Observation (CEACR) - adopted 2009, published 99th ILC session (2010)

Legislative developments. The Committee notes with interest the amendments to the Law on Equal Opportunities for Women and Men adopted on 18 December 2007, pursuant to which the burden of proof has been shifted from the alleged victim of discrimination to the person or institution against which a complaint is filed (section 2(1)). The Committee also notes that a second paragraph was added to section 9 of the Law providing that a workers’ or employers’ organization or any other legal persons may represent the alleged victim of discrimination in judicial or administrative procedures upon receiving his or her written consent. The Committee asks the Government to provide information on the number, nature and outcome of cases brought pursuant to the Law on Equal Opportunities for Women and Men, as amended.

Practical application. In its previous comments, the Committee noted the observations of the Lietuvos Darbo Federacija (LDF) indicating, among other things, that workers continue to experience discrimination on the basis of gender, age, sexual orientation and family status despite the fact that the Labour Code prohibits such treatment. Accordingly, the Committee urged the Government to take all necessary steps to ensure that the legislation is known, understood and observed in practice, and requested information on the measures taken to this end and on the number, the nature and the outcome of cases concerning discrimination in employment and occupation addressed by the competent authorities. The Committee notes from the Government’s report that in 2006 the National Antidiscrimination Programme for 2006–08 was launched with the objective of promoting the implementation of the legislation establishing the principle of non-discrimination and equal opportunities and of raising public awareness of the relevant provisions, the measures for protection and the possible manifestation of discrimination. The Committee also notes that a similar programme was drafted for the period 2009–11. The Committee requests the Government to provide detailed information on the measures taken to implement the National Antidiscrimination Programme and to submit a copy of the last annual report on its implementation. The Committee also requests the Government to indicate whether the draft programme for 2009–11 has been adopted and, if so, to provide information on its implementation. The Committee also reiterates its request for information on the number, nature and outcome of cases concerning discrimination in employment and occupation which have been dealt with by the competent authorities.

The Committee notes with regret that the Government’s report again contains no reply to its previous comments concerning discrimination on the basis of political opinion. It is therefore bound to repeat the relevant parts of its previous observation, which read as follows:

Discrimination on the basis of political opinion. The Committee recalls its previous comments regarding section 9(6)(3) of the Act on Civil Service of 8 July 1999 (No. VII-1316), which provided that former staff officers of the USSR State Security Committee shall not be eligible for the civil service. The Committee expressed concern that this provision could amount to discrimination on the ground of political opinion. The Committee requested the Government to confirm that the exclusion established under section 9(6)(3) of the Act on Civil Service had been abolished and to provide a copy of the Act as in force. The Government was also asked to indicate any additional grounds for non-eligibility that may have been adopted in any laws.

The Committee notes that the Government’s report contains no information concerning these matters. It nevertheless notes from the official translation published by the Seimas of the Act on Civil Service of 8 July 1999 (No. VII-1316), as amended on 23 April 2002 (No. IX-855), that section 9(6)(3) has been repealed, while the new section 9(3) states generally that persons shall not be eligible for the civil service in case this is provided for by other laws. The Committee also notes that restrictions not only in respect of access to employment in the civil service but also in the private sector are provided for in the Act on the Evaluation of the USSR State Security Committee (NKVD, NKGB, MGB, KGB) and the Present Activities of Former Permanent Employees of the Organization of 16 July 1998, which entered into force on 1 January 1999 (“SSC Act”). Section 2 of the SSC Act provides as follows:

For a period of ten years from the date of entry into force of this Act, former employees of the SSC may not work as public officials or civil servants in government, local or defence authorities, the State Security Department, the police, the prosecution, courts or diplomatic service, customs, State supervisory bodies and other authorities monitoring public institutions, as lawyers or notaries, as employees of banks and other credit institutions, on strategic economic projects, in security companies (structures), in other companies (structures) providing detective services, in communications systems, or in the educational system as teachers, educators or heads of institutions[;] nor may they perform a job requiring the carrying of a weapon.

(Judgement of 27 July 2004, in the case of Sidabras and Džiautas v. Lithuania, paragraph 24)

The Committee notes that the European Court of Human Rights, in its judgement of 27 July 2004, in the case of Sidabras and Džiautas v. Lithuania, held that the restrictions imposed under the SSC Act on the applicants to apply for private sector jobs violated their rights under article 14 (prohibition of discrimination) in conjunction with article 8 (private life) of the European Convention on Human Rights. Taking the Committee of Expert’s surveys and observations concerning similar situations into account, the Court held that section 2 of the SSC Act was a disproportionate measure. In the Court’s view, such a legislative scheme must be considered as lacking the necessary safeguards for avoiding discrimination and for guaranteeing adequate and appropriate judicial supervision of the imposition of such restrictions (paragraph 59). In the case of Rainys and Gasparavičius v. Lithuania (judgement of 7 April 2005), the Court reached the same conclusion in respect of the applicants’ dismissal from private sector jobs on the basis of their status as “former permanent employees of the SSC”.

The Committee also notes that the European Committee on Social Rights, in its 2006 conclusions concerning Lithuania, considered that the situation described above was not in conformity with the European Social Charter. That Committee concluded that while the measures in question served the legitimate purpose of protecting national security, they are not necessary and proportionate in that they apply to a large field of employment and not solely to those services which have responsibilities in the field of law and order and national security or to functions involving such responsibilities.

The Committee recalls that Convention No. 111 provides protection from discrimination in respect of access to employment and work in the public and private sectors. It recalls that requirements of a political nature can be set for a particular job but, to ensure that they are not contrary to the Convention, they should be limited to the characteristics of a particular post and be in proportion to its labour requirements. The Committee observes that the exclusions provided for under section 2 of the SSC Act apply broadly to employment in the public sector and to parts of the private sector rather than to specific jobs, functions or tasks (with the exception of the references to “lawyers or notaries”, and “teachers and educators or heads of institutions” in educational institutions). The Committee is concerned that these provisions appear to go beyond justifiable exclusions in respect of a particular job based on its inherent requirements as provided for under Article 1, paragraph 2, of the Convention. It recalls that in order to ascertain whether a distinction could be permissible under Article 1(2), careful examination of each individual case is required. For measures not to be deemed discriminatory under Article 4, they must be measures affecting an individual on account of activities he or she is justifiably suspected of, or proven to be engaged in, which are prejudicial to the security of the State. The application of such measures must be examined in the light of the bearing which the activities concerned may have on the actual performance of the job, task or occupation of the person concerned. The Committee also notes that in cases where persons are deemed to be justifiably suspected of or engaged in activities prejudicial to the security of the State, the individual concerned shall have the right to appeal to a competent body in accordance with national practice. As stressed in the Committee’s 1996 Special Survey, it is important that the appeals body is competent to hear the reasons for the measures taken against the appellant and to afford her or him the opportunity to represent her or his case in full (paragraph 129).

The Committee considers that the broad exclusion of “former permanent SSC employees” from work in the private and public sectors is not sufficiently well-defined and delimited to ensure that it does not lead to discrimination in employment and occupation based on political opinion. The Committee is concerned that the operation of this scheme may have deprived a considerable number of workers of their human right to equality of opportunity and treatment in employment and occupation. While noting that the scheme provided for under the SSC Act is due to expire on 1 January 2009, the Committee urges the Government to revise the provisions concerned and, in doing so, to have recourse to the indications provided by the Committee in its General Survey of 1988 on equality in employment and occupation, in particular paragraphs 126, and 135–137, and of paragraphs 192–202 of the Special Survey of 1996.

The Committee requests the Government to provide information on the measures taken to bring the legislation concerned into conformity with the Convention. It also requests the Government to provide detailed information on the practical application of the SSC Act, including information on the following:

(a)   the number of persons that are considered “former permanent SSC employees” and the number of such persons that have been dismissed from private or public employment or who had their application rejected;

(b)    the procedural protections of appellate review available to affected persons, and information on the outcome of any administrative or judicial decisions relevant to the application of these provisions; and

(c)    any measures taken or envisaged to remedy the situation of persons excluded from employment and occupation as a result of national law and practice that is contrary to Lithuania’s international obligations.

The Committee is raising other points in a request addressed directly to the Government.