Homophobia and Discrimination on Grounds of Sexual Orientation ...

<strong>Homophobia</strong> <strong>and</strong> <strong>Discrimination</strong> on Grounds of Sexual Orientation in the EU Member StatesPart I – Legal Analysissignificant variations in both the powers of these institutions <strong>and</strong> in the resources theyhave at their disposal, it is clear that the establishment of a certain type ofombudsinstitutions cannot be considered as an adequate substitute for equality bodies,such as those envisaged by the Racial Equality Directive regarding discrimination ongrounds of race or ethnic origin. The reason is that those Ombudspersons may onlyreceive complaints about either maladministration by public bodies, or violations ofhuman rights by these bodies. With the possible exception of the Chancellor of Justice inEstonia, who may be requested to act as a mediator in private disputes, theseOmbudsinstitutions cannot address discrimination in the private sector.Ombudsinstitutions are not in principle an adequate alternative to the establishment ofequality bodies competent to address discrimination based on sexual orientation. Itshould therefore come as no surprise that equality bodies have been set up in a numberof States that have ombudsinstitutions, often established in the late 1980s <strong>and</strong> 1990sfollowing the 'Sc<strong>and</strong>inavian model'. This may create problems of a different sort,however, since the functions of both institutions may partly overlap. This is particularlythe case since Recommendation No. R(85)13 on the Institution of the Ombudsmanadopted by the Committee of Ministers of the Council of Europe recommends theMember States of the Council of Europe to ‘consider empowering the Ombudsman,where this is not already the case, to give particular consideration, within his generalcompetence, to the human rights matters under his scrutiny <strong>and</strong>, if not incompatible withnational legislation, to initiate investigations <strong>and</strong> to give opinions when questions ofhuman rights are involved’. This results in a clearly identifiable tendency to assignombudsinstitutions with broad m<strong>and</strong>ates, covering the full range of human rights ratherthan only the right to good administration. This explains why in some cases, the ‘equalitybody’ has in fact been established in the form of an Ombudsperson, albeit with largercompetences than those normally attributed to such an institution (LV, LT, SE). Anotherconsequence, as can be seen in at least four Member States, which have set up anequality body competent to deal with discrimination on grounds of sexual orientation, isthat this body coexists with one or more ombudsinstitution which may receive complaintsabout discrimination in similar conditions regarding the activities of public bodies (EL,HU, RO <strong>and</strong> SI). It would be interesting to examine these cases in detail, in order to seehow exactly relationships between equality bodies <strong>and</strong> ombudsinstitutions have evolved,<strong>and</strong> highlight the best practices available in this regard.Similar questions of coexistence arise due to the competences attributed to labourinspectorates. These bodies, which are typically m<strong>and</strong>ated to supervise compliance withemployment legislation, may perform inquiries on the basis of complaints received or ontheir own initiative. In a number of Member States (including at least EL, LV, LT, LU, HU,FI), this includes monitoring compliance with the equality provisions of the Labour Codeor other equivalent employment legislation.39