Observation (CEACR) - adopted 2020, published 109th ILC session (2021)

Discrimination (Employment and Occupation) Convention, 1958 (No. 111) - Latvia (Ratification: 1992)

The Committee takes note of the Government’s report and the supplementary information provided in light of the decision adopted by the Governing Body at its 338th Session (June 2020).

Article 1(2) of the Convention. Discrimination on the basis of national extraction. Inherent requirements of the job. For a number of years, the Committee has been expressing concern at the discriminatory impact that the language requirements of 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. It recalled that 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” and 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). 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. The Committee observes that, according to the January 2017 data of the Central Statistical Bureau (CSB), the ethnic distribution of the Latvian population included 25.4 per cent Russians. It notes with regret the absence of measures taken by the Government to limit the list of occupations for which the use of the official language is required under the Law. The Committee notes the Government’s statement in its report and additional information that several amendments have been introduced between 2017 and 2020 in Cabinet of Ministers Regulation No. 733 of 2009, which prescribes the required level of proficiency in Latvian for each profession or occupation, pursuant to section 6(5) of the Law. The Government indicates that the purpose of the amendments is principally to: (1) harmonize the professions and occupations listed in the regulation with the titles and codes of professions included in the classification of occupations; and (2) provide a transitional period until 1 July 2021 for the persons whose state language proficiency for the performance of their professional and office duties has been increased by at least one level. In this regard, the Government recalls that, after passing the Latvian language examination successfully, people will receive a proficiency certificate to prove to the employer and educational institutions their ability to communicate in Latvian. However, if a person fails to master one level of the language courses, she or he will lose the opportunity to apply for the next level and will only have a second chance to apply for the same level once a year. The Committee notes 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 (SEA) and the Latvian Language Agency (LVA). In this regard, it notes more particularly that, between 2016 and 2018, 587 third-country nationals received Latvian language training to facilitate their integration into the labour market, in the framework of the project of the Asylum, Migration and Integration Fund implemented by the LVA. It further notes the Government’s statement that one of the objectives of the National Identity, Civil Society and Integration Policy Implementation Plan 2019–20 is to strengthen Latvian language literacy in society.

In its supplementary information, the Government indicates that a gradual switch to Latvian as the sole language of instruction has been started and, to that end, amendments were introduced in 2018 in the Law on Education of 1998 and the Law on General Education of 1999. The Government states that the implementation of the reform regarding the language of instruction will be supported by new teaching and learning materials, including training for teachers, in order to help them successfully implement the new competence-based education content in Latvian. In that regard, the Committee notes that in 2018 the LVA launched a project aiming to support 3,500 teachers by 2021, including teachers with ethnic minority background, in order to help them develop their Latvian language skills for professional purposes. However, the Committee notes that, in their concluding observations, the United Nations Committee on the Elimination of Racial Discrimination (CERD) and the United Nations Committee on the Elimination of Discrimination against Women (CEDAW) express concern at the education reform, which will create undue restrictions on access to education in minority languages. The CERD also expresses specific concern at section 6 of the Law on State Language, which may result in direct and indirect discrimination against minorities in access to employment in public and private institutions (CEDAW/C/LVA/CO/4-7, 10 March 2020, paragraph 33, and CERD/C/LVA/CO/6-12, 25 September 2018, paragraph 16). The Committee wishes to recall 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, as such, disproportionately and adversely affects the employment and occupational opportunities of minority language groups. Furthermore, it recalls that, in order to come within the scope of the exception provided for in Article 1(2) of the Convention regarding inherent requirements of a particular job, any limitation regarding access to employment must be required by the characteristics of the particular job, and in proportion to its inherent requirements. Such exception must be interpreted restrictively so as to avoid undue limitation of the protection that the Convention is intended to provide (2012 General Survey on the fundamental Conventions, paragraphs 764 and 827–831). In light of the persistent large number of posts and occupations for which the use of the official language is required under section 6(2) of the Law on State Language, the Committee urges 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 Latvian language classes and activities carried out to ensure that its national legislation, including the ongoing reform 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 a number of 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 USSR, the Latvian Soviet Socialist Republic (SSR) or some foreign State” (section 7(8)), or “member of organizations banned by laws or court rulings” (section 7(9)). The Committee drew 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 requested the Government to amend sections 7(8) and 7(9) of the Law or to take steps to clearly stipulate and define the functions to which these sections apply. The Committee notes 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. The Government adds that in April 2019 the Ministry of Justice prepared a 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 concluded that such restrictions should be maintained in order to “ensure a loyal, professional and politically neutral State civil service, which ensures legal, stable, efficient and transparent operation of the public administration”. Observing that the report of the Ministry of Justice highlights that it would however 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 such information is not available and such a recommendation would thus be impossible to implement. With regard to the number of persons dismissed or whose applications have been rejected pursuant to sections 7(8) and 7(9) of the Law on the State Civil Service, the Government states that such data is not available for now. While understanding the Government’s concerns and noting its explanations, the Committee again draws 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. It recalls that, to come under the scope of the exception provided for in Article 1(2) regarding the inherent requirements of a particular job or in Article 4 on the security of the State, 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. More particularly, it recalls that criteria such as political opinion may be taken into account as an inherent requirement, under Article 1(2), 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 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, paragraphs 832–835). The Committee urges the Government to take the necessary steps to amend sections 7(8) and 7(9) of the Law on the State Civil Service in order 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 asks the Government to provide information on any progress made in that regard. In the meantime, the Committee asks the Government to provide any available data on the application of sections 7(8) and 7(9) in practice, including on the number of persons whose applications have been rejected pursuant to these sections, 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.