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Suggestions and Examples for Ombudsman Institutions „Handling Cases of Discrimination“
Dr. Patricia HeindlOffice of the Austrian Ombudsman Board
Contents Introduction Int.& Europ. Anti-Discrimination Documents What is discrimination? How can we investigate discrimination? What are our organisational needs? How can we finalise cases of
discrimination? Final Remarks
Introduction
Ombudsman Institutions and Human Rights
Equality and Anti-Discrimination as Central to all Human Rights
Aim of study
Yardsticks of Control
National Constitutional Standards European Standards
Council of Europe International Standards
United Nations
Ratification of International and European Anti-Discrimination DocumentsStates UDHR ICCPR Opt.
Prot.ICESCR CERD CEDAW Opt.
Prot.CRC ECHR Prot.
12
Armenia R R R R R R R R R
Azerbaijan R R R R R R R R R S
Bulgaria R R R R R R S R R
Georgia R R R R R R R R R R
Kazakhstan R S S R R R R
Kyrgyzstan R R R R R R R R
Moldova R R R R R R R S
Russia R R R R R R R R R S
Slovakia R R R R R R R R R S
Ukraine R R R R R R R R R S
Uzbekistan R R R R R R R
Universal Declaration of Human Rights Article 2
„Everyone is entitled to all the rights and freedoms set fourth in this Declaration, without disctinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, prperty, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty.“
Universal Declaration of Human Rights
Article 7„All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination.“
UN-Covenant on Civil and Political Rights (ICCPR) Article 26
„All persons are equal before the law and are entitled without any discrimination to the equal protection of the law. In this respect, the law shall prohibit any discrimination and guarantee to all persons equal and effective protection against discrimination on any ground such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.“
UN-Covenant on Economic, Social, and Cultural Rights (ICESCR)
Article 2 (2)„The State Parties to the present Covenant undertake to guarantee that the rights enunciated in the present Covenant will be exercised without discrimination of any kind as to race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.“
UN-Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Article 1 (1)
„In this Convention, the term ‚racial discrimination‘ shall mean any distinction, exclusion, restriction or preference based on race, color, descent, or national or ethnic origin which has the purpose or effect of nullifying or impairing the recognition, enjoyment or exercise, on an equal footing, of human rights and fundamental freedoms in the political, economic, social, cultural or any other field of public life.“
UN-Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Article 1 (4)
„Special measures taken for the sole purpose of securing adequate advancement of certain racial or ethnic groups or individuals requiring such protection as may be necessary in order to ensure such groups or individuals equal enjoyment or exercise of human rights and fundamental freedoms shall not be deemed racial discrimination, provided, however, that such measures do not, as a consequence, lead to the maintenance of separate rights for different racial groups and that they shall not be continued after the objectives for which they were taken have been achieved.“
UN-Convention on the Elimination of All Forms of Racial Discrimination (ICERD) Article 2 (2)
„State parties shall, when the circumstances so warrant, take in the social, economic, cultural and other fields, special and concrete measures to ensure the adequate development and protection of certain racial groups or individuals belonging to them, for the purpose of guaranteeing them the full and equal enjoyment of human rights and fundamental freedoms. These measures shall in no case entail as a consequence the maintenance of unequal or separate rights for different racial groups after the objectives for which they were taken have been achieved.“
UN-Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 1 (1)
„For the purposes of the present Convention, the term „discrimination against women“ shall mean any distinction, exclusion or restriction made on the basis of sex which has the effect or purpose of impairing or nullifying the recognition, enjoyment or exercise by women, irrespective of their marital status, on a basis of equality of men and women, of human rights and fundament freedoms in the political, economic, social, cultural, civil or any other field.“
UN-Convention on the Elimination of All Forms of Discrimination Against Women (CEDAW) Article 4 (1)
„Adoption by States Parties of temporary special measures aimed at accelerating de facto equality between men and women shall not be considered discrimination as defined in the present Convention, but shall in no way entail as a consequence the maintenance of unequal or separate standards; these measures shall be discontinued when the objectives of equality of opportunity and treatment have been achieved.“
UN-Convention on the Rights of the Child (CRC)
Article 2 (1)„State Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child‘s or his or her parent‘s or legal guardian‘s race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status.“
European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR)
Article 14"The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.“
European Convention for the Protection of Human Rights and Fundamental Freedoms (ECHR) Protocol 12, Article 1
1. „The enjoyment of any right set forth by law shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.“2. „No one shall be discriminated against by any public authority on any ground such as those mentioned in paragraph 1.“
Identifying Discrimination What is Discrimination?
Forms of Discrimination Where does Discrimination occur?
Fields of Discrimination Who are the victims of discrimination?
Grounds of Discrimination
Direct Discrimination
Less favourable treatment in a comparable situation due to
ethnic origin nationality or language sex / gender religion or belief political opinion disability, sexual orientation, age etc. including: Harassment, Victimisation, etc.
Indirect Discrimination
Less favourable treatment of one person or group compared to others by apparently neutral criterion
Related to consequences
Public / Private Sphere States negative obligation not to
discriminate States positive obligation to protect against
discrimination in public and private sphere Violation of this obligation occurs due to lack of
legal consequences of discriminatory acts: weak investigation procedures limited court proceedings and remedies lack of national anti-discrimination
programes and education
Positive / Affirmative Action
Preferential treatment of under-represented groups to avoid discrimination
Principle of substantive equality Limited in time and scope Permitting or requiring states to take
positive actions
Grounds of Discrimination Ethnic Origin Nationality or Language Sex / Gender Religion and Belief Political Opinion Disability, Sexual Orientation, Age,
etc. Multiple Discrimination
Ethnic Origin Lower chances of getting jobs,
promotion, fair wages etc. No entry for ethnic minorities into bars Exclusion of candidates with foreign
sounding name from lists of applicants for apartments
Segregation of children in school of minorities
Ethnically motivated police violence
Nationality
Limited social security for non-nationals
Limited access to unemployment benefits for non-nationals with history of legal employment
Recovery of property confiscated by former Communist government only for citizens
Language
Instruction of civil servants not to respond to letters in languages other than official language
Requirement of unnecessary language skills
Inability of accused to express themselves in official court language
Sex / Gender Less opportunities of getting jobs,
fair, wages, promotion etc. Dismissal of women on maternity
leave Weaker conditions for part-time
workers Majority of part-time workers are women
Lack of legal protection against domestic violence
Religion and Belief No custody of children for mother, because
she is Jehovah‘s Witness No appointment of Jehovah‘s Witness as
chartered accountant due to previous criminal conviction for disobeying order to wear military uniform
No entry for Muslim women with headscarf to universities and jobs as teacher?
Political Opinion
Interruption of peaceful meeting of political party by police
Prison sentence due to public criticism of government
Restrected access to elections
Disability No access facilities for disabled in
public buildings No possibility to use public transport
system No employment for HIV-infected
persons „Good physical health“ as
precondition for employment in public service
Age
Limited access to medical rehabilitation services
Unjustified minimum or maximum age employment requirements
Treatment of children in criminal justice system
Conditions for Investigating Discrimination Cases Easy access to ombudsman office!
Multiple languages Toll-free number etc.
Information for the public Permanent communication with anti-discrimination groups
and organisations Trust in ombudsmans work Staff training!
Knowledge of National, European and International Anti-Discrimination Standards
Knowledge of situation of vulnerable groups Cooperation
Special knowledge for special cases: medical knowledge etc. Statistical data Registration of discrimination cases
Ex-officio Initiatives
Information about discrimination fields by: Reports of NGO‘s and other groups High number of similar individual
complaints Anonymous complaints Press and media
Investigating Direct Discrimination Has there been a difference of treatment? Can the difference in treatment be justified by a
reasonable and objective criteria? Does it pursue a legitimate aim? Are the means employed proportionate to the
legitimate aim? Is the differential treatment based on a prohibited
ground of discrimination? Compare with national and international law,
judgements etc. Consequences
Investigating Indirect Discrimination Does the seemingly neutral criterion have a
disproportionate negative impact on a particular group?
Is there an objective reason to justify the differential impact? Is the practice objectively reasonable and proportional?
Is the differential treatment based on a prohibited ground of discrimination?
Compare with national and international law, judgements etc.
Consequences
Investigation Measures Talk with complainant and witnesses Talk with NGO‘s and other organisations Question person/authority under investigation Find out legal basis Get background information Initiate on-site-fact finding inspections Appoint experts in special fields Get interdisciplinary scientific clarification Get statistical data Try to receive information about best practice in other
countries Compare with national and international standards Confront authority under investigation with results of
independent expertise etc.
Closing the case Sending report to responsible authority Drawing attention to discriminatory
procedures Showing areas necessary needing further
measures in order to prevent discrimination Making proposals Establishing monitoring procedure Although when action not illegal, but
problematic
Making Outcome Transparent Special Discrimination Reports or
chapters Debating in Parliament Providing national and international
institutions with objective information on discrimination issues
Press and Media „Ombuds column“ in newspaper Ombuds TV-programme etc.
Impact on Legislation
Commenting on draft legislation Monitoring legislation Proposing changes in laws Promoting implementation of signed
anti-discrimination documents