal before

the law and the court’), which means that during either a civil or criminal trial, both sides

have legally equal access to the court and neither side should be procedurally

disadvantaged. If the power and resources of one party gives them an advantage, the

court is obliged to take that into account in order to avoid the advantage —although

without removing it. When making decisions about child custody rights between parents

in domestic violence cases, the context should be taken into account given that the parties

are not equal in terms of the power that they have.

11.1.3 Political and societal debate and pending legislative proposals

Political and societal debate on gender is almost entirely absent. There are no legislative

proposals regarding gender discrimination and access to justice.

Prejudices and stereotyping might affect the right to a fair trial and should be avoided.

Some media debates encourage prejudices and gender stereotypes, which might lead to

unfair judgments.

11.2 Victimisation

The GEA provides a general protection against victimisation. Article 5(1.1) of the GEA

stipulates that ‘adverse treatment of a person, as well as causing negative consequences

for that person due to the fact that that person has relied on the rights and obligations

208 Naaber, H. (2014), Tõhus, proportsionaalne ja tõrjuv kahjuhüvitis soolise diskrimineerimise keelu rikkumise

korral töösuhtes (Effective, proportional and dissuasive compensation when violating prohibition of

discrimination in labor relations), masters thesis, Univesity of Tartu. Summary in English available at:

https://dspace.ut.ee/bitstream/handle/10062/43005/naaber_ma_2014.pdf?sequence=1&isAllowed=y.

209 Code of Civil Procedure, https://www.riigiteataja.ee/en/eli/512042019002/consolide.