QUALITY OF DEMOCRACY AND EQUAL OPPORTUNITIES: - PowerPoint Presentation

Slide1

QUALITY OF DEMOCRACY AND EQUAL OPPORTUNITIES: ATTITUDES AND SOCIAL PRACTICE OF LITHUANIANS

Dispute resolution on discrimination in Lithuania.

Two case studies: sexual harassment and trade

union membership

Lector

:

Dr. Alina

Žvinklienė

Moderator

:

Prof. Irina

Novikova

Organised

by

:

Lithuanian

Social

Research

Center

with

support

of

Gender

Studies

Center

of

Latvian

University

Location

:

Riga

,

Latvian

University

Date:

November 23, 2017

Sponsored

by

Lithuanian

Research

Council

:

Grant

Nr. GER-17073

Slide2

Democracy

The classic concept of democracy, arising in the earliest Greek city-states, emphasized the equality of all citizens in their right to participate in public life.

It can be considered a political paradox that this (democratic) ideal of equality reigns unchallenged, whereas former and existing democracies based on the principle of equality are vigorously criticized.

This paradox, however, demonstrates that democracy is a process and that the concept of democracy will continue to be reinterpreted as long as people will view social reality as unfair.

Slide3

Theoretical Points

The term ‘new institutionalism’ unifies approaches, usually developed separately though they often overlap, seeking to elucidate the institutions’ role in determining social and political outcomes.

Slide4

Theoretical Points

A

ny

social order mechanism can be defined in terms of institution

.

N

ew

institutions are created or adopted using existing templates

.

The process of institutionalization is dependant on the power relations of the actors who manage it.

The institutions engaged in common activities operate amidst both competitive and cooperative exchanges with other institutions.

I

nstitutions

affect the actors’ construction of identities, self-images and preferences, thus also their behaviour.

Slide5

Legal Context

The

Constitution of

the

USSR

of

1977,

Article 35:

Women and men have equal rights in the USSR

. Exercise of these rights is ensured by according women

equal access

with men to education and vocational and professional training,

equal opportunities in employment, remuneration and promotion, and in social, political and cultural activity,

and by special labour and health protection measures by providing conditions enabling mothers to work; by legal protection, and material and moral support for mothers and children, including paid leaves and other benefits for expectant mothers and mothers, and gradual reduction of working time for mothers with small children.

Note

:

the respective Chapter on Citizenship of the Estonian/Latvian/Lithuanian SSR Equality of Citizens’ Rights in the national constitutions of 1978.

Slide6

Legal Context

The Constitution of the Republic of Lithuania of 1992.

Article 29

:

T

he rights of the human being may not be restricted

, nor may he be granted any privileges on the ground of gender, race, nationality, language, origin, social status, belief, convictions, or views

.

Note

:

The Constitution provides for the establishment of an ombudsman institution (Article 73), the Constitutional Court (Article 102) and specialized courts (Article 111)

as well.

Slide7

Legal Context

Lithuania adopted two anti-discrimination laws:

the Law on Equal Opportunities for Women and Men (1998)

the Law on Equal Treatment (2003).

Note

:

All current and future European directives on equal opportunities and treatment are incorporated into these laws and are implemented under the supervision of the Ombudsman for Equal Opportunities.

Slide8

Legal Context

Equal opportunities for women and men

means the implementation of human rights guaranteed in international documents on human and civil rights and in the legislation of the Republic of Lithuania.

Note

: T

he Law on Equal Opportunities for Women and Men (1998)

,

Article 2

.1

Equal treatment

means the implementation of human rights enshrined in international instruments on human and civil rights as well as laws of the Republic of Lithuania irrespective of gender, race, nationality, language, origin, social status, belief, convictions or views, age, sexual orientation, disability, ethnic origin or religion.

+ EU

citizenship

(

since

2017)

Note

:

the Law on Equal Treatment (2003).

Article

2.3

Slide9

Legal Context

Violation of equal rights for women and men

means discrimination on grounds of sex.

A person’s rejection of, or submission to conduct which violates equal rights for women and men may not be used as a basis for a decision affecting that person.

Note

: T

he Law on Equal Opportunities for Women and Men (1998)

,

Article 2

.3

Slide10

Legal Context

3.

Discrimination means

any direct or indirect discrimination, harassment, instruction to discriminate on the grounds of gender, race, nationality, language, origin, social status, belief, convictions or views, age, sexual orientation, disability, ethnic origin or religion.

7.

Direct discrimination

means any situation where one person is treated less

favourably

than another is, has been or would be treated in a comparable situation on the grounds of gender, race, nationality, language, origin, social status, belief, convictions or views, age, sexual orientation, disability, ethnic origin or religion

Note

:

the Law on Equal Treatment (2003).

Article

2.

Slide11

Legal Context

5.

Harassment

means any unwanted conduct which occurs with the purpose, or effect, of violating the dignity of a person, and of creating an intimidating, hostile, humiliating or offensive environment on the grounds of gender, race, nationality, language, origin, social status, belief, convictions or views, age, sexual orientation, disability, ethnic origin or religion.

Note

:

the Law on Equal Treatment (2003).

Article

2.

6.

Sexual harassment

means any form of unwanted and insulting verbal, written or physical conduct of a sexual nature with a person, with the purpose or effect of violating the dignity of a person, in particular when creating an intimidating, hostile, humiliating or offensive environment.

Note

: T

he Law on Equal Opportunities for Women and Men (1998)

,

Article 2

.

Slide12

Institutional Context

The

institutionalisation

of the ombudsman reflects a commitment to consolidate

the

democratic

system

.

The main characteristic of the ombudsman is its

institutional independence

in relation to the authority that appoints him or her and

its role must always be supplementary to that of the courts.

Slide13

Institutional Context

The appointment of the

Ombudsman for Equal Opportunities for Women and Men

(

Moterų

ir

vyrų

lygių

galimybių

kontrolierius

) to the office

(

Moterų

ir

vyrų

lygių

galimybių

kontrolieriaus

tarnyba

) by the Lithuanian parliament (

Seimas

) in 1999.

Slide14

Institutional Context

Competence of the Equal Opportunities Ombudsperson:

investigates complaints,

carries out investigations on his/hers own initiative; 

performs independent researches, related to discrimination, and independent surveys on the discrimination state, provides conclusions and recommendations on any issue related to discrimination; 

carries out preventive and educational activity, secures equal opportunities mainstreaming; 

controls the implementation of UN Convention on the Rights of Persons with Disabilities provisions, related to securing equal opportunities; 

exchanges information with various institutions and agencies from Lithuania and foreign countries, international

organisations

.  

Note: http://www.lygybe.lt/en/about

Slide15

Conflict/Dispute R

esolution

Conflict

:

A state of disagreement or disharmony

between persons or ideas

.

Dispute

:

Expression

of

disagreement over

.

The term 

conflict resolution

 may also be used interchangeably with

dispute

resolution

,

where arbitration and litigation processes are critically involved.

Slide16

Conflict/Dispute R

esolution

Classic scholarship:

 The

idea of a disputes pyramid

(

from

grievances till courts

)

and the formula "naming, blaming, claiming", which refers to different stages of conflict resolution and levels of the pyramid

.

Felstiner

, W., Abel, R. and

Sarat

, A. (1981) "The Emergence and Transformation of Disputes: Naming, Blaming, Claiming", coauthored with Richard Abel and Austin

Sarat

, 15

Law and Society Review

401.

Slide17

Conflict/Dispute

R

esolution

A P

yramide

, i.e.

a linear process of

attrition.

Slide18

Conflict/Dispute R

esolution

A

Tree

,

i.e

.

a non-linear process

of attrition

.

Slide19

Conflict/Dispute R

esolution

Main

methods:

Avoidance

Mediation (

non-juridical,

e.g. ombudsman)

Litigation (juridical, i.e. courts)

Slide20

Social Practice

of Conflict/

D

ispute

R

esolution

Ethical Issues

:

Publicity

v.v

.

anonymity

Equal Opportunities Ombudsperson shares the information with the media about ongoing investigations of the complaints concerning equal opportunities violations only with the permission of the complainants. http://www.lygybe.lt/en/how-we-investigate  

Lithuanian

courts

whose

d

ecisions

are

in

open

access use initial of participants of the litigation

.

http://eteismai.lt

European Court of Human Rights (ECHR) may decide of its own motion to grant the applicant anonymity pursuant to Rule 47 § 4 of the Rules of Court. https://hudoc.echr.coe.int

Slide21

Social Practice of Conflict/D

ispute

R

esolution

Čudak

case,

dismissal on the reason of

sexual harassment

1999, summer– lodgment a complaint before Equal Opportunities Ombudsman. Decision – the applicant had been a victim of sexual harassment.

1999, December - dismissal from the job in Polish embassy without compensation.

1999, December-

versus Polish embassy

, (

Lithuanian

courts

).

2001, December -

versus Lithuania

,

ECHR

.

Slide22

Social Practice of Conflict/D

ispute

R

esolution

Čudak

case,

dismissal on the reason of

sexual harassment

2010

,

March

– Judgment. The right of access to a court - Article 6.1 of the Convention has been breached. Lithuania is to pay the applicant 10,000 EUR.

2011, February –

versus Polish embassy

,

Lithuanian

courts

:

Dismissal of the claim.

2012, November-

versus Lithuania

,

ECHR. The complaint under Article 6.1 – no justice in Lithuanian courts.

2016, November – Communication, Questions to the parties.

Slide23

Social Practice

of Conflict/

D

ispute

R

esolution

Naku

case, a

dismissal on the reason of

trade-union

activities

.

2004, October – 2005, June - the trade union made several written complaints to the

Swedish

embassy about working conditions. Ask for

a

collective

agreement

.

2005, July - Swedish radio announced and other media published articles about a report by the Swedish

Labour

Inspector that locally employed staff at Swedish embassies received less pay and had worse working conditions than their Swedish colleagues.

Slide24

Social Practice

of Conflict/

D

ispute

R

esolution

Naku

case,

dismissal on the reason of

trade-union

activities

(

the chairperson of the trade union for locally employed staff

)

.

2006,

January

- dismissal from the job

in

Swedish

embassy

.

2006,

March

–

versus

Swedish

embassy

,

Lithuanian

courts

:

Dismissal of the claim

.

2007,

June

-

versus

Sweden

and

Lithuania

, EHRC.

2016,

November

–

Judgement

.

Lithuania

is

to

pay

.

2017 -

versus

Swedish

embassy

,

Lithuanian

courts

.

Slide25

State and

Citizenship

Issue of State/Diplomatic Immunity in cases related to

labour

legal relations, access to court

Decisions of the Supreme Court of Lithuania

1998, precedent of limited immunity

:

Stukonis

vs

. US

Embassy

Male, Lithuanian, a gardener

;

2001, State immunity

:

Čudak

vs

.

Polish

Embassy

Female

,

Polish

, a

secretary

and

switchboard

operator

;

2006,

State immunity

:

Naku

vs

.

Swedish

Embassy

Female

,

Lithuanian

, a

cultural, information and press officer

.

Slide26

Discussions

Both

cases

of

Čudak

and

Naku

Differences

and

Similarities

Tip

: Dispute

Resolution

Pyramide

/

Tree

Publicity

and

Identity

Tip

:

reasons

for

dismissal

,

stereotypes

Would

you

recommend

to

lodge

a

complain

, a

civic

claim

in

case

of

discrimination

?

Tip

:

Ombudsman

,

court

.

Slide27

T H A N K Y O U