Towards effective non-discrimination: Substantial Equality and Participation of Minorities ECMI seminar 26.09.2016. Kiev Short introduction. Important to be here, your region and countries are facing specific challenges and at this point is tremendously important to look around for good and fresh ideas. You do not have to invent the wheel again. Dr. Reetta Toivanen, Erik Castren Institute of International Law and Human Rights, University of Helsinki; University Lecturer in Social and Cultural Anthropology

Discrimination corrupts societies Discrimination is against the values of modern societies. It threatens democracy which is based on the idea of a society where all people are of equal dignity irrespective of their sex, ethnic identity, political opinion etc. orientation Equality and non-discrimination are key aspects of human rights Human rights belong to everybody without any exceptions Reetta Toivanen 1.5.2018

Minority rights cater for safety and wellbeing Prohibiting discrimination must be a part of national legislation because it aims to prevent arbitrary decision-making and build a coherent, reliable, predictable and anti-corrupted societal system in which living makes sense Especially the protection of national, ethnic and religious minorities gives a guarantee for peaceful society; the first minority rights were installed in order to avoid tensions, conflicts and secessions. Hate speech must be combated: it poisons relations between peoples Reetta Toivanen 1.5.2018

Human Rights approach to minorities Minority rights are no additional rights, they provide additional protection to persons belonging to minorities Only when minorities are able to use their own languages, benefit from services they have themselves organized, as well as take part in the political and economic life of States can they begin to achieve the status which majorities take for granted. Reetta Toivanen When it comes to all kinds of minorities, wheter national, ethnic, religious, cultural, sexual or gender: the main thing is to keep in mind that the anti-discrimination measures are at place for one first reason: in order to guarantee the human rights of all. There is enough research evidence that states that respect the human rights have more stable societies, economic advantages because they can concentrate on building the country together. The best way to counter secession and hatred and extermism is to make everyone in the society to feel included.

What minorities want and what they need? Same human rights standards, equal treatment, non-discrimination (in areas of housing, accommodation, employment, education, leisure, presentation, decision-making) Temporary and permanent solutions Right to practice religion, maintain, develop and revitalize culture and tradition Right to use and develop own languages; possibly also with authorities, to shift the economic burden of language education to be a state responsibility Minority identity should not and cannot be ”cured” to become majority identity Reetta Toivanen 1.5.2018

One basic problem is that people do not know their human rights KNOW YOUR RIGHTS One basic problem is that people do not know their human rights Many members of minorities know about minority rights as if they where a separate realm of human rights Non-discrimination rights must also be known and claimed for But before evoking the law, the person has to realize that she or his is being discriminated against Case of Roma in Slovakia: we did not know that segrated schools are forbidden, we did not know that restaurant cannot choose its customers, I did not realize that the reason I am not getting a job is my Roma-sounding lastname Reetta Toivanen 1.5.2018

Equality in principle vs substantial equality Substantive equality recognizes that policies and practices may suit the majority and appear non-discriminatory but do not address the specific needs of certain groups of people. In effect they may be indirectly discriminatory, creating systemic discrimination. A) People in similar circumstances must be treated similarly B) People in similar circumstances need to be treated somewhat differently in order to reach similar results EU: Racial Equality Directive and Employment Equality Directive > Non-discrimination laws in the European countries Also needed are Penal code covering discrimination in providing services and in the field of employment Reetta Toivanen 1.5.2018

What amounts to Discrimination? Direct discrimination If someone is treated less favorably than the way another person is treated, has been treated or would be treated in a comparable situation Indirect discrimination where an apparently neutral provision, criterion or practice puts a person at a particular disadvantage compared with other persons ‘unless that provision, criterion or practice is objectively justified by a legitimate aim and the means of achieving that aim are appropriate and necessary Institutional discrimination Structural discrimination Open and hidden discrimination Person with a specific name is not recruited because of his or her potential belonging to a specific ethnic group; you are not allowed to enter a restaurant; education is organized in a building with no wheel chair access, ethnic schools or that children are not organized pre-teaching in the school instruction language, local youth club has different opening ours for different groups Reetta Toivanen 1.5.2018

Establishing facts anti-discrimination provisions prohibit, either explicitly or implicitly, discrimination on the basis of a wide variety of grounds, including age, ethnic and racial origin, religion, belief, sexual orientation and disability. Comparison: if a person belonging to the majority would have been in the same situation, what would have happened? I.e. Finnish legislation does not explicitly address multiple discrimination Reetta Toivanen 1.5.2018

Situation testing Autumn of 2002 to investigate whether restaurants deny entry to persons belonging to minorities (testers were of foreign origin or Roma and were accompanied by people of the majority ethnic group). On the basis of this investigation 11 crime reports on discrimination were filed with the police. In six of these cases discrimination was found and the accused were sentenced to fines. In four cases the public prosecutor decided not to bring charges and one case failed because it was not brought to the court within the time limit prescribed by the law Reetta Toivanen 1.5.2018

Statistical evidence One way of showing evidence is to use statistics How many persons of some ethnic origin have achieved higher positions in the local government? How many school drops some ethnic group has? The same as with situation test, this data should be collected continuously Reetta Toivanen 1.5.2018

Harassment: against persons and groups Case of Romano TV, nunnukka nunnukka lai lai Reetta Toivanen 1.5.2018

Specialised bodies i.e. in Finland The Ombudsman for Non-Discrimination and Equality (earlier for minorities, before for Aliens) Non-discrimination Tribunal The Parliamentary Ombudsman Ombudsman for Equality (sex, gender and gender identity), Ombudsman for Children The Chancellor of Justice The Sámi Parliament The Advisory Body for Roma Affairs Advisory Board for Ethnic Relations, ETNO National Human Rights Institute since 2012 Reetta Toivanen

YOU NEED TO KNOW WHERE YOU ARE HEADING TO SUBSTANTIAL EQUALITY LEGAL AND POLICY PLANNING OF THE DIALOGUE Anti-discrimination laws, National Action Plans Human Rights Action Plans Integration Law and Action Plan The members of minorities have the right to enjoy on the same standard the rights which majority members enjoy and take for granted ECHR (FCNM & Language Charter) UN Human Rights Committee Reetta Toivanen 1.5.2018

Name of the court: Helsinki District Court Date of decision: 24 March 2014 Name of the parties: not available Reference number: R13/5508 Address of the webpage: not available Brief summary: The Helsinki District Court found discrimination prohibited in the Penal Code when a shop manager terminated the short-term work contract of a temporary worker because she wore a headscarf when she arrived at work. The temporary worker had said that she could wear a scarf provided by the shop but the manager terminated the contract after a phone call to her supervisor. The District Court found discrimination on the basis of religion and sentenced both the shop manager and her supervisor to pay 20-day fines. Reetta Toivanen 1.5.2018

Illegal not to rent an apartment to a person belonging to minority The Ombudsman for Minorities requested the National Discrimination Tribunal to examine whether there was discrimination when A had refused to rent out an apartment to B due to the latter's Roma background. The National Discrimination Tribunal considered that due to B's Roma background, A had refused to rent out to B the apartment that she had offered for rent to the general public. Therefore, this was a case of direct discrimination prohibited under section 6 of the Non-Discrimination Act. A's conduct had been based on the negative attitude of the board of directors and the manager of the housing company. The board of directors had, however, made no official decision on the matter. As lessor of the apartment, A was accountable for her own actions. The National Discrimination Tribunal prohibited A from continuing and repeating ethnic discrimination in breach of section 6 of the Non-Discrimination Act. Reetta Toivanen 1.5.2018

NATIONAL DISCRIMINATION TRIBUNAL Reg NATIONAL DISCRIMINATION TRIBUNAL Reg. No: 2008-367/Pe-2 Date of issue: 11.12.2008 Sámi children in Enontekiö have the right to kindergarten in their mother tongue, the Municipality is responsible for organizing services in Sámi languages as it is located on the Sámi homeland area. The Ombudsman for Minorities requested that the National Discrimination Tribunal conduct an investigation to determine whether the Municipality of Enontekiö had in its provision of child day care, health care services, services for the elderly and basic education acted in violation of the prohibitions of discrimination laid down in the Non-Discrimination Act and special legislation and to prohibit, on pain of a fine, the Municipality of Enontekiö from continuing or repeating discriminatory conduct against the Sámi residents of the municipality. Rovaniemi Administrative Court Decision 10/0324/1 Reetta Toivanen 1.5.2018

Reg. No: 2009/3387 Date of issue: 15.2.2010 Illegal to use Roma contact persons in issuing municipality owned housing The Ombudsman for Minorities requested that the National Discrimination Tribunal investigate whether the housing company of the City of Järvenpää had violated the prohibition of discrimination of the Non-Discrimination Act in their procedure concerning the use of a Roma liaison officer in a matter concerning housing. The National Discrimination Tribunal considered it to have been established that the City of Järvenpää and Järvenpään Mestariasunnot Oy had in the selection of tenants followed a procedure where inquiries had been made via the local Roma liaison officer to establish whether the local Roma community approved of the housing applicant’s move into the area and whether a specific apartment could be offered to them. The National Discrimination Tribunal prohibited the City of Järvenpää and Järvenpään Mestariasunnot Oy from continuing or repeating such a procedure that is in violation of section 6 of the Non-Discrimination Act concerning the housing applicant in question or other members of the Roma population in the selection of tenants. Reetta Toivanen 1.5.2018