General legal framework

• Author: Kamenska, Anhelita
• Pages: 16-18

16

1 GENERAL LEGAL FRAMEWORK

Constitutional provisio ns on protection agai nst discrimination and t he

promotion of equality

Article 91 of the Satversme (the Latvian Constitution) deals with non-discrimination.

The principle of non-discrimination is enshrined in Article 91, which provides that ‘All

persons in Latvia shall be equal before the law and the courts. Human rights shall be

observed without discrimination of any kind’. It refers to ‘discrimination of any kind’

without specifying the grounds. In preparing the Chapter on Fundamental Rights in 1998,

the Latvian legislator initially considered including 12 prohibited discrimination grounds

(race, sex, ethnic origin, language, age, religion or belief, political opinion, membership

of a party, position of public service, property, social status and other circumstances).

There was no support for the explicit inclusion of sexual orientation among the prohibit ed

discrimination grounds. Hence, the decision was taken not to list any grounds, leaving

the matter for the interpretation of the courts.62

According to the legal doctrine, the catalogue of prohibited grounds should not be

narrower than the catalogue in the Charter of Fundamental Rights of the European Union.

Article 21 of the Chart er lists sex, race, colou r, ethnic or social orig in, genetic features,

language, religion or belief, political or any other opinion, membership of a national

minority, property, birth, disability, age or sexual orientation. Hence, the catalogue of

included prohibited grounds should be understood as comprising all grounds in the initial

historical version and the additional grounds contained in the EU Charter of Fundamental

Rights.63

As the Constitution stands highest in the hierarchy of legal norms, this permits an

argument that a non-exhaustive list of grounds also applies in the cases of la ws that only

contain an exhaustive list of grounds in their non-discrimination clauses,64 although in

practice this would inevitably complicate matters by requiring weighty arguments to

counter the inclusion of the ‘one is the exclusion of another’ argument.

The right to non-discrimination in the Constitution is also an autonomous right that may

apply to any area regulated and protected by the state.

In addition to the non-discrimination clause in Article 91, Article 89 of the Constitution

states that ‘the state shall recognise and protect fundamental human rights in

accordance with this Constitution, laws and international agreements binding upon

Latvia’.

While this recognises the bindi ng force of international treaties with out giving express

indication as to the pla ce of international treaties in the hierarchy of norms, the

Constitutional Court has adopted the doctrine that the norms of the Constitution have to

62 In an employment case in 2003, when the Labour Law did not include sexual orientation explicitly (it was

included in 2006), the court referred to the constitutional non-disc rimination clause – which contains no

listing of grounds – to infer that the Labour Law prohibits differential treatm ent based on sexual orientation.

Ziemeu District Court, Riga, Case No. C32242904047505, 25.05.2005. The case concerned a gay man who

applied for a teacher’s post in a secondary school.

63 Levits, E. (2016), 91. ‘Visi cilvki Latvij ir vienld zgi likuma un tiesas priekš. Cilv ka tiesbas tiek stenotas

bez jebkdas diskrimincijas’, Latvijas Repub likas Satversmes komentri. VII nodaa. Cilvka pamatties bas,

available at: http://blogi.lu.lv/tzpi/files/2016 /07/91_PANTS.pdf pp. 98-104.

64 For example, while Article 3 of the Education Law only guarantees equal rights to receive educatio n to

citizens of Latvia, Latvian non-citizens and citizens of the EU Member States regardless of ‘property and

social status, race, ethnicity, gender , religious or political opinions, health condition, occupation and place of

residence’, not mentioning, for example, sexual orientation or age, by referr ing to Article 91 of the

Constitution it is possible to regard these grounds as non-exhaustive.