Suggestions and Examples for Ombudsman Institutions „Handling Cases of Discrimination“ Dr. Patricia Heindl Office 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 Documents StatesUDHRICCPROpt. Prot. ICESCRCERDCEDAWOpt. Prot. CRCECHRProt. 12 ArmeniaRRRRRRRRR AzerbaijanRRRRRRRRRS BulgariaRRRRRRSRR GeorgiaRRRRRRRRRR KazakhstanRSSRRRR KyrgyzstanRRRRRRRR MoldovaRRRRRRRS RussiaRRRRRRRRRS SlovakiaRRRRRRRRRS UkraineRRRRRRRRRS UzbekistanRRRRRRR

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

Final Remarks Many anti-discrimination standards on the national level achieved in the past would not have been possible without international binding commitments and judgements.